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HomeMy WebLinkAboutR-99-0720J-99-828 i 9/28/99 RESOLUTION NO. r V A RESOLUTION, WITH ATTACHMENT(S), OF THE MIAMI CITY COMMISSION APPROVING THE SELECTION BY THE DIRECTOR OF SOLID WASTE OF THE QUALIFIED FIRMS TO PROVIDE COMMERCIAL SOLID WASTE HAULING SERVICES WITHIN THE CITY OF MIAMI, AS LISTED ON EXHIBIT 'A', ATTACHED HERETO ASND MADE A PART HEREOF; FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE NON- EXCLUSIVE FRANCHISE AGREEMENTS, IN SUBSTANTIALLY THE ATTACHED FORM, WITH SAID QUALIFIED PROVIDERS FOR SAID SERVICES UPON THE ADOPTION OF AN ORDINANCE BY THE CITY COMMISSION RELATING TO THE CREATION OF FRANCHISES FOR THE COLLECTION AND DISPOSAL OF SOLID WASTE OR RECYCLABLE AND RECOVERABLE MATERIALS; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, pursuant to Motion 99-397, adopted June 8, 1999, the City Commission accepted the Administration's recommendations in connection with the issuance of franchise agreements for Citywide commercial solid waste collection and disposal services; and WHEREAS, pursuant to Motion 99-398, adopted June 8, 1999, the City Commission directed the City Manager to prepare a i Request for Qualifications ("RFQ") for said services; and WHEREAS, pursuant to Resolution No. 99-553 the City Commission authorized and directed the City Manager to issue the RFQ for the provision of solid waste hauling services and ,ATTACNtAEd11T �jsf ti C0 HTAINE CITY COMMISSION MEETING OF SCF' 2 1999 llozoluticn No. ( x ,, , = 4 90QJ e ,. L_ directed the City Manager to instruct the Director of the Department of Solid Waste to evaluate said responses and determine the qualified providers; and WHEREAS, qualified providers are selected herein, provided that the City of Miami amend its City Code for the granting of franchises for commercial solid waste collection; i NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: i Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The selection by the Director of Solid Waste of the qualified firms to provide commercial solid waste hauling services within the City of Miami as listed on Exhibit 'A', attached hereto and made a part hereof, is hereby approved. Section 3. The City Manager is hereby authorized to execute non-exclusive franchise agreements, in substantially the attached form, with the qualified providers upon the adoption of an ordinance by the City Commission relating to the creation of franchises for the collection and disposal of solid waste or recyclable and recoverable materials, Section 4. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.!/ PASSED AND ADOPTED this 28th _ day of September , 1999. JOE CAROLLO, MAYOR In accordance with Miami Coale Sec. 2-36, since the Mayor did not indicato approval of t' ^ISi t'0� R�" T lr! It in the!:C'SIQnc?tE?ri iliac prov,i t, Ctive W th ,:-Ic ,lapse of ten (10) days n the d U— of C' nrn,Js,cr mien regarding same, without the Mayor a• rcisi ATTEST: V-11 a T F—rr /Cleric WALTER J. FOEMAN CITY CLERK �. { APPROVED' AS T FOIZM�D AN'ORRECTNESS/ E DRO VILARELLO `CIT ATTORNEY ,P 804 : GKW : BSS i� If the Mayor does not sign this Resolution, it shall become effective at i the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. COMMERCIAL WASTE HAULING SERVICES REQUEST FOR QUALIFICATION NO. 98.99-090 { f 11 1 ' Qualified Responses Disqualified Responses i Big Apple Superior Waste Services of FL, Inc. General Hauling Service, Inc. American Disposal Integrated Waste Service of Tampa Bay, Inc. Lopefra Corporation Mac Pac Waste and Recycling Services, Inc. ONYX Florida LLC Waste Management of Dade County BFI Waste Systems of North America, Inca • •• VICTEC Environmental Services, Inc. WASTECO, Inc. United Environmental. Services of South FL, Inc. Bayside Disposal, Inc. t Liberty Recycling Corporation Atlas Waste Corporation Chemical Conservation Corporation* Imperial Sanitation Service, Inc. P. H. Waste collection Service, Inc. Simco Recycling Corporation Delta Recycling Corporation T 'Bio-medical E r 1 i i EXHIBIT 'A' L CITY OF MIAMI COMMERCIAL SOLID WASTE NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF MIAMI AND THIS AGREEMENT ("AGRJ--1`MENTI ), made and entered into this day of .1991) by and between the Cite of Miami. Florida, a municipal corporation organized and existing under the laws of the State of Florida, (hereinafter referred to as "CITY") and _ -- Inc. a corporation, qualified and authorized to do business in the State. of Florida, (hereinafter referred to as "FRANCI-IISE] "). WITNESSF,TH: WHEREAS, on September, 29, 1999. Ordinance No. 11837 was passed by the Miami City Commission which amended Chapter 22, entitled Garbage and Other Solid Waste, of the City Code to replace regulatory permits for providing Commercial Solid Waste Services with non-exclusive commercial franchises to qualified firms; and WHEREAS, the City Commission has determined that it is in the best interest of the CITY to issue a nonexclusive commercial franchise to FRANCHISEE to engage in Commercial Waste Collection Services within the CITY; and WHEREAS. the City Manager has determined that FRANCHISEE is qualified to serve in the aforesaid capacity in that it has met the specifications set forth in Request for Qualifications No. 98-99-090 and applicable sections of the Code and Ordinances of the CITY; and WHEREAS. FRANCIIISE'E is desirous of obtaining a franchise from the CITY to provide Commercial Solid Waste Collection Services within the CITY as set forth herein; and WHEREAS, the CITY believes that the franchising of the Commercial Solid Waste Services is in the CITY'S best interest and will result in significant cost savings, additional revenues rind better services for commercial solid waste customers; and NOW THEREFORE, in consideration of the mutual terms, conditions, promises and covenants herein set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, CITY and FRANCHISEE hereby agree to enter into this AGREEMENT for furnishing Commercial Solid Waste Collection Services within the CITY, as 1o17ows: - 1 - J L ARTICLE I GENFIZAL INFORMATION j 1.1 Each "WHEREAS" clause set firth above is true and correct and herein t incorporated bN ihts 1ef4telIC . 1.2 The ATTESTATION OF QUALIFICATIONS for Commercial Waste Hauling Services, SUbIllitted in response to RFQ NO. 98-99-090 by FRANCI IISFF is herein incorporated by this reference. AIZ"I'ICLI- DEFINITIONS 2.1 All Definitions set firth in Section 22-1 of Chapter 22, entitled Garbage and Other Solid Waste. are hereby incorporated by this reference. 2.2 As used in t'.-,is AGRI FAIL -XI,, the following words and terms shall have the following meanings, unless the context clearly otherwise requires: Agreement shall mean this AGREEMENT, as it may hereinafter be amended or supplemented. Agreement Collection Area shall include all of the CITY, as the boundaries of the CITY shall exist at all times during the life of this AGREEMENT. Biomedical/Biological Waste shall mean any solid waste or liquid waste which may present a threat of infection to humans. The terms include, but are not limited to. non -liquid human tissue and body parts; laboratory and veterinary waste, discarded disposable sharps; human blood and blood products and body fluids; waste that causes or has the capability of causing disease or infection; wastes capable of transmitting pathogens to humans or animals; and other materials which. in the opinion of the Department of Health and Rehabilitative Services of the State off. lorida. represent a significant risk of infection to persons outside the generating facility. Commercial Business shall mean and include all retail, professional, wholesale, and industrial facilities and any other commercial enterprises, for profit or not for profit, offering goods or services to the public. Commercial Solid Waste Service shall mean the collection and disposal of garbage, trash, recycling, solid and processable waste for all business, commercial, industrial, religious, health, educational, governmental and quasi - governmental establishments, including the collection and disposal of Construction and Demolition Debris. -2- Commerciale Solid Waste shall mean every waste accumulation, including but not limited to, dust, paper. Maher cartons, cardboard cartons, excelsior. rags, garbage, plastics, metal containers. garden and yard clippings and cuttings. bulky waste and other waste Nyhich is usually attendant to the operations of Conlnm.rclal Businesses or multifamily residences. Construction and Demolition Debris sh:.tll mean and include all waste regt►iring collection and disposal, including but nut linliled tip materials which are recyclable, from any construction or renovation site located Xyithin the CiTY. FRANCHISEE. the term "franchised shall mean the persoll, ill'nl, corporation, organization, or entity, duly licensed and permitted to perlol'nl commercial solid waste services in the State of, Fiorida and which has licen deemed qualified by the CITY to execute this AORLIFN FNT. including its employees, servants, partners, principals and agents. Gross iZeceipts shall mean all monies, whether paid by cash or credit, collected from customers for garbage. recyclable, hazardous, industrial, biomedical, biological or solid \\astc, construction and demolition debris, trash, litter, refuse and/or rubbish collection removal and disposal services rendered, or from any other source related directly of indirectly from waste collection services by the FRANC11ISE1:, cxclusiyc of' taxes as provided by law, whether wholly or partially collected within the CITY, less bad debts. Hazardous Waste shall mean solid waste, or a combination of solid wastes, which because of its quantity, concentration, or physical, chemical or infectious characteristics Holy cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or may pose a substantial present or potential hazard to human health or- the environment when improperly transported, disposed of, stored, treated or otherwise managed. In -Kind Services shall mean those solid waste services provided to identified -ties and facilities for which no fees or charges are assessed. CITY prope Multifamily Residence shall mean and include any building or structure containing finer (>r more contiguous living units and intended exclusively for residential purposes. Neighborhood Cleanups shall mean periodic intensive removal of litter, debris and other solid waste material from a designated area of the CITY, initiated or approved by the CITY, its NET offices and/or recognized community based organizations or associations. -3- L Permit Per Account Fee shall mean the annual charge assessed by the CITY to nonexclusive franchisees 16r each account with whom they contract for the provision of commercial Sold waste services. Recovered material shall nican mctal, paper. Mass, plastic, textile, or rubber materials that have }mown recycling potential, can be Icasibly recycled, and have been diverted and source separated or liaye been removed from the solid waste stream for saic, usc, or reuse aS rim nlatcri,,ik whetlicr or not the materials require subsequent processing or separation from each other, but does not include materials destined iOr any use that constitutes disposal. Recyclable material Shall mean those materials vJiich are capable of being recycled and Which would otherwise be processed or disposed of as solid waste. Recycling shall mean Inv process by which solid waste, or materials which would otherwise become solid waste, are collected, scparatcd, or processed and reused or returned to use in the torsi of racy niatcrials or products. Specialized Waste handling shall mean those companies whose primary business is limited to collecting and disposing of' solid waste that requires special handling and management. including, but not limited to white goods, waste tires, used oil, lead -acid batteries, construction and demolition debris, ash residue, yard trash and biological waste, recycling and recovered materials. Specialized Waste handling Permit Fee shall mean the annual fee paid to the CITY for the right to conduct specialized waste handling services in the CITY. Temporary Roll-Off/Container Permit Fee shall mean the one time charge paid, per account, to the CITY for each large container and/or roll -off utilized by franchisees to provide contracted removal and disposal of waste from commercial construction and demolition, renovation, special waste handling and other similar accounts. Such fee will be valid for a period not to exceed 90 days. ARTICLE III GRANT 3.1 The CITY grants unto the FRANCHISEE the continued non-exclusive right and privilege. with related obligations, to provide commercial solid waste services in, under, upon, over and across the present and future streets, alleys, bridges, easements, public rights -of -way and other public places within the CITY boundaries, present and future, for contracted multifamily, commercial business, governmental, religious, educational, profit and non-profit agencies and/or property owners for solid waste collection and disposal services. -4- 1 t 1.2 The CITY further grants unto the FRANCHISEE the nonexclusive right and privilege. Nvith related obligations, to provide solid waste collection and disposal services for construction, demolition and renovation sites located within the CITY on a contracted basis. ARTICLI:IV OBLIGATIONS OF FRANCHISEE 4.1 FRANCIIISI E shall be responsible fir the collection and disposal of all Conunercial Solid Waste. Extra -ordinary material, Hazardous Waste, unacceptable \Oastc, body waste, dead animals, abandoned Vehicles and parts, large equipment and parts thereto \vill not be collected by I RANCHISF..E unless specifically required by the generator and agreed to by the FRANCI IISEE. 4.2 FRANCHISEE shall make collection with as little disturbance as possible. Refuse containers shall be thoroughly emptied and maintained in a clean manner. Any refuse spilled by the FRANCI-IISEE shall be picked up immediately by the FRANCI-IISE[:. The removal of all refuse within 10 ft. of container will be the responsibility of the FRANCI IISEE. The FRANCHISEE will be held responsible i for keeping the 10 ft. radius surrounding containers clean and free of waste and debris. 4.3 FRANCHISEE agrees that all containers shall be identified with its name and telephone number and be sufficient in quantity and size to contain material as indicated in the City Code. All containers serviced by FRANCHISEE shall be i maintained in a clean and serviceable manner at all times. At no time shall any of FRANCI-[ISEE'S containers be left on the public right-of-way. The CITY, in its discretion, may require an adjustment in the location, pick up schedule or the size of the container(s) if they become an unsightly nuisance, cause a civil violation to occur, pose a threat to the surrounding environment, threaten the health and/or safety of the CITY's population or become unsanitary and/or inoperable. 4.4 FRANCHISEE shall be responsible for creating and maintaining schedules and routes within the limitations and under the provisions of the City Code. FRANCHISEI shall be responsible for providing notification of same to it's customers Immediately. 4.5 In cases of natural or man made disasters, the City Manager may grant the FRANCH.ISIE reasonable variance from regular schedules and routes. As soon as a declaration of an emergency is issued by the Mayor, FRANCHISEE shall be expected to secure its containers in order to prevent hazards and/or threats to public safety and health. As soon as practicable after such disaster, the FRANCHISEE shall advise the CiTY and its customers of the estimated time required betore regular schedules and routes can be resumed. 4.6 FRANCHiS1,11: shall make its customers aware of Miami -Dade County's mandatory Conuticrcial and \Iultl-fllmily Residence recycling ordinance and shall make services available tier contract. 4.7 FRANCi IISi:1 agrees to collect and dispose of' the solid waste at designated CITY buildings and properties. free (It' charge, pursuant to the City Code, as assigned by the Director of' the Department of Solid Waste. annually. In -kind service assignments will be made proportionate to FIZANCI IISEE'S percentage of' total contracted commercial accounts in the CITY. This paragraph shall not apply to a FRANCMSFI: who exclusively collects recyclable/recoverable materials or - other Specialized Waste. 4.8 FRANCII1SFF agrees to collect and dispose of waste generated at assigned Neighborhood Cleanups in proportion to the FRANCHISEE'S percentage of the total franchise fees paid to the CITY. Such assignments are to be established by the Director of the Department of Solid Waste on an annual basis. This paragraph shall not apply to a FRANCHISEE who exclusively collects recyclable/recoverable materials or other Specialized Waste. 4.9 FRANCHISEE shall require that its employees wear clean uniforms or shirts bearing the FRANCHISEE'S name; that each driver shall, at all times, carry a valid Commercial Driver's License, for the type of vehicle being operated; that the CITY may request the dismissal of any employee of the FRANCHISEE who is wanton, negligent, or discourteous in the performance of his/her duties; and that no person shall be denied employment by the FRANCHISEE for reasons of race, sex, age, creed, national origin, or religion. 4.10 FRANCI-IISI:E is required and hereby agrees by execution of this AGREEMENT to pay all employees not less that the Federal minimum wage and to abide by other requirements as established by the Congress of the United States in the Fair Labor Standards Act, as amended and changed from time to time and to comply ',yitlh all applicable laws relating to the employment of employees and the provision of commercial solid waste services. The FRANCHISEE shall have on hand at all times, in good working order, such equipment as shall permit the FRANCIIISFF. adequately Mid efficiently, to perform its duties hereunder. FRANCI IISFFI shall have available at all times, reserve equipment which can be put into service and operation within two hours of any breakdown. 4.11 FRANCHISEE agrees to strictly adhere to the provisions of Section 22-47 of the City Code which limits private waste collection service to accounts located within M L 100 feet of a residential district to between the hours of 7:00 a.m. and 10:00 p.m., except and only as determined by the Director of the Solid Waste Department. 4.12 FRANCHISFF, is required. pursuant to Section 22-2 of the City Code to notify the Department of Solid Waste. at least seven business days prior, of' accounts for which it will discontinue service. 4.13 CONTR.A(' VOIZ acknoMedges that under this Agreement. price controls will be primarily extracted through competition anumgst the permitted companies for etiisting and future accounts. Contractor further acknowledges that any increase in pricing by the Contractor could result in the customer seeking, better pricing frorn another permitted Conlractor. I llerelOre. Contractor agrees that (lone of the requirements under any of the articles of this Agreement. except and to the extent as set forth in paragraph 5.6 below. shall result in an increase of pricing to the customer. The Contractor may. ttawever, increase service charges as a result of increases in operating costs such as tipping fees, labor and other related operating costs. ARTICLE V FRANCHISE FEES 5.1 FRANCHISEE agrees to pay all applicable fees as contained and defined in ARTICLE 1I, DEFINITIONS, of this AGREEMENT within specified time frames. 5.2 FRANCHISEE agrees to remit to the CITY 20 percent (20%) of its Gross Receipts. Accompanying the remittance FRANCHISEE must provide the CITY with a list of the customers' names, addresses and total amount collected. FRANCHISLE agrees to maintain a second list which reflects individual account charges which must be retained for a period of 48 months and available at all times to CITY auditors. Twenty percent (20%) of the total arnount collected should equal the remittance amount. The remittance of the previous month's collection should be received by the CITY no later than the 20"' day of the following month. Failure to remit by the 20°i day of the following month will cause the FRANCHISEE IISEE a one percent (1 %) penalty per month on the balance due. The balance due will be calculated based on the last three months remittance. 11' payment is past due in excess of 120 days, the Solid Waste Department v,ill initiate its procedure to revoke the FRANCHISEE'S franchise. 5.3 FIZANCI IISI_JE shall, on or before 30 days following the close of each fiscal year, deliver to the Director a certified statement of its annual gross receipts generated from accounts within the CITY for the preceding year. -7- -JJ- `"i2o 5.4 In addition to the fees enumerated in paragraph 5.2 above, FRANCHISEE agrees to remit to the CITY annually. the sum of $5,000.00 for the right to be a non- exclusive franchisee for commercial Solid waSte services wilhill the CITY. 5.5 In addition to the 1ecs cnunlcrated in paragraph 5.2 above, FIZANCHISFI agrees to remit to the CITY annually, the sum of $1,000 fc)r the right to provide Specialized Wastc I landling Services \yith the CIT)'. 5.6 FRANCI IISEI: agrees to remit to CITY a Permit Per Account Fee in the amount of'$ 100.00 fin- cacti account contracted with Im C'onlmercial Solid \Waste Service of which $48.00 may he passed on to the Commercial Business. This fce shall not be translerable. 5.7 FRANCHISEE agrees to remit to CITY a Roll-Ofi%Container Permit Fee in the amount of $50.00, per account, fair each temporary (not to exceed 90 days) roll- off/container(s) utilized by FRANCHISEE in the course of its provision of construction, renovation and demolition material collection and disposal for. ARTICLE VI AUDIT AND INSPECTION RIGHTS 6.1 The CITY may, at reasonable times, and for a period of up to four (4) years following the date of final payment by the FRANCHISEE to CITY under this Agreement, audit, or cause to be audited, those books and records of FRANCHISEE which are related to FRANCHISEE'S performance under this Agreement. FRANCHISEE agrees to maintain all such books and records at its principal place of business for a period of four (4) years after final payment is made under this AGREEMENT. 6.2 The CITY may, at reasonable times during the term hereof, inspect FRANCHISEE'S facilities and perform such tests, as the CITY deems reasonably necessary, to determine whether the goods or services required to be provided by FRANCI-IISI:E under this AGREEMENT conform to the terms hereof, if applicable. FRANCHISEE shall make available to the CITY all reasonable facilities and assistance to facilitate the performance of tests or inspections by CITY representatives. All tests and inspections shall be subject to, and made in accordance with, tile provisions of Section 18-55.2 of the City Code, as same may be amended or supplemented, from time to tinge. ARTICLE VII INSURANCE AND BONDS 7A FRANCHISE1: agrees to maintain, for the term of this AGREEMENT, a public liability police in the minimum amount of $1.000,000; automobile liability insurance police covering I IZANCIIISi:I: S operations with a combined single limit of, $1,000.000 per occurrence for bodily injury and property damage liability. FRANC`I II -,'FI 'S certificate sha11 also include workers compensation coverage. 7.2 FRANCI 11SFF agrees to maintain. liar the term of this AGREC;MI NT, a payment bond, executed bN a surety company duly autl►prized to do business in the State of Florida. Nyhich shall be counter -signed by an agent for the company, resident in the State of Honda. The amount of the bond shall be alual to the FRANC'111SFE'S previous 12 month franchise Ices paid to the CITY or a mininu►m of ` 15.000. vyhichcx-cr is greater. as security ibr tile faithful performance tit' the Franchise AGRf l I NT. The surety shall have a rating classification of "f3+" and a financial category of Class IV as evaluated in the current Best's Key Rating Guide. Property Liability. In lieu of a payment bond. the FRANC'IIISI E may submit an irrevocable letter of credit, cash, certified check, treasurer's or cashier's check issued by a responsible bank or trust company payable a> the CITY of Miami. This payment bond or alternative shall be submitted to the Director of Solid Waste no later than five (5) business days after approval of this agreement by the City Commission and prior to the execution of this agreement. ARTICLE. VI11 TERM 8.1 The term of this agreement shall be for a period of five years and shall commence October 1, 1999, and shall terminate on September 30, 2004. The AGREEMENT shall become effective upon execution by the parties hereto. ARTICLE IX DEFAULT 9.1 If FRANCHISEE fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then FRANCHISEE shall be in default. Upon the occurrence of a default hereunder the CITY, in addition to all remedies available to it by law, may immediately, upon written notice to FRANCHISEE. terminate this Agreement. FRANCHISEE understands and agrees that termination of this Agreement under this section shall not release FRANCIIISI:1: from any obligation accruing prior to the effective date of termination. Should FRANC'IIISFI? be unable or unwilling to commence to perform the Services within the time provided or contemplated herein, then, in addition to the foregoing, FRANCHISEE' shall be liable to the CITY for all expenses incurred by the CITY in preparation and negotiation of this Agreement, as well as all costs and expenses incurred by the City in the re -procurement of the Services, including consequential and incidental damages. ARTICI-F X RIGHT TO TI:`RN1INATV AGREEMENT 10.1 The CITY shall have tine right to terminate this AGREEMENT, in its sole discretion. at ;inv time after the OTY gives written notice to the FRANCHISEE of a default ofany of the provisions in this AGRFIFINIENT rind the FRANCHISEE fails to correct the default or cease the conduct as set forth in the written notice, within fourteen ( 14) working days of' tine receipt by the FRANCHISEE of said notice from the C1TY. 10.2 FRANCI IISEI- has the right to appeal the revocation of this AGREEMENT to the City Manager in accordance with the same time period as set forth in Section 22- 49 of the City Code. Said request for appeal must be in writing. 10.3 All complaints received by the CITY shall be resolved by the FRANCHISEE within 24 hours. The l,RANCIIISEE agrees to make all reasonable and expeditious efforts to resolve ever, complaint. The FRANCHISEE shall perform every reasonable act to provide a level of high quality service which will minimize complaints. 10.4 It is expressly agreed that in no event shall the CITY be liable or responsible to the FRANCI IISI E or its customers for delay or temporary interruption in service because of disputes between the parties or any cause over which the CITY has no control. in the event of any condition which makes performance of contracts entered into under the terms and conditions of this AGREEMENT impossible, FRANCHISEE agrees that tine CITY shall have the right to notify other franchisees to invite other franchisees of the opportunity to provide collection and disposal services. ARTICLE XI NOTICES 11.1 Whenever either party desires to give notice unto the other, it must be given by written notice, sent certified U.S. Mail, with return receipt requested, addressed to the party for whom it is intended, at the place last specified and the place for giving of notice in compliance with tine provisions of this paragraph. i 11.2 For the present, the parties designate the following as the respective places for giving of notice, to -wit: -10- 00- "'';O 9 fW I CITY c/o City Manager 444 SW 2nd Ave. Miami, Florida, 33131 ARTICLE XII INDEMNIFICATION FRANCHISEE 12.1 FRANCHISEE shall indemnify. defend and hold harmless the CITY and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them front and against all loss. costs, penalties, fines, damages, claims, expenses (including attorney's 1ecs) or liabilities (collectively referred to as "Liabilities") by reason of any 11IJury to or death of any person or damage to or destruction or loss of any property arising out of. resulting from, or in connection with (i) the perlortnanc ! or non-performance of the services contemplated by this AGRE1--'M1:NT which is or is alleged to be directly or indirectly caused, in whole or in part, by ,.in%, act, omission, default or negligence (whether active or passive) ofFRANCHISEI: or its employees, agents or subcontractors (collectively referred to as '`FRANC! I1SEE„), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or neeligetice (whether active or passive) of the Indemnitees, or any of them or (ii) the failure of the FRANCHISEE to comply with any of the paragraphs herein or the failure of the FRANCHISEE to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. FRANCHISEE expressly agrees to indemnify and hold harmless the Indemnitees, or any of' them, from and against all liabilities which may be asserted by an employee or former employee of FRANCHISEE, or any of its subcontractors, as provided above, for which the FRANCHISEE's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. ARTICLE XII! ASSIGNABILITY 13.1 This agreement shall be assignable, upon approval by the City Commission. For the purposes of this paragraph, the concept of assignability shall include any sale of a majority of stock in the franchisee, any significant changes in the ownership of the FRANCHISEE, its officers, directors or personnel. 13.2 This AGREEMENT shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. ARTICLF XIV COMPLIANCE \VI TI 1FEDI RAL. STATE AND LOCAL, LAWS: 14.1 FRANCHISEE understands that agreements between private entities and local governments arc subject to certain laws and reculations, including laws pertaining to public records, conflict of interest, record keeping, etc. City and FRANCI IiSF . agree to comply with and observe all applicable federal, state and local laws, rubs, regulations, codes and ordinances, as they may be amended from time to time. ARTICLE XV NONDISCRIMINATION 15.1 FRANCHISEE represents and warrants to the City that FRANCHISEE does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with FRANCHISEE's performance under this Agreement on account of race, color, sex, religion. age, handicap, marital status or national origin. FRANCIIISEE further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. ARTICLE XVI MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM 16.1 The City has established a Minority and Women Business Affairs and Procurement Program (the `M/WBE Program") designed to increase the volume of City procurement and contracts with Blacks, Hispanic and Women -owned business. The MAV131: Program is found in Ordinance No. 10062, a copy of which has been delivered to, and receipt of which is hereby acknowledged by, FRANCILISI F. FRANCIIISEE understands and agrees that the City shall have the right to terminate and cancel this Agreement, without notice or penalty to the City, and to eliminate F IZANCI IISEE from consideration and participation in future City contracts it' FIZANCI IISFI , in the preparation and/or submission of the Proposal, submitted false of misleading information as to its status as Black, Hispanic and/oi- Women owned business and/or the quality and/or type of minority or women owned business participation. -12- ARTICLE XVII 1NDE11GNDINT CONTRACTOR 17.1 FRANCHISI F is being engaged as an independent contractor, and not as an agent or employee of the C'itN,. Accordingly. FIZANCI IISFE shall not attain, nor be entitled to, am, rights Or henclits under the Civil Service or Pension Ordinances of the City. nor am rights `(cncralk afforded classified or unclassified employees. FRANCHISFI: 1i11-ther understands tlrlt Florida \korkers' Compensation benefits available to employ ces of the Cite are not available to FIZANCHISFE, and agrees to provide workers* compensation InSul"anCC for any employee or agent of FRANCIIISEI;. ARTICLE XVIII GOVERNING LAW 18.1 This agreement shall be governed by the laws of the State of Florida, Miami -Dade County and the ordinances of the City of Miami. ARTICLE XIX SEVERABILITY 19.1 Should any section of this AGREEMENT, or any part thereof, or any paragraph, sentence or word be declared by a Court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof. ARTICLE XX ENTIRE AGREEMENT 20.1 This instrument and its at.tachinents constitute the sole and only AGREEMENT of the parties relating to the subject matter hereof and correctly sets forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this AGREEMENT are of no force or effect. 20.2 It is further understood that no modification, amendment or alteration in the terms or conditions contained herein shall be effective unless contained in a written document executed with the same formality and of equal dignity herewith. ARTICLE XXI APPROVAL. 13Y 'I'l IE OV1 RSIG1li' 130ARD 21.1 The State of Florida has appointcd an Fnlcrgency financial Oversight Board (the "Oversight Board") w1iich* is cmpowered to review and approve all pending City of N4iami contracts. AS a result, contracts shall not be binding on the Cite until E such tinle as they llave been approved by the Oversight Board. Execution of this i Agreement by the City k1anager shall constitute evidence of its approval by the Oversight Board. r 4 IN NVITNESS WIJERE0117. the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. r "CITY" CITY OF MIAMI, a municipal ATTEST: corporation By: Walter J. Foeman, City Clerk Donald H. Warshaw, City Manager f t "FRANCHISEE„ ATTEST: a corporation By: Print Name: Print Name: Title: Corporate Secretary Title: President r APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: ALEJANDRO VILARELLO MARIO SOLDEVILLA City Attorney Administrator Risk Management J L 1 , R COMMERCIAL WASTE MAULING SERVICES { REQUEST FOR QUALIFICATION NO.98-99-090 Qualified Resnses Disqualified Responses • f Big Apple Superior Waste Services of FL, Inc. General Hauling Service, Inc. American Disposal j Integrated Waste Service of Tampa Bay, Inc. Lopefra Corporation Mac Pac Waste and Recycling Services, Inc. ONYX Florida LLC Waste Management of Dade County BFl Waste Systems of North America, Inc.* VICTEC Environmental Services, Inc. WASTECO, Inc. United Environmental Services of South FL, Inc. Bayside Disposal, Inc. Liberty Recycling Corporation Atlas Waste Corporation Chemical Conservation Corporation* Imperial Sanitation Service, Inc. P. H. Waste collection Service, Inc. Simco Recycling Corporation Delta Recycling Corporation r *Bio-medical i r i S9— r��d L _ 'KIrparttttrut of t*, lair certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. The document number of this corporation is F98000003900. Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 L II vrilic rtrrt;u it oft;ttr FILE NOW: FILING FEE AF' ? MAY1ST IS $550,00 PROF IT r (OWDA Dt PAkl1,It 1`41r01' 5IAu" CORPORATION >; Kntherino Nr.rflr ANNUAL REPORT �e ��. ,,• s br[rrl ary Of S4,la �9Q(] . p�t•a}1�/N OF 0O4tJOlt41,(ft S DOCUMENT #J F98000003900 {. CC�i+O'dUP't Nnmc REPUBLIC SERVICES, INC. PrinrlDalil Pace of IWS'ncss 14,W g Add- , 110 S E. 6M STREFT. 20TH FL 110 S E 6TH STREEV. 2DTH FL FT LALIDERDALE FL 31301 FT LAUDERDALE FL MI )rlrlc,pat Place of busineS' 24 Lt;nk•iq Ar!;1•c•_!. La A(,t R r•:, i- Ga tl L� OQ__. 211 2 ?4'--% S Lai ' 11"1 t♦.�l,ciZ�1 A �Zj .281 ' p er t 125� Gfru 1241 I I'OI 99 FEB c 5 PH 3106 1111111111111111 1111111111111 111111111111111111 IN IN 1111111 OO NO7 WRIT I IN IHIS SPACE 3 U,111• IIll.ir,INN.IIf 1 (,, GJA-4141 oaros��ss� 4. 11 I N,,nd'c' Appt,r:'1 f of 65-0716M i Not Appl,cablr Of St.II„S DC4,fe,t [ $8.75 ATI&,,, I.,. ne"Ir"I 6 t tc: h• r C.nrht,, yln I I[ ;'"c'nfj I I $5.00 1.1 ay Be lr„s1 I will er,nl,ro,d.n'' Added to rces . 8, lh,% rr rpur.drnn owes tiro con. -Ill yea, Inlarlroddc I D't•ry.n,w,414u;J[•rty 7A• [ I.1r, E IN;1 D. Nome e•+d Add,oas of Current Regiclorod Agent to, Name and Address of New Registered Agent " Nant, C T CORPMTION SYSTEM 1200 SOUTH PINE ISLAND ROAD 82 Snrrt Address {I' Cl Nul ,r, Nuhis Not ArcP1,L,bh•1 PLANTATION FL M'14 e3 dl G!y F•I. �85I zqr Cvcfo 1 f. Ptlauen! to the I,rov�S'ons of Svctum E07.05,12 And 607.1508, rlar.,M Ii utes, ttu• Alxwv 1'011.0 aapo,dtlon ►ubnnta INS s1ATnnlcrd for Ihn IrIr1415e 0 cl,anginp as rag'sived office a regrstornd epord o, bC!'% in We Stale of tlx,da Suclr chh,40 was aullwovr!d by Ito, cor[.;v,C.n'i 4 tk+wN od f 'ft-O..ra I tmruby o"(1 t Vw ajgxuntmont Ps regi4tored n1 89AI ant fantr,ar with and as vpl the o6l)cga6o•,s o'. Su -bon 607.0!4tr. Flored,) Stalules SIGNAWRF ,".`.yam f).t.f ,.p r-J, „y.,.,1, 'n.).:•.r'l l,• R.lrl h,. tA,r •. '.'. 1..• r• ....�. I,A11 �2. UrFlG[ NS AND DIRf CIURS 13. ADDMONSJCHANGES 70 OFFICERS AND DIRECTORS IN 12 at if IL IIuu1 [ ICnt g. [ I7u1,•, ru.+f HUIZENGIA, H W t MWE STREET rti'WFSS 516 MOLA AVENUE Iist;Il If:'r�1.s [m•sf_m FT LAUOEROALE FL 1-4011.51.7.. _ TtTtf r, 11:V.f HUDSON, HARRIS w i)RR..—G3r021J:3--t)1i13u--G12 s 1+txwss 5n TONA AVENUE Lash[ 14PL04", MMw�FIM.00 d:d'�►1F1CO.00 c 57 7f' FT LAUDERDALE FL 7r P_•--_-- _ [IDEIEft J)n1[ [ICa,g [ir[dnar' COSIAALI. JAMES H 32%A,k s1pEETwfwrss� 1816S.E.OTHSTREET 3.1;•r<,rIr•c.1ti• f�Tr.sl.za _ +FT LAURDALE FL a. UNst r> TR,f —1-V'DIE T D(DFIfTE 411 hf I YQ [ lCra'ye [ lddl Itn 11R1,'f HYLE, KATHLEEN w sm ErR,lzrss ONE CHIPPEVVALANE „sn1,IR••.u., 1lr> S•E (o►h-u•, ptt5r Iv SEA PAIICH LAKES FL Tdlf 'a/ �0C>.FIF ;1tgr ICna•,ar. [ IAdbfm uvc KARSNER, 6LCRAEL S 5)I,R'.': .i J AQ ♦ti A L.»o(;, tll .��r s STp3 r7 A5 41 SOM COMPASS DRIVE ,,,t,,1�R•r.,l .•, 1to S•C,—.+ (�`�h S�, 2.q*, FL0D9— c1iti.s1 m _ FORT LAUD'ERDALE FL +t •) st 1' TRtf ,r 1 I m;fit 4' t',I (.ICnn-se (}A�IIM HOU ES, Top r, 5"ETACM15S 128 GOLDEN "DO'W CIRCLE E/fY.5f1,f' l THE 4V00 - 14. 1 I orehy ce t,y it thr In ' ,' ann 'p^'.' bllny does rwl yurl,ly fn• 11'0 1"C' a-w, staled 1,, St ,Iwn 11D Ort5N11 ( toms., St ,!eb ur .or [rrt fy that the ntorrla:iun ind'cafed on th-s AnnJa' •rp.�n v s..r 'I r A• awl fc(.�•1 is III' And A[I,urdte And (1,11 n'y s�g'e'1mr yrr,)V h.1— the f.' I, 6•d.l' o!Ief ;nitC under ou!Ir 1',el t Ant an ophcor or d'rcclor of Ire co'v" nr, - u' o, Iwt,!,rc. cn,powc,ed lu u+u,d,t t•1 a rrprn As it q,wod by G11, plw 607. iln•ni,1 Stow!, S And trial roof oww: appea'a in filoeM 1 2 or Bioe1, 13 if V. nge h-viol w)th An,ddrass 'AAh all 011or I't.0 crghoA(-ted SIGNATURE: _ z�1`i q`� C-9z>q-)`7(-9 -< zq 2 b? Mr.- r To, 100k1 N1ln a.nfMNGaI\'G MfICfA OR MPf [lp1 lr [,.ro •iln.. �A b k< �SARc.�Ay, Sf4tkE;TAP4 09— 1,20 17 /9r4 I:ORP(.W0 [ L [)[.101L K1- (:L1RD SCREEN 1.2 : 15 PM NUM: FS'80000031300 ;i T : CAE= Ac 1 .( elf ! h ()Rh I GM PROF FE_E7: 07 /09/ 1.998 NAME : F;t• PUl;ti, 1 C' L Nt.' .. PRI NC:1 I" OL : .1 ] f;i- F I t; I II F 1. 02:/25/99 A(�l?f�E`.;`=: F 1 l.r�tJ[`(:f�t>!1(F Fi ,..'•��.)! RA NAME. A 1 1 ilTA I I. -I I KA AV)DR 12.00 SOL! f E`f PINE 1 `;L r"`NEB NOr=aF? PLANTAT I CAN _ I L ANN REP (1999) :1 02 /2.5/99 i i 1. MENU. 3. OFFICERS, 7. LIST. S. NEXT. 9. PRE:V ENTER SE:L.EC_'11.0E4 AND C:f-!: 9l17/99 OFF Ii[. IA1L I3 RF-EN 12:15 PM CORD NUMBER: t=98000003Q00 t::C1Pi IA H L RLPt3 1G SERVIC:ES. 11NC. FITLF.: C.0 NAME:- HUI F.NG10• H W I°10E,a R',tf p4lJA_ TI TI E : VS NAME I-i L(iI!fti lt'1!i1Ll 11 'r1_TLE: P NAME: CEr>r1ralA. I(,rIC`a 11 iITLE: VP NAME— I.` r) h 1 I. r1t. A! 1'10f= l I. 1 I_ 3,`•30 I T1TL.E: T NAME. E_A W:,. H)VIOPI) 0 1 1 I f I t ('01N h'061 1 F 1 3:>01 TI:1L..E: V NAME 1101_111 1(!l t. - 1 HE VdOU rL /Ai 11!`5 , I X 4- NEXT. — E'kE: V . 1.. M AO.) . 2. F .L I_ r E lt:; . .. 1 C)V` 7. LIS-1.. 83 NEXT HY 1..1`:'I, PI•:F-V RY 1.1S)I t-:N'rE'R `'EL.F"( 11:ON ANI.) (::R: to °F �r Departtttrttt of *IMP a certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. I The document number of this corporation is F98000003900. C'ME022 `'39l Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 �f;�;tlltrt•i►tr ��{urri�: rrrrtttr�i utt,�tr L FILE NOW: PILING FEES AFTr-R MAY 1ST IS $550.00 PROFIT >>'"' '". ttOlals, 1I Af(IMI N1 Or SIA11' CORPORATION n �`n' Kntherine 14r.rrls ANNUAL REPORTe �+, p brurtary of SInU: 1 999 �•`y ["1100N or CORI'ORAi IONS DOCUMENT# F98000003900 1, Cw",tt,c•n Nnmr REPUBLIC SEWCCS, INC. Psintipnl P�,1� a el bvsmcss R`,uhny Add,esti 110 SE. 6TH STREET, M FL 110 S E CTH STREET. 20TH FL UDE TT LARTMLE FL 3M FT LAL"ROALE Ft 3W rnctpai Pine of Busines 20 s.lvFnp Ar4,'11s :(11 t > a S • La4 Sw(n Aptyitt_I It �1 G.. g • l� �Q 211 l.dnCX�i.,_/+�� �— r :Ay B,Stnt-� �•t,`% A(Z V �L 28� CAI, f, „It LA ..AiJc.�Zbri1 t-- Y CO,udrY U�.S p• Nome a d Ad does a of Current Registered Agent 99 F'O " 5 PH 3: 06 1111111i��uiuiiii�mii�iiiiC��quwiuinw111 DONOT WRllt IN 1HIS SPACE a u•„r• h,r r,.,„,,,rlla, a, uua• G•;1 07109/ I M !. 11 I y,nd•cr Applwd F or 65-071M Nni App"rable $8,75 Ancsaa,a, S C1•�I GI S6 L.d1t d!a Clemrf,l 1 i f cc- Roq,ored 6 f Ir: a. r, (.nn'pa vn I,r 7•nC,nq I $5.00 A1ay RC 1 I wul C unlnp,dK„ ' Added It, ices , • 8, This rr rpurnhnn trwt'c list, cor-ol yea- inlantldde ('ervu,A I'mrrerty t/t• [ iYt� [ ]W- TO. Name end Addtess of New Regtateled Agent -----• - '--- 81 Nanu C T COWMTION SYSTEM j 1200 SOUTH PINE ISLAND ROAD 82 5Ura•1 AAArrax {I• U Gv. N<eaht t Is Nnt ArcepL+bh') PLANTATION FL =4 83 _ 84 Uy F+ �ISI 7r,IG<d0 19. Pu suant m Ine prows ens al Settions 80Y.0 7 red G01.1508, FlarJa StAIuN!s. the Atp vr• na^ rA c,npurattn , t uhnol^ Ib s stntan,uol fat Ihn (Nsl . ep u(changtnp Ne isjore red off,ct a rewstcred taonl o• toot,, rn U c ;tale of F lartn Such ens., at! v.as rlutlrony,•d by Urn cor,tieu:,a•rs tr<,prd of rbnvJ.n a I ht•ruhy ewrq,i 01r. t,p(K,inlnwnt PS rcgistorea aganl I am fa*nd'Ar with , rut esropl the otrl,�aba,a of. Suct.on 60 goS. florid., Sl.ltutns SIGNATURE tl — — -- to itC:f ItS nuts OIIII CIORS 13. AUOIIIONSICHANGES IO OFFICERS ANO DIRECTORS IN 12 tlt.e (IDlllll titntr i lCnn>ge [ Ale to., wwf H4AZENGA, H W a-wirytiroatm 516 MOLA AVENUE ty5,.1,1A d •l .; i arr•sr•t� FT LALMOALE FL tlrtE ..._ _ I IDiltlt 1401,•st.7-. >11"'F ly ��s��J_s+GV^^ k" HUDSON, HARMS W i )1 r 03f 02f J901 L)SO--U 12 t T1141 doss 529 BOTONA AVENUE 2fslasf,At,n;,-sl 11*111150.00 4:+1441SO.00 ST TP FT UWDERDALE FL ID4rElt 3/hl.f [ 1C='+a3a (lAalt•Y COSALAN, JADES H 37Nnt,. svrzEtrAoc�lrss 1616 S.E. 9TH STREET J15nerIKd.A1 tr,'(•sT•Iv FT LAUDEPDALE FL 31 Coll St it:, T,t;f Yj 0(DEI Fit elt,ht yoQ [ ICra ye (1hd6t cn HYLE, KATHLEEN W , :N.,,, 1IR k . �Apc.tR� sraf(rwi rrss ONE CHIPPEWA LANE /+salt W-Of„ I Ira S.E �o� � • t �-�� �iv�Q arr.sf?W _ _SEA RkNGH LAKES FL /r<. r SI.r•• ' • LA-4-but-hoA ji,hf If - 6/y DCI[IF 51141 "r I IChin2c (1AdbtOn 57hr.�r, A . L,F i•J�e, III h4E KAFtSNER, IJICtiAEI S ��wa4t1� 1 smnuwrIto $•E . inw, jA 2-p r/1.+.S r� 2t- _ FOW tAUDEPDALE FL ,�r , si ,• �{ LA s1bkiLt1A LE: �. 3�b1 iRct I! I IDE; I It t'1•.t [IC,engr [•1Aldto, HOLIAES, TOO C f 1 ra srafETr�lprss 12E GOLDEN . DOW CIRCLE t:•Sl, i iP t^r;,y cm•sr.zu, THE wO0 S TX rtut•.sr.pr' II { 44. 1 he(04 c4`11,4' lltat Rit rntNmqt^4r lV IAiny Ilona cull 4uar ly rn• Iro •u rr: r,ptto•� std4•d rt Sr:bon 1 tfr p/taNq f h,n,la gt: or eon•ry ittal lift, infominaon f.nA ultpd on Nos nnrtsp' repot u s d p p ppl r<rwnl It I,"(!non q 7.urwtn nnA m U: ny s.,,.,.q,nt St.,)"1,.,.. Pir rnnu h.t.1' other nda w'fit•r anlh l•wt 1 full pn ONrer Dr, duCGl'x of l,ir: C<t'Inr + i:r <r Uu )It•c Cr„f.:iW ereA lu r;.,•c t,l,� 1', Iri,c.11 t,� ,t' lu iti!d t1' (It.tpt CA31, Flr� oda . l„tut+•ti t+n(1 thol ntj Ito ,nw NNpea•i Ir1 vlocF 12 or Stock I J it tY, nyo �r •t t,n.eut v,+Ut our . ddross '^rUi aU aln,v bM<, engrn+area SIGNATURE:- . ) P-(vljCl`i (-93gj7(oA ^ 29 Z 8 errs+ r ro Tr rho. .,Nr(v N. w61GN�,'G rwi.a. op nrNr Clan 1, C,.,h •+/n+.1 TA 4 Sr r� w } 0.11 7 / 99 00HPURAIE LIE I A I L HILVId! SCREEN 12: LS PM NUM: FQRO000039VO STWU AU1JVk/FoRVJWN PROF FEW 07/09/1998 IEIH: H o Ivl 1, : PRIfit' IP01 , .1 If) !' J. I t UHANGED: 02/2b/99 kO 1101`11F. IRI 10RA I I UN III HO 000P J,'()O S(RIFI-11 PINI-. ot'll) ROnl I ANN W-Al 1. MENU. 3. OFFICERS. 1. L. J 1 8. N I., X I P1 it V EWER SEI..E(-,'-]-ION AND C!": 9/1.7/99 OFF 1CLH/D1RI--CI0H OLIAH. `A'.:REUN 12:15 ISM CORP NUMBER: F98000003900 CORP NAMF: RLIJIMI-ir SERVJCFS. INC:. 1-111-1h: CD NAME: HUIIEN"A. H W Sh" MI.Il,(-) 1: 1 1. At 1t I[. I ,I �0 t t . 11 TIFLE: VS NAME: MUSINK HfAl"S N' F I I. At it I 1 1-110011 . III 1111-0 P NAME: COSMAH JNMFS 11 PI IITLE: VP NAMF" HAM10) 10VI 0 0 1 10 TITLE: T NAME: LAW 1.10 S. il IIt I PIJ, I H I It FL F I L f-d IAI 1: 1: 1 11ILE: V NAME : HOUILK. 11110 K' WOOL (-)HD S . 'IX NEXI. PRFV, 1. MENI.J. 2. FiLIH(i. 7. L.I.S1, 8, Nf-XI HY I-I.Sl. Y- 1'1,,'I:V IsY LISI N't L, R rat-: I.- [.-' C 1 10 t- I A H D CR. sq— w 4. °1 r 't'iaa �iE'�tF1t'f111Cttl ilt �'IiI�C certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. The document number of this corporation is F98000003900. CR2FO22 (1-99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 �!���ll�ll•1'lllt• '�!tal"1'l�� �rrt�rl:u't► of �t,ttr i . y FILE NOW: FILING FF9 Ar- :R MAY 1ST IS $550,00 f,RC)FII a ' I j (IPI 1A Dr PAk, 1.11 1:1 OF 61A11 corirow im �+ �'(f�,t• Knlhnrino HRrrlt ANNULI RE PORT ,G t3rt,� r F. c r,•l ry of t,,lr. 1999 ��`-G DIVISION Of CCstt1`OItAIItNJ^, DOCUMENT # F98000003900 REPUBLIC SERME-S, INC, Prileriprtl t'iaee of it Asnc Ss ... Atnihn3 Addre's m SE. 6TH ltmm. 20TH rL 110 SE 6TH STRFFT. 20tH FL FT LAIT(DER W FL 3M FT LAWtWAU FL 3330t rvlc al P1Acu of B6TiRcsl 2a r.ta wnp Add•o•,•. Giro Jeri p c1., 51"10 Apt a t•11 _28*T 211 fib' 10 C-"— Ity G.Stntr �. bA�!: L- I ('.I tt. ,^•I',I( / coo 2 I s t n •S .Q 53 t L2 0 90 FEB 25 Pik 3: 06 UO T101 W'Rllt IN THIS SPACE J tt.lh• Inolvl,r„attK1 t" Ona'L ;1 07011998 {, 1 t I N•,-,hvl AppHeA F Ot 6"716904 Not Appl,cabl, �875 Antw a,a, S cl•,I i .. i Gr SL,lus r1P rtt11 ( I CC Ro,T.Irrd G I t(: n, r. Gu•,•1.a.yn 1 it ;•nanq I $5.00 hiay Be i 1 ili,;l I I,n 1 C, oua.cd n . AAJcd to Fces •. lh�a rs.lp(,r, 6— owes tilt, tnnenf yvw Int.1,ug.Ale t Y•rs,u,Al 17uprrty To- I I Yet, I IN.# . ' D. Nams s,d Address of Current Regislemd Agent 10. Name and Address of New Replstered Agent ---- - - fit No'm C T CORPORATION SYSTEM 82 Sw vI Andres; (I' c) ri— N1snt•t 1 s Not Arcepinh4.1 12M SOUTH PINE ISLAND ROAD PLANTATION FL 33-124 63 " a+ (1•y FL Iasi 7,p Code sw 11. F'uausnl to Ibe pro-v ons of Stviu is CG1.050an d n07 d 6.t 508, Flalda SIAWICS, tilt' AbPVto oa-(-r! oopu,dlKn xl subno% this still-towill for tilt- fNNor I•ose changing its rug'Mered office 0, repislored AOont o, N"16. ,n ll,c Slate of ► lc-wld Such enn•1:Tr was sutllo,v,•d tl'y pie t(.,Ic rd'ori s Ikrard of drn•d.lre 1 hi•neby Awt1,0 the Atglelinhionl rs registered b9An1 1 am IAmi"ar w04 AnA amopi IhP o1Ap,It.oris W. svct.on 501.dbD5. Florid., Sulluteg SIGNATURF �Jiy� ♦ •Y...1 .. ,)- „�..1 .n 11 - .\1'�..11•. 0.,,1 M1.. IA,, ,., r 1... •. ,. �. t,All 12. OFFICERS AND UIFtt C10RS 13. A00111ONSVIANGFS 10 OFFICERS AND DIRECTORS IN 12 I Di it IL 111,111 ( ICna,g� T IAUto, k" HUIM", H W 12iJ: •1 sra s pioRms 516 MOLA AVENUE ! i si:l I I A ,n I �s cm sT.r= FT LAL1Dt'ADALE FL 14011.51 r,.' TlrlF .._- - - - - ---. I Itin I It 1J1100 CIO 10- 0 Its HUDSON, HARRIS W »Ar•.-03/02/93--01080-4112 t r�nrntss 55NSOTTO�oNAA6fAVENUE JssnT;lrurAs.s 1i>j4>ii�iCl.00.l rl:1i'4'<1�Q.�� 51 7v r l LAL �s. ERDA .E FL J 4Orr ai-.11 _ IMIF1l �,tn.t i IGn•„9a (TJ'(tdbr. COSMAN. JAMES H stl:FtrwAiss 1816 ST, 9TH STREET T,srA,rtF nroti, F7_LAJDERDAL.E FL !t on sr ,c• TrtIE vorlrrf e11611 YQ I lC�'a'(f(• I IAabl{.A roc HYLE, KATHLEEN W .: rl„n bA,. i b K • �A ��� i statti wtar sr• ONE CHiPPEWA LANE 41 s,r l l t f'. trc .. 110 S • E �o • l Z � � Fldee ary.57 Jw SEA RAMH LAKES FL d tt,.E KARSNEK B,lICILAEL s S dvSARIi A . l ANG, 111 sl4ttr, Wars: 41 SOCOMPASS DRIVE "S1a"�'"" tic) S•E UTH CJTY 5T 71:' _FORT LAUDERDALE FL etc , si Jr i`-4 , LAu bcl��ih lam, T'l, 3 of 1J I lofif if G't•.I i. IC,sA6r I_IASlt01 11Nrr HOL1,iES, TOP C smtetuYwtss 12$GOLDEN iADOW CIRCLE f:•sltiTi te:zMr?,� , ur+.sT•T+I THE WOO S TX /<. i hereby cCrVy that If,, Into', 0h I -log does nctl yuai ly fo• Ihu u.cr;l,on„ sta4'd e, SC:uon 11t, 01131p1 r tenJa EI tas u, ,w cen-ly tisA the inforria:ion {ndCAtAO on Ih.s AnnJn' ,t•r1,n ,r S. ,i -I r) 111 .r:d r(F/,ri It in,r::nNl Fr ,llr,+tn (Inn In A; my Stl",,Inn >,f �,l�• I.—,- I,,t• 6.,ni,' w.l.l' nrle' �ndC Ii n rlf•1 U:n)l. ('lat I Mil n ( otrce, o, d,reobr of the colir»I 11". u' or (Siva CnQ.Jwv e,l IV QAC(W ! I', s Ic•i,p1l AS ,(•:luvoc) t'y CrII,I(.trr GO •• T. fun1,i : Gaut,•s and Ihal my rmO„e Apprn•a in j filocl, 12 u, 61clk 13 if Vi rgc ( r hn•ent with An . ddwss. Awl all ot.r 160 CtnpOA(•Ic•C1 I SIGNATURE: re 1,6 1 One M nrtnAAYt614Ni\'GN%ItFAOPMPrtlew 1n.r,�•.to.•s — '�) %. �8AR(—' LA4, S GR�TAR�{ "! a ;r 7 UORPORA FF DIET Al L Rh COW) AVIV 141 12:15 PM NUM: FQS000003900 STWE AClJVF/V01:VIGH PROF FW 07/0q/1998 NAME RI. 1-JURI I(: PRIN("IIIAL: .110 !J_ 611-1 SIRVI 1. IL CHANGED: 02/25/99 salms'; Ff f.1 ', ! W-) 1.101\11% : C I (AlkPOR01 ION III RA of)[114 1,200 SOLITH PINI; 1'7;1.0110 k(JAII 1 1. A N I A I I cl III . I I_ 141_1' 99r) 1 0,? 2 5 9 I MENU. 33. OFFJ CERS. 7. L IS 1'. NEX I PRE ENTER SELECTION AND Cl-',' 9/1.7/99 SCRI EN 12: 15 PM CORP NUMBER: F98000003900 CnMP IIAMI NFPUI'l W I I I I. E. . CC) HOME: It W `_MI6 1101.0 (),/l N(JI TITLE: VS NAME: IIIJI)SO)II. IIIWI-W7, W TIRE: P NAME A H ;I ITE L I TITLE: VP NOME: HANCLAY. 1"V1ll 0 .110 (:�III " - ;IKIJ'.I. *,.'Hll-i TITLE: T NAME: LAN(. FISWOM, fl III 310 S.L. ­111 '21-3111 ft. 111LE: V 14APIE : FRIL FILS. I LN U TVIV 'IX + NEXT. - PREV. 1. MENU, '2. FUIN(i. .3. IUP 7. LISK B. NEXI BY LISK 9. PRVV HY LISI t, i.i r r o i:� v i r., r, r r r)m i% mi) o u - . .... L.FJ Otif, afl �e�turitttrtti i,� �i�tir 1 certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. The document number of this corporation is F98000003900. Cr12EO22 (1 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 rrrrt;trtr of �t;ttr I FILE NOW: FILING FEd AFT" MAY 1ST IS $550,00 FPROFIT I(01U1A(IF PA°tILUNT OF F,IAlC �ZPUBLIG RPORATION! ' . Knthf.rtne Nnrrls lJAL REPORT A. /' 3 ;,r.tnrY m slnlc 1999 � [in'lSl<i1J Of GUftl'UkA11(ttJ!z DOCUMENT .•7711 F980000039W NATv SERVICES, INC. Prin0.PIN f'tacil of Dus,nt6s Ara fl g Addle%, I10 5E. CM STREET. 20TH FL 110 SE 6TH STREET. 2DTN FL F1 Lk"RDALE FL 33301 FT LAUDMALE ft 33JD1 'nncrpai ace of Uuslncs � 1_ 29 MmN,ra A,fd;• •r'. 261 ` S110P Ally N I'll g ;��caQ_ 211 c-4i 1 `A LXi— •Ip• Gou�`ht' TW Cnunbv �291...a33� I 13,1 4�S w i 1111iiiu�ii�iaNuN 1111111 DO NOT WRIT t. IN THIS SPACE 07/09j 1998 4. 111 Nonncc, i Apphf:d f tit 65-0716M `j I Not Appl,cnbtr $8.75 ArlAwllal i CI••1 h. ih m Si. d,r Dt•b„r•d i ; f cr Roa.lired 6 f l-,n I C.mep, ylrt 1 u :•nUnq 1 1 S5.00 MAY Be I Ihvst 1 u",r C,xdnbldx+• Addcd (I, Fens tt. TM; rr. rlrnr„hno erv:cr. the 6mnr,1 Y^•,• InIAnJ�rblr. hnr6nn. 1 f 7uj+c•,1}' TAr C I Veb C IN:r - p, Nema and Address o1 Current Registerod Agsr,l M Name and Address of New Reptstered Agonl C T CORPOf lkTION SYSTEM 12W SOUTH PINE ISLAND ROAD t12 S4rt•1 Addr„s. (I, U FII„ N atrbt r I, Not Arf.PpLdar) PLANTATION FL 33324 es _ Bs U•Y• FL (65I hp Ctufo 11. Pursuant to the Prav�s�ons d Sectlul-% 807.05D1 end 60r.md. rWIJA SIAI•JIV%, I6P AI/r4•p nt1II,C•(11'nrpINAlKlr1 i,ItxhtlD lies SLdI•ott:J,l tot Ihr, tgtrptlse of chTnpirip Ns registered office or regrstcrnd Pgon1 a, tvl , m the StAte of f Ionda Such ehn•,gr v,as autho,vd by Urn co,IRln,',I>•�s IM,xd of tlw•rJ.x P f ht•rut•y au.ep[ Mir appermtnwnt ps rcgistared agAnl 1 am fAmi':ar ,wr;h t,ro Araopl the nt 1,[7�Gon5 of. SP.bon sol.a ,, Florida Slatutes SIGNATURF G,q..�. n...]�. r. .,J _v..J r�.q -,I r.. .\, ,. .1 r.. P,'ql .,:: , ..1 •;. .. ,.,. r... q ., t1At1 12,�1— W (ii FtC( NS AND tnftf CTURS 13, AUUMONSICHANGES 10 OFFICERS AND DIRECTORS IN 12 IDItIIL If1m, I ICna,g. CIAdCIon NAW HUIZEN'GA, H W 12 n*:.•I sFr�c[tiouU 516 MOLA AVENUE :;still,hJ''.t V cm•sh�r FT LAUDEP.�ALE FL IMF--- -y5 - - (ID[Ifit: 2,10,t CIO _7002 [tut[ HUDSON. HAMS W ??t.r.,. -03/02/9301080--G12 s 1�70AfSS 5NBOTOHAAVENUE ?15fQ;flgflba:;,> NNNN:15C1.0L) ddtF:+Y1SC1.L10 sT.r.P FT LAUDERDALE FL ?.or, �I :r- tv P -- C iDFtfit 3,m.t I ttnn,[e [°jlanar. COSl,{f+1d, JAMES H 2? ST fwF>:ifS5 1816 S.E. 9TH STREET »s=rt•rltit.n', Fn..sf.to _ �t F�TLAUDERDALE FL a4 eun =•r ;r TrtJ l VDFIFT[ 411,1,f Yrp I lcr��fr!• (IAddl,cn HYLE, KATHLEEN W . "llPi IbA"', sffiFF t A,'Y,.Ye Ss ONE CHIPPEWA LANE also l+l.,•Ilf . ll(7 S•� to •f Z�'�``'F1oAQ„ cm-sT zw SEA RANCH LAKES FL .aol. sl.:,• t.rKtk,�ha l.f , 33301 Filly V ...'JDft[it ;t11{l `T' (� +A IIG,,,.,,, (•�Ad1Am ItrJ.E KARcS(VNtE7R, MC4iA.ELL(�St�pnr� W S)l,4'�E 6J�f\� hi , lJ'1� 1 lIt S TPFFI /IX:tf 5`. S 1H COMPASS DRIVE iJ •!4V 'th Fl.t7OCL 4i ll0 S•E . fc { ulY.srr��._ _FORT LAUDERDALE FLW. o,c�•, sl �I' �} • L_A,,,.tAS&: A LZI 'V.A, 333o1 tmf I IDE; I It 4't'.l (li.ns1sr I.I AM 101 kwE HOLJAES, TOP C srwuicraa�s 129 GOLDEN ,ADOW CIRCLE f il,lntl r,I!t..r5•` Fn,.sl•m THE WOO 5 TX ctcn,.;,.v,: II 1d, 1 hereby r-,V j that Ihp 0w.,, hn I rp^hr U1 bbny ckwM r4 g.al.ly tn' 1h4 u,crlPt, l St.11c•d I', Srr4un t 19 n1(:IIVI f Inn,la f rte5 a a•r Ccrt•fy Thal the irdo,r��ron Indrriltnd "I th-S Anf �h' refrn v s, ., d n „fd /epal is truce Will AC-ural,r and Iha: MY 6•Ip,o1„a brut, Ir.r.,• Pm f bn,• I..ylr after lode uodPr ongr. 11.011 Ant.on afYrer or drrec{or of tern co•{ �, in-r n frc huslce c F.owr,vd to C'ecul,e t•, , n porl es n.;I,,,,ud t } C.hd14,:� LOr, Fh,•uh, Slarut,•s nm1 IbAt nr= n;nl N: eppca'a in Bbcl, 12 u, Blo_k 13 it u,ar9c , cat w 111 An oddross •J.,Ih all otnm Id,u cnry,A✓.1•red SIGUATURE: _ 7 z�l`t�gq Q93LO?19 �- Z9 Z err•,+, �A II(AMI FINrfnA4MrM b14 N,1'^. tY/ICrNae n,PfCip+r 1. r, •,H•♦i',r.•1 bA b k. "..$ARC,LA I1 SCR TAR.`{ S9— i120 r "/1.7/99 NUM: f mar.;0ooO(1,3.Oiy ST:171 A(.;(►�1'VL�/1'[t.1Rl�IGN II'I:OPI (•L1hl.) ',( log .l:N 69-0116904 1 NAM[: I pM I L�: (>//C�'�/1.9^7$ RI-f••'LJl:tl :[i; SL.RV)r•(��>. Illi.'_ (w[IRl� SIN FI 2filff 1 1 1 1. ()111)E IlDW 1. WA PlAr-11. - [.I ; ;,•,r? t c 1 (`•)kl-IOPA 1 I((N t: VIAND L) : (7 7 ry ; . PO rll)1IR `;l'tt I L.M 1'rt)O ..,OIJtH PINE ISLOND RnA1+ ANN PEE, 0.999 f 1 0212S/99 1 . MENU. 3. LIFF•ICLRS, 7. Wir. 1:t• hII X1 . ra , R t: V F ENTER SELECT.fON ANL) C:f-:: 9/1.7/99 CORE' NUMBER: OFF ICERq,1fa=C:TC)f' L)I 1AIL. '.t I=91a0000J �)pC) RFf: N L 1 (L.I::: C:L'l OR NAME : RI PURL I C I RV ICES, I. 12: 1.7 1�M rTAMt I IL1 it Nc; L4,, S 16, MCu A FIVI tII1l . TITLE: VS I" 1 LAIn)Flli,lll. NAME : HODSON . HnPj-z 1 (..; W JI TITLE: R f t l A!1,)I ILL±rll I PI NAMt; : i;(.t>h1w11 . .IrlMr-::� II g .• ` TITLE: VFWF1 IAIMplunLF_ FI rrFIMF: c:,IH S1RLt_I, =N Fn TITLE: , r l_ ..•,,•,OI T NAME: LAN4i. !•.1)WFIh'(, I A I1. is 110 'fa l I1 F I F l LAI,,,UN ALF TITLE: l..L": V 1=1 y: . i;-�U1 NAME: H0L,Mfrf:;. TL1f, t• 1,�F3 (;lil I:�F:LI `�1101)r)V.1 i .Cllc:i.,l f 1.1F NEXT, WC)�)m—OND) ,;I TX PREV, I. MENU. TSI 1. FILINq, 3 . lop 7 . L. . S. NEXT By LIST, �R I V By t . rJ'f E R t T I. ON AND C: Fl : f S9— '. a Brp artment o *tiltr I certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. The document number of this corporation is F98000003900. CR2F022 (1 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 �crrrf,n't1 of �faic iWool i i M M N N � oPr k FILE NOW: FILING FE9 AFT --,MAY IST IS $550.00 PROFIT �IW101MfNPA, t11.11N1orSIAII' COR► owiw4 } Knthnrrne Hnrrts ANNUAL. REPORT �•'�' :' c:' F 6(;n•hry of SL+tr. 1999 DOCUMENT # F98000003900 1, Cc,rpc�nbn, NnmP REPUBLIC SENCES, INC. Prinriptd 1'i ". OF TIvsl„cns A'nOwlt Addw%, I10 SE. 6TH SMUT. 20TH FL 1f0 SE 6TH STREET. 20TH FL FT LA K OALE FL 3M FT LAL"FIDAIE Ft 3330I Pfv,clpAi PWCc Of HUsinffes - 26 Ua4vip A1111, ,• k Vc) S ,-L tAl SuiIP. Apt k PIS_ __-._ ...•. - Sm!r qpt p o;r t 211 CI)Frd,ctntr�\l���CsLlJfl�.�.w/T�- 2111 CI�'T-lrl.{l]VW�'it�/��—. ZIp- Col •dr � 29, 7,I Comlbv 99 FED g"'5 Pii 3: 06 millio'naiiNii��i1iuiii�`iili�a�pi111maIN DO 1,401 WRI1I IN 1HIS RPACE a D.,,I• •„••,,1, 1 cw 01ra I, •:I 1 07/0 1,698 4 11 1 f1:•110-cI Ar•phc.d F or 65-0716KM Noi Applicable $8.T5 AAd:,I,AI S r,.,t+l.•1,1 �f sl rn„ nP l,(-d I ; r ec. r(oQ.l red G F t: r,., I (.n•I•IIaY1n I u:•nonq I $5.00 at.y No I II ,-,1 1 1m0 i •..1h,ualhrv• I Addcd to FOPS lh—rr.rpund,r.n owcc lhr rnru•nl yP•,•lnl•+ntt:Idc t I'(,fv.•.Afhu(a•ny ln. I Ive, I INI y 9. Nan,* r,d Address of Cuuent Regi.lerod Aper,t 10 Name snd Address of New Replsteted Apont C T CORWORATION SYSTEM 1200 SOUTH PINE ISLAND ROAD 92 S ncr•1 Addre As (t' 6 (hr. N,nbt•r N r tc .+t An PpL.t rQ � PLANTATION FL =4 1:4 u•y FL les{ 2yCt.ao 11. t'u-euenl to Use prpvlslons or Suuiuns C01 0507 Nnd 661 ISOf4. F{a6fa S,al,dcs. th(• NtxrvP nanyd clap„r,ttrwr subnl,l+ Ilu. rtntvn,c::d tot owtwnl+,cc rt r.hanpina Ns +e:ylieleretl olUce o'repl5tcrud 1lponl P• t.OD!, m the :LAIC of Elenda $ulh Chtrv,tfP v,As authnrv•d ny for urrl gr,ISp•iS hpyd o1 (IIrPrLna 1 ht•nd'y A,,t,op( thrr K{•I"-mI,tloflt Ps reyi9lorCd a9Pnt 1 An, rAnn',ar %,ill (tnel arzupt tllo Otrtl{tatlong of. SPcbon 601.005• Florid., Slntutns SIGNATURE �J)u t i.w.f ,•p..�l r...•. Ir ,•(-++.Jy'••{.w{i'-',R,r•.J 1,• A, .r( Nr .. II;r •.. ..•. , I. •• I• I. .�. I.r.71 .. ��, .___ Ot t ICf ItS AND u1Ftt Ci Ut3S 1 �. A(tD111ONSVIIANGILS 10 OFFICERS AND DIRE C I ORS IN 12 DRI IL I Ilia, 1 ICmW C IAdct,•, MOE HUIZENGA, H W tit M STPUTAXPE5s 516 MOLA AVENUE :1 st;l I , A:I(,•I clfrst•n= FT LAUDERDALE FL _VS - -- - (IDf(flt I+ut,.sl r- ?11,n) t,�7 0071r 0C12t Itst1� iU!a0--tTA2 Tlr(F I.(,A HUDSON. HARRIS W 271,A•. -03/02/:33--101030--012 s TA'I(Y.ESs 629 BOTONA AVENUE Alslatllu+„,-s M'>}.**I50.OLl 4:4.y.4;I50.0L� sT.TP 1 FT L1 D RDALE FL 1 �Cdr �I,ll.. NAA1! COSI,VW, IMES H siPEErArImiss 1916 S.E. 9TH STREET crrv.sT•T,p FT LAUDERDALE FL IFILE PC" I HYL . KATHLEEN W STnfFFADNe'SS ONE CHIPPEWA LANE aTr.si T a SEA RANCH LAKES FL .._..� _ . m,F — V f"m KARSNER. 61ICHAEL S sT,uEIArA,nis 41 SOUTH COMPASS DRIVE orr.sr lr�._ FM LAUDERD (-E FL TITLE V NUAE HOLMES, TOD C srwETAra71s5 128 GOLkN a,ADO•IN CIRCLE cm.$).a+• TIE Wt?OLDW S TX_ 16. 1 hereby Ind,cAlad cort•fy 6,11 Vie I'liu•rn bon fl On th,S An11W •o(11 offror or d�rccl�r Of I,.,.cn'(nri I Bloch 12 u• Block 13 it V1.)rgc r 1 SIGNATURE:: - C Imatt 7'T,l.r (ILT.++g rlAndtr. 1) Mkk ).15 na r I A.' I Off s. ]A Cat 4r ,o a.DFIFTf. ell;I,F Yelp .�RCC'C.4.f'► [ ICrJ+yr� (IAddl[e, A %NIA DR,.;p K . ,fit- (• ��J�. F1.veQ, 1( C, S• C-:. 6 _r` l 1 s„ I I I V. ,N .. . --�Of(FtF :,„ n1 ►ten,..,/ ('jndi,Eon �•{t.-mot t� [` o, ilk '••s1,,,rA•r•.1" S•E lr-►,., S.},-Zp*,Ft,c�oa. Ito I IDlifIt s'T'I LIC'IANI LIA -1 E ;SINin A:.t�r, Idnly dnPs rol yuitdy fn• ill /crMlr1 I( trite! nl,rl Art-urril,' ow erarlption st,a1'd r, Srruwl 11it D/l'JNII T u.n.1A St Les a .or cert•fy tbal Ihc• infoa•�a:ion n,,l lhnl niy A cr,.,�, 11.1r,• inP fi:l',,,' 11.•t.l• o'I, Inflc 111-r(f(•I Oilll,. I'n)I I pen An hus,cc crrq.awcrr,l Lo l•I.It.l,l ucude 11+ rrport ns rv:pnn�d) v CI,d If- W. FI.•'n1.1 Btulul.•s end thAl nlj uamc appen•a In ' en( 1"191 An . 0o(O"s ➢,011 III ulnnr I'lu Prnpoa (•, tra Z`1`1�q`i Qc(,--st 1(a9 - aq 2 8 ' irt(./14",Nit" NA.ir tlr elG NiYG M ilcr4 t,R n,,,rcloa 1, f••r.••w ,'rr.• A is . `$ARC.LAI, -vAp_` f7? tC) w w U 01 fJ-- "t4u 9/17/014 (.0ki 11.114) IT. 1) 1, 1, AJ t f-d-CORl') !A,:R1 I PI 12: 15 PM HUM: FYHO00003900 ST:DF AWIVE/fORVION PROF F I D : 07/09/199S (LIN: b5-v716qv1 14AIIIE - SI­A-,VI(",F'i- IllC. R 1114("] PA 1, EL t,1101,04LIA: 02/25/Y9 D I ) R I I Ill.; (I .; I- I I. AUPE NW-11 E . I i I i 1,0 HOW, (" I t TINI 1014A 1 1. LIN :,f :-;I I Ill HA (WOH 1,,,'00 SOUIII AI ANN REP (1999) 1 02'/25/94ti J. MENU. 3. OFF.ICERS. 7. NI:X1. 9. PREV FNTER SELEcriON AND CH: 9/17/99 OFF WEVII)INWILH! III. Wl. WR! Ltd 12: 15 fill CORP NUMBER: F98000003900 WHIA NAME: RIPIMIfC SIRVICES. INC. 1171.1n: CD NAME: HUIZVHKA. H V1 516 Mf." 0 (,IV[ HIP F[ . 11 I ITLE: vs NAME: HLJW;',0?4 EVWK.[` W 1'1'TLE: P licit,L F I I AUI I- P'l I I I: I. I ITLE: VP NAMF: UP"WLAi 141VII, A Ff I I TLE: I NAME: LANU. HAAJONI) A II I III I HILL I ".)H 1 1-1 1' 1 I I ni jt)CNL)61 1: F I I I TLE: V IJAPIE: HtWILK. ILHI C (A) 4 NEXT. PREV. J. 2. F]I IN(& 3. 1 UP 7. L IS I H. NhX1 BY 1. 1531 Y. PRE BY 1. 1 W I Department of �*-tnft I certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. The document number of this corporation is F93000003900 Cn2EO22 (1-99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 J���P �I��t�tJlrririr �i�:ri•ri�, rrrrt,►r►► of fit,►1r FIDE NOW: Ffl,IN EI=' AP' ^ l MAY 1ST IS $550,00 +fit r 01auAPIPA„irdlfilOFSIAI( C0RrC)RA1-ION Knthnrine Harris ANNUAL RE FORT a T 'rc rrinry M °.t.,lr. 1999 f,'v,SKtIJ Ot COM101tA1IONfi DDcurAENT 4 F980000039W REPUBLIC SEWCES, INC. Prinfipal f race of nvsmesa _ M.,dmqI Addro+c 11D 5E• ETH STREET. 10TH FL 110 SE 61H STREET 20TH FL FT LWMRDALE FL 3M FT LAUMDALE FL :FW Principal Aiaca of Business yy r .1,h-,p A,I,i,( . \1C7_ S.C.(o'' S4- acj 1\ , s•L (p�� S,r SLeitt Apt P Ni ;+unr Apt a ov CIt�dlStntr�� �r �jj 2111 C•It t.Sl'r1a lJ�l�ll�`Y�rN: C Z'p..___. __ nr •,Ir _ `YT.II' Ctunl`Y _333o I ".(a$� S �aqi 33�I jltj Ulf p• Nama •nd Address of Cuuent Rogisle,ed Agent 2 99 Fi B 5 PH 3: 06 L.NI��INPfl��RIII�I110 IIVIIVNWR�IflI DO NOT WRIT f IN Tf11S SPACE 3 10.11" Inr.n•I1�n 11lr*1 (✓ OIra' fWl 07/w' l ,7 s�U 4 t f 1 N•.,n.6c, Apphrd f of 6H7169N Nnt Appl,cmble $8.75 Analra,ai 5 0.'1 f''Xi 0 Sl.,tu5 Dvs-fud (; t cc ItoQ,,krd 6 E Ir: ru„ C.nn,hn,yn I u J•nc,nq I $5.00 Alay Fit ,ru•.11 rn,d (nnb,b,d,rr• I AdJad hr Fees a. 1h,r. r,rl,,,r„6n" Owes rho uuu'nt yr.r Inla+,ry,nlr 1 Ct•rs•rumll`h,rorty ip� L IYes L INa 10, Nsmo atnd Address of New Replsteted Agent 61 Nanu C T CORPORATION SYSTEM 1200 SOUTH PINE ISLAND ROAD Ba Sit, I-) Address (1` (I (I„. ,a . NuLt r Is Nnt Aret pl•,4ar1 PLANTATION FL 33324 63 - 84 C,`y FL Iasi 1'PCt'd0 11. 1'ursoant to 11;e pr ov,s,nns Ot Seuu,ns 607,0512 And 601.I5EIfi, FIVIJr StAlulcs. B,r Atervn roan Nud 1:, `q,urrltlnn subantn IN% slnh• W-0 ftrr the put0se of changing as reur5lered office a tep,si o, od'glint n, Lrotn, in flm Slab of I Ic` I,. Such chmn:ju %,%s Sull,nn/„d Ily loin (Orl,c,r�l`N,95 W."fd Of [hh•r'J. tre l llt•`el•y aw-jot Ibe 41`SNeenhoont nS registered A9Ant I an, fit"O'p, ,It, Nnd A,ropf the OLhtla Gone W. 5rcbon 601.050!,, Florid., Slntothk SIGNATURF .� :.iy�. �..—.i a.>_1. .l• ,i .�..p ..r, - n,'•..t,,• nr,rl r•, r . ,.•• �... n.. �. I -All 1t. _ a OFiICE ftS nNU lnftf CIORS 13. ' AUUIIIOWCHANGES 10OFFICFRS AND DIRE CIORS IN 12 01.E ( I DI LI IL I Mill I IGna+q. TfAfcly, WZEW A, H w s,Ids&-vuss 516 MOLA AVENUE WY•51.711 FT LAUDERDALE FL i1RE „WE H•UDSON, HAMS W viotwic.caEssi 5n BOTONA AVENUE L st.r,N FT IAUDERDALE FL IIA4 COSA4Ard, JAMES H s,IJECf A MISS 116 6 S.E. 9TH STREET EmY.51•21' FT LAUDERDAL.E FL IMF V1 k" MU, KATHLEEN W Sim, krotwss ONE CHIPPEWA LANE CITY. 5r 1W SEA Rg4GH LAKES FL t,t,F V . v W.14 KARSNER, MaiAEL S STPIrI kx-lgf sS 4i SOUTH COMPASS DRIVE urr.sr r FORT LAUXRDAIE FL ul,c Y ItAFtE HOLMES, TOD C s,nEEl7rx is 128GOLDEN DOW CIRCLE Ey-s, nr' fib. WOODW 3 IX 14. 1 he,cby rej,fy R,al the infe•n; U"I q,-',e v IL Ind-CAtad On th�c Anrv.ra' r,•�r,n v 5..• d, n s Officer nr d,CGlor ut t',� Cr,• �r W ��> - I '!, Bx la 'L r o•Stu.,, it �, 3 v l ll)(JI IL >„,`,r vnr_n�r_o� �•cI4 t�.:���—L-,x�nn >>slafl111a;:.5 tIM'>rfi:jri[I.L�LI N4:i:w]JQ,OL� to Sr.N.. l 1Rfa 31nt.f I ILhay� [ 1RAdbx � 7 ryY\q ]a Strr:f l A:qm%• D(OEIFIT a4 co sr ic, 41nitt 1(Q 14Cna+y' (laealcn ilo S•E (ate .[ Zto a 41sn:11 A•otlr.. W.,11_S,.,J, (.r►�ecrzl,a lam, - 3.33�1 �ortFH.. ;I,w �- I lcnar•3, (jAd1.14r, s7AAlt A �'dWH43b LA►�G, lit •,SIMIIa'r.l, 1La S•B !off $�,z�4� FLODe- "Wy sl PI 1_,A Lc m I IDF:f,f 4'r•.I (IL�e',(r L(AidtO•, r7rra, 111 _ Luny dnrs r,n1 r4ual•fy to- We u.ergd,nn sidled n, true rout nn,,urd to ma whit s•, Re, I In 1)11:1N,1 t Ion,la EI: tee I. er cert-fy that the infDr+riw un h.w.• my p,.du,a ar dusMr. en q.;+we`a•A Iu pnx uu: I -I s report As rt•:pu, n i"M h'rtIl Im . ddwss HAfI ail uino, Ww vmpnA t•r ad sha„ Pm 6:vn, Lq.r' W:t r mde undo, uu11e hat t ans pro ud Ly C Ir,q.br 607. 1"o�•,da :•tnlu:, s entl Thal no, nlm,e Appea•a in SIGNATURE: _ 2(1`1jq-, Q93LJ`11.9 _ Z428 amr. rr roon Nrtn •.rr n• s,4nlVG rvi,(fA UA mrcocA J.7"' d tiO i w • 12: 15 PM UM: FQ00003WO VH0 STWE ACIIVE/FnREIGN ITUF FI: 07/09/1998 V AH: 05-0116904 14 A 1111. : Hit, PRINUIPAI : 1J0 S.F. (1111 53110hi - WHII OF uHAN(*D: 02/25/99 minEw, 1: 1 t. oUl IL 141)(It 1: 1. I'lo HOP11. , C I (11HIll, ) I t (A I I 1;'00 S(R)II-I PINE' ON N 1499) J 02/25/99 MENU. 3. OFFICERS. 7. 8. Nl--X-I. 9- PRE V ENTER SELECTION AND CH: 9/17/99 OFF IuLR/"IHl CIPH DF fAlL WORI EN 12: 15 PM CORP NUMBER: F96000003900 KOW IMMI kl V-11 Jll'l IC SI RV I ':E, - 14C. I I ILE: CD NAME " I ii.1 I I-- I I V, 516. Wit A (1\/f Ilt'R V V LAlft,l PlMt. I - TITLE: VS NAMF: I-RAIVA)II. 11111114 Vw fat "I 1-111 lo I I , tI 'HILE: P HAMF F I I At 11)f PI 'fit I.. I. I TITLE: VP NAME: BAITA 0 MVID I() S. 01111 WIWI. Y1,11-11 If I I TITLE: 7 NAME: L( NK. FI)WAIA, M III j 10 13.1 Kill SICI: EI WIN Fl, F I 1 01 11 Pl)(i I F. 1: 1 >3,;0 1 -TITLE: V NAME: 1UP (' I ?f-.i .1)1: (1 �; I jr)I) f) (A) I �(.; I '1 1-IF W010[411,10S, Ix + NEXT. -- PREV. .1. MI -NU. 1- I'll-IfI(J. !- IOP Fqq���� DrItartment of I certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. The document number of this corporation is F98000003900. CRK022 (1 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 ��--�i�at�1C1'llil` �rlal'l'Ia ~Ci'1'i'�ilt'tl of 1i1�1' FILE NOW: FILING FE9 AFT ? MAY IST IS $550.00 PROFIT -- - - -- r,•?'°' � rlolannnrrA(+lf.lsul cr slnu' CORPORATION � KnEheAne NArrla ANNUAL REPORT 1`' _ 1999 [ VISION or COILP010110f4S DOCUMENT# F98000003900 1, Corpow-m Nmm(, REPUBLIC SERVICES. INC. Finripnl hence nr Dus,nrRs kind g Add,esc 110 SE ETH STREET. 70TH FL 110 SE 61H STRFFT. ?DtH Fl FT LAIIDERDAIE FL '3..301 FT LA1f0ERDAIE FL 3m i_ 1 ;,pI p1a(e of BUsIneI; 24 r.ta+,,j Ar10•1 •,•. ��O S Lo ��" act i\C> S.fr �n-`�-. $+E-. 'Loin Arf k el�:- smr Apt n d Slnlr C I 7. S, ,Ic . �A".- �awl�'t. Iza! P (( Co I' CnunhY �_ 9, Nsma ■nd Add(ass cr Current Rrpirrrrod Agent I u nJ FED c'.15 Pik 3: 06 11111 1f� 111101111 IN 101 UO N07 WRII1 IN 7HIS SPACE 3 D.11r• hn.u•I n,•, Ito o0"A'+•d 1 07/m/ 1998 4. f 1 I N:,1nl,r' Ap'p!u:n f of 65-07169N I Not Appbcahle, S C1•,1,,.dtl cd Sl.,los C1r;,r(•II c ( $8.75 Aefw onai I Ot• 110cioired 6 f li : r,. , F.,n,v a yn 1 u rnunn t $5.00 AIAy tic ) I n,;l 1 un,i (,ndn!•L!'rr I Addcd fa revs 1. lh,c rr.rpur,d,nn pvrs the c,uo•nt yca• Inlnngdde tY•rv10117ut'(.'r!)' TN• (Il'rs t INa 10 Name and Address of New Reelsteted Anent or name C T CORPORATION SYSTEM 12W SOUTH PINE ISLMD ROAD 62 Sot of Address (I, C1 0N,AId,t r Is Nor Arcepl..hle) Pi.ANTATION FL =4 91• a4 u')' FL 1351 2" c(d0 11. f'IXiUAOI to the t,rovs ons of 5(•c!io�s C•G7.05D7 and G07.1508, flaidn Stnhdcs, t1x• nlxrvr.nan t•d I:urpo(dt n„ subro to (N% sw m(:r,l lot Iho frnfmse of among ai reu;stored otrice o reg stcrrd nponl or boU in U,c : Intr of f Inndn Such chnn•3 v was autlau,n•d by thr cuq ,r,parj s h.,a(d or d,nv'J n a 1 IIt• a,hy Awcyrl U,n Aplvinlmont A3 registered agAni I am fnnli!,ar with And Anopl the olA,rlal,ons W. Srchon 607.0S05. Florida Shttulns SIGNATIIRF —._- _�� . p.+.i ..p__ • ,1• ✓.,; .., ali-'nv>.n,e ..... p. vl b, ri,, ,... ,.,. n � UA11 - 12. C1F FI f kS AN(1 tllkf : IOR5 17. AODIIIONSICHANGES To OFFICERS AND DIRE CtORS 1N 12 -T1i�— - - --- (iDIIIIt. IIwo [ ICm,gr [ Iflllci1. N1� HU M4 A,A, H W 12 sr1 t1 Aoo It ss 516 M01A AVENUE ! i e! a 1, A ,n•I .s arv•sl•n>.. FT U_UXROALE FL 14(,1,.St r.' nnr VS -- I IDuff it 711,•,f 0 0 -0 002 r,EI CL':L`3 0—tTll�sn HuoSON, HARMS W )lr c,•-03l02f9:3--01080-4112 s t�cwessll 5a BOTONA AVENUE Mr►:**15C1.(0 >♦:of+F'#15CI.�LI sr av I FT LAUDERDALE FL " rnrr u.n AT P -- - - [ IUlf It J,nLr I IC^�+9' (-jAnd tar: COS", JAMES H 37,w•: smarAxnlss 1616 S.E. 9TH STREET )n SIIt, r 1A:QM s. ryrr.st•im _FT_LAUDERDALE FL JA on, Sr ;,�• TrnF yj DCDFIFtf 411,10 Yp I ICna,y• I IAnarcni HYLE, KATHLEEN W . >n.r, Da,v'1p :a �AQc lR� srarrrwrcm5s ONE CHIPPEWA LANE (1SnllIA'-'If Ito S•!~ �o .I ZF F�otr Ury.51 lip _ SEA RAKH LAKES FL _ _ eet•t,.s1.7r, �� L����A L�' / T-L t1gF V �i OFIF It ;r1!11 `� I ICna•,gc I Ihdyam KARSNER, MICHAEL S S"'A"idWARD A. srrzErrAmztss 41 SOUTH COMPASS DRIVE 'Ike VLO09- ? FOW LAUDERDALE FL t 1 o S• E. (vim 5 4, Z Q tit(,•r Si t.� F'} LA v..DCfl.�,fl t,J�ul �•. ��,3U1 Td(E V I Milli c'r•.I IfJ/$ HOMES, TOD C O,r. t IeIe,6r LtA�sta128 GOikfl SHADOW CIRCLE ffE 00S 1X14, 1 hereby crrl•f) that Ihr Info n , �p-,w t'1> In1,1g flora not tuilly to, Il,u v,cr,pon,; st.de•d to Sr: bun tift 0/;IiIII ! rnnln 51ndychar 1he inforria:ion End cated on In s Anrkl,,' rrrq 5, ,I r A. „nl rt-rnrl K Ir,M• A,0 ar .urger nrd that my s•,,•„du•a snap I,.,+ V,t• s:vn•- I..,.a' a!Ilr, with Vial 1 Am An oficor n, d"ec o, of Ipr uvf', nr, (n Puslre amr,,we,ed Io urtulr 1', a report At ,u:p, ,ud b) 6,dpt • C.07. riwaf,i SIr11uh•s And IIIAI "Ij nfLLQ Appen•a in Blocl, 12 u, Clock 13 d yr rgc.. - •r •v,,unt A,th A" add'ess v,Ah al, olnnr Lkv rinpoAraed SIGNATURE: - A, Z(1-1jgg Q934J?l4-Zq Z g I Jr "n nn all(nMl,Yf of b,(INIVri rY f,(l90A n14(C I,Y, I, n,,,,•♦1,.... i w 1 r L 1010) 2117 /09 UONI'£_11;A 1 F DE 10 11 R17 C 01E.>(;f\[11- h1 12: 15 PM } IMM: F:Qca000003900 WT:DF AC:1 IVE/FDRE IGN PROF FLU: 07/09/1998 i I- 1= :L it : 65r, 1 1 f!,c)Ci.c1 i NOME : P+PUI',I I �il-..1VIUl''). IIAC. } PR1Idt�I PIM : 110 ,:.I- . 611.1 :`,II�I"1= I . :'£.I II 1 1. UHAI GhD: 02/25/99 [ (1WRI S4 F ! 16UN A LtLtfai_L . F 1 31501 £ I:A hiFlt1f : t: 1 t (IRPORA I I ON ;l' `; I I III NA (AI IPP 1 ;.'UC) S01,1 1 11 P I. NI; I E31. (alll.t Ftl.£Gll ± 1!I_Al 1 ON. 11.. ANN REP (J ` 99) 1 0? 25 99 i j 1 MENU. 3. OFFICERS. 7. l.l'?,I'. 3. NEXI `a. PREY I , i ENTER SELECTION AND CE-:: } 9/37/99 WE ICE:RWINEC:lt.11' I.+L(AIL `:;t REEN _ 12:.15 l'M CORP NUMH R: F9HO0000:.3900 nL.l.NP HAML: NI PIJEtiI. IC SERVICES. INC. 1 1 C l 4r.: CD NAME, HL1 1 Z C-. r 1 ;A . 11 Ul I I' TITLE: VS NAME: HUL)SON . I [AIAN I K W �i�") I t � I tsl l(-1 Fi',11 sftJL At II11 71 ELE: P NAME: ta0C rtnl! 1Fit _ I . ')III ;IN.[:t [ TITLE: VP NAME: BAWL !)(IVIir-1 y 110 1:;.! _ ,III `;IEi-F,I. ;:I I'L 1 f I 1 At.0it: PI101.1.. I=L I TITLE: T NAME: LANG . I• DW(1NI t n III J. 10 t:; . ; III `. I N I'. L I ? E3 1 1.1 F• 1, j F 1 I AI 01"NOrll F. FI ;3t?J NAME: IiClWE `_; .. I LM I L* 1 2£i C;t.11 I)L: [,1 `•:IIAI,r:)W t I f;t'I t• fl[F= WCnIFJI.IX F -I NEXT. — PREY. J. ME -NI.). 2. f=.I t_ 114t;, 3. 1OP 7. L. ES! H. NEXI i BY I. I S 1 . 11I:I 11 I:i'r' I 1 `• ! 1 r I I: NT ER ``,E:I. Et:;T.1Qt•1 AND t::R: �J- 44U uf �trttf Olt lba OrparfIII pill of Milli' I certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. The document number of this corporation is F98000003900. Cn2E022 (1 q9) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 ill��llltt'I'IIIC i� titl'1'Iti �rct rt,trn at �Je ti rvV k FILE NOW: FILING FF9 AFT-R MAY 1ST IS $550.00 PROF f3 ,a nORIDA01PAIJFMNIOfMAI( IDOCUMENT# F9800000390000RPORAi ION KntherinellArrls ANNUALANNUALREPORT , 4 fit r I;dY of Slot(: F98000003900 1, (.•OfjK,•p lion Drame REPUBLIC SEnvas. im. F fmcipnl f'w:e Of �o5,nC55 .. M, dmy Add-- 110 SE. ETH STREET. 20TH FL 110 SE 61H STREFT, 20tH FL FT LAL"RDAIE FL 33301 FT LAUDERDW FL 3W W If, I. Lit iiNaiiniiiiumiiuINu111miIN UO NOT VVRit I IN 1NIS SPACE 3 11.14• I, 11.1 rr1 r,✓.Ifl v, (.` C);IA' Ir•;1 I _ ©710911998 Pnncrpal PWce of 9u{±nee Sk 24 t.ta•.k•Ip Ar!d•c•. 2L 4. 1 t I P611,1.c' 85 d716904 Appl+eA F or ( Not Apithcable ..G Suito�jlvt b� 1,.� ���'-•' 8 _ �' �$--.- •:-c� npt n r•,, _ NI C_&]� �• L.to cvx-. S (tr•,1 r�.,l!1 GI 56d,ry DP�,,rrd (� $8.75 A161.,Ilal F cc- I10q"v,,d Crt a SlntC w ,, to LA Lyv�u A �L C1 t St'd t• .1 A bcS2�iil �l_. st a E tr: a.,, (.aay,nwn i u anuml $5.00 AEvy Rc I Addcdh,Fees _� D ZIP Cc,� f't4 Cr t4� d [Yj v\J t 7 Ctgtrd'Y 79I -� I ISVI kS i. 1h,a ((.qn nunn ov.•t•c the cofuart Yra• t'(•r.••na{1`rupf•rly 1p• Inlnng,hln (11'r'. I g. Neme and Address of Cullom Registered ABsnt 1 10. Name and Address of New Registered INu 4 Agent j 81 Nane C T CORPORATION SYSTEM 12M SOUTH PINE ISLAND ROAD 62 Strs•M Address (1' 0 rl— Ntau7.( r 1•4 Not Areeplotae) PLANTATION FL 33M4 83 !4 U'y FL jest z11tC./K11i 11, fixsuant tD the of Sectiui-s 001 051? and G07.1508, 1`1010A :aahlles, Ih(• alrllvc.nan,(•d C„ 1101&l(111 subnala 111,% slnh•tnG(A F(,r It.(- lnul•pse DI changing ai reg+>lered office o' replstered aponl D• tKIT' ,n 1he Slate of r l^r,da Suctr chmaD was au0lohl,+d by ❑r, CW,K„p4o•i S trtylyd of 0". J. n> I he't-1-y AWept the N1,1K,inin,onl NS rcuisitted agent I and fam"gym w4h and rurppl the ol>t10at.0ns of, Secl,an 607.0505• florid., SGdulos SIGNATURE _�t+T;.p:Ra1, n.�^r r1- •a•.i:-'ni-..n�• n.'.rl b..- 11.. ..... 12, OIeFICEitSANUUIRFCIURS 13. ADDttIONSILMANGES10OFFICERSAND DIRE C FORS IN12 111LE-.l •, I IDill IL 1n,u1 ( ICna,g. f IA1:to 1AW MAZENGA, H W STRF(TA"7MSS 516 MOIA AVENUE :;si ill,til�•t �, crrY.sT•n>_ _ FT LAUDERDALE FL t�cm.st.7. r lr 11ILE V$ I (Dili it >11,nr 000QC-) 1C EI(j;�S0--LTA0,n kW[ HUDSON. HARRtS IN 77kC,♦-03/02/99--01080--012 r T r �nEss 528 BOTONA AVENUE ) 1 "4:1 1 kfKui; •.> M t1 *I RC1. 00 4 ti :'E:tF 150. 00 yr sr.z:o FT LAUDERDALE FL TP P -----.. - .f IDtItR .1, h1.r I ICna•1g? ('jlaW4•r COSMAN, JAMES H ] Mkk simrWca(as 1810 S.E. 9TH STREET S Is" r I A.;,.q s. atvST•2rP FT LAUDERDALE FL J( (,1l1 sr is:, YP 1 fCrd•,yn [ (Adbltfi tiAk,E HYLE, KATHLEEN 1N -b'A't, STRfr T W[it(St ONE CHIPPEWA LANE . ,;r1,1 l A'• (rl .. 1 t a S • E (o'er •$.� . , Z 1' �'` �'LooR,', cirrmaTT SEA R4rvf1 LAKES FL _ . AAc• , S,.r,• 1 r�Dt2DA f,�, �L. a pt nnF y ...(�y U[IF IE allnr '•� ((Cnangc ( jA41'101 K KARSNERr MICHAEL S �"": �ci�F<R� � . LANC,, tit srarer emurss 41 SOUTH COMPASS DRIVE sl j 1 i R'('A ` - SA 1 7.914-. FL00e, urv.sr.tr FORT LAUDERDALE FL ^At''' sl r" V LA —DtRC,A LZI i'L. 3 01 Wit V I I DE:I tk G: f',1 C ICIA n;c (.IAAd101) NAX HOWES, TOD C srr:EEr,"Fm 128GOLDEN DOWCIKI.E (;sl<,,F:c•:s,� arr.st.i,r TH£ WOODLAI S TX 14. 1 hereby cPhdy tftdt the inform a,wre(6.. idiny dDCs not yua,.ly to• Ibu o,crgdial sl.pad m So aa•n 11(1 0/1:1 II,I r 1nn.L1 SI 1te:. ur N cerl•ly that file inforImation ind•catnd rxI th,% Anr,JA• 9-;,ifi ,t al r((r,rt Is I'll(: rv10 Ar .urwtc nnn Thal I"y S „„nloy cr.;,,, lo,.0 1',r s: rnu• h.•,.,' oflr! ,tole utrdLr optic 1',311 mi An orri'.c Dr d„echr of ir,n crrl>Jr ;0f 11 wire Dnq .lwerrd lu cnrt u6: 4 ,> report as rt^i.nr,:d DI C.ho{d, G07, Fln•,ria St,%v-s and litat my 1.:1nw Appra•e in Blocl, 12 0• &o,-' . l3 if v, eye. (E t 'Ih an pddnlss '+1,th a), ofnof I,kv enq,nws•1ud SIGNATURE: - Z1t�`i C-9�4t)`71c9-�2qZ. 'd,rw •, dn AAMf M6,GMIy^. r✓%rrre(1F nm a too Ir p,,N •i 1't..'• r -bA % k . 8A RIZ-L.A y t Sf-�.kC A P-y 9 9 - 720 e ob Adak Q/17/9q VVR I URA RAIL DE IA] A. ki 1:01,W SCRLIA'l 12: Q 01 NUM: FYR000003900 STWE ACIIVE/lOR) jWN !TOP FLW 07/09/1998 FEIN: 05-07lowl NAME R17 f"U I fl- SE, RV I (,l 11'1(- - PRINCIML: I 10 4.1 6111 SlIffEl. 01111 It WHANGEIK 02/25/q9 WA NAME. ('l."IRPuRAI I'l-IN RA AD[lk 1.W SOUIPI PINE PI,AFI 10 1 1 ON. I L ANN RI-'P (1999) 1 02125/9Y I MEMO. 3. OFFJCENS. 3. LVA. W MEXI 14011V FNIER AND GRI: 9/17/99 OFF WER/1011=101' AM FAIL WORFUN 12: 1 CORP NUMBER: F98000003900 CORP NAML: RIPURL IC SERVFUES. INU. IITLE: CD NAME: HUI ZENW. It W 5 1 M A A` 1: rl j 1. I-V JITLE: VS NAME: HUDSON. HAPRJS W 529 ""I"Nn 171 1. rit ll � I I ALE: Fl NAMF : COSMON A p I(_, f I , A. . , + 1 11 ; I F I 1 0101' P1101 1, f A. IlTLE: VP NAME: BAMULW. OMVID A JAC) sj vollul 1 �f I H 1, L F I I 0I 1ITLE: T NAME: LANAV 4DWOM) A ]]I P't. IIILE: V 14APIE HOLMEb. 1130 C 1,11) S. 'IX NEX I OREV. I . MI-.NI.J. :'. F] I I PI(;. OF 7. LESK H. NEXI BY LISK 9. PRFV BY LIW S � , this �Y Departtitrtit of i�tatr certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. The docurnent number of this corporation is F98000003900. CR2E022 (1 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 �f���rtlirrirr>,• i�trrci�: VCITtnrn of f;str Y.� FILE NOW., FILING FE9 ArTr-R MAY 1ST IS $550.00 F; O;; JA OC PA(MAI Nl OF S1AtP CORPOR- n Al ION Knthellno Herds ANNL)At- RE -PORT ,.q 4 j", T r: rr inry ni Sl:dn 1999 �•' ['",'sYONOF (.0111101(Ar 10N% DOCUMENT# F98000003900 ii, Co'iK+'rt,on 1Ja•nr REPUBLiC SERVICES, INC. Prinrip,•d 1'IAce of FIu5,nc55 ... 1,1w1mg Addw%S IID SE ETH STREET. 20TH FL 110 SE FIN STREET 701N FL FT Lk"RDALE R 3"M FT LAL.f *"IE FL 33301 'rincipal Ptvtave of BuiinesF , •� 1_ 2a Ma,srtp A,f,f,i •,,. I I l p 5 .� . Lpk1h F.i'T- • Yi I `ice S •'� W •. iuita Apt Api a 1 fla{SIAtr w � �, � C•1 1. SI-,Iv 1't �JA ���cAwA(Zf ", • LA Au -V Cr, ,b J Cnunl•Y p -12.sj 1241 I kul �5 D. Name end Address of eu,,"t Reyisierod Agent I 99FEB 25 Pik 3l06 NOgIII�i�P�tlII�NIi�IIIflIfJSVN�'I�AV DO NOT WRIT l IN 1HIS SPACE D,dr Intlr•pn•.ur+l P' Qua',d•:1 07J0 11999 ,. 1 t I 1611d'r' Apphr:d F or 65-07169N I Not Appl cablr $8.75 A66tn11a1 6 (1•,1 '•..14 of SLdoS Clos„rt1 1 ; f c(• f(ntiarfrd 6 F v: r,., , (.u„gauge I u rnonq I $5.00 Atay Pe I WO i Iphl L nulnbtd+.. I A(fdcd A. reps •. 'th,r. r.rpur,d,n,1 Ort•t the cr1i V•nt yr,t• Intanrphlc 1 ('em•,•.:d f 7G(4•r1y 1IT. I I Y't'. [ IN:1 - 10. Name and Address of New Realsteted Aaont al Nano C T COWIMTION SYSTEM BY St 1200 SOUTH PINE ISLAND ROAD ua•1 AdArcSe ((' U Fh•. NLald•t t I5 Not ArctpLddr) PLANTATION FL =4 Hs a� Cry FL I,Is) 7,IiCc,da 11, i'vsVAnt IA 11,r pfOOS,0115 G( SE`tlnri5 ('0%.OMIT 11-d 607.1506. Flond,t SIAl,lll`5, Iht• AIN,YI.' n;1nH'(1 /aR14PAWIT lV1111n1b INS SId11,111Gr11 for (1w IM11,,osc of chAegilla N, ctviatved office a regalrrea y,xnl n' llolh. in ll,r. ,^,tale of 11-1;i Such chr+n;re wai autlMMv, d by Ihr tor(,+t{I',o•ls Ik,ar) of 01,0.4* 1 tweel,y (tl;(,(1il tba riplKlintntont iris registered agent I am famisar with end arxept thc• oLhgabonS of. Sect,on 501.050!, Florid., 5hnules SIGNATURE _ 'J�r'.} n!�i<.n ,.ne..r.c,rl..... ,, pT-.t •,r ,•-'n,+...n; P.1r1 b...-�.. v... .... ,. .. .... tx. OFFICIRSANUDtf<FCtURS ADDIIIONSICHANGES70OFFICERS AND DIRECIORSIN12 hrLa �JD { I Old IL I Iuu, [ Ic-v, [ IAJc Io, RAtE WZENGA, H W Izti:.'I Srldrrlrorzss 516 MOLA AVENUE !151:111r,;11•f,5 c^r sl.n> FT LAUDERDALE FIL . 14(0,.$1 7„' tau _._id .___. (1OnI, IE 2I11,tt I&ANI HLOSON, RABBIS W i7441.-G3fL)2fJ3--L]L09L)--G12 Sir kIxv qus 5a - B--OTONAAVENUE .. I&N-N1NYN5101.CI 014:44150.00 F LAUDERDALE h 4ca'sl.,I (at IL [ I c u � l Iv+aEon COS", JAMES H 3 z nA'.•. sTmrhOows 1818 S.E. 9TH STREET 33;I9,f 1*1.6S. GTY•sT•zrR FT-LAUDFRDALE FL 34 Gln Sr /c- TRLE W 6iOClFif. 4ILItf yp [ ICra,yr (laaalti�. k" HYLE, KATHL.EEN W r 1'itay STAff—twiss ONE CHIPPMA LAME llSrlir W-11 . 1 Lo S • E , :off . t Z.g ��••oo GTY•sl 7W _SEA RANCH LAKES FL - _ t[f•1,.S1.,,• , � L A kbct�lDa Lam', 7t. 333Q1 T1hr 1[! (�yOfLFIt ;trni `r I ICn.I-.gr [ �AdMton lute KARSNER, M0 AEL S 5>/.4r,: 5dwARb A , L-AoGt, II( 5fR£Flai:(YiF S� 41 SOUTH COMPASS DRIVE `"''"'R'"" 11p S•P (p`++', S4, �.P'V-•+ FL,aDe, utY.sT.pF -FORT LAUKRDALE FL Stu , sl t, F 4 LA "t,esa--A Lift vu 3�4L TIM V [IMif if c�r•.l ' C IC,,sngr (.JaaTla, IG�( HOLMES, TOD C t 7'0.0a S"F-xvml 128GOLDEN DOWCIRCLF 1 urY.sF.7+ Ttp� ti'VQODIW S TX 14. 1 hereby rr-rhfy thaf n,r 1nlp, nl I, n qr, x• lli Id6,y t11rr, nrl quaEly to- U,e c,cr'at,o•r 5Ld-d o, Sr:bun 1If, Or1:41h1 ( lon.la SI: te, a pr cert•ly Thal the inlorf•ia;ion Lnd-calRd on It1�S enn.,a' rrpnn .r s , •! r p• u-4 "efr,•1 IS b.✓. And Arf.urdtq nnn Ina! ❑ry S�:I^•,hua r.tgl1',,.-- 1',r bAnn• I,.yr' ot1-' . mdC P,',ner Guar 11ral I Mll Pn offrer rn d.r¢Cf�r o1 the cngrn ,:, or Cutler r,r,(.;,werra io c.nurt•r hie "-port el 1,•4.,v,;d t y C.hal•!rr Fr07, 6-Ida Slalutr5 rind Itw! my !rime Appr.a•s in �Bllo♦ 1, 12 up, �blrri y 13 if d, rho •�c' •i I h-wd w,tb Gn ,,dales; •ndh all Ginn, bhu rrny.o v. o,pn �-7 []q C Q '-y/ O p SIGNATURE; - s,r'R 1 r► tr rn rrn �iNr[n •ar \ 3q-) !(O+-Z1 z� Or 6,GMr�� rR fl(1A GP MRt c. pen 1 L. (,.r,.•�Ir..-.1 3 — ''12 v 0/.1.1PK) ►VI4111!1-MIL. [)LlAII 1411-:0W., >►::Ia:l:t( 12t15 &1 HUM: i—IF1000003900 ST : DE nK I I V If / l' ORF I AN 1501 L` LIJ : 07 /09 / 1.99S Lf 11!: ;,K..01I6pOl NAME PI PNI'l I C SFRV 1 UE `7. 1 11('. ,'r;rrJ► !l�raL I I':.L-. ("11.1 IhF:L-1 'e!UIII 11. CHANGED: 0 /25/Q9 kA HOW, : t: 1 ('1 PI11.1kA I 1,1114 f-t) rats`fl ! "%00 St111I 11 F' I idk L:;I,rltli.t K►:t(al PLAN101 ION. I L ? ;'� L►f; ANN !ti l' i i (1999) 1 O ?/ 2 5 9 Y i i ► . MENU. 3. OFF110E:RS. 7. USK 0. NI:XI F'REV ENTER ER SEL.ECU UN AND CN: 9/37/99 UFF It;:CPIDIRECIL)I' lit IAIL SCR1 CN 12:15 PM CORP NUMBF R: F98000003900 CORP HAIIIE ., f4f 1'l.)tt!- [C SE RV f CES. INC. (1 1 L E : NAME: NU I. 7. E [lG0 . ► I V-1 `i J h Wil. A (t.�f tJl,Jl Fl l.Al�l)F:I'.I i5l l 1 1 11.-1*L.I_: VS NAME: W TITLE: P NAME: CUSMOII. 11 ` — L . 4 1 11 %; I I?F 1 I (� I l RI!Iaf F�tl'�11 l FI. I ITLE : VP NAME: UAra L rt, i !14' 11.` A TITLE: r NAME: LAMA. L.L7WAM) A 71 I 1.10 -II) `:It:i_F-1 rif11 F1. FI k1h)l F. FI BILE: V NAME: J;?fi ttal..l!t:11 3t1A1)C!W ► ,lll(.I_ k -1"1•IE WC1(:1C11. R! !I > , .I. X + NEXI . — PREV. 1. MEN1.1. 2. S. 10P 7. L. I.S K 8. NEXI BY LIST . Y . PNF V RY 1.151 t-.NI E:'R SELL:a:`I lON AND (;R te of .4,ta - L, Orparttttcttt of :*-title I certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. The document number of this corporation is F98000003900. CR2EO22 (1-99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 y/��itt� Ar�7rs i�t�illRll`1'lleC ��ill'1'! i �rrrdartl of t;th u FILE NOW: FILING EEd AFYE:R MAY 9ST IS $550.00 PROFIT r[01WMdla hTPANIFlOf S I A I C CORPORATION Kntherrino ((Owls ANNUAL REPORT fir' ,�}, :nlnrynt$L,Ic 1999 ';?�" pn•I,,I,,N nr cc)RI'ORA11LrNt, DOCUMENT 4 F98000003900 1. C•cxl,rM;nn Nnmr REPUBLIC SE vies, INC. Prindt ,af limm; Of RNsmCES .. hrnihug Addmsc I i D SE 6TH STREET. 20TH FL 11D SE 61N STREET. 70TH Ft F1 LACIERCIALE FL 33VI FT LAI"RDALE FL 3W 2. PwK'- all / is CB of Huslnrsi-5 f., rk• n.l t• D O S .sue . lr S'E- • 2L I l Suite Apt k rho c,udr Apl If r;, C�djSlntn I (',t f !Ct,i, Z,p Cow,l� 7 f:nunbv Q ��SJ �S �,Q� 33n I1,IJ AS Name rand Addross of Current RepiNerod ABmf DO NOT WRII1 IN IHIS SPACE 3 n.n,• hn.,,,,,,,•.n,wt tr, ur, r,b•:1 1 07J0 11998 4. 1 f 1 fJ;,nd'e' AfTbc:d { of 65.07169(A Noi RppbCAMo $8.75 Allcs%lnal 3 C e,t tr-,,!, erf Sbd„s Crs,rr(I (; F Or• RocIoired G f Ir: h.,., r.nnrpny+n 1 v:•ncmq I $5.00 Ally Re 1 lru;l 1 onl C,rutu!.�A,r+• [ Added to Fees a, lh t—,pwohn•+Uva t 1110 ron.•nl yea, Inl•vu,rblC Pers•••r:d Prorwrly 711. 1Na 10 Name and Address of New Reptstemd Apont ai Now C T CORPORATION SYSTEM 1200 SOUTH PINE 15LAN0 ROAD 52 Start Address (11 U Ft... N+, ;W, I% Not Arctgpl.det•) PLANTATION FL 3M4 91 -. a� ufy FL jas� a,I+C/+c10 9/. F'tasuanl Io the Provrsons tr SrcUu•Is C•01.0507 AM GOVI508. Floada $tAlUles, III(-Rt,r,vr nanrf•d c,nporot,ra, submit:+ lAr%s,Alrrnt::rt for ilrf• (aRl'nse of draupina "s rt:1t%.te•ed office or rep,zttvod nponl o• bu'Ir, in the ;We Of f f; •'dA Such Chn-r C was suthonn•d by Ihn cogr:,raho•,s thra.d Rr drr,.,3 ns 1 twn+ly Ru,tyrt ihO Rpfarintmont Fs registered agenl I Am Innnrrar vn;h pnd aczt'IJ Iho oblrgabooy of, Se.^bon 60P.6505, Flocid., S,atulos SIGNATURF 12� r OFnFIC.rItSANn()IMC1T)RS .13. AOGItIONSICHANCES70OFFICERS ANOOIRECtORSIN17 ([Df If IL ITLu, ( {CnA+.y C fAlla Ov w+F fUZENGA, H W IM1..1 sTr�n •noRrss 516 MOLA AVENUE 1ST411 crtysT-P, FT LAUDERDALE FL un+,•51 J. nrtf _NS - _ -.- (IotIfIL �„,,{ 000[* 0 2 r'S12 Et;!R0—['rA2rn )"K HUDSON. HARM W %)ke,.—03/02/99--01WO--012 t TA�Onfss 5P8 BOTONA AVENUE F,thtt{IUKM;:•.4 tDt1:TF*150.00 4*:**ISO. 00 sT•z,o FT LAUDEWALE FL 2 4Ell r m P (lot, tit COS", JAMES H 1),Jnt=- [ Ic z. Ciisaly � mfIfN,twFss 10% S.E. 9TH STREET 3,1$ II�IMs. Crrv}T41p -- -FT-LAUDERDALE FL. Jc On 5F;r• trt1F �. aDFIFIf. 41 Trhl y T [ I Cr.a�yr ([ P.gdtrrn kAK HYLE, KATHLEEN W .:n.) �qvtt,..) fie.. rrAQc'�Z� �` sFarsrknrws,• ONE CHIPPEWA LANE /, Sr, I I I A,- of( .. 1Lo S- e . V &A •. cilry-ST zw_ SEA RANOH LAKES FL /ec•I,.s,.1.• Tk L^-Lbt. tbiR lam, Y.. �Alo1 TITcf V ili I,[ -r' I ICna•.?r (IAd1dm twk KARSNER MICHAEL S 5)I.4l,i wvitR-b A L-RO;, I[1 srwflAr--r 0 SOUTH COMPASS DRIVE �rsT ll,./.A C, S•C , iA .${, �9,1-'r FL.00e, EaIll'.1 FORT LAUDERDALE F.L.}ter r sl r F{ l� Kt DcR CAA 1 , T'l. 333e1 TITtf `/ I I OLf It 6• r •-' (IGneat. (.Ih1JlO. rw+f HOlJA ZS, TOD C sTnffTa�ruJss 128 GOIJAN SHADOW CIRCLE 1..T1E.wOODLAI S Tx f401,.SI-,, 14. 1 here -by rert,fy tf> l for Jnfo•m t.on + �y rrlu ly ck,Cs nnl yuel-le In• Il.0 e.r, r;ptron sLdrd, , Sr; Uon 11(� 0/1;1 N,1 r lon.la SI+ tos .cr ce,Oy IF+a1111e inforIrwipn Indreeted on th-s non., r,' 'e•,*iR rr E. .r.i,^, rr R' ,r:d r( (m'I Is tn,n nnrl Ar1mfw'n null Iti.rt my y �,r+rd+,., ..t.l" b.r:e• 1'rn F,,nrr h.p. oflur +rndC Inrdf•, ooth Vol 1 ant on ptfV,or or &,vclor of Ihr, co I,ck 17 in , , + o+ Iroshrn rn,F,;,wc+rd To lira Are f'. , ,,pert as rc•qu�,ud t')' Chrq'Lr LO), Fln•,da Slofu!r , t+nrl that rry unnrc Appc;,•a in 1310u• BIC0, 1 3 if V r nge, I h—ow h,th Bn , dd,os; Art" all ulna, Irk,, engrna(,red SIGNATURE: - . z�l`lji�i C9. 34) n.7.(•09,.-� 2q 2 $ prf.w r f• fr hn flvNiin AlY, (M 6,GMI�': N%,(F9 (1P nINrCip+ i. �1... - �A� Pr 0 w C, L /.I 1 /09 'UPI iNn I f I-'L I nt.1 hl +'(!1:1.+ i5GRI 141 1.2 : 15 PM N1.)M : F OROOD00.3` 00 S70F AC.:1 1 VF / h URf: l GN PROL FLU: 07 /09 / 1 ` 98 L E S tl : 05-07 1 6904 NAME : RF l'UIfl. I (.: sI- RV I t;f-'-5 . I IJ(• . PR1 NI') I'01.: .1 .1 0 '-:, F.. 61 IL f31 fit- 1 I £t I it 1 1. CHAIJ( D: 02 /25/99 A011RP SS 1= I I 001Q. POOL 1 _ 1 i 11!(1 HOMI : c l (:OkPORA I IAIN RA 0I)1.1P 1 OO SOU l 11 PLAN I AT .1 UN. 1. 1 !.!4 ANN Phil' E 19991 1 0,* /2`_i/9 Y 1.. MENU. .3. OFFICERS, 7. I_.IKI . 6. HfXl , a. PRLV ENTER SELECTION AND CR: 9/1.7/99 OFF InLH/Dll-:I:.(-'ll.!f' 111 [ALL ` RI 1:N 12:15 P11 CARP NUMBER: 1= 9800r)r?U3 00 CORP RP NAME: RI PI 1l•;I 1 C; SERVICES. INC. T 1 TE.1-:: CL) HAMF : H V,i I' l 1 Al!111 I�I'f1f L _ ! l 7ITl_F.: VS NAME.: NL1ITIN, llrll'.L:1': W 1,i,,11 10111)IIf1 fly✓l i1111, F 1 I. (At !I'! PW-)f I.. I 1 T I P HAMF : C! )E>1-1011 . ,111M1 `_; I t to I t Wilif h'.f'i1I I:. 1 1. 1 ITL.E: VP NAME: E olk:L 0,1 . i,A;i I l' r, I 10 `:> . 1 c, 1 Ff ': I PL: F, I . : ;t 1 1.1 1= !. F1 LAUD! 141101_1.. FI_ 3(,I TITLE: 1 NAME: L.Alki. hl)WAPI> (t 71I 1 10 `:3 . I . 6 1 1 I 4 I P 1: E. 1. ;_'t1 f I I Ft. F 1 1.AI-h)t"0:01 L . FI 5:10) WILE: ILE : V NAME: 1•IOLMLS. IUD U II(-II)0tA) r .1,R( 1. 1,- 'I I -IF 1400144-) I'll )S. IX + NE.X I . -- PRf- V . 1. ME.11 ! , 2. 1` .1 1 I H(d . .. 1 1.11, 7. I_ISK H. Nh.XI W LJSI . Q. 11kl:V f('r I-)!d !• 1J1 ER FL..F_.c:.' F J:CltJ ANO CR, lTO(o �r�l�trittt;'ttt ijt �^ttttr certify the attached is a true and correct copy of the Corporation Annual Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is F5671 B. CH2E022 (1 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 L u ihiilfitl`1'lltl` ,�� 1�l['C1�� �rrrrtttrn of �ttttr q rd FILE NWO- FILING FEE AFTE' F'ROFIT� J ?I CORPORATION ANNUAL RCPORI•'t'i"�;°. 1999 Docaltort "NT # F56718' �. CtNT.rt,Rtwx1 Nnn,r IWER1AL SANITATION SERVICES, INC. tkY 1 ST. IS $550.00 f,ptil{In r}r Y-)vm A r Nt Or rwt H Rthrrinr Nests Snr r,Lny nt Sl.dr UIVI}u NJ 6I C(Iltl•(Ikh1lClti$ (9Art N P,•s„ws ". "b(i•IN,o AAda•ss Wo Nw. 0m. ST, B1to NW. 93RD 61 MEW Fl 3MR, MEDLEY Fl 33M Pr:,+tipBt F!rca of Pvnlness 2e. 6i p AAdrrts 110 S•e . (C4 �1 CVII , /',i� i!• Flc �� ti.n'n /y,l p, Ctt j� t G7� -; ti ._ _ U��.J i71 Ztb+•4•i,1 1 I.�OD(Y. �- . t...A,.tz.,A�t>E � �L 7A) f-t • Lf��Q.rtl�Ic1 FL", �9FCB25 PH 3.00 I�III�IIIAil f MLlkY4CIlNlll'AIR91WtlR DO Nat WRIIf IN 1HIS sr'ACE {I;,L• Ir,; rv,,rrnL•.t nr OollJnn 121020981 4. 1 1 1 N, +m ApphCd I a 59-2144378 N ,I nil{J,<a1 t: $8•75 Art-tq.vw S (prtA, s4• nr Sd d.r, I„••,wrd ( I I rt Rmp'Rat b I I., 1•,,, (:,.•r,l„wln 1 u,.},w•i, }�( I I S5.00 (,(A, l nr•.I 1 I.AI 011 l.Vl•i ••, AA Md L,1rr', e. lI,.•,, ngw.r,rm,n nv,p•. 11'"IVn,"dY„J' In(.uNl•bbr 1 •,n.,.i In, ,,.•., IV In, I Ill•\ I Ili., g.4Nem• end Addroa! nl Cnrrenl Re gltlsl.d Agent ' to. Home end Address n1 He- Reglste,rd Agent !1 N,c RI C T COFU''01iATION SYSTEM '%, C T CORPt1FIAT ON SYSTEM $2 MIMI A•ld•n',. ti• a 1,(,. N•ar,1—,• it,,' n „n.are l 12mSOUTHPRE &IImMAD 83 �1[l1=if��Je rr1i k:c.':mot--_ � PLANTATION FL aM24 �I']�I Cjl1l' as E:Ny 41►Ii+a1f,0.PIZ• �"1�+�'f�;�•r[I(I .. 11. PmeVd,I to Ins provisnr,s ni Sn nmt L(N 0' �1 ntal iJ}7 I SOP, 110 iAa StnNdns U/C AtH,n• n,raltnl (INIY.a.1Uuh SU:+nI•< If„• cLrlonv w IIN till IKnpn,o I clranu np d. Ivglsh•r(•:1 off" a rep sfewd agent• c, lwilh, in fill:SIAIC of r �(rr,,A SJCII Cllro}(,,n µ�� Rn(Ir(Nl/filet try I!Nt fUrin,..f:Rni 6Irn,M11 of llnrr 1., , I I.w. I•l• A,, rld II Jr np{•tw,1n M+,1 w,fl"j�s!,•n A Itgenl 1 art, fmJl :nf mo'. and Acre; 1 file oNlgatans of, Sor.t,on FAT. bOS, I kwlda Starlets. SIGNAL URE ._ .._6�G•., _,,.r1c.y-�_ ,i. ,.. ... .., t.tN,,•,r• ,.ref., � .,.. n,.,, f2. tn��s, OI I ICE RS AND DIRM104S 13. M10111ONS'CI f.ANGE S 10 Of I tURS AND DIRECTORS IN 12 1 Mir DIP KUll�lt tt 4n1 I IE:,o+p? (IAG4'•x• lom LAWSON, JO1IN E SR N.kb5orl ifTdEf,l_'Ipnf SS 03 VAN BUREN ST. 115NI utlaQS k �•++t S1 , Z.pyl``r{C,,�p I ly,NlirlJ vwl�.t w c rr.sr.Tv RDILYWOOD FL t.c,l,.sr 1 • F4 IA•Ltivt�t�lE ,PI 333� 1 (may . h•IE -ST — .. till nllnt n m r I Ic,, Q, I IAt•I:•rl U 1t,VJE LAWSON, JOFIN E JR 11+•+'•1 s N • os t-tAt2 Q•� 1:t0o� until sa 8160 N.W. 93 STREET r••,,,tI1A1.A,., 1+u S'tE . (, 9. . cr,,sl.xr MEDLEY fl �¢ • LjtvbUtUNu, T-L 33301 -- . _ .. 7 aUh 5' n tA1f ( IEx-..1 It 1•Intl wo 11f n't fWOr, STAEEt ALJ(IN155� 1?s kl11 A'trn �. 110 :�,•� 1r enrsn:o 1, F.,;•.et r. T4 L 'i btR fALF, 1-1, 33301 lintF - -- - FIUt1.ElI ,11N11 -T- I I"'"o I Inw1 'u1[tl+ll ,11a•,� t� I?i}+C'tQ111 SIFIFFTAIAWSS, 1,61k�I�Aia,i �� IIo •�• +r 2'" Fld�d•�(Z' a,Y_sLzw E111F. —_ - I IIKIEf(. Sitnit (IV�>,g' (1A14,ro kk%w 5 7 N?J!1 S111r ill.- vss S.SIv,I I4•rca Crr}•.61•I1P 6s::It S1. 14• CImait iInIIE ena+ge (jad.iaAn WsfE 61 �\tn Sf REE f IUDRF SS 6 ? S'rtt r 1 A',Yt t•, CZ1 r.b1.ZA_ C4c 1, 511e 1�. 1 horny' rtrl•!Yy ILA! lnr Infrwn it, to p' A w, ill% Long does. t ,t !Irnhly luf dm elrrtfplwln MM-0In Sn; Ann I V, 01111tr1 i 1 wij SU:Ldr•. 1 I, liter Boll• Ill lhp Ia4 InaLan k,7Celed on I`1's rnnvAl fe(nr nr 1 .J A ,I,IIA! Inj'oo is I,Vr And mi.r,rnlr An,i fltnl n,y 6,gnw.„ , shall ftnve Il,n sao,( I,t)•11 r11aZ n. / nr o tend(, r: ILaf I Rm to once, or clwectot of the cnrpn v r h, I Cr ol t,u,lno Cn,po,,irred to ecel Vtu 14n a Iwnl Ali. nVu'•/NI by Chardt r G07 (InriJ,r Sl:<IVluS And Ai c oPNor•1• in Block 17 or Bt1 ;k `I) A omwj rf. ;nrhmnnt Kiln nn OdAIC.S, wi;n K1 (Ihr1 L,.n flu,,OA'r•rP;l SIGNA7tlRE: U••I LOli tR,•rl{t• M.v, [M 4,Ur.Np V I,�IM W (•,k,ClW •� b ►a .-BARc...I,A �tF �f�Rl;'t'AR•� ,. ,r,.r I,... s9-- 710A L t-VlAllDFIAU '33("REEN 12:15 PM CORP ("aO 14 P Ili -I A I A C I f V 1� F I t F 1) A I 1- I r02/. 9 R'l NOMI-. IMPERIAl LA1411ml IEW SERVICI !I I W. LVFNI TYPE. f EFFUCI lot. DESCRIP1101A I --------------- ------------------------------ CORPORAIR MERNER 06/15/149F, MERGINU P98000043R49 MERWED INIC, + NEXT. 1. MENU. 2. FILING. 3. OFFICERS. 4. 10f 7. LIST. S. NEXT BY LIST. 9. PPEV BY LIM' ENTER SELECTION AND 41 a f A )R I '11po I L (.)I-. T 011. k L( I t1) t -',I :14L 1.. 1-1 12 : 1 5 PM NOW FON118 Sl AL nu I I VIT /F I pqjOF 3 1 FLO: 12/02/19HI 1 : (IIEZ11111-W11%, mrp(:VFR FLO: Oo/15/1998 FFIR: W-2JI4378 rqnm[ IMPLRIAL !3ANT Pf"'Ihit Wol, 110 f.. f'llf IPIJI- "HJH ELOOP CHANGFD: 02/25/9Q t I - L(V JIQ HIN)i I . 1 I. An 1'" () 14 A m I, c. I com)(.mp I I Iti"I I [- I'l ""; C I �'ORPOPOI 11.111 (V)I'.)R (I.Alt'.".. 08/07/9P 1,200 :;()(,J 1 1.1 P I Ill. PL AN A I I ON. F 1 35 124 MEIN REP (199/) HY 0411H/ul t 1 99H ) "Y 04 11 "hi 9914 1 1 WAS/` 9 I MENU. 3. OF F J CE RS. 4. EvE N rs. i. s) i . a. vu.'xl . -). THEY 14 () HD G R: OFF ICE R/D I (:'IUP OL If) Lt. 12: 15 PM CORP NUMRFR: F56718 CORP NAMF IMPFRIAI F-f)llI'lAl ION ."..-WRVJCES. ltK% 1 1 11- NOME HUD-1311. lloHkl-: V) lio A.F. 01H SIRW As III H I JUHJ FF. I I E COSIvION. 1. 1) 1.1 6111 KIRLEJ 1111 11 t L I KIN F I. I ()( I ki lo I F. I I � I I TLE: 1-4 () 11 E HAW I r) I 'W/ 11) rl I I () 1.1 WH RIPEEI I. !HIH VLtn3l-! 11. 1 TITLE: T I .otlt - 1 10 1- 1 "Its I I I I 1-f 10P NEXT. - PRLW 1. MENU, 2. FILINU, 3, IDP, 4, EVONK-1 7. LISI . B. NEXI HY LlSI . 9. PREV BY L-Isl of te '10 *taAhAW16- �L- -7 �e�t�lriri�rttt ni` �iFitr I certify the attached is a true and correct copy of the Corporation Annual Report for the year 1999 for REPUBLIC SERVICES, INC., a corporation organized under the laws of Delaware, authorized to transact business in the State of Florida, as shown by the records of this office. The document number of this corporation is F98000003900 CR2EO22 (1-99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 L -�r�-rrt;trn of �ft1t�� V Awl FILE NOW: FILING FEE AFTr- MAY 1 ST IS $550.00 PROFIT ' rtoRnlnnrrncllr.Ii NT or slut(" CORPORAi ION KAth"One 21Ards ANNUAL REPORT !: Fri rrinry fit St.da I CIQQ �' / nlvi5+Jl4 Of C.URI'OliLm 10141; DOCUMENT # F980000039W 1, CMPo•riun Na mr REPUBLIC SERVICES, INC. PFinriprW r uAcs of gusm,e Fl. ... 6'adnl(g Add,v,a 110 SE. CTH STREET, 20TH FL 110 S E STH STRFEI 2DTi4 FL FT LAUDERDALE Fi, 3m FT LAUCI DALE FL 3M PrLncIp, ai Purr of dvii�csp - c , 2� 1r 1a,F np Arfd•( ss 1 } `Q .Cs. •� . � � � ' 1G I 1 �,L7 S .-�,, iD`�'1 Sri•. Sate ilpi p- t•t,: __ ._ _ N1.11P npI It ut, Crt E Stntn C116 Sf do z,p�o 1 cnl , 5 `1291 m3 I (:onni.y- p. Name and Addraas of Cuotnt Registerod Agent 99 Fi-C3 .5 PH 3: 06 �e�i�nb�iic�i�iii�`ii��imsiIli i111go DO NOT WWRIlI W THIS SPACE 3 !),III• Il n.l i,{»vl,Il i (J Ut1A I, d I 07/09/ 19N t 1 t I N.,nd,c' Arq,I,rA f of 65-07169N l Nnt Appl,(ablr $8.75 n IW „al s rI•it f .•14 of $11 ItI DrsItt at (; I cc- Rop.iire d y(n l u :•ne,nn I $ 5.00 lday RC Ih�st f bull C bnbd,dvw 1 AAdcd III Fe(ri /. Th,o u.ry¢rr,rnnn c,v,cc tho cm.-ol yva- InMntddde t 1 F.MVIIIA Prorwify TA. I I ye, I INa 4 11t. Name and Address of New Registered Apont +�.-� - ---- -- - 611 Nana j C T CORPORATION SYSTEM 12M SOUTH PINE ISLAND ROAD 82 Slmet Address (II CI fit..N .nbat N Nnt Ar(rptd,fr) PLANTATION FL 3W4 83 f.14 DIy FLIssi 2r1,Codu it. F'ursuAnt tniire pro»sons of SrUn,ns Coy 0567 and 607A 508, FlOrida Stntates, dx• Atxrve.nan (•d (:IN{KadtK„/ submo4 this simi-inced for Il,a {KPtK,Se CA Chanvina Ms rev stcred office a revisfarod nt0ont o• tluU+, in Use Starr of r Ionr/a Such ehP:+33e r,as Audlonn•d by Ut0 cugKUA'a,ns IRldrd of tt�r,'U.rte 1 htnuby A46(T,1 tor. AI-iKIinln10nt PS revston sigon1 I ant fA9ti',tr will, and acx�opl III(, ol,l,pt,Q,K 0Svcton 601.0505, Florid•, Statutes SIGNATURE -s,'�.:: . p.;t�.„ 1.,., 1:.,,•,rI - nr...n.. nrul ti.. .1.;.. _ .,..... .:. Phil ., FIGI It AND 1)IHI C,IORS 13. ADD11IONSICHANGES TO OFFICERS AND DIRECTORS IN 12 IMIT IL Illint i ICna g- i IMety. wvE HUIZEWA, H W I?ILJAI STRftih'LY2f.53 516 MOLA AVENUE Iysi:N II: dI+I Is FT LAUDERDALE FL __ i•(n,.sl.t» Q ��7E�D / ry 11RE VS. - - - - i IEmt It, Tt1,n/ C1L )e-J HUDSON, WARMS W Ts>.,.-C1:3/02/93--01080--(112 1SC1 1aDonFss 5n BOTONA AVENUE ?3sta!I lucn,.s 6w:>t-� . al 11i111.,L 150• 00 sr.rP FT LAUDERDALE FL ) Wit �I.n•• Tv p I I VIM it 3+110.1' COS", JAMES H 37,U,ui s-,mtrlxva,ss 1816 S.E. STH STREET 315TIOf IA!400 drr.si•ro FT LAUDERDALE FL ][ call fit ,' Tlrtf vt piDFlfrf alto,/ YQ j IC.ra,v,. (Ind61K.n two( HYLE, KATHLEEN W [ > N0,; bA, i % +A.. 51nfF1 a.�lRF s': ONE CHIMMA LAME [+sun u•I(a .. 110 S'• /e .q�� 1�5.�� .�[• SEA RAt�H LAKES FL [[(•)1.51. I•' "" "�uC,f�J��A lJC , ' ,•• �1 .. nnf — �yot(Flr ;Ilbl T i Ir.^,•.?- (jnal•tm xuE KARSNER, MaiAlEl S sl,,.„i gdvAARb A . L so(l,, ll, sTarnarx�rss 41 SOUTH COMPASS DRIVE .„call r.<I LI � 110 S•E lxrr.sT n4 FORT LAUDERDALE FL >((' • sl �„ � } LA �+ D�tR UUI Y-4 - 333 n1 nnF V I IO(iltl 6'1 .1 IIC.nan6e (.{AaJtm HOLMES, TOD C f 7NAM I s-RFfF.00FFss 128 G{)l�i'cN DOW CIRCLE l;slNti I/-x s.I Ury.ST. Ill' _ PIE WOOCLAI S TX rrcn,•sl n> 14. 1 hereby candy that the in(o•m tort p^' V Idinv does n01 �uaMy' In' Ito ar(r,pum, slMed v, So:hun i,l, 0/I:+AU F Innda Sl. let. a rr cert•ly that the elfo•c laavn ind,ealad on Ms. Anna' rr•pnA ,r s�� , �I � A JAB r(pn,t Is tn1A And Ar,.oratc n I wat Ay s•p•I,duy st�a�' h.I+e the f..vur L p o!:1 . NNIO und(•r out,. that l Al1I Pat Officer Or drector of VIr, cn•port urI u• <n Inlstc0 mrp, wcrtd to C.ac ulc Pa, n'in+rt Ily r<^pnnrd by C.hdpu•. 607, Fln-rtia Sti tub•S and Ihnt (Ili Prima apprra•a in Block 12 Of Bloch 13 if V, n9c [ •i !II e•„t w44 An AddFoss Ndl, all o(no, LhV enyoaoru(1 SfGNA7llRE:.. a(1`110b. � Zq2$ Dif•N r r f( (15 fN1 A�NI[n AAMI(N 6�4N�NG n//1(rN OF MA(f.IpN P P,,,.•-,n.. D P_I C, 0 W "i 39�-4v Q/17/99 CORPORATE DFIAIL RECORD SCREEN 12:15 PM NUM: F98000003900 STWE ACTIVE/FDRKIWM PROF FLD: 07/09/1998 FEIN: 65-0716904 NAME : RI-PU131-IC SERVJ(:[-.S. 1,14c PRINCIPAL: 110 S.E. WH SIREFI. 20111 FL, CHANGED: 02/25/99 AVORFSS F-I WA HOME C I ("IRPORAII(11.4 RA AI OR 1200 SOLO 1H PINE RI)AI, PLONIATION. I L, 3,,'Z,71 US ANN REP t )9991 1 02/25/9c-I i. MENL), 3. OFFICERS. 7. LJSI. S. NEXT. 9. PREV ENTER SELECTION AND Ck: 9/17/99 OFFICER/1)IRECTUR DETAIL SCREEN 12:15 P11 CORP NUMBER: F98000003900 CORP NAt"ll : Rt-T-'()RI.,JC SERVJ(*Eq. ING. I IT L E: CE) NAME: HU I I F HGo . II W 516 MUL(i ()\/f NUI FT L A t)1) I: I \'I) 0 t- 1.. I I. TITLE: VS NAME: HUDSON. HAPRIF W 52Y 1011,11,10 OVI-II(II: FT I. AIWI I. 1- 1: 1 TITLE: P NAME: COSMAN. JAMES 11 A 816 14111 1. 1 RL ( I F I L Al TDf JAMI E F I. TITLE: VP NAME: BAW*A�o,f. m)VII, o - S . V. 6 1 11 S 1 HE E I . '28 111 f- L F'I L o(M.) 1 ROO 1 - E.. I- L. �3,50 1 TITLE: T NAME: LAND.;. EWWARD A ill. 11-1 FL FT 1, 01.)Of RDAI F. I: I 33,')o1 TITLE: V 14APIE: HOL FIF S. I LID 128 14 SHAI)OW 11-1f. W(R)l WI-0 Nl),'- , ;. 1x + NEXV. - PREV, 1. MENU. 2. FILING. s. rof) 7. LIST. S. NEXT BY LISK 9. PREV HT WSJ t` NJ E R S, E L I 10 N OND CR: 99- 20 01 I certify the attached is a true and correct copy of the Corporation Annual u Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. u Q, The document number of this corporation is F56718. Q! tt Q p Q k SQL CA" f-G27_ 11 991 Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 ✓ Cx "Il��lflll`1'IIIC '���11'1'1�� ,�rrrrttu'u of '�t,ttr > FILE NOW: FILING FEE AFTE AY 1ST IS $550.00 F'R13FlT t: IIOWPADFr•AkT1AENt Dr StAlf CORPORATION Y {ththrrime Hartia ANNUAL RFPORI 1999 :'� 1>lvf lnt�c,r coul•drnticx+s I DOCUMENT F55718 1. Cai`r"Atnn NA�te IWENAL SANITATION SERVICES, INC. Poi,(7pnl f'6,r� of H�,e�,rs .b+l•�,tp AddrrSe fief NW Sm ST VIM NW. 41RD ST WEOLEY iT S.t 9 ►{EEILEY R 33166 �, Pur,ripM Plnce c+l Pvsness � Ya. A�a� mQ Address 1 LO S.0 . !c441 S� suuo.-Api N. -It f;.nta A(J a ct<. !! Cr Stxtn 4 bgt,c 2al Cncn1• T' % V Cnur.l•y) 0 S 201 3 3p I (3Q, S IQ S9 FEB 25 Ph 3, 00 IBWOMIIW�II00;��ImI�I�I��IOdNI111ill DO NOT WRITE IN THIS SPACE S Mae V,; nrpn•nt.•J nt Oo.,IJrd 12I0211981 4, f f i N+nrDn, Applicd F W 59.2144376 } } NxN+r+cAl,tp i$.75 Aridd,anAl s Cert h .u+• elf $l'l— ht:ter d (I { ce kerl.n,sd e i h nt+„4nmpa Qn i wa+wi„ y i! $5.00 AtAy Ge 1 hr,l i lnnl CrntnLul,on ArIM-d U. { eCS e, Tln•.f'oI—"to.n nwc•. Il,u r vnant,,.'. In1.rr141,14n i i,n+nr.i I`ny,!•, ly tar I iS'rs I IN., _e.• NArr v and Address of Current Regislt,ted Agent ( 10. Name and Add,*%% of No. Reglstefed Agtnt C T CORPORATION SYSTEM let Millie % C T COW10RAPON SYSTEM ei t`I.0 Arsbu••t EI.O tiro N,md,c' ,• 14,0 A- V .W.1,c) 12M SOtI>li PWE ISUND ROAD e s < t [)l0 rJ 0 7, —( PLANTATION FL =24—03,10,V,33 --0� i f wilsiltjEl 11. Parwe-,i to ine frpn5,on5 nr Sn•t,fv)c 6W 0!,02 Aral (Ay ISM, Flo,d-A ;.Ialuin5 the hhuv,' n.lnxnt royr...,uln a,C.+,41< O,n at.donw-nt inr IN lanpo.r of I.h. lvig U. rvgl•,Ir•+u:f off" rep seed agent, Cu bolo, ,n tl,c StAtte of F4ada Such drMcoIt w,s htdhtav4d by I!,c toq„v.,:n,i A lenrd of d,n 0. r. 1 ill -4.y hc) rp1 Paz npimn6l.rni ht rty,sl.vr ;t agent 1 am fanli',at w1rI" And ncr npl !hr nhngauans d, Sor:dnn f,Q7.0505, ( )f ndn Slandol. r WGNATURE OF I icf R$ AN(t DIRT GI(XiS 13. ADDI1IONS 'CtIANGE S 10 OF 1 ICE RS AND DIRECTORS IN 12 KUItEIt uhi,f [ ICsA q; [ �pbl•'.X t AF LAWSON. JOgN E SR flat••f {�iaQ iS t,J• slntE,I�cwu W3 VAN BUREN ST. 51.!1!u+ef„I tto 5.0• em-u-ry HOLLYWOOD FL I.r.a,.sr 2,•. i Ta . LJ't l_itl0b h'tE _s1 _ _ .. kit,oFiFIE )„u I [ Ic•u,�" [ 1A,.1 :•Y,I v kWt LAWSON, JOHN E JR :,n•,•, .�ti►-i'ES H • to`'KA4 .►a� �'L.00Rr al/alT sti 8184 N.W. 63 STREET>,,dt lAi,)n1. 00 S iE . (per SIi( ZF cRr-St.Zn ?+ DI.EY FL •PL 3M0% .I IDEA it 1•e,tl J lltmny [141�,0� NASA1` ]lA�'t �[�t.11'D , 'W P.c,L„ I S7REF t AC%,Ff S5 j 1} 5 Hr / I K I+rl . t Crt,-af.7a• J II t, ..yr ,. L r\v t' efaLF-, -u 333 k CItit (Eit ,1Hirt 7Faw [ IOtiny. [ iAtl,'Ar. IW{ 1 I ?'­1 ;'-) (TIRE I I/,r11.RE!.S, 1,51ki 1, r.'l�.i �•' 1[0'`' Gry. !-ZIP !, ;; PLr[��d� 5i IN! S MUM than [ Sc..x,r, [ IAt�•+x may, S? W4 It Sim Fi ADM t'-S 1SI+,'1I k'r Id 1 CJI -m lip Sl �,, 51 ),• CIKit IE t/in,t A-1 Cna'tg[' [tadtaaa UPE t 71K, SIRED l)('RESt. 6! S'NI I I A"'"'.' CRf.Sf 7O f t (1, tl Is, !!. I M'retry re rtdjy' 0111 (no tn(nrn It. go n' a w , nit hln;T docs rtnt ry,,a1dy lur thu r'vospinn !.1•u,+1 In Sn:.Ann I tt, ulpiw 11-s'e l Slalowo I i1 it. cr coo. Ih Ih(• v,fnm,ahon vWitaled on t!„5 annual rcfgtr Of . •I , n Hoof report Is Iruc hrd n•7.urptr nr,,1 that n,y L+ynw•u•r; yhntl hovo Ilre san,c hp:d p11aI n� rn n under .: that 181, ra o(fce, or drteclot of the cnlpn ,'. r In r • ..vr o, button enq+o.vvred to exec ule 14.t a In,rt As fu:iu ttel Ili Crnplcr Of1J i h,rid,t Stalutur. and A„c hPpows m Block 12 of M;1, 1a N. OsArvy t, :nrhmnni vdlh An n4dre!.s, wr.h ai all so id.,! vfnpnuorod SIGNATURE: W � ✓A> � U VM IH,Y IIV M,..1 fN Y•1»„YD IIr I,tCM V•+l,kI C, UN (� ,1:, 1',..• I S9— 120 KURPORArh t,)Lmu. PE(.ORD S(:'REEN 12: 15 PM NUM: F56718 S1 :FL ACTIVFIFI PRO" I FLD: 12/02/1981 LAST: (1) HPO HA I E MEP(iEp FLD: 06/15/1998 FEIN: 5q-214430-; NAM[ fNPLRJAt. !-"ON1 I I I H l- t V i C I N(:. PRI IJC j 1 Al I 10 1 1 Ll 1- L 0 P, CHANGED: 02/25/9Y ADDREW t" f LAt H 4 RDW L. Ft ASA01 RA NAMt. ('! 1 ( ORITIP't"Al 111H NAME (:HG. 08/0719R RA (ADDH V,; C I I I l r-1 ODI)R 08/07/98 ANN REP (19%) HY 0411,H1% f 1998) BY 04/17/98 t 1, 9 9 .1 02 / 25 /99 1. MENU. 3. OFFICERS, 4. EVENTS. 7. LIST. a. NEXT. 9. PREY ENTER SF(A--C1-ION' AND (-.'R: 9/17/94 OFFICER/DIRWOR DETALL SCREEN 12:15 PM CORP NUM6EN: F46718 uoRP NAME: TMPFWA(_ SERVICES, INC. I'l T L F , D NAME : HUDS014. W jjo S.F. 5111 SIRFE I q 11 H F I Of) P� 0001- P1 fill F F 1. JH TITEE: P NAME: COSMAN. JnMfq H t I . I ", I II Pt-t. F I At" i Pf 1-r?l i I TITLE: '3, NAME: BAR(10i . P�A�,Jt� i-j 110 S.F, oil "010H I ,qjfll 1403H, TITLE: T NAME: LAW H qWUN 0 J J 1 IJO S.h bill 101W.1 W FFi f WOR A(A f.- P,001-f F L 53301 + NEXT. - PREV, 1. MENU, 2. FILINUt 3. 101:1. 4. EVENTS 7. LIST. 8. NEXI BY LISI. 9. PREV BY LIS-1 ENTER SE1--FA,'-T10N AND (-:R: 17/99 EVENT DETAIL 5CRFEN 12:15 PM ^ � � CORP NUM8EH: F5o718 COPP STATUS." ACTIVE . | � FILED 0AT[ � CORP NAM[ iMP[R]AL SON lTATIOH St. HVIlNC. ! '' ` EY[NT TYpL FlLEV [FFFClIVF DESCR]PTlON . -_-------__-------_---_'---_--_-_--.-__---------___---__--___----------______- CORPORAlF MERGER 06/]5/]99R MERGING P98000043949 MERGED INTO | � F5b718 | ` ARTICL s or INCC)12POR10.1014 J (I If •/ Ill or IAt l r� Oji IMPERIAL ANI'1'ATJ ON :;I:RV I Cl,'S, INC. T)►e 11110c) f 111 I by 1.111 of f (I) )Ili llrl A rrI► 111-11 a i on under the Florida Genera] Corpol ation Act, do(us) he1 cby ariopt the following Articles of 311colpo);d icon: ARTICLE I Va111c The Iralrlc of this Curlic++ ation is 11•11"I 122AL SANITATION SERVICES, INC. A►dTICLE I Term of Cor}lorate F.�:istetice The corporation is 1.0 )lave pt:11rt-tual r•xistc'11c:r_ Unless, d'insolve6 occordina to law. Is)c'I1CLE 3l'J Pur 1,onP The purposes for whi ch t.hi s Cal'pol a i can i s a1 ua►1i zed are. (a) To engage in an industrial and commercin'! wilste removal service; to engage in the buying, srr13 ing acid dealing in industrial and cullunercial scrap, salvage, jefuge, rubbish, t.1;1sh, juiik, offal, garbage and debris; and to further engage in the collection of industrial and cam- moicial scrap, salvage, refuge, rubbish, trash, junk, offal, garbage and debris. To likewise provide any and all necessary vehicles, containers, and other receptacles necessary for the hus.ines, of the corporation in- • cllu3ing the obtaining of various vehicles and athrr equipment for the ' transporting of same. To further engage in the maintenance of disposal facilities for the items of the corporate business and to do all other things necessary for the furtherance of the corporate business. 1 !.1'/ Cil 1'll'1 S I':t111�•' fJ 1'r(11 I I' li I,lil)�•� Lr. A. I.'.I!•'A{ I'i ftlllt:A aJ-� I'Q r- I -- ra (b) Iro acquire by purchase, or of ilc , wi se, for i nvr..'sL• went or resale, and to 01.+11, operate, sui.divide, ]ear.e, let, n+ort(jage, sell rind otllr 1 wi sc of, for c r.sh or 01.1 Cl-edit by conveyance, r,c1jrc•en1r-nL for- c3c•r,d, or c,thr r 10Wfu1 insl.►-Mm-lit, real estate, or mi;,ed I„ of„-rLy, lr+c r,t r-d in the fit at a of f1ol-ida, or elsewhere, and oc:iwial.ly to 6o.-il in mid I.1:,f fie as owner, aor—ril or broker, i.n real estate, pet sonal and mim-d f+loper Ly, .rnd any intorust: or estate therein, including suhdivisions, apnrLment )louses, resicic-ncr's, storeE, office buildings, maim) act uririg Sights, and the lots or pai cel s of l;+lyd upon which they may be alld Lo create, own, lease, sell, operale emd deal in fry hold and lrasc- bold (.—tat CS of al))' illid 011 Old i;icl.(•r wh,lt 1;(wvr!r, i:rld t a b ;in ir)vcstor in real and per s:rnal prupei ty. (c) To lend acid borrow money, he a s:ureLy, vxecut.e Lail bonds and to execute and deliver, accept, take and receive notes, bonds, debentures or of-hor ev.idmic.es thereof, , and mortgages, trust deeds, pledges, or other sccurii.ic.s for thepaymentof same. (d) To acquire by purchase, subscription, or 'oLherwise, arid mortgage, pledge, or otilerwisc- dispose of bonds, rlc�tes or i other securities or evidences of indebtedness, and the shares of r conuaon stock crc-ated and is -.sued by any c,t.her corporat ic.-►n or corporations, association or a� c+ciations, and t-o ptirc:hase, hold, sell, assign, Lr.►n::for, nlo►tr•;aye, plodcle, or cat.her•wi!;e dis-.pone. of any bonds or: other s ecuriLies or vi(3r'11c vs c:r c•.at ed by or i!:sued F by any other corporation or, corpol-at. ions, association or associations, and while the owner of such stock, t.o nx01 C) cs all ) iyhts, powers anti privileges as such ownership, includijlq the right t:o vote the same, and to do any and all 1;Iwfu1 acts or things designto `y protect, preserve, improve or enhance the value of any such bonds, S" Z _ I AW r`t I'ICI S Ntl�l11,0 4 V4)I I I' A I",i?rn. r- Y stocks, or other sr -cur ities or evic3c•nces of inc3ehtcdness and to guarat) Lee dividends upon shires of the r.o►►unon &:t ocP of any of her roi porat iolr in which 111r s co! pot At .ion, in ,iriy t. line, ilrily )Ho i nt r1 v,;t rd its a sloehholder thereof, and to eicuurse or uthr-rwjne guareintee the principal itI)d int (!)est, ur ri i her I hor cof, of ► of vs, l(Ir,(3 or other evidences of iby i nsue of !:uch cc)) porat.ion; to deal i.1r its own stocks ur bra}cer,-+cje Lusi nr. ns. (e) In addition, the corporation may transact any and all lawful business for which corporations may Le incorporated u►►der the Florida General Corporations Act. ItRT1t'IX 1V h.u1.1101-i7cd Shares The maximum nu►tihrr of shay es of stuck with par 'value that this corporation is authorized to have outstanding at aiiy one t ime is --------FIVE HUNDRED ------------ (500Y.Yxx) shares of $1.00 par value co►►u►lon stock, which condnon stuck, shell be of a sinole class and which coriui►on stoc)c shall be Section 1244 coildnon stock pursuant to the Internal Revenue Code of 1954, as amended. ARTICLE V Initial Registered Office and Registered..Acjent The street address of the initial registered office of the corporation is 940 N.W. 181st Street, North Miami, Florida 33169- The naine of the initial Registered Agent is MF.LVJN WOLFE whose principal office address is 10651 North Kendall Drive, Suite 200, Miami, Florida 331.76. Having been nrimod to aecept" svi vi c:e of prt,r.ars- for the above stated corporation at my principal o1fiee ►doivs-s do.nignat.ed in these Articles of Incorporat-ion, J hair -by accept to act in this capacity, and agree to comply with the provisions of raid Act relat.ive to keeping open said office (pursuant; to F1(1i Statute 607. 34). 1 - ` - l _. 3 _ LA 1V (;I'1,Ir.1•S 1','iII I"f,14. %Y01,1T n 1;Itc)�.!>. r A. )c�c)►��t)A 03"" I4U ARTICLE VI i Number of Directors Thee 1:usi ncss of t lie ( sj lour-1t iurt rha1 1 he st,;m;+yc•c3 by a !r Soard of Di r. ectors ccunsi st i ny c)f cane or ►tic,r c it, (rmhr•rs, t.l,e e>:;,ct. j i number to he (let elmin(..d ftotn time to time in arcoldnr►ce with the i Dh-haws of the corporation. The initial Board of Dig ect.ors e.hall • ' consist of one Di rectors. i i r ItUTJC1,). V 1 1 Initial board of hirectul.S The W11TIes ar,d aciciresses of the fiI st. Som-d of Dirc.etars, %..ho, nuLject to the provisions of t)►ese hrticles of Incorporation, i the Ry-La-ws of this corporation, and the laws of the State of ' Fluride, shall hold office for the first yr.;u ref the cor)�araiion's existence, or until their successors are elected and have qua lified, are: l A -HE STR1�1i'1' ADDRESS i JOHN E. LAWSON 940 N.W. 1 81 st Street_ North Miami, Florida 33169 t i AkTICLE Vlri Initial Inccu Pott clr (:;)_ r The nsitnes and addresses of vac)) suljscr i ).,c•r t.o t),ese Articles of Incorporation and the number of shares that. rirch ac3rees to take, are as follows, to,wit: NAME 5' HEE'T AUDRU'SS SHARES �- MELVIN WOLFE 10651 North Kendall Drive 500 Suite 200 Miami., Florida 33176 the proceeds of which will amount to at least $500.00, f I AV., 00 rtr t S VO41 1 N wnl.rI- n r,urp,S P. A. I.t1�.►�11 . t'1 r;rr1(7A 9J— '`e20 ig AI(TICIA" JX l:y _Laws The r3oard of t)i t (rct.urs shall :+clopt By. -haws for this Corporation which may i.>t, imiencl(,d, a l t eat ed or rc pc:t l rid by the shareholders or di rectors in :any manner pei mi t.t c-d by the i'•y-Laws. lRTI CIX X Indemnification of Diivctors and Officers 1. The cor po)-a t i on hry r eby i ndestm i f i es any d i i ector or officer ttiade a party or t treat erred to be tt,:+de a }.arty to arty threatened, pc-ndireg or cumpleted action, suit or proceeding: (a) t.'heLher civil, criminal, adminis1r:,tive or i rcvest i gat i ve, other than one by or in the ri uht of this corporation to procure a judgment. in .its favor, hiought to impose a liability or penalty on such hcrson for an act alleged to have been cottunitted by such person in )6s capacity as director or officer of this corl►or-ation, or in his capacity as director, officer, employee or ,bent of any either, corpora Lion, partnership, joint venture, trust or other vnteyprise which he served at the request of this corporation, against' judgments, fines, amounts paid in sceLtlement and reasonable attorneys' fees, actually and nc•ce:: ari ly incurs VC1 as a result of such action, suit or proceeding or any appeal thf-re- in, if such pee son acted in good faith in the reasonable ' belief that such act ion was in the l+cst interest ,t of this coi pora- Lion, and in cr-irttinal ,actions or l:rocc ediiigs, without reason- able grounds for l.m] i c f that_ such ;tct ion was rinl awf ul . Tire termination of any such action, suit or proceeding by judyment, order, set.Llejuent, conviction (.)r upon a pica of nalo c:ontendere or its equivalent, shall not in itself create a presumption - 5 - 1 / . t`,VI'tt'I i ►'O111'•44N W(II,1 1' 61',Itft`•'i 1". A, h'.1l.f.:1.1.1 ()I? WA �3-- 120 .^ that any such director or officer did root ;rc:t in yrm)d faith in the reasonable belief ghat such action was in the best interests of the cm pm,lion o). Lh,-rt he had reasonable r,rcaunds for bel ief t hat such ;jct ion �.,3 unl;tvrf III. (b) By or in the right of this c(.), fu.�r;at ion 1.0 procure a judgment in its favor by rer_son of his heiny or laavir,rj boon a director or officer of this c m post at jm), or by r crasc,n of his being or having been a di ror.tor, officer, c►nployc:e, or ayent of any other corporation, partnership, joint venture, trust or, other ent: r pr i se whir Il he ;crvc>d at the reyuc>s;t of this corporation, ac:ainst the reasonable C-xiijumses, including attorneys' fees, ;actually and necessarily incurred by him in connect ion with the defense or of such ;act ion, or in connection wi th ;an ;rppeal t hrr rei n, i f such pf.,l sun .acted in good faith in the reasonable bel ief that !mch action was in the best interests of the corporation. Such person shall not be entitled to indemnification .in relat ion to mati.ers as to. which such person has been adjudged to have boon c;tiilty of negligence or misconduct in the performance of his duty to the corporation unless and only to tale extent that the court, I administrative agency, or invvstiorat ive beady lrvfcrre which such action, suit or procec>diny is hold shall Bete r rni nc upon appl i- cation, that dc•spi to the aclilldicat.ion of l iabi l i t:y but in view of all cll'cl)mstmoces of tale ca.';(-, !-mch porson is fairly and reasonably entitled to irrdemnificratioinfor such Lyp'nses which such tribunal shall alec in groper. 2. Any indemnification under suction (1) shall be made by the corporation only as authorized in "0 specific c;rse upon a determination that amounts for which a director or officer seeks t.,v: orr•rr•rs - G - %1.11111!If14•11;01.11:aCmI)-•,S P-A, hctr••r�tl. r1 QNMOA /�20 r s-� indemnification were properly it►currcrd and that such di),er_tor or officer acted in good faith and in a mariner he reasonably believed to 'be in Lhe hest intcrc-st of Lhe corporation, a►sd that, with r cspc ci to any crifill nal acl ion or )rrucc edirig , he hrsd no rcasonahle yround for hr_1 ief that !.uch action was unlawful. Such determination shall be made either (a) by the Board of Directors by a majority vote of a yssorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if such quoru►n is not obtainable, or even if obtainable, a quorum consisting of shareholders who were not parties to such action, suit or proceedings. 3. The for cgoing rights of incic_mni fication ,hall riot be Ovtz- »ed to 1 i.mi t its any %:ay the towers of this cori►orat i on to i mir-titn i fy under applicable law. ARTICLE. Y.I hn,enctnett i. This corporation reserves t.hp right to amend, alter, change or repeal any provision contained in t)tese Articles of Incor)-ioration in the manner now or hereafter prescribed by statute, and all rights conferred upon shareholders herein are granted sub- ject. to this reservation. AkTICLE Y11 Powers and Rhts of Directors and 5hare)rolders 1. rrom time to time Lo determine whether and to what extent and at what times and places and under what conditions and regulations, the shay eholder� aI►d dir vctc.rr s of this corporest ion shall have the right of inspecting any account, hook or doctrtnent of this corporation. 2. The corporation may, in its By-hai,S, confer powers upon its Hoard of Directors, or directors in addition to the fore- 1 f %., of 1' I f.1' S - 7 - IY141 1 " r.14 '001 1 1' n GIM"t i 0. A. L�IJ.1�11,1'1 s�i7lt)l1 J-- "r20 1 going and in addition to the bowers authorized and expressly conl'errcd by statute. 3. hotly shareholders :rnd di i-ecl ors shall have the 'jx,wer, if the ry-Laws so provide, to hold their respective nu -et ings, arid to have one or more of ficcs within or without the Stile of Florida, and to ker_•h the bnol:s of this coiporation (subject. to the pi ovisions of the st;H utes) cut side t hr. state of Florida, at such places as may from time to time he designal-ed by the hoard of Directors. t D.E, THE UNDERSIGNED, being each and all of the original t subscribers to the conunon stucY, hereinahove riarned for the pu)pose of forming a coiporat.ion for profit to do bushiess hot.h within and without the -State of Florida, do he) (by make, subscribed, � E achnowledge and file these Articles of Iricuipurat.ion, hereby declaring arid certifying that the facts herein stated are true, L r-,rrcl do respectively agree to take the number of shares of stock hereinabove set forth as to each of us, and .accordingly h;rve here- tofore set our hands and seals this _25th� day of__ November 1981. j t \. `I' (SEAL) MELV I N aOLFE (SEAL) STATE OF FLORIDA ) SS COUNTY OF DADE ) I HEREBY CERTIFY that on the day and year above written, I t %,, or I' I t" vs VO41Tr,!-'N vm-xvr r, 1;mn,,s.f . A, i.�lLr.tl V1 �9 �,C)0 personally appeared before me, tl►e Wide) siyned ,,ut)►c)rity, MELV1N WOLFE r r A11d 10 me well Ynown to he the person(s) who executc-d t:)re forc'cjclir►y Articl(.:s of IIIr:c,IJ+c,rat.ion r,►Id IaeYnowledged before me that he/shy/1.1►ey er.c c ut.cc3 t.l►e !;;,►ne freely # and voluntarily for the uses and p%)1_Pos0s 1 )►cerc in rset forth and s expressed. NOTARY 1'III�1,.iC� .r;Y'11'1:F, ttF f?LOPI UA AT LARGE. / . Jdy Cc,uunir;r;ion I:•:Jtirrs: NOIARY PUNIC S►AII Or 110N.IDi. AT Lu(-j ILY [U••,,d,ISStON O.YIM N.rR 79 IV83 t BOIrDID Inks, GIN., AI II+S, UNLOWIARS 1 S i i. t I F f: i i r'' r c F:: 1. L1Y nl'I'II:IS 1v111 Ir.ar.N• Wrrl 1't' !t r,l:l)�,q Ir, A. . 1.stl.I�I.I.1 ,;►rID� �tittC k..�'�r�C, DQ}lartIII rill o t�tlllr I certify the attached is a true and correct copy of the Corporation Annual ��" Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a y, corporation organized under the laws of the State of Florida, as shown by the records of this office. tar The document number of this corporation is F56718. u K u u ar T1 a (AM 022 (1 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 �tt�i�r� � Arris �rrri•t;trtt of �l;th• V FILL NOW: FILING FEE AFTER PROFITy COT2F'ORATION ' �1i'�, ANNUAL RFF'ORl 1999 DOCUMENT- # F56718 1. Ct,rMRI*n N.Mlte IWERIAL SANITATION SERVICES, INC. 1ST IS $550.00 1101001% WI-An)rtr NF cu 51AIC it Alherime Harris 'bnl.r,.uY d, tlalp 111\nl1(,N (,I C(dtl•{d<AiI(,NC rrt,c:(1M rlxc. n! EU,�o,,.r.e .. ._ -. I.,.,,Fny nddrl•s� . . COD NW. I+JFiD. ST vita NW mm v WEDRY FL vrt MEDLEY FL VIA PrincipM Plnvr c+t Dos�ncss-W 20 ndNrts I tv s.�, . (,o, zcj I l O S •C Suiln, Ald IF, Nc g ntn A,d b r!c C:A BV,vv- I..E�f,�,�,DF��� -- 33aoI _�330 i J• ,__ p. Hams aAd Add eu of Currsnl Re plslerrd Ag^nl FIB 25 r11 3- 00 ima�v� I . I b fM E ilo'uiihii�.;iaPi�PiauAi��rfl DO FJ'D1 WRITE IN THIS SPACE ] Ih.lr Irn nt pr,'nt, •., m (J.1,LIod 12102� 1981 4. 111 Nu.rta', AjvwM rew 59 2144378 Noi A;.vix 1011 s8.75 Arbhl•:nal S f prLa .dn n• `•I ,L,. I,r•'n,al (, F re krq,1„n:1 G 1 h r bn, (.�„n,•.,up.1 vu,ein.J SS.U(T A1n, {.,. . . 1 nr.l 1 ,r,nl !:•nh•Inr1•, •" I I Adind 1,. f uc' A. 1U,•.,uq,i.•.r,a.n nv,t •. Il.0 l lo,..nl inp Inl.uepldr. 1 •In,r✓b� 19.•, •.+Iy Lr, I IcP+, ( INt to. tlmnt and Address of New geglsleled Agent N,vm C T COnf'OfU710N SYSTEM a % C T CORPORATION SYSTEM 07 a nil. N,Ind•r• 11 N•.1 n: rrdd.d,l'1 12M SOUTH FIVE MILANO ROAD 93 ;1 �11.—! rJ Cl . f ` i c' f : ::i - - — JIMAiiON FL J3324 -03/0;?/:33--0 et ce7 4'1dIt vi.PL � ���I"LI[I .. 11. rut 6uMl In U.e provis,pne o+ Sn'o M+! Go7 (15(17 . on (f>J ISOP. f lo9da St ilulna the At.nrr r."rim d roq.;..ha.a an: «,.Ca 11.11 el.elt•nrn, fill I6( ,Rn p,.,r 0r 1lr.v,y, ng d, rrpll,lr, a;1 off cc d rep slerrd spent, a InIn, in It,e SIAte of FlolOA SUCK comnao w:, AUthnrlmil by Ill: [urpn..1',r„i R I..,w,l of fill, '11'.'. 11, :11.t M. r1.1 It,(: oppa..11n,r,,, nt f1 �,tlrh d I Agent I Am fmii,ai vmIh and seer.; t the oNtoat,ons W, Sochnn 9)),(1S05. 1 t,ndn Slabdof. SIGNATURE _ _ _ _5_ti.._4.ae. ,..,.... ..,,,. ,. .1., ... .... ... :•. {.,ill r, ,.., .., n,. ,., .. ,r.. .. ,v„ 1J 1=• _ Or I ICE RS ANt) r)mr(, IORS 15. At'4)I1IONS'Ca IANOE S lO OF 1 tCERS AND INFIECTORS IN 12 mlF bP KuuEN 111110 l s E/ ixraEs W3 VAN BUAEN ST y f)1,f••l N� 1S W /+ Zk , -? HLkb5otTY-44%-000, r larllu.v t�•. (TA SA. • (P W cm s7_rn EFf(OLLYWOOD FL ;,�• ,,,,,,.51 J,,. � Lg4•Ar>nt;ftlE„� (, 3330 1 fryC TI-IF - tST Vc slit It /111, I _ r ICnang.• I IA,•I:•v1 V kwE iAeWn30N. JOHN E J{Rr ,,,• , JP1'_t S `H .I Co Ste► 044 ' q 71xF1 S\ eieo N.W. 0.I STT CI J•\,r,111a1.R11. It'V s•Fr. 1• - -C 2P woF�, crn.al.zp MEDLEY FL (} • LAkJbtl e%U PL 21ML j _ 7 xn1 R' ,. IMF I r IUE:1It t•n.11 WIJF J 11(nl•N. I (41•'.'•o' t,5 Pit IAcl v •e,. fj(T•SI.:.' lA.AC_�-n-aez(F_, rL. 33oo1 TITLE TItIIIEtf l,!:se•.i .. CIIO ��' /` _``i IA I_406,(11 9WF1 WCJ SS, Z** F(ddmtI•'d pIY 51.7e� _. .. .. .. ... .. .. .. e171, •, j.:. LA kbG ��r�W I t-(. -17.30% silt S 1 [tiEEIF. t 11,n, (.ICr.a,J, ((AILS,r IIIK 5 7 NN'1 S,RFFfA�SS i 1SIt1I , An'.d .', 1A1F —. �— �..-- -_ _ �.. .•. ..-. C IDLLf IC tltd,r . KWE 0 s\.\ SIAIE T A�{lrtf SS R ` S nU I I A'.YR •• CAf•SfJi' 51.Jn 1 llw,t ftrl•1yy IMI lhn mfnm 11, Rum d w 111t f,llnp d,.cs Mt 11„n,-ly %,,I tls r.rn,Innn slm-I In se::l,r.n t 11t g7Fl)(11 I I,•.•1.1 i1.t11rlr•c 111 bill rrd. 111 It,(- rlfnnll.ihon v,acdted on IS't Ar nusl ,cFKtr nr 33, •j n uml roporl Is Uuc and n•�.IvNc nn,1 pml my R,ynn u•o Sh+r•t hors Ihr: A;n„r hp:d r•IIhA m / n1 s und(• I; Thal l Am p1 office• or dvecloi of Me cn,pn Y. q r 1, r . \et or I•utloo GruMvpted to e[e(ydV tip, r(t.,nl A!. Il'JfhryRl 1.f Chaldf•1 Dp7 11uriJ.4 Sl.4101j% sod anc Appoa,a In Dock 17 0( EII'A Q it c1.n,.j I. iii :nrhmnnl vAill nn nridr M,c, wo, wi on,rr I,1.,• rmpnnt!rr;l SIGNATURE: -- 2I1%jg5 (gsL)7�9 -z7z.� w -un.i , Gus ialgl.V 4A.., iw i•uwiwawrnfn nil l.,klc,u. h,,•. r,,.r a 'i l> i` • �F�SZCL A yjt �E�S�E"i"ti+ i 01;ITIMA11% LWIfIll. 10.031dl WNWI J205 PM NkV: F56/111 SI :FL AU I I VE /1'I PROF J I FLD: 17/0VAUH.1 MERCIER fLD: Oo/15/1998 FFIR: W-2144318 NMMF JITTRIAL 13AE41 IAI I FIN KF RV 1 (15. 1 W. PRIM, 11,01 110 (,111 '.' I W. 11, 1 1 1. 1. Of )I-,' CHONG14). 02'/r15/9Q 1-011I)ENOW L-. . F 1, P6 10LAA I I I IN f:'i T!." I I ill HOME HA AN*� C I f*()RL1(1P()11I)H W.101i Ullf_;: 081o7l'Wl AHN HI-1, (1149/) HY 04;'1ki/'4/ L ly 01 1 148 0 f I MENU. 3. OFFICERS. 4. EVEN I S. 1. L IS, 1 8. 1,11-'X 1 9. PREV F. H 5 F.. L_ F C 1 4 0 1-4 (1 N 1.) G R 9/11/914 OFF, Ft:Lill1.)!UR 111.1011 S(.;REHI 12: 15 PM CORP NUMBER: F56718 CORP NAME: I MPF N I Al `:AN 1*10 1 1 ON "31,'RVICES INC I' I T 1- F E.) NOME - HUDS011. 10lZlW,-.; W 3.10 S.F - 6111 5311YEL'I 11011 1 LOOP Al 101 PI'm L 1. Q.; I -1 j 1-1, E P 1,14AME: CW-41nN. 101,11 ", 11 )10 !.;.1 6f1l ''IkJl ".011 11,I)HP F I T L E S, NAME HOPI. 1 0 1 10V I I 1 0 I v vs . I c' i 11 9 1 1ji. F I ml I I I I L I nll� I. I it 4 H 111"I L . I I A, All TJ TLE: I NAMF-, 1.rNt-114. I I '(AAIW 0 j I I !W 5:14 . ell!! S I IAK L I KILN FIVIL)R + NFXT. - PRbV, A. MENU. V. FILING, 3. 10P. 1. EVENW; 7. LiSl. S. NEXI BY LISK 9. PRFV BY LISI ENT .H S E 1. 1-.. G 11, 0 N ANC C R: i r I LVIA41, oEtAll t.,t'F'tl=t'.N 12:15 PM Cl-)R ., I40111if' k : (�7t ►.►.� I�r�it (:?/U2J.I�arit UHRIL' IJ,')MI: LM('LRlAl. SANJ.1A-11.01.4 Sl:ITV1CI S. INt;'. LVFNI IYI•'l.. (1.11;1.) 1:1L:t"11`:•1 1?1:�;1:1111'f,11)rd 1)A I I. DATE c"(:)M ()HA 1 1 ME. k.GF R 06l .l !i / J "9R I`1f, (j(a 1 lat,i i 111480 000el,-1.8 9 IIL• I'0t [ h 11111(_' S + NEX1. I . MFHU. 2. 1=3L•II,u:;. a_ r1I•F.lt:'F.W) I. I i I F 1. L.1S1 _ B. NE:XI BY L1 S1 . 9. PROV By LJr,I t f ENIER SELECTJON ANl) } I i 99- # 20 l )►12')'1 C1,1>5 01" 7 W1011110HAT 1 ON oer , i (Ir 1, l)l!, ► n OF AC IC If !;1 1 All,il�vl fr! �) IMPERIAL SAN1'I'ATJ t)N S)A i t: i-S, INC. i The 1111(le) s i+3rrvrl, f rrr 1 )w 11111 j+c+r:t' of f rrr nti Irr) 'I rr+r joist al i on � i udder the Florida Geneva] Cui poi aLion Act, do (vs) hereby s(iopt L)►e following Articles of Irtumporr,i iof): f f Ak7'lC1, 1 1:�+rnC 1 7'hc• name of thi s vurJtoy atioil i s IPIPER IA1, SANITATION ' f SLRVICES, INC. i ARTICLE 7) i I Term of Corporate Existence The cor poi at i on i s to have ],(.-i j+r-t u€+l exi tit vnce uril es s Y d'i nsol veo according to law. € 1;1:7°1(:LE 1lJ z; P1)rponP Tbe purposes for ►•)rich Uiis corjror at iarr is err u.-►Irized . f ,-ire: (a) To engage in an industrial and corrmorcial w,rst.e rcrnovaI service; to engage in the buying, ,o11.irry laid dealing in industrial and cuuuuercial scrap, salvage, r ref uge, rubbish,-t);1!;h, jU10,, (of fa , d.-1rhage and debris; and to further engage in the collection of i nrlust: r i a l and com- 11101cial scrap, salvage, refuge, rubili sh, trash, junk, offal, garhaye and debris. To likewise provide any and all ne.ce,;sary vehicles, containers, and other receptacles necessary for the business, of the corpor-ation in- . eluding the obtaining of various vehicles and utter. r equipment for Ule transporting of same. To further enyaye in the maintenance of disposal facilities for the items of the corporate husiness and to do rll other Lhinys necessary for the furtherance of the (:orporaLe business. 1 i.►v cil 1'Irl S ►'1t1r1�,�:•r1 1;tri 1 I' t; r,l;r)',�, !�. A. • f./•� t ICl/ go (1I21t: A a7J� d (b) To acquire by purchase, or cot h(•rwi !-,e, for i ttvii t:j u(ent or resale, and to own, oil(?)-aIv, subdivide,, Ivw;e, let, Illot 1.(plyc" !7'rl I acid Ot h(-rw3 !w (1r ., 1p ;e ()f , f OI (' !!:)) Or on (.1'voi t. by conveymicer ifYrCell[(,))L foi 0(.-rd, or Oth(•r l,lhlul inslrmw-llt, Ieal est at e, or mi;-ed pi opt-�t Ly, lcic•;,t(,d in 1 ho SI r11 e of Florida, or el newhere, and y(2ner nl .13, t o tion'l in mid 1 1 it l f 1r: its owllc?r , agent 0r broker, in real estate, per sonal a►tr3 mi m-0 lit (It)c-) Ly, alld any i rlt.erest or estate therein, including suhdivisiuns, aprlrt.ment houses, residences, stores, office huiIdi11gs, manufacturing s.iobts, find the )Ot s or par cel s of lmld upon which 1 livy may he lrwitl (1rl, and Lo create, own, lease, sell, operate? and deal in frreholc3 ;tnd Ir hold e•stht es of ilny Mid N) l ch,l► fluter t,-h,ll , ;l11(3 1 r) he rin investor in real and )gel a-ona1 p)up(•I Ly. (c) To J end .Ind bar) ow money, he it s:ur(ty, (�>•:c-cut e bail bonds and to execute and del iver', ,lcc(,pL, tale -;Ind )ece.ive not es, borids, debentu) es or o1-hor ovidmic:e. s I her Naf, and 1110rt gages, trust deeds, p.lede►es, or other securities for Lhe payment of r,;,lne. (d) To acquire by purchase, subr,cription, or otherwise, and mortgaye, pledge, or otherwise 'dispo!:(a ctf bonds,` not es or other securities or evidences of i ndebi c-Oness, and the shares of collu.)on stock created and i :sued by any ;ot hrer rorporat ion or i corporations, association or arsr_Iriations, and to IIchase, , i )told, ,ell, a:,siyn, Lrims or, 111olili'lue, p'l c3(,e, or dis.pone of any bonds or other securities of evidoiico c:) (.�►t ed by err i ]:sued t by ally other eor-porat.ion or, coo-porat ions, association or an sociat ions, and whi l e the owner of r:uch stock, t o vxrl c:i se al ) l ights, and privi1eye-, as such ownership, inr:lu(3iny the right t.a vote the saner?, and to do any and al l lawf ill aet.s or things de signor] 1.0 protect, preserve, improve or enhance the value of any such bonds, I A %Y rI I•II'I 5 2 11;1111►.+r.r� 1�;f)I 1 1' n ('�I�O�„ V n, L!I!•1.11 1101710A IVA stc/cl:s, or other sr -cm ities or evidnilc•es of indehl.c•dnens and to yuax-anlee diviuends %)pon ,flares of the common s:l ci(-): of any of hor 1:01j)Ofat.i0n it) which this; rollrritjrticrrl, ;1t: ,my 1.irne, n,,1y ),e itit r•rc;Ind as a sluc1:h(-)1(ler the) c•of , and t.o errciul se ur uthr-) w) ;u uuai imtee the principal and i111 r,rc•st., ur c•i I hrrr 1 if, rr,of, cif Athos, hcmrl ;, or other evidcrnces of in6ehte(It Ws:s e•rr.:ltr-d l,y i!-!;ue of r:uch cu11,c:,ral.icIn; to deal i.n its own stocks or bro);erage 1,usi►rr_ . (e) In addition, the corporation may transact: any arid all lawful business for which corporat-ions may Le incorporated under the Florida General Corporations I%ct. ItRTJCI,E JV i,uthorircd Sharr.s The maXlmum numher of char cs of -;tuck with par val tle thaL this corporation is authorized to have ouI sI atic] ing at any one t inle is --------FIVE HUNT)RED------- - - - - -( 500>:xxx) s) lar vs, cif ;i 00 par value common stock, which colrrnron st:ucy, °shall be. of a single class and which common stock shall he Sec:tian '1244 common stoch pursuant to the internal Revenue Code of 1954, as alike116ed. ARTICLE V Ini Li al Reyist_ered Of f ice and Regi_sirrr.'d•.1+c�ent The street address of the initial registered office of the corporation is 940 N.W. 181st StreeL, North Miami, Florida 33169- The n.une of the initial Register(!(] Agent is ME1,VJN W01,FE whose principal office address is 10651 North Kendall Drive, Suite 200, Miami, Florida 331.76. )laving been namod to accc-IA su'1 vice of lirciccsrs Ior t11e above st.ated corporation at 1ny principal ulfice i+ddtcsrs dtsr;ic3n%1t.t'd in these Articles of Incorporation, l hei rby accept to act in t hi s capaciLy, and agree to comply will► the p1ovi!;ions of ;aid Act relat.ive to keeping open said office (pursur-tnt, to Flc i i '1 Stat.ute 607. 34) . l� I.h1Y I'If.l'$ Viltl 11✓l14.1':nl.l 1) A Ltll.1.11, I I C)lill)A �!# a'v0 Alt'J'JCLE VI Ouinber of Director The busi ness of t lie c:o) lout it ic)n r.l+nl 1 by a Soard of Directors consi st i im of cane or nu i c m+!n1hr•r!;, the exact. number to be Clete rnii nc,c3 f i uin t i the to t. i ine i n .+(_co; dimce wi L h L I i a By -Laws of the corpoi a L ion. The i ni Li al Bur+r c3 of Di i ect of s rl+,-+1 1 consist of olle Di r e cLor_ . 1+1c'J'JCJ,E V1I Initial Board of 1)ijecIur£ The names. and .,clu+ cs_;e r, of I he f i I st. Pod rd cif hi rc-etors, v-110, subject to the provi sio+)s of Chest, hrt ices of Bice)-pori�tion, Lhe By -Laws of this rind the l;ros of the St.:+Le of Flciric'�, shall hold office for the fii!;t yc'•r)r of the vnipo),Itifin's existence, or until their successors are elected and have qualified, are: I:ItiI•)E STREET ADDRESS JOHN E. LAWSON 940 N.W. 1 81 st St. rc!r. L North Miami, Florida 33169 t.: E: ARTICLE VIII q. Initial Inc.c)r pol.+tar (s) The naives and addresscs of retch subscrihrr t.o these r Articles of Irlcor))oration and Lhe nunli+er of :;hares that :,yrc,es to tape, are as follows, Lo,wit: NAME ti'1'ltl;l;')' 11DD)th';S SHARES r... MELV111 WOLFE 10651 North Kendall Drive 500 Suite 200 Miami, F.Iorjda 33176 the proceeds of which will Amount (:o cit 1(?ac;L $500. 00. - 4 - 01'1*IrI S 1�;Itll��.r.t� wnl.t'I r; r,irr��„ P.A. t:. Y: t: f t . k: L'tA1.41.1'I r,I?IDA h') C) r-- r- A 10, l f' 1,1, IX 13y _l,Fa w s The tic) aid of Ui r (rr.(.ors shal 1 ;idupt hy•-).yaws I or thi s Corporation which may ).)(' ilm(,nded, al t of ted or )-r•pral od by Lhe shareholders or di rectors in imn , mr,nnc,r pej m.i t.t cd by the hItNCLE X Inden+nificr7Jti0n of Di)VCtors Frnd Officcers 1. the corporation )rr-1 (-).)y i nrlr.-nor i f i a, any d i t ect:or or officer made a party or 1.hicatened to lie 11-i'de a party 1.0 any threatened, pelliiny or completed action, suit or pr(aceudiny: (a) t:hct.lrer civil, r_a i►nin,-al, adrr►inirl r:+t.ive or i rrvest i ,gat i ve, culler than one by or in the right of this corporation to procure a jucigmenL in its favor, ).)YovyYlt to impose a l i ahi l i ty or prenal ty on such person for an act 1 al l eoed Lo )lave been col►tni tted by such person in his capacity as director or officer of this rorporFation, or in his capacity is as director, of f.icer, employee or atYL-nt of any c 1AWr col fora-- Lion, partnership, joint vellt.ure, tru.,A or, other enterprise �. which he served at the request: of this c01-rorat.i0n, ay.linst judgments, fines, amounts paid in settlement and reasottable �4 7 attUln('ys, fees, actually Find lll•CC':'.Siri) lly )ncur)(?d !is a result of such action, suit or pracoodiny or any appeal thrare- in, if such pee son F+cted in yond faith in the rr.al:onahle >` belief that such act ion was in the ).rest interest of this col from- !` tion, and in crirnim-11 ,i)ctions or W oc:(M-dinris, without reason- able 91atuyrds for belief that such Fiction was ttnl;►wful. The termination of any such action, suit or proceeding by judgment:, order, set.tlemerrL, conviction or tipon a p)(?a of nolo c:ontcndere or its equivalent, shall not in itself create a presumption t;. ►�;11tt�.(r.N t:�ril.t 1' rt r�1r(,�,�, 11• A t.tli.r�l 1'I (llti(`A m t that any such director or officer did not ,tcL in tjood fniLh in Lhe reasonable belief that such :Iclion was in the b(tSt isle) CF,ts of the cm i-m al ion m- that 11c hied rea!;unr,ble r (imirls fur bet i e f t hat such ;jcl ion tin , unlrtw1111 . (b) By or in the right c,f this calla-,I:Il iun to 1procure a judgm rnt in its favor- by rer_son of his heiny or having bean a director or office)- of this cm poi m itm, or by r r :,cull of his being or having been a d.i rr•r:tor, officer, employee, or nyent of any other corporation, partnership, joint venture, trust. or other enterprise which he ,crvc-d at the reyucst of this corporation, acailist the reasonable e>:l:�c�nscs, including attorneys' fees, actually and necessari.1y incurred by him in connection with the defense or !*.vtClrmc:nt of such action, or in connection with an appval theirein, if such lu-r son acted in good faith in the reasonable belief that such action was in the best interests of the corpr.:iration. Such person shall not be entitled to indemnification_, .in relation to matters as to which such person has been ad judged to have been yiri l t y of negligence or misconduct in the duty to the corporation unless and oilj► to Lhi2 extr►t �t.hat t:he court, administrative aciency, or ve laud), ix.,rore whirr such action, suit or proceeding is lit, ld shall c3etejIninc upcin appli- cation, that dosp.i to the .Id jtiriicat.ion of l iabi l i ky but in view of all cir-ctlnl!itMICCS of the c:,rr;R, I'mch jiei-.son ri fairly and reasonably ent i tl edi t.o indc ismi f icat icrn for such expenses which such tribunal shell deem proper. -- 2. Any indemnification under vet.ion (1)- s)la]l he made by the corporation only as authorized in the spcicific case upon a determination that ainotrnts for which a di r ector or officer seeks - G - orrir.t's t I411►,4r.14,1','pl.l I: a C,1?O!',5 1' A, MI/•MI,[-I ()UMA /j20 irrdemnific_ation were I)IOperly incurrr:d 'and t.)int such dirc•(-tor or officer acted in good faith and in a maimer he rcasonably )Je3ieved to 'be .in Lhe best inLeresL of the coi-porat.ion, mid that, C f with respecL to ;my c-ri►ninil .j►ctiorr crr ),ruc►ccliny, he lir+d no reasonable gro►rr►d for bel jef that such action r,r►s unl,iwful. Such determination shall be made either (a) by the I+oard of Directors by a majority vote of a quorum conGistilog of directors who were not parties to such action, suit or proceeding, or (b) if such quorum is not obtainable, or even if opt a i nabl e, a yuorurn consisting of shaye-holders who were not parties to such action, suit c,r proceedincis. 3. The fore(joing rights of indc_►nr►ification shall not be uc•L-med to limit in any %:a), the I,cjwc?rs of this ccrr I,or .,t i ern to i n►icrnn i fy uncier applicable law, ARTICLE Y.I luncjndment This corporation reserves the rif3ht to amprid, alter, change or repeal any provision contained in;lhese Articles of Incorporation in the manner now or hereaft (?r prescri.bed by statute, and all rights conferred upon shareholders,,herein are granted sub- ject. to this reservation. ARTICLE X11 Powers and RL hts of Directors and Shareholders 1. From time to time to deLermi ne wheLbrr and to what extent and at what times and places and unc]er what condi t ions and regulations, Lhe shay eholderq and dir ec:toi s of this cor llaral ion shall have the right of inspecting any ac:c cunt., book or cic,cument .�. of this corporation. 2. The corporation may, in its By -Laws, confer powers upon its Board of Directors, or directors in addition to the fore- - 7 - { V1.v of rIr. 1. 1;'lll(��/.I# '�Ynl 11'� rilrfl''�i 11. A. 1.�1/�1.11.1'11 RIDA j' rl' LJ f going and in addition to the owcrs autlior izcd a►►d cx)�r cr.sly � conferred by stat:ut.e. 3. cloth shajeholdcrs and dir(.(:tOrs ,)ia]l hive the j)cawer, if Lhe By -Laws so l-ro-vi de, t o lio1 (3 Lhe i r ► vk_,pec L i ve me -et i►igs, and Lo have one or' more office.., wi Lhin or wi thouL the Slate of Florida, and to he op the l)nol:s of this cn►porat-ion (!,uhjr.cL to the p►ovisioils of the st.,iute•s) outside the. ,;I;It.e of Flu)riOn, aL such 1:1:jces as may f►om time to t ime he flesignat.ed by the lloa►d of Directors. V'E, THE UNDERSIGNED, being each and a]1 of the original subscribers Lo the common stock hereinabove named for the pu►Dose of for miny a cozporaI.ioil foi profit t.o Flo busiiiess ).)nth within and without Ole State of I'lorida, do bereby make, subscribed, -i0mowle6ge and file these Articles of Inc;urpuration, hereby I . i declaring and certifying that: the facts he►ein SLaterd are t.rue, and do respectively agree to take the number of share's of stock E hereinabove set forth as t.o each of us, and accorclingly have here- tofore set our )lands and seals this 25Lh day of November 1991. MELVIN 40JXE -..... _ _.. _._. _(SEAL) t _(SEAL) r' +� STATE OF FLORIDA ) '` t. SS COUNTY OF DADE ) I HEREBY CERTIFY that on the day and year above written, 3; f t:r t 11vnr'rIrI'S t�;illTir.�r� 1•;r)1.)'1'r, G17n',S.P. A. i.!ILr.til t' c rrlf)N \ personally appeared Before f ale, the u1lc)c?Tsiync!d authority, j MELV I N WOLFE , and 1.0 111e wt?ll YnOwn to lie the p i•son (s) who executed the i forc-gr.6ny AT-t icic..s of Iw of pclr,-►l .ion ;in(] acknowledged hefo)-e 1►te that he/!;hr/I.hcy c x(•c•ut ed the !;rlmn f T (-t'l y and vol untalri ly fear the uses -)►!d purposes t hc,rc in !;ct fuT th and expi-used. T � 1 NOTARY 1AIFj Ur AT LAPGF. P:>:l l ► r o s : NO1ART P11611C S!A►T Or 1100DA. AT LUrJ i�.r tu...,�a55lo1r U.YU!S N.�l 19 ►ves EOIJDID InK%1 GtNI AL TWS, Ul,U{RW1JTIKS { i r i t k; t I i i 1� 4 9 D. i.w r7t rlc:rs 1';►1� t Fi ri, %Y01 1'1' 8 1 IM".5 11. A. t.,�r,►�D t 1 1:►rlt�i i s9- e >�c��Q3�p�I�j�pnQ�Q�p,M1, �� cam= Cj,�t•,��,.t� �� p �;..?� ��� Oriaa +�r�t�trttttrtti �tf �1�ttr I certify the attached is a true and correct copy of the Corporation Annual Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is F56718. CR2E022 (1 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 r`Ct'1'Ctal'll tl{,`�`�IItC I FILE NOW: FILING FEE AFTER Pt2C3FfT+_. ` CORPORATION ANNUAL_ REPORI4, � }� f 1999 ,- DOCUMENT # F56 f 1$ 1. Cafv`"1Hinn Nnmr WERiAL SANITATION SERVICES, INC. 1 ST. IS $550.00 (1CtrIt,A(N1•AttTr+fNI h/ S,A11' Hn11.rrir,e tis'rfs !;m'ct.Ny al Slate t tl VtS4lN Ctt t. U,tl'(ifi f+11C1N$ prhrvpni (rlu-. Crr A,,.nrrt• ._. -. Ala-1,vi Add,r•tn #IN NW. Im, 91 vita, NW. 93110 M ►RpUY n OR WEDLEY tL 3314 f rir,�ipPi hlPcw t+l Flt,�Yics1 2e, At.,'rnp Add,v,% tiv 5.�.. �"►`, .�4 Jc( i t0 S•E.. (X Surloa A0 It, ell, t s.,; n Atr P etc 7 7.p�—i _ _ Cnunl•i 1( 7v+ Cn+rr.i•y1 J ,933G`i IJJ `S S �JO� ��3 o S;FIb 25 Pt3 3, 0U t It: . t 5 (A(E �111.1 i41171:'�`L.. i L�1ilU� I Ill�li ill �IIIl1►� Illy; IIIII III IIINlIIII III l!lfl!{I� ll�l llll f,01,O114'RIIE INifI1SShAGE I 14dr 1r,: nrl,r nl�•.1 M (>trnl,tlA 12�o2�tsa 1 4. 11 I N,n+1nr AppgCA fro 59-2144378 ' + 1r14 nrt,r al to xS•is Ad4d•[nnr S f arta� .H.• n, `a •1. •� he•ar.A ( ( 4 1b,1•rn CnnqnnprI NCNN ir,q t r �5.001.,.t, r•w 1 n,. 1 ,axl <'.••. rt nt•u1 n•I A4 t.••, I.. 1 I r . e, ,rn,tr.,r,r .,.rrr..q,•nt••11,0 ruu rql yl•,, Inl.mgaArr r. �, .•..r In •.tr,,n I I yr• (IN., t Y. Nsma PnA Add/ems of Currant Re plstw,ed Agrnl 10 NamE end Add,tla at New geptSlercd Agent C T COiIPMTION SYSTEtA % C T CORPORAT10N SYSTEM 61,tN1 rolmo•.� p' o tin. fr,.,d.r• .1 wa A:.,dA.,ta, ) 12M SOU11H PINE MAKI (LOAD e, 1 00 Cj 0 s r r 1;-'( :;_' -J - - — 4 PtMATION FL W24-03,10;"/:33 --0 e4 C,fy FPL I 011 11. Y'a/atttrrl in U,C ('ro viLOnc ni Cr.•bnn1607 OS(17 nrvl tf1T 1'r09, 110 •Ida Stnhdns !hC Illwap Min,1v1 rogK+dtvw tH:�L1'<1hI. !d.dt•nrn! Int ifq ISu pn.t• br t11nl Kjnp r1. 0.•gish'4';1 Offrce arc¢ SICIrd apNd, x rr,rh, in the 6lalc Ct (tpl via SJCI, C1.7"I'l wv' Wtle7n1., by ItN: uNin w,.!wni 61v rd rat thr,'C' . I /n -,A,, 7,u rpl l,wr nplYn,lrr rnt A•r I, 1M.• . d egenl 1 am fanpl :rat v.1tb, nnA ncrr;rl the Ohit9abOns of, SOrupn C01,0505. I krldn Stabdot SIGNnt uRE ...i., .., .x..... :S. pan, r•r•. .d.�. .. .... ... .. ..•. •� ncn ... RS ANO DIIEC GIONS 13. AOD1110NS'0IANGC S 10 Ceti ICERS AND DIRECTORS IN 12 h'•x � kAK LAWSON, J044N E SR ITI:a..v itRRRiS Iti " b5otl MIEN ►.Ftt�t�, Eqi s,REEr7�ora;s 943VANIENST. tst.n,u•.N1:.. t(o 51. • Lr SEt w It0(LYWOOD FL 'F4 • Lpt�titn�,f1� ,F t~ 333o % cm.3,.Jn ..,,�A+ ttr•n.sr 1.,• r t TAME•,, U h1F �� LRtUFfflt 7rro 1 t ICni•, It471 LAYVSDt1, JOHN E JR >7r•:r•I K�.f_ . Co PA A>S stRrlt t� sisQN.W.93STREET 7•4.n11IA1. 7�. ' �8 cm.sr.tp ilEDLE1' Ft p} • 11+v.Atltbnl.'r, T'l. 33301 wit _-- �' .. _ .. ( IWI It 1•,n,l J 1 1Cn7/ujw (I4i�: q' S1AFf, uxlsf Cll 1?$M//IA'/�!I �5 Ito S.R. 33J471 GrtySt•i� Tt r,t,. yl (.• � • 1.1"'1 t.�.btft-DPI�t Y1i TtTlf � .. ... .• ._ t 1 ltt lE 1[ t t InU —>(` t 'C"" t 14 N+.r. 71A,i; t 7Nr..•, iirt �„� C> D �` 6 i tI� swr T Arm r•S, 1151ki1 i7.,►:i •� wIt0yy--•�•�•�• G+Y.51. jE. ti_�i, ?i ;.. rC• �Vlil��ai1W) t~G �t fIN t IEl(lEt1. 11 I'M �� 5 7,t'i •1 4T:SE 1 A:AR, 5, ;154ti: t , Kra U .: iITlE tiDEtF IC Etlrlrl / CR�y? (ijtd•}W14 II/J,E 6 7 ♦la t SCREE 1 I•DOR£SS 6 ? s"II I I A•rlrt !' 11. I ttemhy r.nriayy Innf the _1;1 N 1 da su p' d s :,1, 1r101 dr.rt mt q„N'fy I.r thee rrrmphnn ..1-tlr,l In Sn:Lnn 15A t17r1)bl I Hula S1aLdns 1 G IhCr rrri. 1h Ilk. Itlrom,alaln YNfCa1P_d On lF,�t nnnuhl ICpOr of , •J r n mgAi I'I' M1 IS Ir,7C MIA A f.a*ntrt nnA Not P. peje,' n•ry S•hn'I I,aYC rl.o StJnd 1, 0 1 ullm 1 n� 0 nr n Uni�r ,: Mai I ell rn office• d drrCla OI R+C rnrpn Y, r h< I ...cr Or Ivstno On,lYx••u*Od to ereruty V, � q)•.Y1 ns q•.ru•tvl ly Ctlaj4rr 4!,7 ( 141Ii:f,r Sl.drdur 7+n4 anlr PVtK•ars to P,OCk 12 rX 1}lo_1, i j it oonq n. tnrhmnnl vAll 'm ndArrst, wos ran nu,rr rat,• r hrpnm-ri ;I SIGNATURE: sf � •��T� (�� tM1. ` UUw IN,Yr.[It•(M]�w/.r'�p fY�xln(1•MU tY 7t.�t..rjltln�l Y.IGy, [W� 4 n ,•/i', r.. .�/f� ,t �' f'� �T1i-\ti•}1 `4f �fV../•� ll'�' 1 i I 1 { i f + Llla,(1RA I F. E)E_ I'A.). I. RIA.:01 ) I:: Ftk.F 11 12 15 Psi Nf,% F54718 `>l QL A I IV1=/Fl i•'RON I FLA: 12/07/081 I. o"I1 : C111,1,10HOI I HEPJA-_R FLA: tnr./ 1 5 / 19W FE.1Ir. `_u ,_I14. 1H Nomr- 1 M!'! H I Al_ SAN 1 I At .11114 VAIRV I IA S. I W. 111;1!i( I 01 110 `..F.. r>IN ;g1HEP 1 03114 F1.Of11= 1,,101-I I-11: 02/ `r/`-" AI?f?RI.`. I I . I Fl(11)1 POW I . FI ?, ,.Sr1I !,'(1 HAMI- i' I ( +MPIMF)l I+,11 , :ll 111 ilAW. (.:l•I(i. 013107114H F:A tal!i�t; t I ('OPf'O! OI I(11d Af.DR (::I1G;: 08/01/98 i ;(+I1ItI f'IFII I,,l islll� I?i)F11� i'I AiJ!Fl1 I(!N. I I x,:-•,1 1+'S 01.114 HI -Al (IYQ / 1 HY 04 i 11IQ 1 i I `a'-)1_i) BY 04 1.1 / /Q8 ( 114914) 1 Q2 11'i W-) 1 . ME NU. 3. OF iC:ERS. 4 . F:vr Hrs. 1. 1. i- ,1 . f.l, tdF x•1 . ). mo,,-v El'IIE.f; SF.I.1:C'1.10N API!) CR: 9/17/99 1J1=FICER/1)LREC1(.1R PLIAEF_ Sc:RLLI-I 12:15 PM CORP NUMBER: Fb6736 CORP NAME: fMPFRIA! 'ANrInfJON SERVICES. INC- I' I I L. F : C) NAME : lit,101,)11.. f I(1►tlt !. �,I I JJO S.F. Will 91111:I.1. 211I11 FICHI I F I . I A01)I- PO 11 t I- I. r i J 1 t E: P NAME : CEO ;t1At1. 7r;rgF'; 11 1.10 .I . (..Ill ''IM f: I IaIII 1 1.I'l0. IA 11. F= : S BAR(.( 0 1)()'•,; 1 1 + F1 JJO S. i r, 1 11 '; I F?E. F. 1. ;'1"; 111 I-I.1.N_►}. t 1-1. l (1(ll'1 !'I s1-11 l It TITLE: T NAME : 1 0I.1(; _ I I taI(II?I.s () J 1 l I .1 O t� _'{�_ . F� I li ' i i I�k.l.. I 'rfi 11•I I' 1_+_fl.11ti =1 LAl!IsEl l�fal.l FI. :,, .'C!.1 t s + NFXT. PREV. I . MENU. 1. F' l:t_ ING, 3. 10f), [=Vl NI': 7 . L_ ISl . H. N E X1 HY I...ES1 . 9. I kl'_V FiY L.1`::• I F P►11 Ft :3,F.I._E.C:1 .L01,1 AND GR: ` ' ' ! ^ ` ` | ` | 7/140 EN 12:15 PM ' COKP HUMK[H� F�o/]8 /`U(P S|A(US: ACl[VF' l2/02/1981, ' CORP IMPERIAL SANIlA>lUN SEKV]U9' ' ` EVLH| IYPL [1LEi` E[FEC:{>U[SuR/{'T]VH CUkP0KAl[ MER&EP 06/)5/)99v� INl[. � [5o/|8 � � ) ARTIC1,LS 01' INCORP(lWIT 1ON er � of r41.1�:I;,,<<.���rr� ,fir f 11.11'1,111AL :A141'1'ATIc)N SERVIc:I;S, II)C. E The trndc) igilvd, f r)) I hr lM) lrrr!:P of 1 (1) IIEi till ;.I r(rt pr+1 it ioil under the Florida Gerreral Cui-po) a t i nn Act, do(vs) hc•] c}�y adopt the fol l owing Ar L i cl es of l Ire•o) pc)) r,1 i On : I:r,)ne j ThC' ]rarnC Uf this curpoC ation is 1M111':R1AL ;SANITATION SERVICES, INC. ARTICLE 11 Term of Corporate Existeiiee The corporation is to have pc:)Jrr•lmil r,xisilt-nue'unles d'i n sol veo acco) di na to l ;,-w. f E The purpOs(-s for Whi cl) this corpo) of ian is rr Uani led i are: (a) To engage in an industrial and c.ommerciril waste 1-(.rru(3val service; to e))yage in the buying, soll.ing M)d Healing iii industrial and cununercia1 scrap, salvage, )(efuge, rul�t�ish, t );r:;l), junk, Of fill yart)aye arid debris; and to further engage in the collection of industrial and com- me)cial scrap, salvage, refuge, ruhhi .i), l l ash, junk, offal, yarhage and del-)ris. To likewise provide any and all ncc(,!;sary ve)jicles, containers, and other receptacles necessaryfor the hu Sir)crs S of the corpoi-at.ion in - eluding the obtaining of various vehicles an(1 othr�r �yuipiner)t for t.hc t-ansporti.ng of same. To further engage in the maintenance of disposal facilities for the items of the corporate Nosiness and to do all other things necessary for the furtherance of the corporate business. ;L t' it? Y' w c:) rlr l S t,s(I I�.�:.I1 );r)I I I' r; ),I;))'•°, IA. I.tl/.�.�1 I'I r)t)ICr► � �. i 20 r (b) To acquire by purchase, or Ot hVr-wi sc, for it"OeNt•.- ment or resale, .111c3 to Own, Ol+(?rat e, sul.,tlivide, lea .c, let:, lI1ortg;sye, sell r)nc3 otltc r(,i!,c• di:,pw-,r Ot, fOr r,:slt or on crvoit by Conveyisnc.e, ;scir(oweiiL for (l(:m], or (.)thr•r ins). runu•nt, real Cstate , or mi>-'d piOI,('rLy, i(.)('i,t('d it) ihc' !;(;it(.., of Y)or. ida, Ur" elsewhere, a))d y(me)ally to (ir.il in ;it,() t.);(f f is as wmor+r, ary,ni or bzoker, in real estate, am) 1n1Y(.d I(1 ((Ix>1 (.y, alod ally it)t(rrusl, or estate therein, including su))divisiuns, apartment: hour;r.s, ) esi6ctzces, sto) e!E, office hul ldlligs, lil,anilf act urin) alia the lot s or pal (e] s 0f I.-md upon which 1 hey li„ty he 1orai —3, mid 1.0 create, (,)wn, IeaSC, sell, oI)erate and deal i.11 frr(sh()](1 ;111(3 1rr:>c:- Hold eSti t es of iOty ;slid it11 Clod 1'1Ct.vr .;twvul., ;!roll I f) be ;In investor in a-eal and per canal piopej Ly. (c) To l end ;slid borY ow money, )so it sm ety, vx(-cut e Y)ail bonds and to e>:ecut a and dr..l iver, m-cvItt," I aPo ;slid l eceive not es, bongs, (LA)entu) es or of her r•v.i(3mi e s t 1lel v )f ;slid nlc,rt gaues, trust (ie(-os, pl edocs, Or otter sr-cm-i ti c: , for Lhe l•,aynic iiL of si me. (d) To acquire by purchase, subscription, Or otherwise, and mortgage, pledge, or Otherwise dispose of bonds, ))cites or F t other securities or evidences of i ndebl et3ncss, and i.he shares of is common stuck created and i!,slled by city C01TO' iOn' or corporations, a!,sociation or ai-,soriations, and ta'Imichase., )fold, :ell, itSsl(llt, t.1';11 sfer, lllolt(Ia(Je, pl('l ge, or ol.11(tl'W]!:(? of any t)011ds oz- other ,;(?cur ]Lacs or' ov idom.- (:l i.-.01 ?d by or i r;surd by any other corporat.ion or, carltorat ions, association or a:, ociat iOr►s, and whi le the owner o1 .nch sO O',, I o rx" (:i!--le a13 ) iyl)ts, l)(�wnrs and privileye s as !,uc)l ownership, including the right 1.0 v(tt:e the sa►lle, and Lo do any and all lawful ;lets or khit)gs des.ignod to protect, preserve, improve or enhance the value of any such bon(Is, _ 2 _ 1 I.V. r.l 1'It, 1 5 4111-$A14 W01 l 1' A C,I?IV* , I) n. VU-1.41 I I r)PIDA I— , t j sLVcks, or crtller sr -cur iticis j Or Vvidr:•tlres of inc3chtc-drress and to 4 yuarat) Lee dividends o},on shares of the common oc}: I of any of lrrr co) Ai.icm in which this, roll,ur it im), ;It. ,ray I icnr+., n,,ry )„� ill (,►d ;cs a slue?:IIol0er t)rtr) (:•of , H)1(3 to emiu) 5e c,r cat hr-ra!i e uu%,) ;,nt cue Lhe principal and int ctl c st., ur Pi I h(rr t )W) (�Of, cif WAvS, ))c,tl(3 ,, or other evidences of inc30,t.(261 SS c•rV%,tt-d by i !.!;ue of r:uch cu) lu:)rat. ion; to veal ).n its own stocks or I)7'U}:er';ge Ims,inr_ (e) In addition, the corporal. ion may tr;+nsact: any and all )awful business for which curporatjoll; n,,3y })e incorporated under the Florida General Corporations I!ct . 1! k'I' J (') , F_ IV I:ut hc)ri 7Ld iharV� The max imam nm),3)cr of shares c)f stock with liar value that this corporation is auLhorized to have oulstandinc3 at. any one t ime is - - - - - - - -PIVE HUNDRED--- - -- - (500xxxx) shares of 1 .00 par value conunon stock, which common st.ucY. 's}r;il ] }�r_ of a single class and which cgntritan stoc). shall })p Section 1244 collnnon Stock pursuant to the Internal Revenue Code of 1954, as ame))&3 d. ARTICLE V Initial Reyist.ered office arid RCcji r-,teri!d.. A(je l: The street address of the initial registerecl office of the corporation is 940 N.W. IOlst Street, North Miami, Florida 33169- The name of the initial Register(!(] Agent is MF.1,viN Wo1.FG r w}lose principal office ac3dre:s;s is 10651 North Kendall Drive, Suite 200, Miami, Florida 33176. Having been n.linrd t:o accopt of pr(rc errs for the ahOVe stated corporation at my lrl'llluipal ullacC ilCl(1l('rri Cll'!ii(3n%)4.c�d s-- in these Article-s of Incorpol'atiorr, l h(rrehy accept to act. in this capacity, and agree Lo cuityly will► the p)ovisions of ,aid A(_t reI)Live to keeping open said office (pursuant to F]( I 1 i 1 Statute 607. 34) . 3 - I.r1'1 (:I'I'I( I'S 1';�(1I1✓�,11.1Yt71.1'I' Ii G,1?0',S, P A. W.IAM1.1 1 ORIUA 00 ;- ,� ARTICLE VI � I j 1Jumher of Ui rc ctors 'I'hc busi ))c'ss of t he c of por;1t ic,n Thal 1 hc, m;rr,;,,lr d by a 1lo and of Di rectors cunsi sl i r,y c,f cIne or n,(.)1 (.1 till! rrihr•rs, the cx;,ct. i nu111ber Lo he oe L e 1 nri lied f ) orn t i me t o t i mct i n ;)r:cQ) d;,nce wi L h the BY -Laws of the corl)o, aLio►i. '1'),e ini tial 11L,;,1d of Di 1 erl ors COnsi st of O1142 Di I ecLot s. 1%1c'1'I C1,L' V I I 11)i t i al Poarcl of lei, c�cl_c,rs The names .1nr3 �+dcilCtt;.r�s of the fitrsl. 13oilyd of hirc•cturs, u110, F;uLject to the provisions of these 1,rti0es of Iricoi-pCiraLion, the P.y-Lati:s of this curporat ion, and the lati: , of the St-aLe of .i'loride, shall hold office for the fit st Yom- of thr- r-or l,r,r al ion's existence, or until their SUccCs:iOrS are elected acid h;)ve qualified, are: ►:JtrlE STREET ADDRESS JOHN E. LAWSON 940 N.W. 1 8.1 st Sl. r v v L North Miami, Florida 33169 } A14TICLE VIII i Initial The naives and adds-csses of vach sul,scril.,rr Lo these Articles of Incorporation mid the numL,er of :;))arcs that, each ay) r?es to take, are as follows, to,wit: NAME S'f'RI"E'T ADD121;SS SHARES r-.. MELVIN WOLFE 10651 North Kendall Drive 500 • Suite 200 Miami, Florida 331.16 the proceeds of which will amount to i)t i f� ast $500, 00, k is 1 r.�: nrl'Irl s ►';r+l1�,:rd tvr?I.r'1' n r;urp)') r, A. L�I�,►.11.r'I IDA r) 99 720 _ _ , r 1 ..n A1('1')c1,1; I); Ly `Laws The Board of Di ► (-cl.ors s)ral l ;,(ic,1,L 13y -J,;iws for this corporation which mi►y be it mended, AIt0)ud or rc•pc•irled by Ole shareholders or direct —ors in any m;,nnc,r p(rr mi t t cd Iay t he )'.y-Laws. h (TICI E X Indemnific�,t.ion of Uir(ctcrs it►(d Officers i 1 . The col pore t i on he, eby i nO(.nui i f i e> ;Illy cl i r c-cl: or or officer 111tide a party or I.Il,cai.cnc(3 t.o be n,nc3e a 1•arty to .-rny tlrreetelled, pell6iny or ucmlpleted aci:i(�n, suit or pr(rvediny: (a) ►-:lictljer Civil, r_r iminal , admir,i st r:,t. ive or investiciative, other than one by cIr in the riy)rt (-)f this corporation to procure a judgment ill its favor, ).►rouyhL to impose a liability or portal ty on such person for an act alleged Lo have been comid t Led by Such person in his capacity as director or officer of this CM-1)0tation, or in )►is cap city as director, of f.icer, emp)oycee or aciellt- of any other corpora.. Lion, par-ttier sh.ip, joint venture,' trust or Other rill erpr.i se which he served at the request: of this corporation, against judgments, fines, amounts paid it) "settlement and reasonable attorneys' fees, actually and incur)ed its a result of such action, suit or 1-11-oc vrdiny or any appeal thnrc in, if such per son ijeted in yood Jt►ith in the reasonable belief that such action was in the )lest int.ere ,t of this c-or pora- tion, and .in criminal ,acLjons or pror.(m-dings, without reason- able yrounds for Relief th;►t. SlIch iietio n was »nl;►wful. T)(e terminaLion of any such action, suit or by judgment, order, settlement, convicLiorn or upon a plea of nolo c:cl►►icndere or its equivalent, shall not in itself create a presumption t I !.o'l.I-it-I !'i ►',(I1 I',�I t� 1'.'fll.f I' ll 1'. A. 1.'I! ►�I 1 I1,016q V- .I - LhaL any such (liI(•ctur ur vific•et' (11d MA itut its clr)(.'d faith in the reasonable bel ief t.haL !;uch ifeLion was in t))r. bast interests of Lhe ce)r Jim at ion or IAI-11. hf-, had rearccmaI)e r31 r)uhrlS for bel ief that such ;,(.J ion unli)wf 10 . M By or in the righL Of Lhis cmli(.,jat ion I l,r()cure a judyment in i L s fac,or by l-cagon of his heiny or Iiavil)rl ber.n a director or of fic(?l of t)li s c i Ito i1t i()n, car by l r ar,(ii1 of his beiny or having been a dilr(:Lor, offir,er, cm[,loy(!e, or bye nL of any other corporation, part.itershi13, joint venLure trust or other entell)ri ;e whirh he !;erved at the rcyue,t of this corl)oration , ar.ainst Lhe rr:asonahle u>:l.,en!.es, inclm3irig aLtarite3,s' fees, aCI.M3lly and necessarily i))curred by kiln in connection with the defense or !;et.t:lemeiit of such action, ar in connection ki th iln iip)ival l 1(.1) a ii i f ,uch 1it, i scln acted in good faith iii Lhe reasonable belief that nuch action was in the best interests of the corporation. Such person shall not be entitled to indoinnificaLiol) in relation to maLt.e'r s as Lo which such person has been ac3 judPied to have been dui l ty of negligence or misconduct in the performance of his duty to the corporation unless and only to Lbe r_xt.erlt that the court, a6minisLi-ative agency, or invr.Sticr,lt iv(' body bvrore which Such action, suit or pi oceed my is Held shall (3ete) mi iic upon appl i-- ciiLion, that d(-spite the ad jIldicat ion of l iabi l i l:)i 1)ut i.n view of all cilcl)lll!;till)('CS of 1.110 Cil.`i(?, !tllcll is fairly and reasonably entitled to imiciimificaLion for r-uch expenses which such tribunal shall ducin proper. 2. Any indemnification under Section (1) shall be made by the corporation only as authorized in the specific erase upon a determination Lhat amounts for which a d i l ecLor or officer Seeks 1.IV. 01'1-1ti s - G - L!IA.1A1.rt ()I?IDA ^%.A-Q r-- itrdCliff) i fication were properly incurred and that. such dii ect.or or of f icer acted in yood fai th and in A mar"ner he reasonably believed to }.,e in the interc•�.L of Lhe corporation, arrd that, with r espc•(t to any criminal .:"ct ic)n m p)oc(-• -di rig, he hr"c3 no reasonable yr'ound for bel ir,f that !;uch action was unI Iwful. Such determimitiof) shall be made either (a) by the Board of Directors by a majority voL-e of a yuorum consisting of directors who were not parties to such action, suit or procced ing, or (b) if such quorum is not obtainable, or even if ohi a i nab.l e, a duorum consist i ng of share -holders who were not parties to such action, suit c"r pioceedings. 3. The foregoing rights of indemnification ,ha11 not be uvumed to limit in any % ay the powers of 116r, cor poi ., t .ion to indemnify unuer applicable law. ARTICLE XI Amendment This corporation reserves the yight toamend, alter, change or repeal any provision contained in Lhese Articles of Irrcorpc"ration in the manner now or hereaft:c!r `prescri.bed by statute, and all rights conferred upon shareholders herein are granted sub- ject. to this reservation. ARTICLE XII Powers and-PL9.1as of Directors and Shareholders 1. from time to time to cieLermi tie wheLbor and to what extent and at what times and places and mider what corrd.i Lions and reyulations, the shay eholderS and die rc:tot S of this cor p"orat ion shall have the right of inspecting any account, book or dricutnent of this corporation. 2. The corporation may, in its By -Laws, confer bowers upon its Board of Directors, or directors in addition to the fore- - 7 i i �•: of 1,fr. I S S";i411'•cr.r1 'N01 1 1' n 4ilrrt"5', 1'. A. IMI I.41,i'1 +� 1'611)A 8 19 ~Il 4 t -, going and in audit ion to the powers aut.hori3c=d mid expressly conferred by statute. 3. Iaoth shajehoIders and 0ir(•(:1c7r, shaII have the j.)Uwer, if the Icy -Laws so pi-ovi de, to hold their r esl+(•c•t i ve mf-eL i rigs, and to have one or moj e of ficcs within or without the State of Florida, and to ker_•p the bno):s of this corporation ( u).)jr•ct to the provisions of the outside thrt sjal.n of Fl(:)rion, .-rt such places as may from lime to time be dvsigllat_ed by the 13oal-d of Directors. WE, THE UNDEPSIGNED, being each and all of the original subscriliers to the cmimion :Mock )ivreinaljove riamud for the pur f1ose 4 e of forming a corporation for profit to do busitiess hot.h within t and without the State of Florida, do hereby make, subscribed, f ac):now)e6ge and file these Articles of dnc:uipuration, hereby , 6eclarirrg and certifying that the facts burein st-ated are true, E and do respectively rjgree to take the number of shares of stock hereinabove set forth as i.o each of us, acid .iccor•dingly have here- . Q f tofore set our hands and seals this �25th_ day of _ November • t 1981. I 1 (SELL) MFLVIN 40IXE (S,FAL) ._..�('EAL) f� STAVE OF FLORIDA ) j SS COUNTY OF DADE ) I HEREBY CERTIFY that on the day and year above written, 1 A 1•; OF V Ir 1' S g VOIIT1•i!r N v:r11.1.1- r, I:,hn,,s. r. A• *' Iell 11 (* � ({t}� ) A 0 - r., 0 personal ly a)ihear ec3 l,efvre f me, tl'e utrtic>> 1" 911" "ut hc)r. i ty, and MELVIN WOLFS to me, well Y.IlUwn t.o 1J0 the ; Pei -Soil (s) who ex`�cuLvd the foj-(,(jt.6ny Articl(.:s of 1w;cll+urn+lion ;md acknowledged ).)efore file that he/!.hr,/I.hey ex(•cu1er3 the !:�cnle ftCc] y and voluntarily for the uses nnc) Purpo!;es 1 herein !;c+t tot th .rlld c>:prcssed. NOTARY )+MILICOF 3 LOP IDA__ AT LAPGF:. j My Cc,n+mi !>:,ion NOIA[t ►USIIC SIAII or ►Irvin/. Al Lund My CO—missloli U.rll!S P.mK 10 IVHS s EOIJDID Imxv Gth:1Nt 1145. WILAI'MAILS Diu_ YZU 75" cpk�k�'+ QkQkQt:(;..�it �iiT i �.J �„" li C.n�•'G..� C�> 'C� �':�' Cam,: t1t...t��,--�ot iaa �e�rFtrimettt nt �1>:ttr certify the attached is a true and correct copy of the Corporation Annual Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is F56718 CR2E022 11 -99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 1. �I�<tfl►r►•i►tr �y�trri�, rrrvttn•11 of '-':�tafv ry (311 • FILE NOW: FILING FEE AFTER PROFIT a. tt u, CORPORATION ' #' ANNUAt_ RFPORT 1999 ' DOCUMENT # F567 j g 1. Cal,nl+ton Nlme WRIAL SANITATION SERVICES, INC. ,1ST IS $550.00 IIOttirm prr-A"T1Ar1J1 hr SIAIr Kelhrrtnr Navrla Socrcl "y nl SIA: t 1IVIS1014 (it C'.tlM-010,110149 r�hc+pa; are or fil;vno�e -. ._ .. .tira.E,+n nAmr•la . . 11fo 1,W CNtD. ST. 11% NW. Coro 61 11faay fE nr@ 4EOLEY 1`1 3o10 Pilnctpri S`iPCA M V-v%es, 1 20. 6+•,'n,g Ad+(,I% 1l0 5 .� (4�►h .�5� • 7E( I L0 S•E' . SI� Sufro. 'Looa- vuSI,11` '�&1p-1 T '� ._ _ .. C.nunl• `t' IV�, WCnu..l'Y' j. w FIB 25 PH 3:00 IMgnll!B�IIgII�INI�I�IiIIIfif�I�dWl1lro 00 N?1 WRITE 1N Tilts SrACr n+pnoD•.1 nr (AI vLIrA 1210211981 4 11 I N.nrh^I I App4cA I;.r 59 2144378 s f +,r'q .d,• n+ SI .1 ,. hr•.w r;i ( { $8.75 Ad4,1.:r1v r ee Rrola,•as 1 I . . SS.OD tanI r.r 1rn,tllnnl ti�nlr,l.r.,.., 11 An1M�I•.1+ r:. 11, ln•. 1.•r1„ .,rh„r, rrN t•- Il,u I l•n.•.It y,.,, Irrl.nKllAn oc ....),,14..,.r.�ly Ln I IYrt I IfJ.I f O• Name and Addreaa o1 Conant Re8lstarad Agent to, han,t old Add,,%% of New Replatrrcd Autnt i!1 N.rm C T COFtCORATION SYSTEM % C T COMi RkPON SYSTEM et Sir1 t•1 n,ld• 1 , ) : a•.S t• Ct fun ?J•lndq•• r~ IUd A; ,h n.dAl 1200 Soum Plw aw now ss tfll=lrJ(J. i�r 1;'► 3 PLANTATION FL 3312f -03/ 0,1 33 - -0 I �U1110 Ai (:rly ! �• i R ff R MO. SAL I 11. PurOu(k1t to Ihr of SrtbMl 6(,7 0601 Ann tn? Moil, rloida SWt1Ana the AIK"', n.lnitnl IN It., IKnp..>o or J,a+47 nu d. 1091)It•rC;l ' I off" o, rtp slert•d apenl• cw MU,, in ti't Sinic nI rk,r•11a Suci, t11r,nw w') Mltlronn:d Iry Ilw tbrinvn;nni t. I.•arrl W dv, ,,I..'. I In-, I" A" rpt Ilw: npl,u+InM,d h% Ft'JAW1. A agent I Pm fanlll�nl µill, Fnd ncrr, t tlr omvl—ons a, $orlon rALO n I k,nde Stawtot. SIGNATURE I6'C�+,... ,,ie!c. ,. r_1 n...•r.-. v .IIr ... .w. I... :'. +., nl .'. ,..•. ..r1,. 1. ,.: ., rw'. . Iir ., 12. _ OFI ICE 1 15 AND DIRMIC,ttS IS. 1%0D11t0NS'CtlANCE S 70 Of 1 ICERS AND DIRECIORS IN 12 3 — — � ,UItEIt unfit ItN.i LAWSON, JOHN E SA R ,,,..•„ �' N.1h5ort t Ic„1,�> (inr:.1..,<:� i LI,RRQ� W'u +i-)FttZ, srllEErA�Or/RS 943 VAN BLInEN ST. I Ist�I++ur.«r;.+ Ito 5.• •S} cm.sr_rp WLLYWOOD FL rtc.t..s,, F4 • Ls11L�ittLt,A�•,C 1. 33301 -ntt ST ik(SillIs I1In1 MAtJE WNSON, JOHN E JR 77^,„1 tS E 1c,a,r t In,l:•rr N .W+++sr�A �9'`h FUoori 1 s11a11 st 6160N.W.93STREET ?.sndlerl•/at �nI o S'� �( a cm.st.zp MEQLEY fL I at111 t•r. Ft• l.rvJ�l.tt tlnLt, >:� 33301 Lilt — 1119' I it 1 • unt o . k'WF 77AC•1��� �nR.[-1� I ICnt�7°' (I4i:'ro• srntnaonatss 1! s kr1 f A•tan tt 11O $ •�• �';� � ' � �'8 �' f wore. vn•sl.:r tI t,:,.s1 r/• T� , l..11v..btft.-LiA� F t"L �33OI TIpltEtt .1na1 T 11c"1", I IAWO: sTlulrulns,s� I1 iKirAtw,. Ito It �. 1 TIOcfL air sLtu _ - _ .. a -I, l f\v.L\ER-an1� I Fl ]7 >vl nn[ I IVREfl. tiitll L ICr.a,y. tUYE s?wvI STFIFF I AXAI SS S +S'l 1111 W""I I Lrrl'SI.1V Slit, <„1. )a• WLF t I •.ta 1 Miss AL"Ss C! 5'In I 1 A'F"t'� cAi .5 r )11 I t C U}$ f" 11 f t'.ornhy or'i fY Ilrnl the infnrn sb su n' A e hfa 6hng Area rnt gdlnty lur Um r/rm,.tnn ylab+l lr, Sn;:bnn I IU 01{3)U, I lvA.) Slalaltre I h Iher el`rh ih IIH• lof(.onAt% n frYlrcdled on t` it e,,nunl fepAn nr ,I n hlmt -pop Is I MIA n•zurplc and tlrli ny ta)n i, 0all hnra: ow ean,f Irnnl (41rot a. i n, h undCr r that l em to ofrCe, or deecta of the torpn V. r li r - tr or I•ustoo enK �.vured lu e.er utc pr) r(ttiat n5 rcyw,IKt ly Cblldcl G:17 I forid.l Slandut. and anc Rp1,+•lrr h, Block 11 Or plr ;k 1J it cimrwj n111MMl YAIII An rtA rCSS, w,lh nl1 nn,rr 1" r r F.y.Kf•rotl SIGNATURE: _ 211 j�� 1 C Sy) Jjj--Z/7zap �P '►% A4 `F3RRh-t,A�L S�Ei•AR'y 1 I,-.• �rp w `a" r 99— $� v y UORiORA11 DLTAIL IE.UGHD WRI:EII 12:15 PM NIIM: P56718 S1:FL A(.:1mm I•'I on I FID: 12/02/I= I A; 3 T: 1.1,1PPOPOIE: MI-h(.;FR f LD: 00/lb/ 1998 FFIN: 59-214430-3 NA1*1t- iMP RJill. ':•;ANI.101 01N PRIN01"AL 130 S.E. 61H SIRI- 1. ;011 FLI. O; I _ LAiit) I } OOI E.. f f;t-1 tJAMI-. IJAMI: C I-k-i : OH /tt 1 /911 RIO ODIA t c' 1 C()141't.)P A I I (IH `-. t `_ i I it1 A001-4 C:li(:; : ! 810 7 1YH' P I Nb. 1' 1 r1N1' PI )OD !'I All II-1I itild. 1-1- Ai N RFP (19 1) HY 04/ LH/Q/ i .i'a'-S } KY Q4/1 //Q8 I C 114 I MENU. 3. OFFICERS. 4. EVE:NFS. /. I. IS] . fi. iJI:X'E . 9. PRE V l E-141 ER SEL.Er.Ci .[ON OFID CR: y 0/17/9c� UFF.IWER/WIRI(:'IUR 01-_1r1I1. `:(.:i;l E:14 12:15 PM } CORP ilUMB R: F567.1.8 t..i vp 11Amp : rMl'1 Rim "AN11AI ION i�f liVJLE�>, :LtiC'. f f I LE : D NAME — !•UOSUN' IIA111 I`3 V-1 I J]O -`.-:.F 611! >>ir;l:EI 04II.1 ! 1.00II' I' I L.A}1itiE 1.L�c',I E.. I-L. VILE: P NAME;: CO`:MAN. JAM ': H Iti FirLE: S NAME: BARK Al IW iD r� i TJ TLE : `E NAME: L.F1h1(; _ I Ul,:11 1 A 1 J I I m ro . WII W lots. I W! 111 1 WOR f ► . I AI W INW. 1-.. F 1. -SAY) s , NEXT. - PREV, :l. MEilJl.l, ;.'. FiA.11,1(4, 3. 1(W. f:VrN!`-; 7. LISi . S. NE:XI MY I_.ESI . 9. PREY BY L.1S! hEI1 r-R E3F:1. r.t: 1 1 ON AND (:R: f t I f 4 S LVL.141- 1) L. IAII `:;c.'{21:fhi 1:':.15 Pm COF-0 Nt 1M(.,F Il: 1= `_iE> > 1 F3 CJAW S1 A h'J"S : AC I I VF. 1:II.FI:) 1)OIE. i1/U?.!1`as31 CORP NAF11: 141" RIAL SONlInI lDN SERVICl S, INC. t:VFNI IYPL. Ll_1=1� i_FFVCI IVt- D1:SCRIP11ON DA 1 I . DA I- E t IJk1='OW)l F. 1.11 Ft(; (: Oh! 1 `.;11914.. M1=:RG NU P98000041M49 i MI.RWE D IN1 (! r 5 C:, ! .I. t-3 i NEX1 . 1 . MENU. 1. 3. f:{F F:IC:1 1;�,. 4. I (3I, 7. 1_:IS1. S. NEX1 BY L_ISF. 9_ PVEV 8Y L.151 EN I Ek SELECTION ANL) t;K: i �� i f wI 9 o t , --" Att'1'lL)'I's OF 114coli)1c)►t O'1014 OF , t(' 4/ %l I ,j 1 1,411 11 It f I Nu nl IMPERIAL SANJ'1'ATJ ON ,SERV IC)"S, INC. 't The tlnde) s. iglly 3, for 1 hr I'll) pn,:h of f (it 1r+i n11 a r(+l l+rlr al ioll under the Florida General CurflotaLinn Act, does) he)eby adopt Lhe fall owing Ay- t i cl es of I iico) po) id i oil: A)('1'J C'LE I l:r+wC T)1c� ),an+c of this cc,ypoc at ion is 114PYAIIAf, SANITAT] 014 SERVICES, INC. ARTICLE 33 Terrn of Corpor_ate_ Exist else The cor 1701-at ivrl i s to ha VC l+t.) )+(•t 1)") exi si t'ncr. urll c?s s t1i nsol veti accor di no to law. Pt poc;t' The purposes for t,'hich i.hi s coi-po) ai i on is of yani zed .-ire: (a) To engage in .-in industrial ind commvrcirll wasLe removal service; to vi)(jage in the Luyiny, ,nlliny ai)d dealing in iIl(lus Lri, 1 and cunu+rercial !;crap, stllvi)ge, J(efuye, ruhhi .h, tl:l:;h, jullk, of ral, garbage alld cam - debris, and to further engage in the collection of industrial and com- ule)cial scrap, salvage, reflu j, rubhi ,h, Lj-ash, junk, offal, yarbage and debris. To likewise provide any and ,ill necessary vehicles, cotrtainr.rs, arid uLher JeCC'j>Lc7Cles llc-cC!;!_airy for" the business, of Lhe corpovation in- cluc3ing the obtaining of various vehicles 111d clthvr equipment for the transporting of same. 'To further enyaye in the maintenance of disposal facilities for the items of Lhe cot"g)UJ*ate hUSi11eSS i111d to do all other Lhings necessary for the furtherance of the coo-porate business. 1 /.vir;l1'it, 1S Y:1141P.'t 1) V.(11 1 1* li 1'. A (b) To acquire by pc)1 chase, or of hrrwi se, fOr i five st.- went or resale, and Lo own, operiil e' subdivide, leave, let, tllOrtyilye, sell alld otIwI.wi!,e di!;I,O!;e c)f, for (.•!!;h or can credit- by C:ollve)'i+rl(:er i1U1'C'C'IU(-11L for d(:•(�d, or t)tl)(•1' lr►sl1')lm-liL, )va] estate, or mi;•rd Ij,op, i t_y, I(,(-i,t(,d in the ;(i11 e of Y)c)rida, or. i elsewhere, and 1y to 6enl in and t1alfic as owr)rr, aqc-nt or 1 t broker, in real estate, )gel !;oval and Mix(-0 I)1 opei Ly, i,l)d ally i rlt ctrcrst 3, i or estate therein, including sul)divisiuns, apartment houses, residences, stores, office huiIdifigs, r,iclhl s, ,-trtd s the lots or pis) c:c'] s of l find u1)on %..hich 1 hcry ll,i)y he lr,c ili , r), midLo . f create, own, ]case, sell, opL-l-,li(I bl)d deal in frr0101d i+nd Iris!;r.•- bold c­st;,t cs of isny i+1)d ill .l c h,s+ i+c:lc r t: h,+1 !;r urv(tr, i:nd to he ;in i investor in real arid per !:oval pl ujivi ty. t (c) To lend ;slid burl oar n)oney, he if ;:ureLy, vxr-cut e Lail bonds and to execute and deliver, acc vIA, t,a):e ilnd receive E. not es, bongs, debentui is or ol-lir'r (-vicir.ri(:r. , tllc ).(�Of, and nlurt 9aues, trust cic'eds, pledges, or other ,ecttri ti c:s for "Lhe ` payment of name. (d) To acquire by purchase, subscriptions or oLherwise, r: and mortgage, pledge, or Otherwise dispose Of fronds, notes or t . Other s(ecur i t i es or evidences of indebtedness, and the shares of co)lu,,on stock created and i!;sued by any (it)wr c:orporaticm or 1 corporations, association or airc(ciatiOtis, and to fit), chase, ),old, sell, assign, LI—MIS10r, nl0t19a(Je, plodue, or ol.hc?r•wi!;e di!:pw;(! of any bonds or. other !;(ecI)ritie.s or c!vidvilces, c:icaIed by or i!.si)Pd by ,tiny other coyporat.ion or, coa Isora ions, association or an soci at ic)r)s, and while the owner of ,tic:ll stack, to;VXV)('i,e all ) ights, 1)e,w(-rs and privileges as !;uch ownership, inc:llldin9 the r.iy1)L tco v(rt:te the salve, ,and to (lo any and a)1 lawful ac:t.s or things (lesiyrlod to protect, preserve, improve or enhance Lhe value of any Such bonds, f -z- I 1 /• V. r: l I' I t' IS A. i •t/ 1.11 11 01710A stocks, or other s(-cm i L i es or evidr.•nces of i l,dehtc•dness and to guarantee dividends tipon shares of the (•onulfoll t:I ncl; of any of 1wr cui p)oraLioli 1n which t.11l s C0111O1 ilt .1OI), i11. Illy t. ilne, IUrly 11c? i1 s a st.ucl:ho.l(ler thel c-of , and t.o (,llc;ol se (ir ot11r-)wa ru yur,) imtee the p1r]Ilclp 'll. and flit (.') cst., oI. (`) 111(.I- t I,(,)'c'of , Of llol.(`s, 11Ci11(1'i, or ether evidences of illcielit edlic !'s e .r( .,l c'd by i rrue of r:uch co) p of al, ic►ne, to deal i.ii its own stocks or iJrol:erage (e) In addition, the corporation may transact: any and a]1 lawful business for which corporations play be incorporated under the Florida General CorporatJollS 11ct. AWYjt'1,E I h.Ut11c1r]zcd Shares The ma>tirllJlnl nul)lhc`r of char cs (if stock with par v.-31 ue that this corporation is authoriv.ed to )1.,ve OUI �;t arldiTly a any one t i►ne is - - - - - -- - FIVE HUNDRED------- -- -( 500>:xxx) shams of Ill . 00 par value conunon stock, which r_o>nanon stock shall l 1>e of a sinole class anci which common stock shall be Sect.jon 1244 cGrlenon stocl: pursuant Lo the Internal Revenue Code of 1954, as amended. ARTICLE V Initial Reyist.ered Office alld Rcyis>tc'r(�d•,AycnL The street address of the initial reyisLered office of the corporation is 940 N.W. 181st Street, NurLh Miami, Florida 33169- The )i.+)ne of the initial Registered Agent is 'MELVIN WOLFL' who,e p l-incipal office a(idre ns is 10651 North Kendall Drive, Suite 200, Miami, Florida 33176. Having beell Ilallwd to ilccvpL c;(') vine of for the .)1>ove stated corporation at my principal office addlens dw.-igliat.ed in these Articles of Lncorp(D) at ion, l hei chy accept to act- in t hi s capacity, and agree to comply wi Lh the plovi sions of raid Act rel at i vo to keeping open said office (pursuant, to F]( 1 i -1 Statute G07. (34) . 1 l� 1'00 I(.'�,t�.1';c71.1'I' It (;17U'.`i.l' A. I•Cl/,I.11 ! I (1It11)A Al TlCLt, V1 Wumber of Directors 4 1'1)c busilluss of ( lie c of pua,it ic,►a Thal 1 )it, by a 110ard of Directors coyisi !:I i iiy of cane or ri«o► r mr!in)ir rs, the ex"Cl. I number to he deLermine(l ft.i'Tic t0 t.ime in ar:coad;lrice wit)i the I By -haws of the corpura(.ion. The iniLial Suaid of Dijceclors !;hall Consist. of oaie Di rector ART)C1,E V1I Initial Iony'd cif l�i�ccic►rs The riames and aclui or I he f it !;I. 110;ird of DirecLors, %,:ho, nuLject to t},e provisions of these hrtic)es of In(:orpc,ration, the By -Laws of this cc,r)x), pit i on, nild the law.,; of the St.,t e of f T'l0ri0a, shall hold office for the fi)st yoar of thci cai)�r,i,�t ion's existence, or until their Sucr:cssol's are cl rct.ed and have yualifivd, are: );A -ME STRUT ADDRUS5 JOHN E. LAWSON 940 N.W. 1 a1 st Sl. a•c!(,t WOr'th Miami, Florida 33169 ARTICLE V711 Initial ]nr.c�►y.�orator(;; The naines and addres.,:es of vac)) sul�scr i ).,c,r t.o 1.)►ese Articles of lncor)3oraLion and the nuilther of ;hares 1 haL c,�ach :agi ves to take, are as follows, to,wit: NAME S'1'AU"T ADDRESS SifARES r-. MELVIN WOLFE 10651 North Xeji(ja)1 Drive 500 • Sui Le 200 Miami, Florida 33176 I the proceeds of which will amount to aL $500.00. ! (t•w O1 1'If I S t'1►111 •r IJ %9OI.I IT n r,iir,1,q, P A, t r hl(TICl.,l; ,IX 13y _hzjws The Board of Di r (rct.or s steal 1 :,dupt Ply --Laws for this Corpur.alior) Which ln.ly 1.,,, ioiitenoed, al l ol lid ur rc lac alrcl ),y the shareholders or di rectors i.rl any manner l„ r mi t.t rd Isy (lie fty-laws. Indemnification of hijvcturs and Officers 1. The eor l,or-a t i on hr•1 eby indemnifier, any director or officer made a part.), or t.hrcatc'necl to be n•rlcle a tarty to any t.hreatencd, lic-nciilly or ir,n, suit or prr)s-vc-(ling: (a) V.het.her civil, C_) imillal, i,cimil►isl r:,t.ive or ir►vQstivative, other than c,ne by or in the right of this corporation to procure a jucivn,ent in its favor, l,lought to impose a liability or p(mal ty on such pe) son for an act alleged to have bean committed by such person in his capacity as director or officer of this corporation, or in his capacity as director, officer, employee or ;agent. of any other cell pora'- Lion, partnership, joint venture, trust or other enterprise which he served at the request: of this corporation, against judgments, fines, amounts paid in settlement and reasonable cattol'rleys, fees, actually and 11l'C(.::!;ril'lly inrurl r.d as ra result of such action, suit or proc:cediny or any appeal tl+(-re- in, if such person Acted in good faith in the rv.ason7h)e belief that such action was in the hest interest of this col por-a- tion, and in criminal,aclions or ploc:erdings, without. rcason- able grounds for belief that. such action was rinlawful. The termination of any each action, suit or proccaeding by juc3ymerlt, order, settlement, convicLion or %ipol, �a pjea of Bolo Contendel.e or its equivalent, shall not in itself create a presumption - 5 - /'rr��l'I'll'I ► ►';itl 1+,9r.P1 1';nl.l 1' !4 t',I�P;'.'; i'. A. I,:I/1t•!I.1'I c'10lf?A �J� i'frU that any such d i r c•ct ur or of f i c•er did nOL c,ct i n (joud f a i 1-11 in the reasonable belief that_ such itcLion wcls in Lim be -St interests of the cm tit I icrn c,r I h-ithe hi, (I YOW;on,tble M e,ur►(Is for belief 1. hat Stich ;,ction W,35 uriIifWfIll - (b) By or it) the r i yhL of this cc>> l'c.0ra t i orr 10 I,r c3cure a judgment in its f,3t101- by l Cason of his be my or havir►�� bcvn a director of officer of this cm poi gal ic,n, or by ) (-ason of his being or having been a c3.i rc-c-Lor, off is er, employee, or ayerit of any other cuipo)'ation, partnership, joint vertLure, trust or other enter prise wh i c-h he !;ervvc3 at I he rr.yuc sL of this corporation, against the 1csGs011aL13e e>:1.Ienscs, including aLtorneys' fees, :actually and necessai-i.Iy incurred by Iiiin in contection with the defense or net.tic••t►,c:nt of such action, or in connection with .an ;appeal 0hc•1 c 11, if such l,cl sun ,acted in good faith in the reasonable belief tht It !,uch action was in the best interests of the corporation. Such person shall not be entitled to inc3emnificatioi) in rel al. ion io matters as to which such person has been eau jtic3oed to have been oul 1 Ly of negligence or misconduct in Lbe performance of his duty to the corporation unless and only to the exlerat that the court, a6mi ni stl at i ve agency, Or i nvcr:;t ic,at i vv body li(Jol e which such .-action, suit or proceeding is Held shall detr-1 mi rre upon appli- cation, that c3c-spite 1.he aicl jtidicat ion of l isabi .l i t.5, 1,ut in view of all circ:ulnt;tianc.es of the c:a;;n, !mch }►c!rson is fairly and reasonably entitled, to i ncic!nnai f i cat i on for such expenses which such tribunal shall ducin proper. 2. Any itldemni.fication under ;action (1) shall be made by the corporation only as authorized in the specific case upon a determination that amounts for which a director or officer reeks - G - t.t,aror1.lc;rs V-44111.4r.14.%YOL.1 r. a (;It11) A. I.!I1•, A1.1't OUICA 9J-- 140 it►c)emnification were pioperly inetarr-red and that. such (Iirc•r_t.or or officer acted in good faith and in a rma►►ner he rca' "ably ).►elicvcc3 to be in the best inteye,,t of Lhe coi-poraLion, a►►d Lhat, with rcspurt- to imy cl-i►uin,1.1 itct ion oa 1))or(.c•difly, )►c )),-Id r►o reasonable yround for helief Lhat. r,uc:h action ts unl AwfUl.. SIfcII determination shall be ►nade eit)►er (a) by the Board of Directors by a majority vote of a yuortim ronsisting of directors who were trot parties to such action, suit or procceoing, or (b) i.f such yuorutn is not Obtainable, or evcn if obt a i n.abl e, a yuorutn consisting of sharehol13ejs who weze not parties t.o such action, suit c,r proceedir►c)s. 3. The Foregoing rights of indcmni f icbtion r;11,311 nOt be zc•u►ued to 1 i.►r►i t in any N:,7y the ltuwers of this cctt pm r,t i un to indemnify under applicable law. ARTICLE X1 Amendment This corporation reserves the ritjht to amt'rtd, alter, change or repeal any provision contained in Chest' Articles of Inconcctration in the manner now or hereafter prescribed by statute, and all rights conferred upon shareholders herein are granted sub- ject. to this reservation. ANT1CLE X11 Powers and RL9lats_of Directors and Shareholders 1. From time to time Lo OpLeimine whether and to what extent and at what times and places and under what, Comlitions and regulations, t..he shai eholder� anc3 dit ce:Le,t t; Of this col parat ion shall have the right of inspecting any account, book or document of t)iis corporation. 2. The corporation may, in its By -Laws, confer Mowers upon its Board of Directors, or directors in addition to the fore- - 7 - I•I t'r ()I I'Ir,I S 110I I I'll ►;IM",, I'. A, (�I.t1/11-4I.1't 1)17MA ZU going and in addition to the bowers author i zed ;,rid cxprc-rsly f conferred by statute. i 3. hot)r shareholders and dire ui ors shall have the 'j.)owner, if the ry-haws so provide-, to Bold their r espr.•ct i ve inc-et i►igs, f anti to have one or ,bore offices, within or without the State of Florida, and to Reep Lhe- bnol:s of 1hi = co,I,mation (sul.,jr.cL to s Lhe fjrovisions of Lhe stilt utc-s) cmul side t he. St;it.e of 1'l«ric3a, a such pl;,ces as may from Lime to t ime he drsiqnal.ed by the Board of Directors. z 4:E, THE UI4I)Ei'S3Gh'ED, being r.ach and a]I of the original subscribers Lo the ccmuilon Stocl' )'PTvinahove namWd for the Ism pose of forming a corporation fol I)r (-)f i t to c30 brit h within and without the State of Florida, do lierel,y maY.e, subscribed, ael:now)e6ge and file these Articles of Inc mporation, hereby declaring acid certifying Ll,at the facts he)ein stated are true, and do respectively bcir-ee to take the number of shares of stock ' hereinabove set forth as to each of us, and .,ccOrclinyly h;rve here r tofore set our hands and seals this 25th day of November 19t31. l� ( MEIN IN 401,17E r' 10 ... _ _..._ (SEAL) STATE OF FLORIDA ) SS COUIQTY OF DADE ) I HEREBY CERTIFY that on the day and year above written, i; x-. 6 4 I I% nr'I'IrI'S t;rIITi-�r.14 V-4-A.I1'r, COM-6.P.A. i.tlLt.11 f'1 r QIDA t personally a)jI-)c-arec3 lrllt's UIICIVISign(ed ilulllt+t'•ii:y, t MELVIN WOLFE + � and E 1.0 lie wall Y.I►uwn t o be L he persanis) who e�:ec%ltcrd the fvrrc�c►il►y Art icic s of 7ctrc,i I�ur,jt jar) ;slid acknowledged before one that he/s>lw/t.)►cy cxr c +►t crc3 the CI reel y i arid voluntarily for the uses lnlr)x,res t livi-c ilI scat fai [.h aml expressed. NOTARY III II{t,lC r,r'nIT cir .��,ah>un AT LARGE. � )�y Ccnnmi r;:;iun Ex1,i rrrs: IJOIART 1`011IC S►All Of NOVA). AT Lund My cu...,r,ISS,o►J la.PIM N.•t 79 IVNS AOIJDID Inky GtNAAL $145, UF+utRWAJlt0LS i LL1'I t71'1'If;l'S 1' III II'AN,Wo l IT It rOM",°, 11, A, 0:� IAI IAII I;Itjpl rd tl �,tt1t` �.� .ort D a +�e���tt•itttcttt nt �Zutc� I certify the attached is a true and correct copy of the Corporation Annual u Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. Q� The document number of this corporation is F56718. GR2E022 11-99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 'llhIlfilt`1'lI1C '�;1�11'l'I�� �rrrctoru of �tnir k r FILE NOW: FILING FEE AFTER r 1ST IS $550.00 PROFIT �.3 tlalar,nDrrnrttraENttlt RtntC 1 CORPORATION T( �1q 1(Athrrtne t1.rtls t i I i t ANNUAL RL=POR1 [ T p' sn;,t.t.nynisl.rh. i 1999 `1.r NkgSlhti Cd C(tl Fi•UI(/,i10N� DOCUMENT # F56718 �1 FIB ?5 r1i 3. QU \ 11VC iNKMAL SANITATION SERVICES, INC. iij{pffh`1f l I`1fMl!11�::1!' l.. 110I1t(!`IUA}jIJ�' t'tf,dpM ('1arr �t R„s,�•rae ... .. .fit i.tnq nddrt•tc I������II��,11i��1111Ii����{��I ��{I �I���I��I��I���III�i���Il��l�� Ilep NW. �. 5T. BIQO NW. 4�A0 61 WIDUY F1 VN UIDLEY FL VffA Ito N01 WRITE IN THIS SPACE 3 it;Jr In: nrl,n . 1••.1 nr (n, u,lrn � � 12►02� L9©� ! ), PriocipAt f Ipro d Bvi��ess 2a. 6+n+n�q nd•i.rv, 4 (1 1 N�n�hnl Apphcn F or 21 {tv S.IE• �4. Jt( 1 to S•E �� 592144378 ' }t,Mni.ja,ajl: Sulto, At,1 N, e•lc S.ohr A(t a rtt i8.75 A4,11 al p C{ _ t�}4� S r tu�h ur n, S.r.1 �, hc•a,•A ( I i I.V�� Ji( Z b + �L oc, I2� frt Hrq, .o:l _ 4 cny�f�8a,e / S1,111 �) ) 6 t .,Kp. i j $5,00 MAy Dt- 7] i + "1�,pR.Q�R UG LA �IL4'd &lt-, � � 1 r,,.l l lnhl (:•.,.I:.I,ut•r.•r Ad fr�d 1,• t t c; 2,P CovnP 1� 7il h Cnw.1•y'rC �. 11r,•.rr,gn.r,rin,.r nNt•, II u,Innnll yna'In,.0 g4drr { sal 333_O1 [JJ �tJ0 i (30( S 1.... ......i 1'uy 1m 111'r•k I IN.1 4 P. Neme Ond Address of Cul,orIt FIrglsl.ted Agent 10 Nputc and Add,ess of New Ytegtele(ed Ageol ' .. - Bt N..m C T CORPORATION SYSTEM % C i CORPOR►MN SYSiE-A6 EJ slrl c1 n•/n•n•. ll a nn. e,•,,,,1. • ,� N n n, >A1.d 1,'i 'r 1200SOURiMELSLMROAD e1 10171ri-0`-i�tE:�':Jt--- � PLANiAT1ON Ft 33324—03'0,>r33 - -0 ! RI -•-01118 o, cay 4�laf]`-a).P�. i��i�11.CiO 11. Pur�upni to lnr provb�Oni M 51�-ums Geri Ot•(1j nnA tA) I60P. EIOIda SiMutns ute nFwrr1 n.MAlt (N111101•P•( fnl 01t 1•Ur p..>n or th,r 3J •1p rt, rrQlsir•ea f orke of rep 51cfed agent, tv I»Ih, in Ile Stptc or rio,dd $pCh Ad11.0" rd Iry p,u uu,r,r,r'.,rxi I—ml rd 11".4— 11" I., Au ,It Ilan npj'trnln r•at nt tt'•str,,.!1 I Agent I Am (Antil,al wish, Ann acre; I Ihr ONryahons or, Soruon CV.6505 I Itodry Stdlalot. SIGNAI U RE I s�yN..•,,,I]t.t•r,.,w•.r•r.'l,.Ih,.•,r�,..r.t::.,,1n11•,1...-,.1h),r,�....,,.,,�•, •. 1„.r � : ort IGF R$ AND DIRMIC%45 13. A00111ONS'C„ANGES IU 011 ICERS AND OIRECiORS IN 12 �+ tRlE— _..�UP.KUIIF It III11t1 1 IC,p+4. L,Ar ti'.N: v ,U1rE LAWSON, JMN E SR 1)1,t••1 W • NubSap! W3 WAN MEN ST. NAa 5 1, . SlRfft A70rti !.. 1+t1ri/1RI•r,i:•ti cm.staP HOLLYWOOD FL It(•,••s1 Ta 1p+�banbRLE t�I �� 01 �! i it Of if it ) 1111 1 t C,A,r• i I1/i•I:•Yt V _ uAf)C LAWSON, JOHN E JR ))1.: 1 ,�At`l S K • �s►'+AtZQN1 �IAOQ, t slAttt s 8160N.W.0STREET r! r1a1tAI.A,I Ili' (r ( �� 33:lv1 cd,.s,.zo NOEDLEY FL ).ot, 5.t. LA / 1 It 1•u.0 J ICn(nQe (14i. b- „A„f ori. LO s`ti'.�1Zg++, �W} VKU 1611MSS1 1)5 NF/IA•Iatl �t t I L[' '„•� �3 I Urt•SPdO J fe OL.51 ,t• I"'7, �'uv �+A f• ( Jar TITLEI .. .... .. illlttElE /rl,h1 -'r' IIOa•,r (t4Nr•o,. rcAlc e) ti+>•r �,,,�, t e LJW6 , III 1 fjtpf Ft A,Y1W [S, 1?Slk�l,/�ihi Iio�,1 •E• Sirs 2P't'1t FIQQtt, prr.51.JP ,(.nt •,;.. TC• L.s�...i1RI>~�AIfE, PL. 3330% Mr. t [ ICxtCN. nm, (Ic .+,1• (Ialvr,r „A4j[ Stl&Et A,Y.IPFBS S1$I1rftAn'•A vt h Vh'.6L 1V 51:1, SIJn' i t10.F � L I All F I F t t nhf Cna,ytr? I i AbM•a. ILWE F) ♦Ue :. SIpICl A00,iF SS R)5•,AIIA'tYll1`. �+. 14, 1 M,nhy re At•// n in Innl intrvn W su t, (i w %Jc GhnO s 1 rr clnrnot ry.�nlay (Ito r•rrgnh,Sn dn mm,41 ; or,n 119 0)13)h1 f $"0.) Statolos 111 a,C1 Carl. Ile i1w. Munnalrun . trt1cated on IS'1it Annual fcpnr ur ,j , a nuA1 rcp0,1 IS Into And A 7.urnlr. And tlrnl n,y Au1m.In•q rhn•I hnrc llr( Sprnt 4'nnl Ulal AS I m o uMC, r .t: that 1 Am en otr'"' or cleorlor of the Corpn ,'. , h I ..:cr o� I•uslao onnvntued in e.el Wu Ilse. rt ja•rt py tc;tu •tat hp Cl,ajdty (i91 1 IIn9.1 Standut: And pplK•�,s In l DIOCI, 1J Or Cllr._k t3 it rju,rwrj d, :nthmnnl rrith an nd9rr!.,, wish w1 011te, hln r ngmnr•rr;! - SIGNATURE _ � 211`7j9i (gs�t) `tag -z9z.� h5 �� HU Ur,h A I aU,I �N.V„n Na MI p Y•Un�MY tY l,�tk W I�IM1Clfe, t• ,1 •r 1',r• I t- ' '!.I7/9Q r IRIAIRAK DETAIL K!.'1RI) V RLis:i'l 12:15 PM NUM: F.`_ 67 J H S1 : F L ru r i m m mT)F:I i F L.0 , l WOV / 0131. ! 1. /a'.;1 : C'Ilh('(141l1iL: MkfNiF-12 FL1): Oo/ 15/ L996 FEIN: 50•-014371 Nf;MF f tll'1 R I Ot `i(•1LJ 1 I !) I 1 IN ";I PM l (1-`.• . 1 N[ L'I:1i1( 11101 1 10 f:.! . 6111 ;.mI It. I.n' II)I ROW 1 F I l 1?F� NAMI- r { ( (.I!21'4 )RO I I I fPJ .'• ('; I t.I i flAl`JL. L'FI(;: r_)t3/r) i i'�1i I ' '.(.IRL'URA 1 I l)1! 1', rug !:III)111 k'1 N1. 1';l (1W1 I=1IAU E'1 ANI()I11IN. TO I, ,x,;';'A { iltJtJ RF.1' 1 199 / 1 Bf 04 / I H/ ':. 1 ( I WWII 1 t;'r' (• 111 1 /'a`i ( 1. MENU. 3. OFFICERS. 4. I:VEHrs. I. I.ISV, P: 141:'Y.1. `a. k'RF.:V ENTER SFL.F_C"I TON AND C;R: Y/1719'-) (.II f 1r:l.Rll IRf (:'l(�R 1i1 1' 11, WRI:.L.l1 12:15 PM CURE' NUMBER: F567 18 UORP I• AMF : I MI'F R I Al SANE 1 A L I ON =">h RVI UES. IN(:;, I TI_E: I) NAME NI.JI)�•Uhl. IIAL1{'{'; U:1 3.10 `-;. F „I It ':; 1 Ilk 1. I 24' 1 11 1 1 C11)I' Al )1 It- F 1. IJTLE: P NAME: (:OSMON. JAM H t to ' .. I : 1 1 I I<1.1: { 1 111 1 1,0014 FITLE: S NAME: BAR(I Ai Imv t0 [) 1JO ;.I 0,11 `;IREF I A 111 FLI)III' II . ( AIII,{ PI)rif 1: . 1-1 :''•('I TLTLE: 7 NI -)ME: 1_011(:_ 1 +11401:1 0 I 1 f, I I I �.; 1 1,11.1 1 •i' III i I� I . I.Al11tt- fa,iil E . 1=1.. •�,i.(' I I NEXT. — f'RE.V. J. MENU. 2. I'J1.INW. 3. IIAP, 1, EVENL`:; 7. L 191 . S. NEXT BY L1S'I . 9. PRE V G3`f L'1.S I t­ h1TER E3t:l.l:.(:: F.k 4:)N AND (.;R, DV fAII W REEN i t I I::15 MI CORP NUMI.I=k. I `5ta/1fi A(:'1 1VI" CC)hl! NFat1E IMP) RIM SON11(111(fl•l SERVIN t S IN(:'. i I.VENI I'r'1!I .1.1.E1) 1.-FFI.: l I V I.I�L`:;t:tlit'flt)hl _...--------_ .---....._ _.._.._.__.._._.. L�F3I I I?(1�1 I 1 (:'Qfl1'f)1kA l i Mt: l _....._._._..... 06 1 `.ti! .1 109P. t 11=;1�G' 1.11c+ 1`9800004 ?849 MEP(if..l_) I N10 rK6/18 c 1 i f i + NEXT. 1. MITNU. 2. V LING. A. OFF1c_ERS. 4. roi- f I e k l. LIS! . 8, NE.X1 BY L_011 ?. l'I,'I".V k5Y l EWER `3E1 FC(.1U+1 ol,41) ' c k., s + t l S s i k M t. L ARTICLE'S of 114CORNMA.I.1014 1141'r11171L >ANPI'>t'1'1U14 SERVICV-S, INC. T)le II110vr it3►Ied, Im I hh pill (A Iof 111inr) ;I rm Iwif al inn under the Florida Genera] Cal Ito) aLion Itct, do (er.) he) ehy n6opt the following Articles of ]n(•n)Ito) ;,Lioil: I►I(T)CLI; I I: r, tIIC The name of this Curpo:t at i nn is ]I•t1'1`: 11A), SANITATION SF:RVJCL-'S, 114C. ARTICLE II Term of Corporate -Exi nteipce The cox por at i un i s t.o have lit:) jwt mil r:xi til once. unl cuss oi'r.sol ved acco) di no to law. AkTICIA; 1]] Purl)c�c;c� Tile puI,poses for which t.his epi-poi a icon is of U.•►Iii zed sire: (a) To engage in an industrial and commercial waste removal service; to engage in Lhe ))eying, sf-1l.ing mid dealing in indust.ri, and cuimiercial :;crap, salvc►ge, I efuge, rabbi sh, t ►ash, julip , oI fif1, ya►rhaye arid debris; and to further engage in the collection of industrial and com- mercial scrap, salvage, refuge, ruhi►ish, trash, junk, offal, gr-►rhage and debris. To likewise provide any and al necessary vehic:lus, containers, and other receptacles necessary for Lhe huslnc!58 of Lyle corpgrat.iOn in- eluding the obtaining of various vehicles mid other equipment for the transpor.t:ing of same. To further engaye in the maintenance of disposal facilities for Lhe items of the cori)oraLe business and to do all other Lhings necessary for the furtherance of the corporate business. f; F f 1 A. 1 •'. I /. ' •41 1' 1 C I J I I: A 09. rPoo (b) To iicdui re by pul chase, or of hvi wi se, for invc t.- ment or resale, and Lo own, op(') -al v, subdivide, le,•lne, )L't, 111wt9ilge, sell rsnc] oLhrrwj!,(, di!;pw;e (f, for or tin crvdil by collve)-Alice, for cic. r.d, U1 ol.11r•r ]awful lilsl.) m11(•nt, rral i estate, or mi>-c-d pi oltt. rty, in I he St ilt e of 1-'101•ida, or el newhere, and u(mej al 1y to fl('nl in it lid I (if1 f )c its owlirr, agent or broker, in real estate, pc) !;onij] imd mi xt•d pi (+ijv) Ly, imd any i ntterust or estate il►erein, iricludiny suh(livisiuns, apartment houses, IesJocriees, stole!:, office hul3dil)9s, llli-in factur]r1U and the l()(r. or p,li t.e] s of ]:lilt] upon which t hcy iwsy be locilt r-(1, mid t.o create, own, ]case, sell, operale acid cleat ill frvultuld and lral:c- )Cold estht es of i(ny i1►ld ill] chhfl i(c:l.c.r i:ntl la he iln investor in real and ljel !:c-nal piopei Ly. (c) To lend and horr ou, :Honey, he a surety, vxccot e bail Liorids and to e�:ecute and (ie.liver, accvpL, t,tike illicl iecr?ive notes, bonds, debentures or ot•hr.r c•vi6wilre. , t.)le)-vof, riiir3 Illurtgauc t.1•ust dc(-ds, pl educs, or othex for Lhe payment of ijhle. (d) To acquire by purchase, subscription, or otherwise, and mortgage, pledge, or Otherwise _d:ispo!>e of Bonds, 110�t es or oLher securities or evidences of int3ebtodne,s, and Lhe shares of conu,ion stock created all(] is -.sued 135, any cliher corporation or corporations, association or a�raciations, and to puic:h,nse, r hold, Sell, assign, l.l'iilll:ll?r, Idol tijage. plodgc, or (Al►(!I•wi!;e d]s1 one of any ljol►ds or other !;c,cu) i Li r, s oi- vv idoiicos r) c•.al ml by or i sur,d by any other corporation 01',c03-1101-ilt ions, ils!ac)Ciatioll or atnsociaticins, and while the owner of mch stca(rk, to vxr.-1 ci ne al) rights, flowers and privileges as such ownership, including the right t.0 Vote the same, and to do any and all lawful acts or 't•hincls oes.ignr(l to protect, preserve, improve or enhance the value of any such bonds, i h IY r. i i' l t• 1 S t"' 141 1""4 1';()I I I' A i Ili !''. z 1' A. L!1!•1.�1 11 01710A 10 109_ "r,� r tucks, or cll.her r(-cu) ities or evic3cnues of indehtedness and to yuarar)tee (Iiviciends upon shares of 1.11e common !:I ock of any of her co) pmat_ion i1) W111Ch I his Cr)I Iml r11 .)c)n, ill. Illy I lme, in.ly )it? )Ill "I (.'-il od � 7 _ . ;)s a sLuc):ho10er L)I(c) c•of , ilnd to uIlc)u) se cl)• otllr-1 <IJ n ull:+) i,nt (.•e t))c x +riIIcipaI a11d inl c�rc•st., or v I her I Ito) Vof, of nol,r.s, 1)unri ,, or 1 other evidences of ills eht.e•cinc!as cj-c l.I-d by i!,!mc of !:ueh Col I,r:'ral.ic,n; f to deal i.n its own stocks or bro)cerage busillr!:s. i (e) In addition, the corporation may transact: any and all lawful husiness for which may he inco)porated under Lhe Florida Ge)leral Corporations I+ct. hHTJCl'E JV AUtIlU1-i7Cd Shams The maximum num))er of shayvs c+f stuck with par val ))e that this corporation is authorized to have oul s1 anding aL any une time is - - - - - -- - FIVE HUNDRED ------------(500>:xxx) shares' of $1.00 par value common stock, which commaj) sl.ock shall be of a sinole class anci which common stock shall be Sec -Lion 1244 c omillon stock pursuant to the Internal Revenue Code of 1954, Ps amended. ARTICLE V Initial Reyislered Office and Reyisterc:d•.Acjent The street address of the initial registered office of the corporation is 940 N.W. lBlst Street, North Miimi, Florida 33169 The r)ilme of the initial Register(!() Agent is P)F.1,VJN Wol,FL•' whose principal office addre:.s is 10651 North Kendall Drive, SuiLe 200, Miami, Florida 33176. Ilavi ng be en n;imml to accol>t nvi vide of l)rc)r.c!rs for the above stated Corporation at my principal of face Udd)l`!i!i dR! lt)li;Jl.rd r- in these Articles of Incorpoj M ion, J hcrl ruby ;JcCept to act in t his capacity, and ayree to comIA), with the provisions of naid Act relative to keeping open said office (pursuant to Fa( i i Statute 607. 34) , I 3 - I.r•a: c;l`I'ICI'S 1VIIIIL�r,t�.1V!'jt.l'I' fl l,ltc�� ;.p A. I•.Il.1.11. 1 1 C)rt lOA 0 f h14TlCLE VI Numl)er of Di rc ctor s -- _--..- -- .... _ .- I" 'I'he busi nu ss of t )le c:cst l c,t ,+t i can rha l l hu 111,+t+:,+Ic-d by a F r l;oa) d of Directors cc,ntii st i Ily of one or mot v mlrmhu-rs, the exi+ct. > n o time in r+, c c7) dr+nce with the nutnlrer to he cic_tt�rrrr�nc.c3 f r um t lr e t � - Tay -Laws of tyre Corporation. The initial i uaj d of Di t (yet of s !.hall f consist of one Di r(--clors. F ItI(TJ CI,Ta V 1 I Initial I;cilr•cl of lei)e•cterrs t 1. 'rile rI;,111CS of t )je fi i sI. lioayd of I)1r•f-ctGrs, ; 1 Who, nuLjcect to the provision_, of ]tpc:m-porijtion, the A)•-La,.:s of this corpo) jrt ion, ;III(] t.hc l ay.,!; of the Stirte of E FJoric'.i', shill irald oifice for the fist yci+r rrf th(2 c-ni prit at inn': e):istence, or until their succc_:sol•s are e3 octed an(3 have i qualified, are: { 10,01.IE STREET hDDHESS F t E JOIN E. LAWSON 940 N.W. 1 8.1 st S1. rvc,L { North Miami, Florida 33169 s` r t t I ARTICLE V1 1 I Initial Juno)))0lin0I-(S) The nitlrles ,and a6cb•csscs of C`dcTl t.0 thc'Se Articles of Itrcoi-poration and the number of :shares t hat ditch aryl tees to tape, are as follows, to,wit: NAME :�'1'It11.'T ADDhT;SS SHARES ,�. MFLVIN WOLFE 10651 North Kendall Drive 500 Suite 20U Miami, Florida 33176 r r the proceeds of which will amount to aL l(1,ist $500.00. ; r - 4 - I r.�: ov1'IrI S t901.1-1' a (-*H0Y*) h. A. I�li.►�I.1'I r;rrlt)A r 1+14°11 C),13 J X {3y _haws The Aciard of I)i i ect.ur s shal l ;ooupL 13y -).aws for t hi s corporation which may ).,r, ilnfelld d , a l t cal ecl Ur ) r-{)(•a 1 r°rl by the r 6€P S sharcholders or di rccLurs i.r) any mamier 1w) )Ili I 1 r•c3 by ( he lly-},aws 71k°f'1CLF X t Indemnificatioil of"_UirrctoI-s .1nd Officers 1. The coIl,or°1l ion lirI r?by inocimIi fir , afly cliI ecat:or or x officer made a parLy or t.l)1 e atell r,(l to ))e n,rlc3e a }•arty to ally i s threatened, pem3irly or completed .'+cLion, suit or pror(-vling: t (a) 1':1)L-t.lIer Civil, CI iIII i11,3 0dIni1)iS1 r:i1.1Ve pr ]IIvestiUative, C,Lher th.+n one by or in the rlyht of this corporation to procure a judgment. in .its favor, )+)ought to ii 4 i m},ose a 1 i abi 11 ty or }-WnaI ty on such per son fur an act {jf F a l l e ged to Dave been miani t Lcd by such pur son i n )I i s ca sac i ty as director or officer of this corporation, or in his capacity I as director, officer, c-iriplc)yee or am-mit of ally other Colpor.-I.- Lion, partnership, joint venture, trust or other c,nt(!r}rise g which lie served at the request Of this corporation, against t judgments, fines, �-)nlountS paid in settlement arid reasonahle s f attorfleys' fees, actually and Ilt•ce";narlly i))cUrl l?c1 as a result of such action, suit or or :any ��ppcal thr-re- in, if such person Acted in good faith in the rea!;onable belief that such action was in the best int.r.rc?r,t: of this co) pora- Lion, and in criminal ,:Tenons or }>)arr?c?di/Igs, without- rcason- able yrollnds for liel i e f that. !Much ilct i can was unl r,wful . The termination of any such action, suit or proceeding by juclyl+lent, order, seLtlenlenL, cullviction or li ion a plea of nolo c:c►ntenclere or its equivalent, shall not in itself create a presulnptioll �1 - 5 - 1 I°�� 1`1'1'I)'I i 1';1111►.+�N I;�c11.1 I' Iti I',17f;'.�; 11. A. ()I? WA (1 n9M 1;20 that any sued c3 i I c_ct or or of f i (cer d i d IioL cscL i it sjo(.0 f a i Lh ilt the reasonable belief t.),aL such itction wt+s in I_)le brut: interel;Ls of the cm pm ;it i0r1 or- I h+tt he had re tII c,llnr3s for ).,el i of I hat such act ion war, MI itwf ub.. (b) By or i n Lhe r i ght. ci f Lh i s Cm I,(.+) it I i (ill 1 0 I,r Ocure a judgment in its favor by reason of his ),(}illy or )la\?i119 bc(,n e director or officer of this Col ltcll:tI iMl, or by )car son of his beirig or having huen a di ror:tor, of f it_,er, emp)oyee, or a y e n L of airy oL1)cr corporation, 1,a1-LriU) sh]1), joint verrLure, trust or of her ertLe r pr i ,e wh i ch he !�.ervvd at 1 lie I eyue sL Of this corporation, acairtsL Lhe ac:aso►lable uxpenscsI itic ltic] irig attorneys' ices, :jctually and nec(!ssari..1 incurred by Ii►n in connection with the defense or !:et.Clr-mc:rlt of such Oct iOn, or in connection wi Lh an appeaI tlie l Cei11, i f such )KII sun acted in good fai Lh in the reasonable blel ief that !mch action was in the best interests of the corporation. Such person shall not be entitled to inc3cinnification",in relit ion to matters, as t.o which such )person has been ad jilc3gCld to have been qui 1 Ly of negligence or misconduct in Lbe performance of his duty to the corporation unless and only to Lhe extent that the court a6ministrative agr-rtcy, or invvStivat ive body bvforc which such action, suit or proceeding is hold shall-detreiminc upon appli- cation, that despite the ml judicat iron of l iabi l i Ly but in r= view of all cil-culll!ttallres of tale C:a.'3R !mch pej!ion is fairly and reasonably entitled to int3vilmificaticin for r.uc:h e>:penses which such tribunal shall Ovum proper. 2. Any 1nliClnillflCiit)O11 under Section (1) shall be made by the corporation only as authorized in the sp6cific case upon a determination that amounts for which a director or officer seeks - 6 - t,t.v. or r ices t':1411r.�l.14,1':Ut,1 1: a `;I?I)!',S P A. MIAMI.1-1 ORIf:A ,��-- 720 r� ir►cvelli ti ficaIion were properly incur red and 1 ha1 such di r ec-t or or officer acted in good faith and in it ma►mer he reasonably 3jel is ved to he in the i)cst i►iI_crr! I. of the corpc) rat.ioit, all I hat, wi th r especL to rmy car i mi na l -r►c t i (ir► of 1), ()rc (-.(]I rig, he hrid no reasonable ga ot.ind for bel i r'f that !:uch act. ion ur►l awf u1 . Such determination shall be 111a0e either (a) by the Poard of Directors by a major i ty vote of a c)tsc,rum cons i st illy of rl i rectors who wel-e not parties to such acLion, suit or proceed irig , or (b) if such quorum is trot obt a i nabl e, or even if opt a i nab) e, a cgimrum consi st i nc.) of sharehol ► el s who wei e not pnr ties I such action, suit crr pr cjceedi nqs. 3. The furs-goiIIy rights of ilid e:►nr►ificat ion !;hall tout t i be c;rUmed to l i.Ini t if' any %:ay t)►c puwcDrs of Ibis co► pm .it i on to 4 i r►►3cmni fy under app) i cabl a law. .. i ARTICLE X1 1►rr,enc1nent This corporation reserves the right to ammid, alter, r change or repeal any provision contained in Lhese Articles of 3neorporation in the manner now or hereafter prescribed by statute, r f and all rights conferred upon shareholders herein are granted sub- ject. to this reservation. 4 ARTICLE X 1 1 Powers and RL9hts of Directors and Shareholders i. From time to Lime to deLc!rmine whether and to what extent and at what times and places and under what conditions and regulations, the shareholders and die!cauls Of this colporation shall have the right of inspecting any account, boot, or document of this corporation. 2. The corporation may, in its 13y-Laws, confer powers upon its Board of Directors, or directors in addition to the fore- 7 - i '/• V.; r)I I' Jr. I S "�J)1 I I'll t �11r)�',"i P. A. t)RIDA 09- 720 ao going and in addi t ion to tl►(-, powers miLlic)r i iced and empt cssly conferred by statute. 3. BoLh shareho)ders .)►►d di r►,c:t crr> ,'All 11,1ve thl? 'j.)awer, if the l y-Laws so provide, to hold their ) espf.ct i ve mr-et i 1►gs, and to have one or ►nor e offices wi thir► or wi t)jout the State of Florida, and to beep the l,col,s of this ccjporr►tion (,ul,j(-cL to the t,rovisio►►s of the st;dutes) outside the State al F3c-)rida, aL such places as may fro►n Lime to time he desirpnated by the Board of Directors. 1 s VIE, T)JE UNDEPSIGNE.D, being vach and all of the original a subscribers Lo the common sloe): )wreinahove r►amc.•d for tl►e liurpose of forming a corporation I'm profit to do busi »tins l.int.h wi tFlin and wi thout the StaLc of Y)ol•ida, do her c:hy Mahe, ,ul):.;CHbe�d, ac).nowIe6ge and file these Artic10s of Iii ciiporat.ion, hereby t' declaring and certifying that the facts )lerein stated are I.rue, ' f' a rid do respectively agree i o take the )►umber of sl►rrres of suck l k hereinabove set forth as to each of us, and .lccordirrcjly helve here- tofore set our hands and seals this 25th day of November i.: 1 9 8l. i> tSEAL MELVIN IXE ._..<(SEAL) STATE OF FLORIDA ) SS COUNTY OF DADE ) I HEREBY CERTIFY that on the clay and year above written, I IV. nI'1'1rI's I! - 1;►111►�r.l� 1��►71.1'1" P� c;hn'�5. f'. A. +t,crsa�aaly a),pealcl lr•fure 11►e, the ujidel !;i n:ifut hori t , F MEININ WOLFS r , and to n1e well kiiuwn to he the post►n(s) who e>:ecut(-d the fc,rccojng AI- ticlt.:S of I►rcI iOil ;IIId acknowledged before me that he/!,11r/I.hey C.Y c•uted t he !;;,►Itie f I f'f?ly and Vol ulltari ly for i the uses aml l)tllrlx,ses I he?re ill !;rt fo1 t11 rll►d expi es-sed. NOTARY I'IIR1,1C`;,I'!t'i'F OF fti,C))?IUJt AT LARGE. My Cfnnnli �;r;ic,n 1;�:I�.i rfrs: i 1101Akt P11s11C t1AI1 Of 11000A. Al WrA . 11.Y (U•,,AM10111,.fu!$ MA 79 MIS BONDIU Ir,kv GINckAt INS t11AAkW1�II1kS • j i i { j _ g _ I.1.W01'1*ir1'5 t'l1:,11.!RIJ,vmi I•rn r,irov.-, V.A, f.11/.I°1.!'I t;ItIt71 :� ." 720 0 f c abIT +fir}��tr#tttrtt# �,t �ttt#r I certify the attached is a true and correct copy of the Corporation Annual Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is F56718. C112LO22 ( ti 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 i,J"ItIIrriIir rKai-rin rrrctarli of _�t,rfr !, t r; e s� FILE. NOW, FILING FEE AFTER PROFIT y CORPORATION ANNUAL RFPOR1 1999 DOCUMENT # F567 1 8 1. CMl,ornion Nnrne WENAL SANiTATM SERVICES, INC. " 1ST IS $550.00 110111NA OF f•AIlI I A[ N t 01 SiAlr Knlherine 11an1s Sn: rt�la+y M Spin NIVI�It1N OF CUN/•(g27.ilO1J+ Prinl+pat Place nr Pv• WD NN. on. 9T 11W NW. 93RD 61 11EDLEY rl W% 11EDLEY TE 2316B 2. Pliac pM E Ipcn M BuSK 05s 20. IA...... Adi,vv. 2i Ilia 5 -F, , (a'Ih �6( I to S,E . (D441 S�Ito, A! 1 p, r1c N.W., A0 p ctc 2k'{'� j'l,00/L. Cn SUtel� Ggi , Ilt1('r�,_1 ) s- 73 , 1,.s1t�.I�e,R,Dn C+E� 7Ai c ✓�KL7'Q{t.11e, T ''P g33�1 75 Cnunt•L( � 1GI 3 3o l f,oI �2Z. 1-� S1t, FIB 25 rtt 3- 00 11111 E111 14ii111maii0dpi�i�il 11111111 PO t*1 W111EE IN THIS SPACE D I1nU• Ilti nrpn�nh•.l nr 1)\L,IJrd T2rQ2jlsal 4 11 1 N,nd,,q ff Apphcd 1 m 59.2144378 i Nte ArrM,,;-v S8.75 AtlA l•p•,,a1 j c rlLh .,U• nr F.I.11. (lot., if i 1 F re Rrgosa:l 6 i Ir rLnl fnnrpa,Un t v.:uw ink i I $5.00 MA, 6e ih>.1 i 1.w1 t:rn drrLul•o'1 nn'M•d 1,•f t'r•. �. 1h�•. rupn ,uhan nhc•. IIIU ll,n rni Yr,, Inl.ul;pbin _O.. NrIn♦ l,!d Address of Cu,renl flegl%Wed Agm,l Ig. Name and Add,ess of New Eieglste,ed Agent C T CORP0100t4 SYSTEM % C T COW)RAT40N SYSTEI! e2 Ehl cl Arlq•a•.t (t' U Fin. N•nnbr• ra rJ,n n, r.n,l.ari,') 12W SOUTH P[NE iSWO ROAD e� 1 ID 1-1 f_J 0 a r r 1;-> ! : � � :_3 - - — 4 P1.94TATTON FL =24A�>:33�?0 cO a! cw f 4 4 �! It i ,,IPI� f Gt[ il. PurtwFd to the rrUvisr;.nt nt 6M -ml 607 Q!,07 nr,n r.n7 1508. f lo'id.l"MtuMs 111C aiw.v,` A.,nwnl tlq,rw.,tw•n+.1l:atrl`+11„- ti.,Wnw'n! ka Ihl Innp•,.1' Ut tl>ary, III Il+tQWtA,7ti 1( Ofke IX frl: SIeird apenl• OI I•olr,, In Ilrc SWe rt F krr.l,, SUCK 01utgg.1, WNf AUll,twlrt;d by 11,11 [UIIww.1:Rw11. 6n 11 of I].,I 0 • 1111", 1,y nl. rpt Ilwe nplYn:lilr„I nt tt'�isil•n Ageel 1 am Iandlal with, sari nice; I `hr ntingahons N, Sochan GGTA545. i Kw,dn $ta k1104 SIGNAL U RE V. nl r. tY, — Or ICE RS AND DIREC IOFiS 1,. ADOIIIONSICIIANGE S 10 01110ERS AND DIRECIORS IN 12 , KUlIEIt 1nw1 `� 1 IC,A+q: [ IA61•�.v. v lw,r iAWSON, JO[iN E SR „l;a..i NfiR�'tS tJ• 1 LuE>Sop[ [�� siaEE, 4�ota cs N3 VA14 BUTIEN ST. 1 v+r l 1 ur,w 1,. 11 O S .�• U �h ,S� t 2 4 em•sl.2v KULYW00DFL Ilc•1._sl7e F4 ' Li11li]Ul�pLE L J'J3�ti laNr L>*W30H, JOHN E JR 771.:• 1R K•E 5 F(. CoS �t4� tipl,ti jrly' 6184:.jg31STREET ,,\n�,11e1./lt� 110 S•IE •Vim` -I �,P'"� l+'opR. ca,.$i.zo MEDIEY FL 7 wa11 t ,> i A` JI'ltt �t�l E , 1 L 3330� Irtlf —.I __� - - � (I Uf tr 1E 1 • liai J ����� 1 1Cro•,ge (14d"im' Hr17E ), A \• S 1 rpE AD(W1.1% 1 ! S wl l l .' N,I t4 tic) $. 1%i Z-8 V W cm•sI•:� J )t r,:r..l f.• l..A btR A[F-, Ir-l- IMF �3jol T IrlFlEt( /,hh1 —1-- S1affT A(i(r?«, 1)ylkil, /:'lMi" tic)•E• "S}, 2-?4h FIdd FL Lf,%"tER-11R11E1 PL _11301 tm� [ 1EALLIr. Ilnnl IIV,a��• (•Inu',,, fUttl 5 71VJ 4 $1,i F1AYAf 55 :,51k111 •nnd .; t;tfr•kf tp Sr�h (.11s' ME.—. --..---.. _• ._... — �. C IKit7E IIId�F - fll�•yp (ja611.04 Kws 11. I hemhy rs•r1aY Ihnl tnrl InIMn lu SU I" d w hlt (rtmli Arts tint 1t,lal.ly I:a ll,u r„•n1l:l,nn /.I.,V+1 III Se. W.n 119 0113)(11 F Il•,'la %imoir,s I If 111er COIL Itl It,(, elinnll.lhon kxScel.d on ISI% ennual ICFal or I � : n ntj I fcpo,i Is hoe And noarrnlr. Mgt tlml ,,r f•+yro�hrn khn`l h,Ivr It,(. san,t heal p11d1 as J T u Un.1[r ,: I1011 Am e„ otf[C, or tlneclor of VIC colpn It I Iq 1 . 'or of t•ustoo Orlq,tvred to ererule Vr� It 1R4 A, It, JU,•Iwl 1•j Cna{drI GO7 ( toi•d,, .4&IIdUF and AIW pp,rtars In Block 12 or plo:k 1311 U,ntwj 1, wtvnhni v,w, an ndd•rts, wai. nu op,r, M\,• rtnpne�r•n ;t SIGNATURE: _ '� 211 J�9� {%Sy� 7�9 �Z.?Z•a' -•YJ-✓11� � UOIII �NIVI/l, n�W AIM M.U.r•40 tvIi.IM U•. l./tlC1UN li ,l•.I t✓•/ (a - "'QA�.c.t,A t�, SP:�9��•ftR•� 99- 7040 A I: L TAI I. PA.., i 1k11 1245 PM 1 MIN: 1`5011" I si nI Ar:11vF/FI I!kt)F3 1 F1.-U: 1.210211PHI i (1':l : t tII;I'Itl:niE: MI k(;Fk FLO: Ur,/ 15/19`04t t- FE 111 : 50..') ^9''151H N(1MF 1 11'1}'I III 1 .11 ';Atl I 1 11 1 1 1 IN ` 1 I"N I I: `"; - I hh L'kI NC J PI 11. 1 1 0 <; t 6 1 it ;: I Ill: ' I ;t l I1 0 LOf W. CHAI.1(. ED: 02/2b/%,i I-11/1 W)Ml- l I r ll'.I'Uk01 1111H 1-41 ()NIP (' 1 ' 'r-J1;1'M-Yl l I I IH ; : i :; I 1 11) A1.`DH 6113: r;, 1U I ti 1' I t'll i :I 111di P N f IIt (-)I•l101 11IN. I i WIN Rl.l' I Y t ! 199/) HT 011iIi/ ; IQqH HY 04/1 !/` H 1 1999) 1 0212"51014 I I i 1. MENU_ Y. OFFICERS. 4. EVENTS, /. L7.::J1 . F.I. NFXJ. 9. PRE:V I NFER `,I-IA-Ul .(ON ONO CR: 9/17/` 4 UFFJ-FIA/hIkFUIOR IIFI IL SC:k1 E14 12:15 NM CORP NUMBFk: F56718 ( IJIJ! HOW: IMl'l"RIAl `. A11fIAI.IUN SI-1-NIt-ES. INC. F F I i.. E : I.) NOM : I•JUD SI )I.1 . l I(lkl I ' � t^I .110 RA WH `3IREE1 ;'I.•ILI FEDLIP F I . 1 ()( 111(- I'1'(d I . I. 1. ',.j (, I -I J 11. E : P NAME: C:OC.MoN. JW11 '; LI I. 1 (1 ! ; . 1 6 1 1 : ' ; f I-;1:. E. I :'t III F 1.1,)OP F 1 1 AI lr. Ftl li:i i 1 I rj YLE: S NAME (3Akt..1 (a r i)tl'\: III (1 r,ll SIPEF l OKI11 I LIHIN TITLE: 7 NAME : L.ANti l I,Utral l A J J -i 1:10 '. A fill! 91W11T ;'Elul F(,1WR F I . I /1L)t lE k1)i II 1::. 1:l 35t, I •1• NEXT. — PRE:V. 1. MENU. V. F.I.i._ihlr.;, .S, 1"P. 1 E:VLNIS 7. LIST. 8. NEXT HY LIST. 9. PRI V BY L IS I F1-11-rP ',J-.LF:.t J10N AND GET: (99— 1�Adv i k F I-VI,IJr L* [A11. ';t,'REI-N :1,'_:15 VIM + A(:'l .rVF I-T.1_FI? I?!11[: : l'r`it)7.l19f.11. CORP H(M(: IMI`1 RIAt.. 301,4110) 1.111-1 RV.It l :- 'Il•1r;'. { 1 1.V1-N1 1Yll[- 11L1:1) E1:1=l:C'I I F4 ",t;K11'1.1ON i � I)A I I. COPP(WA ► f ME NG k 06 / .I 1 99, : Mk. f c( f IJca 1,19 :«)0004,14i.1 `3 i 1 t I NEX1 . 1. MENU. 2. t=11_.ING. :3. +'1hF.[t;k:ItC;. 4. T(71' f 7. L I. S f . 8. NEXT BY L.LS'T . 9. I'I'I' V BY I.. P, r ENTER SELECTION AND CH: I t s v �J-- 0 4V IL _.. _ ANT]CLE's of lNCOlt1,011)t7')Uld r of _C//1�niUE .':I:1tV1C1:5, INC. f E The trtttlej !,:-ignod, 1ul I),(, lair► prar••e of I m mi tm a orrr brit al ion s t under the Florida Genera] Curl,ot aLicm AC , (30(us) )Ic�t 03y ;1130pt F F Y j the following Articles of ] Irc•o) par „i ion: ' A1t'!'ICLE I 1:nnrC The )came of thi s cur) 0) at. ion a 5 11411AUAl.. SAMTAT] ON � sf;aV]cl:s, ]tic. J+) T] CLE I I t t Term of Corpor-ate Existence a The cor porat ion i s CO hdvc- ),(:I 11c't 110) rxi st ('11cQ unl css s d•i' solved accor di na t o law. w. t _ t port one ; The 1�urfutseS for w)) Ch J.hi s corlu�) at is►n is c.�r uani zed are: (a) To eligage in an industrial at)(] commOrci;tl waste removal service; to e.rlgage in Lhe buying, sr l Ling anddealing in ir►clustrial and cuttunercial !,cr-ap, salvage, ) efuge, rcilihish, t,rrt:;h, junk, offal, garbage and debris; and to further engage in the collection of industrial and com- mercial scrap, salvage, refuge, ruhhish, Li -ash, junk, offal, garhage and debris. To likewise provide any and all necessary vehir..les, cu(ttainers, and other receptacles necc!,sary for the business of Lhe corp(31-at-ion i n- chiding the obtaining of various vehicles aml Wmr equipment fpr t.11e tuansport:ing of same. To further engage in the mainLenance of disposal facilities for the items of the corporate husiness and to do 811 other things necessary for the furLlterarice of the corporaLe business. 1 !•1'/ Cil 1 It'I S Y;ti{I�.�r.iJ \'rrll I I' /i t,lir).+', 10. A. I•'.►/.'al { I f'llt{(;A (b) To acquire by pu► chase, of of h(•) wi !;e, for i nve st.- ment or resale, and Lo own, oI)el-ale, sulidivide, lew-,C, let, morlyilye, sell and oLhc=rwi!,r (lil;Iu,l;o. of, for c•i!!,11 or or) credit. by conveyance, i yrec?111(-I1L f o v do C(3, or Utll( r 1itwIti1 iitsI r111m-iit:, 1'vaI E est at e, or 111ii•(3d 1)) 01)(-1 Ly, )cu i+l(-rl in Lhv St id C of f1ori(3a, ur. el Sewhere, and U(11)c'l ill 1 y I o ( vaI 111 ill)d I. I it f f i c ;is owll(?r , agr—nI or i broker, in real e!:laLe, pvi !;oiial allci 111i x(•d pi (Tel Ly, i,l)(.l any int erclst or estate Lherein, incl►►di►)y suhdivisiuns, apartment I)ous(2s, f IesJUCnces, stoles, office hui)dirig S, lllamlfacIul']r1U SiO))IS, il1)(3 the lot s or pai cols of land upon which 1 )Iry n.,ly ).)e lrtual r-d, ilrld to Create, own, lease, sell, operate, i-md deal ill f)-c-e old iln(l i d )sold c-slat cs of any ilnd all ch.11 irc ter c: h.11 :;t ►t:vr:1) ; ►►rl to ))r: iln i S t investor in real i:nd pet l:cmal p.topel Ly. (c) To lend acid born ow mc)ney, he a surety, evecut e Lail bonds and to em—cut a and deliver, acc(,IA, lake .)ntl i ece ive fiat. es, bot16s, t3elientu) es or of -her (:•vitlmices, t.he) vof mid 111cirt cJ.FIU('--i, r t rust dep6s, pl educs, or other sr-cmri i cs for Hie paymmit of !w3frle. P t {d) To acquire by purchase, subscription, or otherwise, E a1)d mortgage, pledge, or otherwise dispose of bonds, iiatcs or other securities or evidences of indebtedness, and the shares of couu.,an stuck crC•ated by any Ot)lclr corporation or Corporal. ions, association or an!-,nciations, and to I)►1lchase, )told, sell, a sign, transfer, nl(lltc)age, Illt•Iloc, or ul.herwi!;e dispose of at)), bonds or uLher neclll'i LJ CS M' (!v)(3011 c: ; ci cal od by or 1 f--sm d by any other corpoi-at.loil or, cm liorat ions, i)ssociatirm or a,; S()Cjat kills, and whi l e Lhe owner of such stock, l o (rxc-i cial l 1 ic3hts, powers and privileges as such ownership, inc:lllclillg the riyht l.o volt:e the Same, and to clo any and all l.lwful ;lets or 'thinys (lcsignp(l to ))roL-ect, preserve, improve or enhance the value of any such bonds, _ Z 1 /•1; rl I'It'I S ��;11111([.I1 I�:f)I f l` /1 t'•,I�rl�',� I' A. stocks, or other rf-cul ities ur evidr.-IlrcS of ine3ehl.cdness and to guarantee dividends, Upoll shares of 1.1)r_ c ctnunon :tc)c); of any of hest COI porat)un in wh1Ch this col Ill))ilt l(flt, ifl 'my tidle, 111ily )w Intoly Ied 1 as a stuc}:hc)lc3er the) cof , and to c�llciul se ur c�tllf twine gu:+l r+nlc�c the principal alld illl crr(•st, or ei 11wr 1 )w) i-of, of llol.vs, bond,; or 4 otl►cr evie3r.tfces of illdc 1llecillee:s c•rCatf-d ry I:uc11 cc)rl,c:,ral.iolt; t' • i to deal i-n i is own stocks or hro):cl ache L1usi nr_ !:s. (e) In addition, the corporation may transact any rind E f all lawful business for which corpoi—ations may be inco)poralcd k under the Florida General Corporations Ifct. IkPTJC1'E IV ItutICI ri7ec3 ShaYV 1 The Ill a\innlill rtunlh(,r of Phil es o)f st (-wY, wi th par val lie t that this corporation is authorim-d LO have oul �;1 anding aL any 1 one t ilne is--------I'IVl HUNDRED ------------- 500XXXX) sharps of $] .00 par va] ue common si ock, whir.)) common Stud'. Pub111 be Of a sinale class altci Which c-onanon stoc); shall be Sec:Lion 1244 ccinnnon , sLoc); pu)-suant to the InteYnaI Revenue COd0 0f 1954crd. ARTICLE V Initial Registered Off ice and Reyi stcrl-t!d., Ac3cIIt The street address of t.)te initial registered office of the corporation is 940 N.W. 181st Street, Nurth Miami, Florida 33169- The iiame of the initial Regi stereo3 Agent is MP1,VJN WOLFE whose principal office addre.a.s is 10651 North Kendall Drive, Suite 2.00, Miami, Florida 331.16• 11av3ng re ell tl:►nlyd t n ,leCt-Pt teal vice ()f prcic cr5s for the .-trove stated corporation at Iny principal c)f f ice k1di es s dw:iynrli.ed in these Articles of Incorporation, I hereby accept to ac:t in this capacity, and agree to comply wills the provisions of raid Act relative to keeping open said office (pursuant to F1t1i('I Statute 607. 34). 1 I 3 - 1./ W Ol•1'Ir.I S 1'11{III+'41J, %YM,IT 8 GIit)'.!i. P A, l.tll,1.11, 1'I C)ItIDA 1%101CLE VI Number of Directors The bosi nUss c,f t )re r-M ur c,r► rlrn I 1 1K2 11I;rr►r04)('d 1)y 11 y l;aaid of Dir.actors ec,nc;ist i►,y of (me or III(.)rc mr.►n).,c•rs, t.I►e V.xc,el. number to he determijied frc.,►n Lime to Lime in a(:cordnlice wiLh tl►e By -haws of tl►e corporal-jon. T)►e irr.i tial Ik,aI d of Direct ors all i consist of one Di r e cLor.. AI('1')CI,}. V I I Xnitial 1;oard of Ili leutm-S The r►ame . arid �dciresses of the first. Poayd of Dii-ecturs, vho, ':uLjt,ct to the provisions of these Artic)es of Irrcorl'c.r;,Lion, the By-Lati:s of this Mid the of the St.+t e of ]urida, sha)l hold office for the first yc•-irr of the corporation's existence, or until their successors are elect.e.d and )0ve qualified, are: 1t1+.r•1£ ,;TI?1.l:'1' ADDRESS JOHN E. LAWSON 940 N.W. l 81 st St. reef North Miami, Florida 33169 ARTICLE VI11 Initial 7 r►c�crr i�or .+tar (:: The names and addresses of vac)) suhscr i l.rer• to tAlese Articles of Incorporation and the number of shaves t hat vach ayrces to take, are as follows, lo,wit: NAME 5TREII'�r ADDIUA'SS SHARPS . MPLVIN WOLFE ] 065l North Henda.l 1 Drive 500 Suite 200 Miami, Florida 33176 l f the proceeds of which will amount t:o ,-rt loast $500.00. ; v 1 t. %,., ot r irl S t'lr)I.!'I' n r,t+r1,„ P.A. �I.1I1,rAI 1*1 r)rrt()A ��' 0 1 a 1k91ICLI, lX The r-soard of Di t trcl.ors shall aflo rt Bi -Laws for this Col. l>vr,7t i rill wlti ch may Im. immrnt ed, al t or Ind or re lit ;r l c ci l,y the shareholders or- di re ct.urs in itny ►miner here rni t t cd by the Yy-LaWs. Tr It'1' l C L X Indenrnificat.ion of Ititr•cturs ;ill(] Officers 1. The rot born t i on lrc•t eby i sidomni f i er, rtny d i r actor or officer made a party or t.hrcal.ened to he n.nde a party to any I. Iire ate ited, lic-nci i ny or comp] vt ud act. i on, sui t or i rrg (a) tAiet.her civil, c) iminal, adinini!:t r;it.ive or ittvestioative, other than one by or it) the riyht of this corporation to prucure a juciratr,ent_ in .its favor, Drought to impose a liability or penalty on such person for all act all eyed to have been cojim6 t ted by such person in his capacity as director or officer of this corpor-ation, or in his capacity as director, o1 f.ice.r, ctnployhe or aolinl. of any o1 leer Col porn. - Lion, partnership, joint vetrt.ure, trust or ot.he_r rnt crrpr.i se which he served at the request: of this corporation, a(pinst: judoments, fines, amounts paid ire' stAtlement artd reasorlahle attorneys' fees, actually alld nl•cc::narily i►rcurrctd its a result of such action, suit or hroc:ooding or any appeal thore- in, if such leer son acted in good faith in the rcasonable belief that such action was in the host interest of Otis corpora- tion, and in cr•imin,al,actions or lttocecsdine3s, without reason- able grounds for belief that. such ;tction was unlstwful. The terininatioil of aiiy such .)ction, suit or proceeding by jud(jtttent order, seLL3emej)L, conviction or upun a p)ea of ncrlo t:oil tC�ndere or its equivalent, shall not in itself create a presumption - 5 - ( !•�: 1;1 !'It !', %','11111.4A1`4 %'rlll.l l` t� l",1(f;',�; (�, A �f�'1/.1•!�1;,(b QWA n i r� t ol— that any such dilectur ur Ulf icei- did (►ut t►c:t in gc)(A faith in the reasonable belief that such :)(Li(jn was in the bast inle-resLs of Lhe cc►► poy id ic)n Oy I.)iat he had reir!cc,n:►bl e ►�► e►unds for hel ief that such ;,(A ion un)i►wf "I . (b) By or in Lhe right of Lhis co) I)(O at iun to I,r c>cure a judymcnt in its favor by Jerson of his hr,iny or having bean a director or officer of Lhis um poi,il i(�n, or by i casun of his beiny or having been a di r(cLor, of f icer, employee, or ayent of ;ill), other corporation, partner -ship, joint venture, trust or other enterpri ;e which he ,arved aL the reguest. of this carporat. ion , against Lhe reasorrab]a exl.1Llnscs, ir,cludirig attorneys' fees, actually and necessarily incurred by him in connect ion with the defense or of ,uch act ion, or in connection with an appeal thc)cein, if such pelsun acted in good faith in the r0--isc,nable I)elicf that !mch a(A-ion was in the best interesLs of the corporation. Such person shall not be entitled to indemnification in relation to matter, as to I which such person has been adjudged to have been qui l Ly of negligence or misconduct in Lhe performance of his duty to { the corporation unless and only to Llm extent that Lhe court, s a6mini st-i ative agency, or invc'stic),at ivc� body before which such t action, suit or proceediny is he]d shall detc:imiiie upon appli- cat -ion, that despite the ad juciicat ion of but in view of all rii*cum!;tim(:es of I.1ic c;i!;(-, !.;uch p(!j!ir)n is fairly and reasonably entitled to intWim ific aLion for such expenses whiclj such tribunal shall dvein proper. 2. Tiny imlenn►ificatioil under Svc tion (1) shall be made by the corporation only as author i zed in i he npOCi f is case u1)oil a determination thatamounts for which a di i ector or of f icer seeks I.nv; orricrs N.V;gl 1 I: a GPOt•.S P A. I.tlrl c?itlt?A 10,190 /.d� I r- itoe) crnnification were Irroperly incurr•rrd and that. such d.irc•ct.or or off ices ircLed in good fai t:h and in a malmer he r c asonably bel ieved to be in the )pest ir►tcrr'c L of the coo-pol-at io►r, ar►d that, wi Lh r cspect to rtny criminal -.+ct i ran or l)r uccod i r►q, he h;+d no reasonable ground for helir:'f that rcuch actic,n ",;rs unl'Iwfill. SUc)1 tleterrninat ion shall be made either (a) by Lhe Board of Di rectors by a majority vote of a quorum consisting of director, who were not parties to such action, suit or pincrediny, or (b) if such quorum is riot obtainable, or even if oht a i nrrbl e, a quorum consisting of shareholders who were not. Mastics t.o such action, suit rir hroceedinrss. 3. The for eyoiny right s of ind(:mni f icat:ion !;h.al 1 not be de•umed to 1 i.mi t ill any %:a), the powers of t his cos Igor r,t ion to i ndr-mni fy under appl i cabl e law. ARTICLE X1 lkmeiidment This corporation reserves the ri(jht to amend, alter, change or repeal any provision contained in Lhese Articles of lncorl-ic,ration in the manner now or hereafter prescribed by statute,, and all rights conferred upon shareholders herein are granted sub- ject. to this reservation. ARTICLE X11 Powers and Ri hts of Directors and Shareholders 1. From time to Lime to detc!rmine whether and to what extent and at what times and places and antler what condi Lions and regulations, the shay eholders :,nd dir actors of this cos parat ion shall have the right of inspecting any account, book or document of this corporation. 2. The corporation may, in its 13y-Laws, confer )rowers upon its hoard of Directors, or directors in addition to tyre fore- - 7 - ('ir-: r)r r'rr.t-S 1':1911'•!!rl ';:nt 1 1` n r�l�(7'','i V. A. 1.41A1.41.1't ()I?11)A r•; � going and in addition to the powers authorized mid expressly conferred by statute. r 3. Both shar eholdei-s and di rc•c1 ors ,hall have Lite } jjower, if the I'y-Laws sc 10 held (-heir )esl,r,ctive nu-et.itigs, i and Lo have one_ or more office; within or without. the Stale of � q SFlorida, and to keep Lhe l,00l.s of this cor lam aL ion (;ubject to i the pl ovisions of the octt ricle the. State of Plorida, a i f such Maces as may fa-om Lime to time he drsic3na1.ed by the 13oard j of Directors. I { Y;E, TIIE UNDEPS]GNED, being vach and all of the original subscribers Lo the common !,Luc). hereinahove tirmC'd for the pul pose of forrniny a coi porat.ion fm pi on t to da busing,-.; both within and without Lhe State of Florida, do hereby make, suhscrilied, l a0mowledge and file Lhese Articles of Irtr_uiporation, hereby declaring and certifying Lhat the facts herein stated are true, and do respectively r�c3ree to take the number of shares of slack bereir►above set forth as to each of us, and .jccorclingly have here- tofore set our hands and seals this 25Lh_ day of November 1981. I ((� tSEAL) MFi,] N aOJ,FE ( PAL) ( SEAL) ' STATE OF FLORIDA ) SS COUNTY OF DADE ) I HEREBY CERTIFY that on the day and year above written, - 8 - 01'1'IrI'S tVtlllt��1� �',t')1 1'1'r� 1;1�r)�i5.P. A, t.!IAM1.v1 0111()A 99- etZU personally appeased l,efore Ine, the uIId1!)siyrll:d 1+uth city, MELVIN WOLFE ► , and t I> )nrV we] 1 Y.nown to he the }}erson(s) who e):ecuLvd the for(-c�ail►c� Articl�.:s of I►.►;c�Il�c.+r.�1 ion tel+d � aeknowl cdyed before me that lie/';hr,/t.hry r..r.+ cut r d t lie : +m� f 11�e1 y and vol untari 1), for the uses )"d ln►rD>c+ses 1 h1�rc in r.(t for th and f i e):p2 a-5ed . NUTA Ity III 1141,1 C, AT I,A I?GF . t Dd)' Cc+inmion Ex1,irrs: 1401Ake twm 51A11 U1 1109.1DA. At I,ur-,I ; 11.r L0..,11,IS51014 I,.rif!$ N.A1 79 IV83 SORDID Inky GiN:k/U 1++5, (1?j1AkW11I►IJS i 4 1 , • t 1 I { k g Y: 1.1,v; Orricl'S 1';11111.!/ N, 1W01 IT R 1;1M''.9> It, A. I.1IAM1. 1,1 1;IIIpF Departnicitt of ''tFitr I certify the attached is a true and correct copy of the Corporation Annual Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is F56716. GR2E022 ( t 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 4� fit[ ����7fS :�rrrrt;irn of �tatr . FILI~ NOW, FILING FEE AFTER PROFITy- - t` CORPORATION ys, ANNUAL RFPORI DOCUMENT F56718 1. Captvnl'on Ncrttt If E-MAL SANITATION SERVICES. INC. 1ST is $550.00 rt1)ftWADFhAR1rArNt w STME K"thf-dne Eiarris So;,t•1 oy rd SIA., ulwstrnitlt cc1Rt•ul+AnaNs r>IMfc;t+nl F'IAcr nr Su.n,c- k(a4,,0 Andrrt•. 11tD Nw. sm, S1. 1160 NW. 90RD St MEDLEY Fi JJ T MEDLEY Et 331EO Nintip04 Plncr td 9oYntss - 20. l.ln nap Addlets 1Ic� 5 .L _ 6;4h Z1 LO S•E' . 011 Zk SVlln, Jyr1 N. etc ,!,, Al 1 p etc Zt{h V-WT)q- f'LooR- cr�ysl:,:1.R.iDtQ.AhtIC vL 2a{ c�,t.s,:tG�tt�le.-ci�ICl FL 7p CovnG ! p Cno,A, �� 533ol I-),] Lt S • I211{ �333o I {gyp( v,, FE.B 25 PH 3,00 11111111111�11pRV�WInII�IINI�MBI1 DO NZ�t WRII E 1N TIPS SPACE 9 D�dr In; nrt,n•nb•., oI (A,.,lern 12ro2� 1991 4. 111 lhnfir., l r4trl,cA r of 59 2144378 Ir tinl At'[a. al>I; I sS•7S an.a S Ct•Ih St .,b• Id .I r, ilr••.rrd 1 I Fee NNl,no,pw 'a;1 9 I h.,W., C q-41 t I t,,,,+�.,,t I I $6.00 MAY tit - I ae.l 1 ­1 t:r••,bd,ue,••+ ArYtrd 1,.1 ec. A. It, 1 •.,,., e,n++.n fMC • 11'V 11'll,•lit Y,•.1' tJ11.11NtIAn r+,>,,.; rn•, .lY1n. I it'rA �- 9. NArna and Address of Current RepN1.>ed A9tn1 10, Namo end Add,tt• n1 Now pepleteled Apent C T CORPORATION SYSTEM % C T COMRATION SYSTEM et shtrc, Ivbbo•.: tt• el rin. N 1„'1/e ,• N.a n, rA,nl•n,l, 1 1200 SOUTH PRE MMM ROAD A ! 0l-10 O J, e r 1 R ' k : C'- : i - - — 4 PLANTATION FL =24-CJ3a'L)?1: 3 0 � �008 11. F>ur�tr,i fn iue fror�s,pii< n� Fry t,M+t [,t,7 (1.'+(1? :+nn (fat i60P. FtO ids Stah,t^s the ntn , n,mnnl rollrrau+o, sa:+1,Y.< I).., r.bdon4-w I'll11.1 tKnpn,o tit 0.1, )np'I, /rppisk•,r;1 ' office or tep s,ettd aptnt, w Wl', in P,t stAte of F4„da Sych OwIggn, w" I+nlhrN."A I,y low thin t+n:n'i l.f 41"1 '1"'. 1 In "ly etc, r[,t 119: nIV+,.m'tr'd n: fe0'sl'`h d Agent I am IanJba+ rdd,, and or-0 the oNfgabont CO. Socbon 661 OSOS, r kndo SmWtot SIGNATURE li. J 0t I IC( R5 AND ntltF GIOFtS IJ. ADD1110NS'CI IANGE S To 011 ICERS AND DIRECTORS IN 12 f nilF` --- DP" '-• K•1U1111t „pbl t ICnA'4� [ IAe,I.'.1.. v ttA1.E LAWSON, JOIiH E SR +)t•t••1 L!A•R-I�- w•1, ttL15 p+hFtAOYt. strw omm. S13 VAN MEN ST, cwn+atnt:.+ L10 5 S} tm-sl-rp THOUNWOOD FL hl[ - - - -ol - 19:DIIEtF )11,+1 '�i (IC`u,p^ 11At.f:•r, CCC� tour LAWSON, JOHN E JR 7),•:' 1 t S Fi • Cos �tAAi �r.� JRllu S•+E suvi s. 8180N.W.93STREET I�\vl.Aest�ntt, Pt- 333oT Cm•sl.to MEDLEY FL TT _— -- -- I lwf 11 ,• u.+1 1 �niG1.A ^� C l HAa,E I~ 17A{'� �tb �,[1, r`1 �46+4•� E V),oi'k- StaFFtAII[,RFSS� 1)5 MI11 A•tr:t �t Ito, S' J' LE, •��yl �-} L�'\vb'tfL-bftt� I 1''Li Gtrs,•1� 7, r,�, S, /.• .. 10[lEt1 „1„u -•�' I J I I «Atc � . )1.,•, �l_,J tti> � 1�>a6l III OFF II Q'IM SS, /151 k,1+,:ihi ••. ItO •E• �` S4, ZI' �IAd2 City54-hp It;+ (1\tit,�P-•bf\I_C F-L A 3o hn[ - -. .. �... ((Klitr. snd,l i It..a,!• i•,hls•,,r t1WE 5) Wi�I STAFF t AT.AFSS CtiY.El.)/> SlC-I+ t,{.2r• TRL[ �— _.._.. _ _.. ... .-. [ IDLLFt£ 61 h4F Cv+pe (1Ad•F4Cn StR[El AtzxiESS 6! s''U 1 1 A','1,%! ` CIIf.sI)V 1-IC-lr 51 :r 14, 1 hn.hlry ferbfy lhnl the inftvn w su 0' n a•' hh. t:Inp dra•4 ml llnn+dy h't Ihn rttnydnn tL,V+I In Serlron 11A 0113)(11 I "'A.) SIatal,•t t 6 Ulcr frq• ih Ih0 Ihtwssmi- n Y,7CBIe40n 1 „t r-kral Icp", of , •� . A, vu,al mpnfl f.4 Inle r.td r•7_u.nlc And that o,y A,ynn!u•n, I•hall hn,c 0.r a;ma 1,94 ttla.t A: / n, o Und(•r r ,: that 1 Am rn often/ a duedq of flrc corps o!- h, I ..rr o, Pu:too onq,Orvu,ed to t:w 0v 14•> It t"ll As w4o'.0ly Cttaplc, tior 1 h,ri:fa SLdulos And A„c sl'pt•Ars in Bk+ck 12 of 010k 13 H Gmlx1 I. 'nrhmnn$ rnlh An ndrtfrtt, witl+ All Antrf h,.n. rolpn A,•»al SIGNATURE: � 2 j 1 1� °� 5 �� 5�) `i�� ~Z��z►�' YU WTI.. , J UON AMIvI,f,M.vh U1 Y.Y..,Mn WI,�,N u•'14tIC+(w, Ir ,1•/1•>r., �. '►1y !� . �Ei�CL%�1t `JI.s:.kr�i'fi�.� o �o s J1 I►PI1M."O l l 1.)1:. T A -ll..I.IIZI1 Ilk.l 11 t t t 12 r 1 `) (!ht NUM: 1`56711`3 S1 :t 1, ('u:I IVt. FI PROF) I VIA): I:'/U?11�ai31 3 I 1 A1:_ I t'l l{:{'(1I2F11 E f1FW-;F: h F F .I • hlfaM[ 1 hll'I P I -)I. t•.;(-1N I I! I 1 1,111 '-',1 ITV I i'I•. `., . I Edi j F'RI MI i POI : 1 1 c! ! NAf F i' I 1 IIM1111"'F1I IIitI ': t` IF.I! NAMI (:;EI(;i: 013/01/9;1 KA 011111: i; (' I 1,1110101"'oI 1I111 :r`_;II'rl (ODOR C'IIG': 08/07/9H 1 "-,00 : ll l 1 F1 PI NI 1 ;I 0,111 I -A MO f11 nN10111IN. FI 1 ', ' (MN REP ( 19") 7 ! tiY U4 I : t ;'.; I i 1 +a+-4"1 1 I f (+•'t 1 i / P:)H i .I'49Q ? I o"', 1'414 i i a. MENU. 3. OFFICERS. 4_ I-W.NI`3. 1.. IASI. S. NUM 9. PREV E ENTFK SELECT ION AND GR: i 9/1.7/141-) 111;F I(Al R/I+I KFC( IUP F%L I VI.I `iCRFI III F'M CORP NUMIiFR : F `_ 6 7 1 8 t::r"iF+r' HOW—, T MPF R I ,1I s:,All l'I (': t .t I_aN SF RV ft-,ES. .114c - ; L I I L. E : 1.) NAME : WUDI`•014- I Ora}li I �; IA1 I10 ';.F _ II; „IFE4: 1 ?r'•1LI t 1,Of) t y F I, 1 Al It II PIN i I 1( II(? ..I •lt; ;ll�L:FI ., I{1 IIU1li? PI'i:l 1 .. 1-1 T I T"L F.'.: S N(11.1E HAP,( 1 Fa) I .I O >. r, 1 1 ': I h'I: L I ;'I", I FI t l.tit:►F'. OI ItF 4it F. 1 I 1 I -LE : 1 NAME z I I O > .'F. t> 1 I t '•; I RF. (_ I 'rt., I I I 1 L.LIL)1� I -1 . 1 00I)1 1.11 1::. F L. .3, + I " I I NEXT. PREV. J. MENU, '. F11.'1FIt , 3. HIP. 1, F:.VI::I11(.; t ' 7. LIS)1 _ 8. NE=X-1 1iY I...,..S1 . 9. F•'RI:V BY I...S E-hl1.l=R SI—A.F(:;TICIN ANI:) CR: i or17/'ay EVONt DEMII. WEEN 12: A @M I_ CORP tql.lMfil I; : I:'_it• / ] fi CORP r� 1 A11_IS • ACI T V1 GURP Not'li- fm1'I.RIA1. SnNI1A110H ; f:.I;V1CI `3. INU, s i LVINI IYI'! + LL.f1� I f f i t l 1':i ItFst;t;tl'I.ion j C'ClftPOPY i I ML RGF I; 06 J 51 1 ` 9f: W.R(41 tit.; I IWI. )(!00-1,',849 r { r t r ARTICLES Of! .114CU1t1'c.►WIT)ON Orr S ( r;r or -It./ f/ ! On l()f IMPERIAL, SAW TATIUW INC. � i The trndc•) s• I(pled, f m I ho 1'►l) 11w:r of icrl 111i nc; a rr'l juc► at ion under the rlorida General Cuipmat.inn hct, do(rs) hc)ehy :c(iopt Lyle fol 1 owing Ar t ) cl es of 1 nc•o) po) r,l i of) ARTICLE I The )lame of thi s Curpm ation is IMPERIAL SAWI'TATION SERVICES, 113C. ARTICLE II Term_of Corj1o1-ate E�. i �i cr►ce The corporation is to have jle:) iWi t);+l exi til vl)ur- un] ci s (H-nsolvea acco)dino to law. ? j%TtCl.I: I]] r Purpone } c The j�urj)c)ses for WiliCII t.haS Corj+o) at �c,» is c�i radii zed- .-rre. (a) To engage in an industrial .Ind c.onlntrrci,-rl wrlSLe rcnuOval service; to engage in the buying, ,olling rrnd dealing in industrial and cununercial scrap, salvage, )eft)ge, rubbish, Ilanh, jurtk, offal, yalbage arid debris; acid to further engage in Lhe collection of industrial arid c:om- ure)cial. scrap, salvage, refuge, rul-Ahi sh, I:ra .h, junk, offal, c}rtrhaye arid debris. To likewise provide any and all necessary vehicles, containers, arid other recepLacles neces!;ary for the business of the corporation in- . chiding the obtaining of various vehicles and other equipment for Lhe transporting of same. 1110 further engage in Lhe maintenance of disposal facilities for the items of Lhe corporate husi ness and to do al ] other r. r-- Lhings necessary for the furtherance of the corpora Le business, F.. /•teaC;r I'lrl S P;rlll'.':•IJ 1:rrl I I' r, I,I;r)�,�; 1). /t. I•'.I/.'11 1 I ('.rltit:/► I)� (b) To acquire by pui chase, or of h(•i w] re, for inv(_ t.- ►rent or resale, and Lo own, o11r>rille, subdivi(Ie, Ivilne, lctt, flit) rtgi)ye, se] l rend oL)iu-i i se di �;pw;e Of , for l car clr( oI. di t by Coll VC3.;I11(:P, iturc?illei1L fo1' dc-rd, U1 Ot)1(-r 1i11Jf III ilist I'(11w-11t, 1'ea] estate, or 11)i,•ed 1)rol)I:•rLy, 1Oci,t(-d in the Still of )']()rida, ur. el SOwl) eI e, and 0(21)C.I a l y t o (Iem 111 1111d 1 1 it f ) c; if OW11C'1', iIgr-11t (lr i broker, in real estate, pui !;(-mal aild 11 i x(•d pt (11)Ci Ly, i,lld ally i Fit rr)clst i or estate therein, including su))cl.ivisiuns, apartment houses, j IesidCnceS, stoles, office buildifigs, mallufac•turino si(I)lts, and { i Llie lot s or Isar c:el s of I a i i d upon w)iic i t ivy iwiy be I r I c i I I (..0, alld t.o j Create, C7Wn, Iease, sell, upuratL, iilid deal in fret2hul(3 and lrr_:;G- bo)d C•SLat es of i111y ;illd i111 c)t•fl iit:l.(•r -;(wvt!t-, and to be all iif esLor in real and pe) r;(-ulaI p)opv1 tl,. (c) To ] crld ilnd bur] ow money, he it _;ureLy, vxecut e I'm iI fronds and to execut a and cir..l iver, iiruvpt, t,ll:e ilnd Ier_eive llot.es, bonds, (iebenLu] es or nPher r vici(tn(:e , t herec)f, alid Mort gaues, t.rust de(-ds, Pledues, or ot.hex sr -cm - tics for the payment of ,rime. (d) To acquire by purchase, subscription, or otherwise, and Mortgage, pledge, or otherwise di sl)ose of bonds llol cs or other securities or evidences of indebtedness, and the shares of cotiu.lon stock created and ir.sued by any cilhr!r corriorat icon or corporations, association or a�rociations, and to frurr:hase, r hold, sell, ass.iyn, t.raii::lcr, lito11,(1a(jC, p1(•dge, or o1.if! rws.poru. of all)' bolds or other nectlr)Lics or evldosices c:Fu.aimI by or 1!;sm-d by any other corpol"ation or, corliorat ions,, association or a:; so(_iaI. imis and whi l e the owner of such sick:?•;, t o vxc-i c] ne al l I itjhts, 1)()wprs r and privileges as such ownership, i nc:l ud i ng 1. he right t.o Vot.e the same, and to (lo any an(] all lilwful i/cts or 'lihings (lcsiynvcl to pi-otect, preserve, improve or enhance the value of any such bonds, 2 - 1 er: RI I'Ic"I S tt11111►.+r•r� 1�;rtl ! t' /t r'�Itr►�„ I' A. 1..1�•r.�t I 1 r)l7ltIA 9 "r4Q t r r` stocks, or other sr -cm ities or evidr•ncr.s of indebtedness avid to guarantee dividends upon shares of 1.11r. common !,I()r); of any ofhr.r co) i)oratioil in which t.hi s co) I,r)) i)1 i()n, ;d. 1 iine, 11")y ► fr i III r•) c_,,;1 17d ;is a stt)c): muter thereof , and to end(j) sc, c)r (Ahr•) vi) ;e cilia) aflLee the principal imd inn e) cnt., or ej I her I )iorl-of, of ilutct s, hc#nr3,;, or Other evidei)ces of i))c3ebtc'(3)lcss L-1-C,tr-d by i::rue of r:uch cutpcoratiun; to (teal i.n its own stocks or brol;erat}e t,usi))r- !:s. (e) In addition, the corporation may transact: any and all lawful business for which corporations may be incorporated under the Florida General Corporations I%ct. A}(NCLE IV Author-i7ed shares The max i1ilunl r)umbrr of .ha) erg of with par value that this corporation is authorized to have out st atldinc3 aL aijy 1 1 One time is --------FIVE 11UNUKEU-----------(,,UU>:xshares of s i i $1.00 par value coimion s(ock, which common stuck shall be of ' E a single Class and which colimlon stoc); shall 1.)e Scr-t i on 1244 common ( t sLoc); pursuant to the Internal Revenue Code of 1954, as aitionded. x 1. ARTICLE V t E Initial Regist-ered Office and Pc-yir.tP)-ed.,Acjcrtt r' A The street address of the initial reyisterecl office of i; the corporation is 940 N.W. 181st Street, 14urth Miami, Florida 33169 The mine of the initial Registered Agent is mm'VIN WOI,FL' r y- whose principal office ac3dr(:!;s is10651 North hendail Drive, Suite 200, Miami, Florida 33176.- ;=! is Having I)C cn 1)i111 ml to accept Of pi-m:c5s for the I r M)ove stated corl)ol-ation i)t Iny pr')rlcip'll office ilOdrvsS (lw;tmt.ed in these Articles of ]ncorf)oraiion, l hWrc-by ;)cCQpt to ac-L in this capacity, and agree to comply with the I)rovi!;ions of f;aid Art relative to keeping open said office (Plirsuanl to Flc4r.i ) Statute W. 34). 1 1 _ _ , t �_ 3 - rIrl'S 1';itl►i�r.la,�':t)I,I1'nr,itc)�,; P n LSIl.1./1, tl C)it11)A OWO AIV lCLE VI }Dumber of Directors 'J'he bosi ►►ess of t lie c-m pot at i ul► rhn 1 l lu. I►l,+►i. y(-d l)y a Aoard of Di rectors ccrosi s:t i ►iy of cane or ►iu_,► v ► (md.wrs;, the ex;vct. number to he deLei mi ned f ► um time to t i mc� in af-coi ►3ance wi Lh Lhe By --Laws of the corporat-ion. The initial Buai►3 of Directors !;hall consist of one Directors. 1%10,JC1,}: VlI Initial Poard of I)ijecturs; The names imd . ddy-esses of the f i r sl. Board of Dirc•eturs, %.:I►o, nuhject to the pravisions of these Articles of I►tcorporation, the By-La%,:s of this cc) rporittion, and the Ian: , of the StaLe of .Florida, shall hold office for the fi)rL yc-ar (if the c.-niporation's existence, or Until Lheir ;Iccussors are cloct.ed and have qualified, area NIA -DE STREET ADDRESS JOHN 1 . LAWSON 940 N.W. 183st Street. NorthMiami, Florida 33169 ARTICLE VIlI Initial I ne.c,r pm at or (s;) The names and addresses of coach sulis:cr i bc'r t.o these Articles of Incorporation and the number of :;hares that. each ayi ecs to take, are as follows, to,wit: NAME ADDRI.S8 SHARES r.. MFLVIII WOLFE I0651 North Rejulall Drive 500 • Suite 200 Miami, Florida 3317G the proceeds of which will ansounL t.o ilt lvils,t. $500.00. _ q _ 01 1' If 15 1'� 11 1'•! /. 1� 1'If?{.1' 1' A f,f'if�'� i P.A. 2 1001 1 CIA" IX '. he rjoard of Ili ) (rct.urs Thal 1 ;oou )t ),39•-1,aws for thi s Corpurat ion which may ).)(' i'niendeo, ill t rl c'd or )-r•I)r•i)l rd 1)y Lhe shnreItoI(Iers or di rectors i.n any mans►car Iif? ) mi t.t ed 1)y 1 he )',y- Jai ws. ARTI ct,1: x I11dt!111rlific;iL]U)l of Ui)(•cturs itnd Officers 1. The c•orpo)-at ion hr•) r by indr�mni f.ie 9 any di) ector or officer made a party or threatened to be made a party to any t.hi-catened, Iem3iny or completed action, suit or prrmec-ding: (a) t;hct_her civil, cr imir►al, admil►ist r:,t.ive or i nvest i oat i ve, cal. her Lhan ane by or it) Lyle ri yht of this corporation to procure a judgment if) .its favor, ).►!ought to impose a liability or pr al ty on such pe r r:on for an act alleged to have been committed by such person in his capacity as director or officer of tbi s corporation. or in his capacity as director, off .icer, r•.Irlplciyee or a f)c it- of any ather cO1 pnra- Lion, partnership, joint venture, trust o 'ot.her enterprise which he served at the request of this corporation, against judgments, fines, amounts paid in settlement and reasor►ahle attorneys, fees, .actually and llvice'--`.ar)ly il)CU)')(?O its it result of such action, suit or proceeding or any appeal thore- in, if such he) son acted in good f ai Lh in the rra!;onabl e belief that such action was in the best intcrent of this c:o) pora- tion, and in criminal,actions or p) oceedi rigs, without reason- able grounds for belief that. st)rh ;!coon was unlawful. 'rhe ,., Lermirtiation of any such action, suit or proceedir►y by juclyl,ent, order, settlement, ctmvicLion or upon a plea of nulu c:untell(lere or its equivalent, shall not in i trel f create a pf-estimption - 5 - I r.'r: r,r1'11,1 , 1 0rf (r1U MA a' - i'4d 0-- I +,r that any such dir (-ctur ur of f icer did not ,,(.t in gr)od f ni th ill the reasonable belief t.haL -:uch i+ct.ion was in thr* brtst inLe) uSts of the cc,r pc,t ,,I ion r,r I h.et hc' hod rarer;cln:eble rj, (,ands for belief that such action unk,wfeel. (b) By or in the riglet c,f this coil, -,ration to l,rc,cure a judgment in its favor by reason of his heing or havir,rj been a director or of firer of this c•crr por iet it,n, or by r cr,sun of his being or having been a d.i rc-c:Lor, officer, employcre, or agent of any other corporation, partnership, joint venture, trust. or other enLerpri ;e which he !;ervc>d at the rr'yucr;t of this corporation, acainst Lhe reasonable expenses, ie►cluding attorneys' fccs, ;Wtually and T►eCcssAri.ly incurred by him in connection with the defense or nel:t:lr.-mc:nt of such action, or in connection wi th ;rn appeal t. hei rei IN, if such pee son acLed in good faith in the reasonable belic.-f that nuch action was in the best interests of the corporation. Such person shall not be entitled to indemnification in relation to matters as to which such person has been ad jiidued to have been yui l Ly of negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the court, a6ministrative agency, or investioat iv(- body ).rc.,fore which such action, suit or proceeding is held shall ceLeimirec ullon appli- cation, that despite the ad ji0icat icon of ] ihi ] i t.y lill t in view of all cir cure,cst;rnces Of the touch par! non is fairly and reasonably entitled to indeererrlification for such r_>:pr_nsCS which such tribunal shall deem proper. 2. Any indemnification under ;action (1) Shall be made by the corporation only as authorized in the c:ie!,,e upon �3 determination that amounts for which a dijecLor or officer seeks i t.%-rorrir.rs - G - 1':Illt"r.14-%"'011 I: n r;l?rP°,S 1' A, I!11•.t�il.l"1 (MWA e� i ry 0 • e inciefill) ificatjon were pIclperly irrcurrr-d and that: such diier..1.or or officer acted in yood fait11 and in a rnatill ei lie rc>asouably i r s lie Iieved to Ile in the lest inters sL of the corporation, arrd that, i with r cspvct to ;in), criminal .ircl ic)n or I)ruc c c_di►ly, he h, 1 ►►o rvasonable ground for heIithat !such action wits unl,iwful. Such determination shall be made either (a) by the Board of Directors by a majority vote of a yuorurn consi r:t i ng of c3i reel or , who were trot parties to such irction, suit or 1)rocvedirrg, or (b) if such yuorurn i s trot o b t a inabl e, or evcrn i f ohi. a i rrabl e, a yuortill, con,i st i ng of shareholders who were riot. parties i.n such action, suit crr proceedirMs. 3. The fors°yoir►y rights of indc.►iruification rAiall riot Lie c;eumed t o 1 i.mi t in any %:ay the powers of t hi s cc.rr pr)) nt ion to irrciemni fy under appl icable law. ARTICLE X1 Alilcild►nen t This corporat ion reserves t he ricjht- to amend, al t er, change or repeal any provision contained in L11ese Articles of lrrcorpciration in the manner now or hereaYi:crr prescribed by statute, and all rights conferred upon shareholders herein are granted sub- ject, to this reservation. ARTICLE X T 1 Powers and Ri hts of Directors and Shareholders 1, From time to time to detcei mi tie whether an(] to what - extent and at what times and places Find under what co►rd.i Lions and reyulations, the shal eholders a►►d dir c'ctui s of this coi l►orat ion sha l 1 have the r i ght of i nspect ing any account, book, or docu►nent. of this corporation. 2. The corporation may, in its By -Laws, confer Mowers upon its Board of Directors, or directors in addition to the fore- - 7 - of I.Ir.vS 1V1�11'.!/•14 '"01 1 t' A C,i►r)c',ri i'. n. �1 /,1.11.rr.�t �,) ID ei�" / /.� going and in addi t ion to the lowers author i:!(--d .end eypr•t-tsly conferred by statute. 3. Both shay eholdc rs and di rc•ct cars shall have the 'j.)cpwer, if the By -Laws so l)rovide, to hold their resw.,etive ►++c-etil►gs, and Lo have one or mole of ficcs within or without the SLate of Florida, and to keep the bnoYs of this coipor.-Ation (sul,jcret Lo the l,rovisions of the sl.►t►►lvs) cmtsicie Iliv State of I'lovid.), Est such p)acc-.s as 111.3y f ro►n time to t imn he designated by the Board of Directors. I' 4;E, 7'11E UNDEPSIGNE'D, being oach and all of the original 3 subscribers Lo the coirui+on stock h►,reinabove r►amed for the pull►ose of forming a coiporat.ion fc+r lrofit t.o do businvns both within i and without the StaLe of Ylorida, do her uby make, subscribed, ac).nowledge and file these Articles of lisc:uipuration, hereby declaring and certifying Lhat: the f.-rcts herein stated are t.rue, anc) do respectively agree to take the iiumber of shares of stack i hereinabove set forth as t.o each of us, and .,ccordingly have here "s lofore set our hands and seals this �25th: day of November 1901. � 1 �. SEA L MEIN IN a01,FE r. _..._.. _... _(:F.AI,) STATE OF FLORIDA ) ) COUNi'Y OF DADE ) SS I HEREBY CERTIFY that on the day and year above written, 1 f1'rorl'Ir1'S ►';�I(T1.!�r� 1vr)1.1'I"r� c�17 . OC personally appeared before tile, the under siyned authority, MELVIN WOLFE and r o me well known t.0 he the I ! person (s) who executed the fortnoiny Art iclr.:s of I► col hurt .ion :and acknowledged before me that he/ shp/t.hey emouuled the n ,►ue li ,gel y i S and vol untdri ly for the uses aI►t3 purposes I herein Oet for th and expressed. r NOTARY I'Ilill,lC/ .`� I'h'!'F� OF 1' i,C)t?l DA AT L11 UGE , L My C"Mmi ssion Expires: No1Akt NAM SIAII UI IICUJD/. At lur,E e. MY (UnIL►SSIOII IJ.PI►:S N.PI 79 1VH3 6011DID Ittko GtNcicAL INS, UNDOWIJIIIRS E' E i a J J X: I. J.1v nl'1,If:i'S ll t14 l.�r. ' � nn �1 4 U m te of JFJ ta Dquiriutettt of Mate I certify the attached is a true and correct copy of the Corporation Annual Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is F56718. CR2EO22 ( t 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 rrrrt,IYII of ` t,ttr •. FILE, NOW FILING FEE AFTER PROFIT CORPORATION ��o, ANNUAL RF=FIOR1 1999 DOCUMENT # F56718 �. Ct+rmal.nn NArne WEWAL SANITATION SERVICES, INC. 1ST IS $550.00 IIMIDARFf•ARl1ArNI Or SlAI[ /telherine Harrle SM,\•I�ny nl Sbda ith9 SIt1N <,1 CUItPhftt.IlpNS PrInN(rn, t'Iace nt P,„lnrse ...-I.1a•Mv, Add,r•ta W* NW. on. 81. 1160 NW. 93PD V MEDLEY 17 UK MEDLEY El J0164 PAftjPM 1111ice N Pit%—im 20, LMnr1Aq Adi,,,sc Z4f'Uoo2 2.cny�state�,•till.�Li\d.�� jI F�., ta� Cf't �1,ry• s•li����Q.t �`, P '"It S 201 7p �p Co,adryl f o (�� Itlp�IliEdlIq�UVI�IMINVIU11ANf Iq'I1V RO NOl WTI! If IN SHIS SPACE li S Md., lWnl1­11,••1 nr 0,1'Mi•n 121D2(199t 4. 1 f I Ntr I.r•1 AI,pltcd f C.59 2 t44378 a1tt: i$•75Ad•tn•ana, S rta.n.,1r•n+FI,L..tn,•..,•a I1 ICre kollo-1 6 11.1'ln,n r.l.rn(,nKyn t M1irNYnt, ! I e $5.00 Plat Gr 1 rtr.l r 1»r,l (:rw,h rtnll n'r A'attd I.. I ecs e• 111�'.It.,I.i.r,t111✓,nNt'.N.0 lnllr•, Il yt•,\h,t•,r,;,,hfll 1 •,.�\+n,.i Ih,•,�otly lm i IYrS I IN.I 9-_NPma and Addle's of Current Re9111wred Agent 40. Name and Addles* of No' A-91a1e,ed Agent 11 N.nu C T COR7'O iloN SYSTEM % C T CORPORATION SYSTEM et bn1 ct Aad•n•. (t1 a nn1 N nn{ • .. q.rt n. r/>h1•.ld, 1 t2W SWH ME ISLAND ROAD ts1 tCll_ 1fJ(�J■=' f � �%'E �_'_:=;--- 4RANTATIONFL=24 t1. i'urluenl !n n�c �ruvic,p�� of 5rr•DCrn: hot 0G0•! ncc th7 MOS. rloida Stnlums Vic nlKar nr,nHra r<.,Vvaaunrr cu: •Id:; un•. xl.nr•nrnt Inl the tvrlrrr,r of tl,.�n11•np rl. rvglsH•'c3 oR.ce or rep stolid agent, or troth, in 16t SIAIC of rk,I•da $U[h ollnngn W„ "Al.,' d flyIhu 4upr r.r!ani S! vv,l nC d✓. , Lr• 1 h n!q nr, rpl Ila npl,nUne•M nt it 9',I m rn d 4 #gt'Al I alanilal „ylh, And rcre; I Ihr oNigabons at. Soclton CO),11S05, I tt l do Sln,,dos SIGNAtIIRE- _ S�grot....,:If r•,. 1+.\,...+r,? � . i/, ... n,r. /....:i _ p, •n r. r•...t nr. r. ,., • � t. •• • . o•'t 1 12. _ 0r 110ERS &NO DIREGI(WiS 13. A00111ONS'CHANGE S 10 Of I ICERS AND MALCIORS IN f2 , fltftr ~• Dr. - K vittit I11110 1) 1, 1C"1 �' t iA';F •'M ,-• k" 1AWSON, JWN E SR I)I:.r.t 14f1vii�1S t,J b5b►J +h tJooYL v slnrrra�otacs 943 VAN OWEN ST. 4 %$I'll lrtrol,-. Ito 5•C.. cm•st.;c NOiLYWOOD FL Icn..st ),,. VA • FAk:hm1 w'E.F L 3'.1301 cy . TI',t ST .. - .. if., [)III it y 1 nl I T> I ! C,a,r• I I Ay1 : r+ c'3 +IM/r tAWSON, JOHN F A ,,,.:,., sltett,lx ti� 8180N.W.4,1STREET r,snallFl./n�.. �AIto 5'� (ram �, ZP+� Ft,racltl 1:111•£f_ZP-. .` I+IEDLEY FL. t.r.,1 r,-,. • U+ nl.t, FL- 3Do1 (Itil '.I It 1•hul � 1 ICI00 1',•u• KAAX S01EEI,Ir,nE St� 175 n1tIA•e»i tS Ito 5•E • jffY.sl.rc )t r,:,.,1 r/• TT , l...A"*t>q - fAT-, r-u 33301 id,r .. iIPllttr /, I„tI —1-- I lo.,•y I Intl+mr. L A O (. III ST"rturr;rhs� s�slwt,tya; . 1to� j E� " S4, 2k� FIo`yd�L 1(� CnY.51.2Y ,1 1,'1 ;3. TT• ^+•V•bf,(Uhm� Glt K _13 a% IU1Jt 1 t na v Sf:tEr7 (l7Pi SS iy;rltrl,lh'. ti :: 1 R:F_ •'(IMit IE 611mC rT' C'v,sye (Tnd.!•ua. Vy Shirt! /,p01t1 SS t,C 11 St to, 14. 1 twthy rrAAyy IhAl Un mi- ,1,' 1U n' A w}(•ry�rgc Idrng drys rr,l q�ia,�ry lur N,o r.rcipinn r,l.nr+l In Sn::unA I If, 011.1)!11 ! 1 r,r l.t SI:N,Ib•e 1 6 Ihrr Crq. III !IN• nfonnaWn Yr7ical.rd on 1`,It r,vwal Itrn, Ar r •I t?T !n attnnnl Inpatl IS In,e end nu.lrrnlr. PnA thnl n,y e.�ynn•tr•n !'Mil halo !1•r na.ur hp•A t Ilm.l it,. I n1 tr pnycr c th.N 1 p•fl to ofrrce, nr dnecla of She torpn Y, r hi I rI or Vustoo oml,rnvurod to e+e1 utv Vos rtln�d AS. Ieau 11a1 Ly Chapkv GU7 1 lorid,t Sl.d,dus And Alm al'Pe•a,s in BloCk A rY vl ,;lt !) it rltnnK, r X(hn:Ar„ vnlh AA ndrlrrat, .0. All nlh¢r I"., r 111110&111 ;1 SIGNATURE: '� 2117j�� (�Sy) `jttiq - 477,P 0. w1 6.1;t•N.Y,/Irw+,.. C. ri1­4p 10111t.—Ii .C,U, 4r ,1 •I1,r•r1 �A �•I % � • �ARC.1.rA 1{, SI:�..R�'1"AR.� I Y IRO I I-. DL TO 1. L 1401-IRD S(.:RLI 11 1-2:15 FIM HUM: F116M3 :FL (-)(.: I I v F / F 1 V-1140F. 1 1 A"", I V R I f I 14) It. M I: W71 R 1998 F Fj It I'll H NOIIIF 11 R I aI- !'.."ON 1, 1 r.) I I f.)I,l pvIc:1-3. 1 jj(: I IN I HC I POI I I o L I ''81 I 1 1: L Of 11-1. W2 /'1*15/914 PA NAM-, I ('(11WORAI 11,111 C RA ODOP C 1 -0141 1 1 IMA If' It M A D 1.) R ClIG: ')8/07/98 ANN pl�.P Ei I Wf 01 1 H 1 1a99 1 9*1:111'o"311414 1. MENU- 3. OFFIC','ERS. 4. I-NIFNI-S, 1. L.I.S1 8- lql.;'X'I. 9. PREY ENIFR '-:"E JON AND GR: Y / 17 /9*-) OFF IC .R /D I KII.. 1014 1 '1. 1 fl.1 1. `3(:RE I I'll 1. f M CURF-I 11111111FR: Fh6118 M` A I t s "V ,: F, I L E : D NAME: HUOSON . .1 J 11. E : P NAME: CMUVIN, J01111 ", 11 10 ",.1 e)III ',f1;1_F I taI11 t 1. fl.lj. 1. IT. L E : S, lq(-jtjE : 130W.A 0 t 1 ION 11) f-) ;-I e-dIl - 1, TITLE: T NAME : I I MAO A J J I 1. . I, III I.: 1 RE.1. I lAUM 111.1"of I:. F I, 4- NEXT. PREN, 1. MENU, -2. FJAJ NW, S. 1 (11-1. 1; I . L I S 1 8. N E X -1 BY L IS I . 9. P R F V 8 Y L I S 1 CNFER AND (;R: .1i/9'-) I::V1141 D F 1A1i. t f2k"f.Pl 12,15 PM I' CCII�(' 1J1fMltl'!�; I :.,t,J1f3 (.111 " IAIW.;: A(.-.1:1V F1LF.1) t?IllI-, I2/o i1981. CORD IME'I f21AE S01J1.1AI JON IP1.1ON F HE RGE 1: t ARTIC1.I;S 01, J N('01?1 ORATION & r "IIt % ftlr Or t^(I�II^I�"ll�l•I r Al rI I r �n�Uf IMPERIAL SANJ'1'ATJON S;lAWI('I,S, INC. '1 T)Ie t111deI S• i 91wd, f l)I I )►r 1,111 pO.'..r t)1 t (ll if,i I I q .i r'fil poil al i oll under the filorida General Col pc)l aLioil Act, do (cs) he c))y ; 6opt Lhe following Alrticles of Inc•n1l»1ill i011: APTJC'LE I 1•4+11►C Thcname of thi s c orpo! at. ion is 11411YAUAL SANI°J'ATION SURVICUS, INC. A17TICLE 31 Terra of Corporate Ex i st e l►ce The cor ))oration is to have 1w l lu•t hill exi st ellcr: un1 rs d•i' n sol veo accordi llo to l ,!w. l�ur1)rrses for {.'hich t.hi s corl)or at i0ll is or Uarli zed are: (a) To rmigage in all indu stl'ral Mid C-0111"WrCie11 waste rernUVdl service; t.o engagr- in Lhe buyiny, snll.ing ;end dealing in it 1%)SLri, I and cunu►►ercial scrap, salvage:, J efuge, rubbish, Ll ilsh, junk, (Arill, yclrhaye acid debris; and to f ur Lher engage in the collect ion of industrial and com- moicial scrap, salvage, refuge, rubbish, O—ash, junk, offal, gal-hage and debris. To likewise provide any and all Ilrcr:,sary vehirles, colltainers, and other receptacles necessary for Lhe hu nines, of Lyle corpOl-at.ion ill- eluding the obtaining of various vehicles and oLhnr equipment for the ti-ansport.ing of same. To further engage in the ma i nteria rice of disposal facilities for the items of Lhe corporate husirlc.ss and to do all other Lhings necessary for the furLherance of the col-poraLe business, 1 {'% eil l'lr I {•i►71I�.� �.1� 1'11)I 1 I• II r°I°rP.'/ I' A. It '- (b) To hcqui re by purchase, or of ht'rwi se, for i )lie st:- ment or resa)e, and Lo Oran, opo)-aty, stibr)]vide, have, )(!t, ►Itt)r tgage, se)) itnd oL)wrwi !,,e cl i s,pw,c! of, for or on c. red i t by CUllv0yitl,(.-e it0)'V311of, IIL f n r (Ic'(-d, Ur Ut)Ir•r I;iwIitl 1115frtoit,('nL, renI estate, or mi:,-fed )I)opulLy, I(a('itLf•(1 ill l,)l(-' Stitle of Y)UI')(la, or (y) s:ewhere, and y(211ei a l .1 y t o tioaI i n aml 1, 1 it i f i c its r,wnrr , a(jf-rot or broker, in real estate, per 5,ona1 and mi x('d )it (1pe) Ly, .,url any itlt (r)'uSt. or estate LIIe)-niit, including suhdivisi(in s, apit rLmeitL llo)sr_sto )rsicicrlces, stoles, office buildings, mi-,nufitc•turitit) sights, alld t Ile l u( s c)r pa I c r I s of l aI►d upon wI( i Ch 1 Iluy it -ay be 1 rorit I (!tl , ititd Lo create, own, ]case, sell, operaI�, alid deal in fI.C.')IU1(I and Iri.s:c•- )fold t'Sti,t CS of it11), a►Id a I 1 C)l-ti itc1.tor lAj,l1 !,(1(!ver, artt) I r) I)e it it investor ill real i:nd per s,rnal p)opt-) ty. (c) To 7 end and bor) ow I'loney, he it :.urv'Ly, r.>:c-cut e bail bonds and to execute and ci(?liver, accr+pt, lithe i)m) Ieceive notes, bonds, debentu) c:s or nt hrr vvidmice, t llert-of,al)d mcirt gaues, 1.1"uSt deeds, j-Iledoes, or other SeCil)'1t)(:S for 'Lhe payol11M)t of ;i:lTle. (d) To acquire by purchase, subscription, or oLllerwi se, and mortgage, pledge, or ot.herwi r,et d.i sl ose of bonds, not es or other securities or evidences of indebtedness, and the shares of comi,ion stock crc•aLed and i!,sued by any (it hrrr c:orpo)•at icon or corporations, association or aoi:,rtciatioils , and to J,urr.hast, _ hold, 5(-11, assign, Li-misfer, moitgage, plc•(ldr`, or ol,Llr.'r•wint? dir.jtcisc: of any bonds or other securi Lies M' Qvidrltce , by or i surd by ilny other corporation or, corporal ions, association or a:: sciciat ic)ns, and while the owner of such stoic}:, to all ) iyhts, j,Owers and privileges as such ownership, ir►c:)nciinc3 the night to vol:e the salve, and to do any Mid al l 1i1wf1)1 acts or 'Lhinys; c)es.iynrrl to proLect, preserve, improve or enhance Lhe value of any such bonds, f,. - 2 - /1Y f:l 1' I(' I S 1'i 111 I L(i ►� 1'Nll l (• !S {",111 )''.�i I' 11, , 40 . eJ dJ I stcJcks, or c►Lher r.(-cu] hies or evidences of indcht.edti ass .7►►d 1.0 ' guarantee divir3ends ul)on shag -es of the c(ilnn(on !:1 oc): of any of hor i i col lrorat-ion in wit ich t.1)i s col lw),)t io)►, a)1, ►►►), t ime, ►(o,)y tit r,► c ;I vt3 as a ,toc}:hc)l(ler (-)!c) c•of , and t.o E-.e Cir otlir-] wi cc ynr,r a(Ilt.ee Lhe priric]pal. and cJ]• vi 1)►(rr 1 hr+)'('of , of IlU1,r`S, hotifl ;, or other eviduj)ces of il((ic.1,1, ine�s c. J.(-a(t(,d lJ)f i of !;11c)1 co] p(:(rat.ion; to deal in its own stocks or )Jru}:er,tide si n(. . (e) In addition, the col-poral.ion may transact: any and all lawful husiness for which corpara)t.ions may he inco,porated mi6er the Florida General Co]-pora]t-ions I(ct. hPTICIX IV J:ut l)or i �cc3 ohm es The maxim► m nurnher of shayes of !.1 uck with par value that this corporation is authorixed to h,,ve out !;I andind aL any One t ilne is --------1'1VE HUNDRED - - - - - - - - - - - -( 500>:xxx) shares of $1.00 par value common stock, which common stock sh ll bh of a sinole class a mi which common stock shall be Section 1244 r.omillon stoc). pursuant to the Internal Revenue code of 1954, as amended. ARTICLE V Initial Reyist_ered Office and Reyir�tc'rr�d.,I4c�cl]C The street address of the initial registered office of the corporation is 940 N.W. 181st Street, North Miami, Florida 33169 The nalne of the initial Registered Agent is P1F.I,VIN WULi'E whose l-)rincipal office a(3d]'(:];s is 10651 North Kendall Drive, Suite_ 200, Miami, Florida 33176. Raving be can na►mod to acct-)A r(+] vi c-e of 1)rc►cens for the above stated corporat-ion a]L Iny l(rincipal O fice alddiess c3(triyna]t. c3 in these Articles of Incorpora]lion, I 1lce]rhy ;]cccrpt to .7c:L in this capacity, and agree to coml)ly with the l)]ovisions of id 1\r.t relve to keeping oven said office (pursuant to F)c 1 is ] Statute 607. 34) . 3 - I.irrc:t'r1(71.5 1YIItIr,�'rnl.l•I'!t ((y.F) f' A. O!1] 111)A ..� �, 1W V ARTICLE VI Number of Directors T1 ) busi puss of t he cm I,ut ,It ion !:hn 1 1 Ite 111a►nittl(-(1 by a Award of Directors cunsi st i tty of one or mr_,► e im.-ml.,r.•rs,, the exact. t number to be deLermined Ruin Lithe try time in drtnce with Lhe t • Dy-ALaws of the corporation. The initial Bua)(3 of Dijer_t.ors shall k consist of one Di J c ctor .. t AI(7'1C1J." V I I t , 4 Initial hoard of hitcc:tc►rs g t The rIi9mC s and rt(1ti1 CSSr'S of the fi) !it. Soar of Oi) (•CLUrS, %,:ho, ..uLjcct to the provisions of these e ,rtic)es of It c ) 1 c) Lion, the P.y-La%,:s of t)►is corpmation, in(] the lrtti:s of the SL;tle of t E 1 .F)c,ri0a, shall ho)d office fo) the fiJst yva)r of the cot1,o)'Ition`s existence, or until their successors are el (acted and have gt i qualified, are: ta.►lE ';'1')tEET ADDRESS g s t JOHN E. LAWSON 340 N.W. l BI st 33169 North MiamiF] or i rla) t } ARTI C1,E VI I I initial ]heel)}Iola►lor(st) The names and addres--cs of rack sul,scl'il.,rr I.o these Articles of Incorporation and the nutnlrer Of :,hares t hat va►ch ayI c?es to take, are as fo)lows, Lo,wit: NAME !;'1'Itl;ls'P ADDIaI;!;S SIIARrS MFLV114 WOLFE 10651 North Ren(3all Drive 500 St)i to 200 Miami, Florida 3317G the proceeds of which will amount to at )vast, $500.00. n" t� - 4 1 r.tv t7t l'IrI S t:t�Il��r.r4 %I001.11' R f,I10',5 fA. , �J" 1't�jV t 13 -].a W5 The Aaatd of Di it crct.ors !:ha] 1 ;it 3opt 133 -1,aws f or t16 s Cal•pcirat ion which ►,,;,y 3.,cr ;,11,011ded, al t car c-cl or by Lhe shareholders or di rectors in any ► ironer pee mi t. t c--d by the hk'1'l CIX X Indcn,nific:�tivn of Uir►-ctors ;+1►cl ofi'icc?rs 1. The corporal ien ha► ,'by i ntit.•nu►i f i es :►r►y c] i ► c-clor or officer made a party or t.hreat erje 3 to tj(-, 1i,;+c3e a J.srty it) any t hreatelled, pelldi ny or completed actJon, ion, suit or prrlenrc3 i ny i (a) t-;hc_ther civil, Cl in,inal, ;,d►ninisf r;,t.ive i or i►,vest i c,at i ve, ether than one by or it) the r•i yht of this t corporation to procure a judgl,,ent in .its favor, biouyht to i mJ'llose a 1 i abi 1 i ty Or JIanal ty on such person for an act all eyed to have been coliuni tted by such pug son in ]►i s capacity t 1 as director or officer of this corporation', or in his capaciL•y �. ► as director, of f.icer, employee or ;►c,enL of any c,1 l,r.r rc.►rpor. - Lion gar n rsh.i joint v ► .0 k J t e p, J venture, re, trust or at.l►er rnl c.1 Jar i .,e which he served at the request: of this corporation, atjainst t judgments, fines, amounts pilid in sO.tlement alit] reasonahl e at. torneys ` fees, actually and ill•CC_::!iri)') ] y i nCurI rd a a result of such action, suit or piocordiny or any appeal tl►nre- in, if such pei son iieted in good f;►ith in the rr?a.:onr',hle belief that such action was in the lest intnre nt of this rot j►0►4_3- Lion, a►►d in criminal ,actions or p►oc-ecrc3inrjs, without rcasort- able grounds for b(Aief that Such act. ion was unl;,wfta). The termination of arty such action, ::uit or proceCr3iny by jt►c3yn,(nt, order, settlement, cut►viction or t►pon a p)(?a of 110)o c:0ntenc3ere or its equivalent, shall not in itself* create a presumption i G I`t' 1' I( 1 , - 5 -- t';►11I',lr•Ij %1'" .1 1' 14 t',i�t;'.'; 11. A, L'Il,t.�f .I'l tltt If`A o �4� t that. any Such di r c'ctQY yr Of f ic•"r did liuL toc;L in yr►rid faith ill Lite reasonable belief t.hat such ac-Lion was in t.hr- lj(tst inLe)(Ist s of L1►(' cc:► 1101 ift i0l) o). I h.►t he had tear;un;►hle cji (mild" for belief that such ;,ct ion uni,twf ►rl . (b) By or in the riyhL Of 1-his cU1p►-'►at iron to lPrc►cure a judgment in its favor by rcason of his heiny or hav6119 Lean a director or of ficc,r of this c•crr pm at icon, or by r uason of Hs being or haviny bccn a d.i r rr.tvr, off ir_er, umpInyce, or ayent of any other corporation, partnership, joint venture, trust or of her er►ter l,r i re whirls he !;erved at t he rryucst of this corporation, acainst the rc_aSonah]e ir►cluding attorneys' fees, actually and neccri.ly incurred by hirn in connection with the defense or nef.t:lr•m nt of F,uch action, or in connection with an i1ppeal the'yreirr, if ,uch I'VISun acted in good faith in the reasonable belief thF►t !�uc.ir action was in the best interests of the corporation. Such person shall s not be entitles to indemnification .in r0at.ion to matters as to which such person has liven ad jUdgOd to have been qui l ty of 1 treg] icence or misconduct in the }performance of his duty to � the corporation unless and only to the extent that the court, t` acirnini.,trative agency, or it)\,( o at i v v body Ivfore w)rich such action, suit or proceediny is bo]d shall dotes rr►i ne upon appli- cation, that (lospi to the ird judicat icon of 1 iabi l i I.y but in view of all cii cumstances of the C:a!;R, !mc:h jim !;r)n is rai rly and reasonably entitled to inc3cnmi i-icat icon for r.uch expenses which such tribunal shall ducin proper. Z. Any indemnification under Section (1) shall he made } by the corporation only as authorized in the spOcific rase upon a determination that amounts for which a director or officer seeks I.r•r: orI*ir.I,s WI111►•4f,14,V,'01.I l: (i V. A, Vlf.1-41.1-1 OI?It;A f 0 �— 700 irlciemrlificatior) were I)l01)erly iIIcurrccd alit] that. such direcl.or or of f ic.er acted in good f ai th and in a maw)ei he a'ca tonal3ly believud to -be ill the ))est i►1LeresL of Lhe corporation, Mid thAt, with respecL to jolly cri►nin�11 •jiction car piocc•c•diny, he hilt) r►o rc,ssonable ylound for be) jef Lh.-A °.uch irctiGll W;ls 11111AwfIll . Such determination shall be made either (a) by Lhe I.0,1rd of DirecLors by a majority vote of a yuolum C0115isti1l9 Of directors who were riot parties to such action, suit or proccrediny, or (b) if such quoru►n is not obtainable, or even if a)11. a i rlal-1 e, a quorum collsi st illy of Share-holdels who were not partics to such action, suit csr pioceedilMs. 3. The felleyoiny rights of indemnification -.ha11 r►ot be t3ve►ned to l i.mi t in any %:ay the )lowers of t his cui liar at ion to i►lcicnlnify under app)icable law. ARTICLE, Y1 lkmei)dinenl: This corporal ion reserves I he riclht to amprid, alter, change or repeal any provision contained in these Articles of Incorporation in the rnanr►er now or hereafter prescribed by statute, and all rights conferred upon shareholders herein are granted sub- ject• to this reservation. ARTICLE XT1 Powers and Ri hts of Directors and Shareholders 1. From time to Lime to dvL ermine whetbor and to what extent and at what tines and places and tlt►der what Conditions and regulations, the shay eholdt?rs and di, 'Clul s ()f this col poral ion shall have the right of inspecting any nc:c:ount, book or document of t)lis corporation. 2. The corporation may, in its By -Taws, confer powers upon its Board of Directors, or directors in addition to the fore- - 7 - I /• 1Y r)I r Ir.I S 1'illl I �.!!, I� ','J(�I ((' Ilt tiltO�',rl P, A, going and in addition to the powers authorized ;end expressly conferred by statute. 3. hoL•h shareholder-s and di reel ors sha) 1 have t he jauwer, if the Cy -Laws so provide, to hold t he i t r espr-ct i ve Iw-C-L i rigs, and to have one or more office!; within or without. t.lte Stale of Florida, and to ker_•p the hnol.s of 1 his r.��r 1,c�r;►l. iron (,ubjecL to the f,rovisicins of tile st;011-11es) outsic3c the S(al.n of f']c�rida, at such places as may from Lime to t irne he designat-ed by the board of Directors. Y?E, TIIE UNDERS]GNED, UEing Vach and all of the original subscribers to the coiiuuon slut:): hc-reinahove tj;(mud for the purlpose Of forming a cor l,or.-at. i on fc�r 1➢1of i t to do Lusi hers hnth wi Lirin and without the State of Florida, do hereby make, sul,scrihed, i S acknowledge and file Lhose Articles of loc:urporation, hereby r F declaring and certifying Lhat tyre facts herein stated are true, and do respectively ;9dree to taRe the number of shares of stock hereinahove set forth as to each of us, and .,ccorclingly h;rve here 4; tofore set our hands and seals this V25th_ day oi._ November 1981. t .-AI � rr s MELV I N \ 961 YE SFAL) _.._.._(SEAL) STATE OF FLORIDA 1 SS COUNTY OF DADE ) 1 HEREBY CERTIFY that on the dayand year ,-have written, - 8 1 ✓1�1 rxrif is %YlII7i.!rN 1-rt)I.1'1" " r;i�n� ,s. f . A. personally appeared l�eforc� n►e, lire w►r)r?tsiynrrd i►utl►c►riCy, r^ aa MELVIN WOLFE , , and i � to me well Ytiown to lie tl►e j person (s) who erecutcrd the fog c•cjc+iny Art icic.rs of Inr.ot purnI ion and t 7 fi acknowledged 1.►efore ►ne 1 LhaL Ire/t;hr,/1.11ey the t;r►tnt? f t eel y j t ar►d vol untari ly f or the uses and pm pos-cs I hv)-c in !.;rt fol t.h ,end fi e):pr essed. ���.,��'�-Z �.-li' -•ice' : '• .,:r=--�� -� . . 140'17%ItY J'l1ltLl C� `�'I'n'I'F j OF ti i,C73? 1 UJ1 AT LARGE. f . 1�1y C.utntnir;r,ic►N C>:j+irr�s: NOWT W811C SIA11 or rinr!D/. At Lur-A i ; N.Y cu•••r�I•1SS►Otl I,.rrr!S ".$k 29 tt'HS 1011b1D lfikv GtNtkA►. 1145, tl1JUtkW1►ttkS i z r r t { 9 r + t i r i I i i _ 9 _ LL1'►r�l'i'Ic1.5 P:ItIll,!�r�,lvr)I I'I"!1 r;l:c)'•�, 1�, q, t•ttJ.l�l,l'I t":1cll�r r +�e,�t�tri�ttrtt� ��f �t�r<tF I certify the attached is a true and correct copy of the Corporation Annual Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is F56718 CRK-022 (1 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 r rrrt t,trtt of, fair t FILE NOW: FILING FIE AFTER' CORPORATION ANNUAL RFP0R1 0 , DOCUMENT # F56718 1. CvMpl�n Nance IWERIAL SANITATION SERVICES, INC. 1ST IS $550.00 1101p1,A pr/'Aftir7F NT 0r STATE Knlhrrine Wants Sa'rl.ny nt SGd;• 1 )i.nti:t7N Ct1 C'C 11ti`(,itAl10NS Prht ipni Plarw of Pv<—,ft ._. _. .6ta,Mn Add,vv, ![[Q NW. on. SI 1160 NW. 913RD 6T idEDLEY it VIR MEDLEY fl 33168 S. ;FMi pfll C;nrar cA Fit, s 2s. A�n',uq Ad'f,rsl 1 1 I'D g .I- ta'�'► .�E , 7t( I to S,e , ld44 S� Suhn, A;rt 1-1)' B,re /yd A rtt 271 Grt SUta C •a . n1 2ro cn nr r„ cn,,,.,•y� ],- LtS ,off a3301 j,pi S �S FEB 2; P11 TOO �MINI�IM'VIVI�'dNB�MIkVOCnI�INtl� hO N0T WR17f IN TI11S SPACE I Il;dr In; orhn nl••.i nr (A, 10"'1 . 1210211981 ♦. 11 1 N,r,d•r•! AI,phCd f M 59 2144378 Nrt AppbcaWp* S8.T5 Ad•tn.;,n.v 1 1.,,•n .u,• of sl .1,, (""—A { 1 I re krq�ar..;1 I $5.00 filar Ge 1 r„•.1 11. n1 <:•u:1'A.0 l•nn AM1-5nd 1„ I rra tl. iln•• Ipgn rdb. r, nNt'`. Ilru I Vnahl y,•.Y hdarNTld„ I'm snn.i pl , ,ly 7u. I Il'r'. { IN., 9.-NPrrto and A4d,aaa of Current Prglil—d AgrM 10. Ilamit and Add,ess of New E'Ifiphle,ed Apenl C F COPP MTION SYSTEM % C T COPPORATION SYSTEM e7 %ImCt Add•n•.. tr a fill. N,i-1 • it'll A.',,,1,1,dd, 1 1200 SOUTH PINE ISLAND ROAD aI [ 01=10 0 a � ` r r 4FtMAT[ON FL. =24 -03/W/-1)0RI ��p{1lT a, ray le {l�>�'f��s. uo 11, i urauPnl to tl,e CfoviS,DnS r)i Sh !•M,E (,0? PS07 hnn U17 I,,00. rlo')d.t Slaitt.)s lite nt,uyi n.,ftx,l ftniK,ul „r wilult, IN, T.I.dr•ny to Ita Ila IKnpn.v of ti,"'tl ng ,1+ I,.'q IsIT-0 Olirce a rc0 slCtrd aprnt, a Wit, in the : lnlc of F,n,.!a SJch chnnSt7r^, WAS PutGrin/,:d by Iht: tugvrq:Pei s 1—.0 of do" 'I"', { In n t,y nu rpl IN: npl•„nlur•nt p.It.9's?.I , agent I am famli'm Willi, and nccept far nN)gal,ons 0. Sorhon W.0505.1 knda Stamm. SICNMURE I2. orl ICE RS AND [AWGIOrtS I3. A0011iONSVIANGE S TO Of I iCERS AND DIRECTORS IN 12 k" LAWSON, JOHN F SR f tr t`rr � t� 1 fill( D5o�1 F smu t &-om u 943 VAN MEN ST. f �Ii 10; . • V St , Z.1' +�. tin. tm.st.ar HOLLYWOOD F1 1t(10'.51 to I A4i5tJi�Hi� Fly $3�01 h'lE SI♦_.. . 1eID}lE1F Lehi f [ IC•,a•,T I (A1,1:•r1 k+Y1T LAWSON, JOHN E JR i7).:•n .�A►-iY 5 14. Cost x1f(fi E180 N.W. 93 STRL-ET S.IE • v" Sr xPf,� FIAOR.. cm-s!.zp MEDLEY FL PL 33301 [IOf ;t It ,•It'll _ c, l ICn,nr (141•Sro- HAA i 1iA1'7 �,� ' �4 S"IEEr ArMfs`; t.s lnllar+!I �t [10 5•�• �'{.��_^ w���r•+•'� CJr1.Si.:r 11 Ci!,.SI 7.• + , L..fi"bgILb1:kL -, b-L TI(it tE IF /,ahl —C-- { IC•.l^p (IAEI+•Y• LA-pE' 1 I11 STPFEI AII(53 t5. It Siktl tl,:'IMi,� 1[O .�',�' S'�/ 2-r4+% Rolm VIY.al.za ,1.'t, ,;., Ll���Eti)'RLEI VL 33.301 rtnt [ lir[lEtl. slum (I(r.a,ry, [ tA11•,r NAME St,U19 S1fGEt ACtUtf55 slgl.rlt4'ysn .; FJ1Y.P•/W 5/�1, Lila• 7alE [1OElf IT it kwf 6 7 as S,A([ 1 ADC.i SS 6) S' 4I 1 I A"Y11 cr CXIT.xI.73' _ at 4c 1, al. to 94. 1 tworty r�,v! IRni the rntrm 't xu p", A N I'll G!rn0 tlrrrs m! q"at'ly IuI lhu r.rn,pl,nn !.LNr+I in Sn; Pnn 1 tS, 011llt)1 f I rrl.l S1�Y, ulnc It, pall ern. Ill Ifr• !Munn Vn)n kvFCricd on I ,'s nnhVAt ICiMr fin , .I , n hiM! u:po,l IS i,ue pnA acr.nrAln F—i thni n`y r•<lnn!o•h Shall hnyb Ill(- 9(npt Ilp•d I•IlM1 M i n1 n Ur,tl(r ,: Ih.11 I PM fill otGCr, fir chredor of the cnrpo Y. t In I ccr o' tNylnO onlpoauted to eyerulu Ur•s tat*.wi PS loau-W t,y Cnd(•It•i Gt17 I Ipti:f., Sloilaur. Pnd aIle npin•a's In EW,Y_k 12 or Elln_k (3 it CIL riq inthmnnl vriti, an nM,rSS, with n't M:,r r hl,e ragtns(.fit 0 SIGNATURE: z117��g � 5�� 1�7--z7-ap —'-vu �- w - is u�ia:vr.ei+•wI'w ti'ur.i.;a br, n,M u"Inr,[,u+ I ,., r,,.•• 09- 1'00 Ill „1.7/,��� �.;t►hl!i�hAil: l:Jt:.Trla.l.. I,L.t.a)1:1� E� 14LI IT J.?:J.5 (•'M NUM: F71F3 1;1 :FI., Wt.:I IVC/FI. 1-1RoF11 FI.0 1:.?70a/1.` RI � I Fa`�;1 : i:'llf;l�(.)f;r'rlE: Mf-(�tiF•:R f�l_I�: (�<:�/L_�/1.99£:3 i NFarl1- 1 I11 �!.1�.1 rat.. �:•;F-�N.l. 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The t,ntlt•1 s•iijned, fur t ho Imi po"-f- of f car mincl a rm pr+r al ioll Under the Florida General Corlcor at_inli Act, do(es) hereby adopt Lite following hrtir.Ies of I1)(_•or))0r;'1 ion: 1:r1mc 7h(21 Larne of this cUr)10! atic?r, is 11h11'1::It1AL SANITATION SERVICES, INC. 11TIC1,E 31 Terra of Corporate Existelrce The cot por at ion is t.o have leer )(•I uc,l r>:i tit c'ncr. unl c1� d'i'r.sol veo accol ding to law. 10h'1'ICU 1I1 . Pur)�t�n� The purlxrses for Which t.hi s corl)ol at i c,n is m unni zed are. (a) To engage in nn industrial and corm vrei�,l w;rst.e removal service; to ongage in Lite 1juyiiry, soll.inq mid (lealiny in .industrial art(] commercial scrop, salvage, refuge, rabbish, t.) i1n)), junk, offal, y.lrtr.�ge and debris; and to further engage in the collection of in(lustrial and c:om- Me1cial scrap, salvage, refuge, rubhinh, Lrash, junk, offill, garh,age and debris. To likewise provide any and all necessary vehicles, containers, and other receptacles necessary fox" L►re business of Life corporation in- cluding the obtaining of various vehicles and crthr..r equipment for the tiansport:ing of same. To further engage in the rnaint.oriance of disposal facilities for ti,e items of the corpora Le husirless ,71rd to do all other things necessary for the furtherance of the corporate business. 1 / \'/ Cil I'6�'I S Y;S111'.':•►a 1'ifl) ( I' !: I,li,) ,�', 1' A. 1,.II-'.11 1'I C;tltICA 0�4.0ll 1;1 (b) To acquire by purchase, or of hr1 wi se, tor i ►lvc• t:� melt or resale, illd Lo own, opei-aiv, !-,ub wide, )vilne, ](_'t, nlclrtyilye, sell i-Jrl(3 Otll(-r1.1i!4c' di �;))W-,e (if, felt Or mi c)edi t by coil vcya11ce, ijyj ce,11( lit for cic•r.c3, or (►Lllr r l:l(.f 111 ir,�i riil�r 11 r(-i)l estate, or nixed plopi--ity, in Ii►(• ';Bile of Vlorida, or el S011'here, avid U(Sllel rIJ I y 10 (1('01 ill illl) I l i1 f f i c as owlet, aq(-nt or broker, in rera]. estate, Ile l !;oniJl ram] 111i x('O lit (,I,01 Ly, i,llrl any i lit f!)est or estate therein, including sul)(livisions, apartment Ilo1j!3,s, residences, stoies, office hui)(lirigs, Inanu'J'ACturing ni(Ihlr, and Live ]()Is or pat r_el s of l mid upon which 1 hey nily be 1nri11 r rl, find t.o create, own, lease, sell, operate Avid deal in fl-c(Alo)(1 ilrld )►old estat us of ilny avid all ch,1t i(c:l.vr 1•:hol , ;:nd if) he i11) investor in real i:nd pet ::Dual pluju-i Ly. (c) To lend ;tit(] bore ow fi(uney, he a surety, uxecut e Lail bonds and to execute and deliver, aucvllt, take itnd 1 ec(eive mucus, bonds, (iel.Dent-ules or Ofllr'T'(::\(i(1(?11(:(i; t.lier(q)f, illid illort_9ayes' trust dvr?os, pledues, or other srcip-Ai(:s for Lhe payllient of st,►ne. (d) To acquire by purchase, subscription,, or otherwi avid wor tgage, pledge, or oLherwi sc .c] i spost? Of bonds, : seal r. s or other securities or evidences of i ndebt eoness, and the shares of coiturion stack crc•ated and i!•.sued by r,n), ot.hr,r corporation or corporations, a!;sociatioli or asruciations, and to j►lirc:h��sc�, )told, :tell, a ;sign, t.1•i1nslor, Iitol tijage, plodtic, or (!t,lwrw)!;(? dispose of al)), bolids or outer uncut i t] os or ev 1(3('I1('(! (:) C',ill i?(1 by or ) !:sued by Amy other corpoi-at.lon or, coi-poral ions, association or an sociat iolis, and whi le Lhe owner of me h striel., 't o vxr,+t ai se all 1 iyhts, powers and privileyes as such ownership, inc:]u(ling the right Co vote the same?, and to clo any and al] Iilwful acts or things- designc'rl to p1•otect, preserve, improve or enhance the value of any sucli bonds, t j. 2 t �'tr� l`.I 1 I1 Iri t�il�l i1.1 %r (� iir(il I Ir � (rirl Irr ] 1' •l. (1� stocks, or other s<-ctn iti(,s or evidences of indeht.cciness :rr+d to guarantee dividends upon shards of t1tr_ common mnon t.I ock of any of liar c:o)por.ition in which IIli s cu)Jim t,t.im), a+t: .illy t.itne, rrl.ry It(! in(o)(.':tc+cl ,)s a stucl:hc-)}c3er• Lhcy c•of, :+t)d to rrrlcics) re UI' t.)tllf•) Wi t:e yu:+) �+)tic�e the princil)al ,,nd in1 vi c•st., or either t liori,of, of nt>tr.s, bctnrl ;, or other evideI)Ccs of irtc Chtedrless c•rc•:+t+'d by i rrue of such cc,) p(:+rat-iun; to oval ].n its own st.ocks or b)cA.cja9c, (e) In addition, the curl-)niat.)on may transact: any .and all lawful business for which corporation. may be incorporated under the Florida General Corporations Act. Authorived Shares The maxittn)nl nurnh(-r of shay es if sf uc), with par v.altie that this corporation is aut-horized to have oui sf anding aL any orte t i►ne is - - - - - - - -I'IVE11U}JI)IjEU------------(500>:xxx) sharCs of �1 .00 par value corlulton stock, which conl)non stuck sh,al l bra of a sinole class at)ci which comman stocl: shall be Section 1244 r.untnton stock pursuant to the Internal Revenue Code of 1954, c:s Wilended. ARTICLE iJ Initial Reyist_ered Office and Re-yis;trriA.,A(jent ; The street address of the initial registered office of the corporation is 940 N.W. 181st Street, Worth Miami, Florida 33169- 'i')Ie yjame of the initial Registered Ager►t is MPI.NiN WOI,r E �~ who,e p)-incipal office acidruss is 10651 North Kendall Drive, Suite 200, Miami, Florida 33176. Having been nalm'd t.o 0cc.Vpt no) vi r.e of prc)r.crrs for the -alcove st.-+tec3 corporation at my principal office add) cis , dcre;ignat ed in these Articles of I.ncorporai ion, I hr) cby accept to act in t hi s capacity, sand agree to c:omIAy wi Lh the pr ovi lions of said Act ye] at. i ve to keeping open said office (pursuant. to I=lc` i Statute 607. 34). 1 1 3 - I,/1': c;t'I'Ifl'S 1'�tlllr.'/t� 1':nl,l'I ra 1, A. L'.Il.1.11,11 C)Itif)A 0:3- 20 io ARTICLE VI Number of Directors The ).msi nuss (-)I t he c'U1 pot at i on !Jla l 1 hu ►IIimill.p.0 by a I lard of Di rectors cum;i st i Ify of one or mui r the exact. i number to he detc-i mi nee f I um t i me to time in ;Ir, cold;+nce with the By -Laws of tl►e corporation. 7'11e initial Ile.,;)Id of Directors r.haJl consist of One Di r c ctor s. • I+Ic7'1C1,11, V1I jInitial I:oard of Di►ccturs The riames and .•�ddi esses of the fir r;t. Poiird of hirectors, f 7 u:ho, subject to the provisions of these Articles of ]ncc)r)'c,r;'tion, P the By-Lav:s of this corpoi at ion, mid the Jilv:. of the SLR+te of FJclric?a, shall hold office for the fi)r;t yvar of the nn's t 1 existence, or until their successors are el vcted and have " • t r qualified, are: k NA -HE STREET ADDRESS I JOHN E. LAWSON 940 N.W. ] 8 ] st St. r(,r, t s North Miami, Florida 33169 x 1 s ARTICLE Vlli i lnitia] _]11cc)r1'©ii+tar (a:) r The mines and addresses of each su)j�cril.,rr t.o t.)Icse Articles of Dicorporation and the nulnl►er of :shares that vach ayr cues j to take, are as follows, to,wit: NAME 51'1U, -,"I' ADDR)iSS SHARES MELVIN WOLFE 10651 North Kenc1,331 Drive 500 Suite 200 Ati.ami, Florida 33176 I the proceeds of which will amount to ,ai: lr.ast $50U.00. { .. ' 4 .. 1 L1'Jof. rIrI S 1V1111.+.l.f� �'�t71.1'!' (1 fil{�1',�i P. A. I.!1/.1.41.t' (Q�I?IDA r- h)(TIC1,I> l): l,y -j p- W The Board of Di t t•ctvrs !Aral 1 ;idu )t B3 -1,isws for this Corporation which may he i,menOud, all cal ed or rc pritlyd ),y Lhe shareholders or directors in any manner pee iaii IAr•d by the I'y-jalws. A101C1,E X Inde►nnific:�tion of ))irc-cl.Ul-s Mid Of fiCers 1. The coppoi-at ion ho) oby ir►de-mni f ins ;my tli t c-c:tor or officer made a party or th)cat(-,ncd to be n.r+de a party to any t hreatelted, peliding or cat r'd act ion, sui t or pror ocd i rig: t (a) t-,h(Aher civil, c) imitial, i)drnir)i::l rr,t.-Ave s or i rtvest i gat i ve, other Lhitn ane by or ill the right of this corporation to 131 ocure a juc gmenL in its favor, )» ought to impose a liability or p(mal ty on such pr.-r scan for an act alleged to have been conarti L ted by such person in h.i s capacity 4 S E as director or officer of this corpotaLion, or in his capar.iL•y t, as director, officer, cmh)oyee or of any c)t.)te.r cmpora- F s Lion, partnership, joint venture, trust or other (.nterprsse which he served at the request. of this corporation, a(pinst s k judgments, fines, -)mounts paid in stAtlement acid reasorlah)e attorneys` fees, ,actually and l)(iCr.;;.^.,,i)')]y'illcur)vd its a result of such action, suit or proc:creding ,or any appeal thore- in, if such person i)cted in good fitit)i ill the 1•c:,-jl;onahle belief that such action was in the lest inl.orest of this coipora tion, and in cri►ninal ,actions or 1» of:ecrdirrgs, without rea);on- s able (pounds for belief that. tech itction was unlitwful. The t.errnination of any such action, suit or proceeding by judgtnerlt, order, settle►rent, conviction or upon a plea of t►ulo c:ontet+dere or its equivalent, shall not in itself creat-c a presumption 5 - IA Ol'I'll'1 i rrritlOAr.t4 VM1.1 I' n t-,11r;l.oa P. n, 1.1.1/0il•11 ()itlt?A 10' i'VO t! 0 that any such c3iIt•r_tor or officer tlid I►oL ;at:L in tjorod 1niLit it% Lite reasonably belief that s►1ch ;action was in the br,st interests of the cotpor;at ion Or 1.11.1t he had rva► <,n;►ble t j(mildt for hel ief t hat such ;,ct ion was ur►1;141f u1 . (b) By or it) the right of this Coi11r.11aticurl to I'rc>ctlre a judgment in its favor ).►y reason of his hei►lg or leaving Lech a director or officerof this c•rar poi at irrn, or by i cam-ln of his being or having been a d.irr•r.tor, officer, employee, or �genL of any other coiporaLion, partnership, joint venture, trust or other enterprise which he r;urvc•d aL 1 he rorlue st of this corporation, acainsi_ Lhn rc:asonahIe cr.p(mscs, includirig aLtorneys' f ces, act ur-►31y and rlecessar►.ly incurred by him in connection with the defense or net t:)r•menL of ouch action, or in connection wi th ;an ;1ppea1 thrl Cei11, i f such Ile sun .acted in good fai Lh in Lhe rrlasvnable 1)e3 ief thilt retch .action was in the best interests of the corlaoa-ation. Such person shall not be entitled Lo indemnification in relat.ion t0 matters as Lo which such person has been aci juc3Uec3 to have tacen yui l ty r>% negligence or misconduct in Lite" per f urm,ince of hi.s duty to' the corporation unless and only to Lhc_ r-xtent that the court, :acimirlistrAtive agenc..y, or inv(-.Stimil ivr body before which such action, suit or proceeding is bold stall deteimine upon appli c.aLion, that dvspi to the mI ji0icat ion of l iabi 1 i t.y but in V]CW of All C1i'CUIII;iti111r.Cs of 1.11C 'mc)l I►r.'rson is fairly and reasonably entitled, to indenulificalic►n for ouch expenscs which such tribunal shall (ICL-m Ia1-0l►ar, z. Any indemnification under Section (1) shall be made by the corporation only as authorized in the Sp6cific case upon a determination Lhat- aanoints for which it di 1 ector or officer seeks - G - l.�t•r or r'Ic l'S t1;11111.44f.N, 110,0Ll I: I1 l;IJr1!,S 1'. A. ft.tl/•.I�l,l"1 c)It1l;A r ihdemnification were properly ij►currc!d and that. such dirert.or or of f icer acted in yood far th and in a manner he reasoi►ably believed to -be in the best i►►te)-est. of the corporation, ar►d that, with r espec- L to ;►ny c-i- i ►n i na l .r►c t ion car p) oc. c c•(3 i r►y , lie hod r►o reasonable yround for he) irf that r:uc1► action wr►s unlawful. Such deterrniraation shall be made either (a) by the hoard of Dircct.ors by a ma jor i ty vote of a (pinrurn con ;i �;t i ng of cl i rectors who were not parties to such action, suit or proceeding, or (b) if such quorum is not obtain ab.l e, or even if n h I a i Yin IA e, a quorum consi st i ny of shaya-hold--is who were not parties to such action, suit c►r hruceedinc,s. 3. The folcyoir►y rights of indemnification ,hall trot be c vumed to 1 i.mi t in any %:ay the powers of 1 his cent l►ot t i on to i t►c3cnua i f y under applicable law. ARTICLE XI Amendment This corporation reserves the ri►3ht to amend, alter, change or repeal any provision contained in Lhese Articles of Incorporation in the manner now or hereafter prescribed "by statute, and all rights conferred upon shareholders herein are yranted sub- ject. to this reservation. ARTICLE XT1 Powers and Ri hts of Directors and Shareholders 1. I-rom time to Lime to determine whether and to what extent and at what times and places and under what concl.itions and regulations, the shat eholders acid cliff c'c;tcrr , Of this cot paral ion shall have the right of inspecting any account, hook or documont of this corporation. 2. The corporation may, in its By-Lai%,s, confer powers upon its Board of Directors, or directors in addition to the fore- - 7 - of rir..1 5 1';I111�.!�f� i'/nl I I` /l1 t'�I�f}+'�i I'. A, P6DA 0-9-1 W going and in addi t ion to the bowers aut),Or i zc-(3 :end c-xPI crsly conferred by statute. 3. hoLh sIiareIioIders and di a►-c m !-, steal l have the 'j.)ower, if the By -Laws so I)rovi(Ie, t o I►oI d t. Ile i t I esl+c-ct i ve ►w-et i )►gs, and to have one or more offices wil-hin or withouL the State of Florida, ar)d to Re op LI►e bnoVs of Ihis cot lm;it ion (,r)bject to the litovisic�ns of the statutes) DIIIride III(! ,;I ;,I,(- of FlOridi), at. such places as may from Lime to t irne lie drsignM-ed by l.he hoard of Directors. 4:E, THE UNDEMS7C.WED, being each and all of the original subscriber s to t. lie coi►unon ;;toc:)c ter r ei nabove named Tor the Put pose of forming a coi porn t i on for I►3 cif i t to do busi hens hni h wi tl►in and without the Sate of Ylorida, do hereby make, eul.,sc3-jbed, ac):nowl edge and file these Articles of I nc_ui purat. ion, hereby declaring and certifying Lhat the facts he3ein slated are true, and do respectively �jgree to take the r►u3nber of shams of stock hereinabove set forth as to each of US, al►d :►ccar(lirrc 1), have here- tofore set our hands and seals this y2501_ day of _ November 1981. 1 ' � rrjtsr:�+L) MEIN IN aOI,FE (SFAL) (SEAL) r STATE OF FLORIDA ) SS COUNTY OF DADE ) I HEREBY CERTIFY that on the day and year above written, - 8 - 1 .%,, no, I'I[i'S v-,(-x r r, r:,t?o-,s.f. A. .r.tit r' r irlt)A :�, ON personally appeared before Ine, the tl100-r-igned authoritty, r- MELVIN WOLFE and Lo rrle well Y.t►own to lie the purson(s) who executc-d the forc(joit►g Art iclus of Iiocoipor.aI.ion raid i acknowledged before me that r.;,mr- fI c'ely and voluntarily for the uses and purposcs 1 h(I) e in !;nt foi th tat►d ) f expressed. 3 i � t NOTARY 111114i' l % .r;'I'h'I'F: OF f i'ol i DA 1 All LAUGH'. L s • I�ly C:r,mmis::ion 1:>:1�irr�s: 1401ARr iutUC SIAII OF tlMip/. AT LUrd Illy (U--.tAj5S►oiI I0►'It!S mAt ?D IVHS /oliDID Irikv Gtta;kAt INS , UIMjtwtjltKS I t t; k. k 'R Y it _ 9 _ I LW QVI*IC. I'S 1r:1111MA14,VIM IT n CA 1'• A. BrItartuirtit of L*talr 1 certify the attached is a true and correct copy of the Corporation Annual Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is F56716. CR2EO22 (1 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 JC,n*ff6L- �r"�. I � ���1tI11r1��11�, J ll��•�•�4i �CC1'l'�211'll llf, �ti1�C e.1 � 1 icr VILE NOW FILING FEE A PROFIT — , -- CORPORATION ANNUAL REPORT 1999 DOCUMENT# F56718 1. Cort,(vaticin Nw,le WERIAL SANITATION SERVICES, INC. MAY 1ST IS $550.00 IFIORIDN DI'l"ARTN'IrNT 01 SWE IISO NW Om ST 11100 NW. 9XI ST MEDLEY FL 331", MEDLEY F1 33166 PlIncipiv. Place of ev-vs-, AM,tts 41 1 2A I'D six I to S e . (C44 2,p 11L cnwj 1301 Y. Name and Address of Ctirritn! Registered OkElerl S13FE825 PH 3-00 tl�IIhIINGNII�I�IaiINIIN'iNPIIIflWI�I� 00 1,1111 WROF IN THiS !;PACE 3 Mill' '6 .1 thaal,l, 1 1 4, f i 592144378 I Nee, Ap t I il $ 8.7 5 r $5.00 mA, Art ivl h, f ve f I I ...... fly I a, 10. Name and Aeldiets 01 New Floolstefcc! Autril c 7 CORPORATION SYSTEM % C I CORPORATION SYSTEM FIT,. N,vul,,—, N 1200 SOUTH WE ISLAND ROAD Isi t n 0 fj- ri I;- FLOWATION FL =24 -1) 1 404*1 rft,,&W5 f" C. 17 0!,Gi A14 1,07 1508. Flo-da Slatuiri-, pie atgw.- A.'"Wo Cr.tjy,W'W. VK.ce 0, rep slv,CC, aent, tv b7ln, m tkv 5W, of V o"e" si'l. ch^nw was 4"Al.0,0'ed by I,,u c"(j—X—W5, I. of 0-1, V. I A'. f III V,r? Am rani. -11 Nith- AIII ftcli`;d Inc of, Soct-on Q7.0505 I lcnda S1.11.04 SIGNAL U RE 12 6ri ict 4, &N[) c)IRcrTc*4s 13, A000 IONS'Cl 4ANGE S IF 0 OF f ICk IRS ANO DIRECTORS IN 12 LAWSON, JOHN E SR 943 VAN BUREN ST. tic) 5-e r., ('MIS, 10 HOLLYWOOD FL Fill. Dil F It I C A14 -Y LAWSON, JOHN E JR k" CO IS li-A, A,)5 8160 N-W. 93 STREET .'(,*4,. —W—DtEY FL I• IMI I %'A I cna-j� I I sov'o, Ilk. I 1 .17. 8 VL--*,otx. 5s 1.15 Hit I W4.1i 1a 14 (1!- It (it cc If 4 1 1-41 IF IT A:AV4 $,J, PiTiOdIL t +11 SlAs% 4 3 6 1 N, I• k lic) 4 4 ' 1, ;. �. LiAt "Itif 0-b N k.E 1 PL —Ii3o k tl,011 L I C., —,e PAW 14. 1 M1=1), that trip Int t' sqw -6 ?,1, fwloa d,�u ly i,i, v r--111,II in %P.'I-nn 115. Wj.1XIj Ill'.,M I It 11. r cftn. Illi IN- lnfomial,Jn "I I it v4ce th'i, annual cc;.q W Foil is i"ic, and 0, v"I"Ir, 111.1 Ilia, Wv I,,1 shall hart thir, sj,,,c It(IM t4tc.1 ipt%., I cl, un' office, claeclof of um corpr) Y. r I, r o' tluitt)otnq%crwv,&Otuc.xc.Eutvt,,�stky�,rlh',IC40'1-CIIIYCt-3,'�le"bD7 h6!-3JSWh0(j& and 1W AppC-m. in Bi00 17 ly EI(c,;i, A-,, -1 0-Irlo an nlllesS• wel, A" r SIGNATURE: (95� ) IM 1 I- 1I Ib 0ri C'- ,4 a ' w ` "/ 1 7 /9Q UURPORA i E 1:?unI L RECORD SCREEN 12: 15 PM ( MUM: P5671H SI : F1 At.; I VE/F1 PRC)E'? i rLIN 12/02/ 1981 l AS1 : MFR'(A-:R FLD: Or.,/1.5/1.998 FEIN: 50-044 7£t l NAME : 1 M!'F lt.l /ll "idlld i. I A ( I r)N S1.F:\1 [ c `( Ei . ( Nc . PRINCIPAL I I F.. E I If S-1 RI k (. 8111 11.00k CHANUED: 02/25/99 � ADDHE.S`:; F I L AiJIM HIM! E. 1 J .','; so I RA NAMt. i.' I t i 11:I'Ltlaa I I i)N NAME, Clf(; : '.)fA1 ?719R RA ODOP C I (1L1111 ON0 1 J OEI `:' T S I FI't ADOR CIEG : 08 /O 7 /98 I SO(I f i l P ) NI_ 1 l AtJI I;I l/11 > �'LAf^11A1Jr�tJ. E(.. .3.••.?`?� lI:•� ANN REP 11991) HY 04/ 1.N/` l (199R) HY 04/.1 7/98 (1.9W9) J 02 /25/99 s 1, t 1.. MENU. 3. OFFICERS. 4. EVENTS. 7. LIST, 8. NEXT. 9. PREY i' t ENTER SELECT TON AND C:R: i 9/17/99 OFFICER/DIRECTOR 01-1011- SCREEN 12:15 PM CORD NUMBER: 1`5671.8 (-F)RI I NAME`.: I MPFRI.AI SAN 1 1 A 1 .I (JN ERVJ.L,ES. INC:. r: 11. ILE : G NAME: HUDSON I IA111t.1. `; U1 s . JJO W hill `�If?EL_i. 'tllll LL(:)1)1; FT . I- L 31101 1 J J L E: P NAME: COSMAN" J0111'S, II 110 S. ( 6111 CIlt:C: (. '.'8111 Ft.13OR F T. L At II) Pl )AI F. 1 1 ',.:;.3t.) I ' TALE: S NAME: BARCLA'r . 110VII) A IJO S.1 . 0111 911411121. 28111 FL(.O F-1 TITLE: 1 NAME: L.AN(. I. OWA14) o J 1 1 110 S.1 . 6TI-1 91HE111 'V8IH FL.JOR F'I . L.A(II)EPHAL T•: , 1: L. ..', 330j i + NEXT. PREY, 1. MENU. 2. FILINW, 3. W. 4. EVENTS I t 7. LIST. £:). NEXI BY LISI . 9. PREV BY LIST ENTI-R SELE.(::T ION AND (.:R: L Q/17/99 EVENT DETAIL SCREEN 12:15 ISM CORP copr, smius: ACJIVE CORP NAME IMPERIAL SANIIA1111H SIfRVJCFS. INC. LVFNI IYPf f 1. L Lt.) E, F 1: E (I I I v E . DESCRIPTION DATE DA FF I,1Ek(qF.R Oh/ 151199F-' MERGINU 109R000041849 MERGED INTO' F56/lf-,t + NEXT. 1. MENU. 2. F3LJNQ. S. OFFICERS. 4. TUP 7. LIST. S. NEXT BY LIST. 9. PREV BY LISI ENTER SH-ECTION AND CH: ARTICLE'S OF 1NCO)t1)0ttI1'1'Yf7t� , 1 6 S f C'!1 / OF jA1(�'7c/'f r t , AI . IMPERIAL SANITATION SI:RV ItTS, INC. � nIU,q The iji0vt !--;i.p)c d, f+)r ( l,r pui of fe)imitrn a vr)r),r)t at. ir)t1 under the Florida General Coi pot anon Act, do (es) )1c1 eby adopt the following Articles of 71Icoxt)olaf jolt: ARTICLE I Na tale The x,ame of this corpoa atj on is If P11"RIAL SANITATION SERVICES, INC. ARTICLE II Term of Cor})orate Existence The cox })oration is to have ex i tit vnce Una cuss (1-i n sol ved accord lna to law. ANTI CLE I I I , Pur po.,;P The PurpOses for which this corl)oratjon is c)ryanized are: (a) To engage in an industrial and commercial waste removal s service; to engage in the buying, selling and dealing in industrial and cununercial scrap, salvage, refuge, rubbish, 0-ash, junk, offal, garbage and debris; and to further engage in the collection of jn(.3ustrial and com- ►neicial scrap, salvage, refuge, rubbish, Lrash, junk, offal, garbage and debris. To likewise provide any and all necosssary vehicles, containers, and other receptacles necessary for the business of the corporation in- cluding the obtaining of various vehicles and other eyuipmont for the transporting of same. To further engage in the maintenance of disposal facilities for the items of the corporate 1)US]11ess and to do all other things necessary for the furtherance of the c()rf)orate business. Y: 4 !•1'/cat 1 1�'I S 1':141114 V,' I I I' A ►,1;0'.`$ 1'. A. 1-1 f)►?ICA o; go (b) To require by purchase, or ofh(•1'wise, for invest- ment or resale, al)d Lo Own, operal'e, Subdivide, 1eane, let, llfort(jisye, sel l and oLhr=rw) 5t' di ;))w;e (if , for ci.-sh or on credi t by convey;an(.e, ;Icj)(,cw(2lrt for (Iead, L)1 otll(•r 3;iwf ul inst rumc•nt, l on]. estate, or mi;•ed lea ol)C•rLy, ]c)r;Ilcrd in ill(? State of Y)orida, ur elsewhere, and oeiiejally to twal in ;in() i.1;affic as owner, ;)cj(-nt or broker, i.n real estate, pel sor)al 311d mixed l)Iope! Ly, ioid any intercrst or estate therein, including suh(li vi sirens, aparLment Douses, 3e5i6ences, stores, office huildings, m;a►)ufacturina Sights, avid the lots or p,11 cel s of ],-Ind lipon which 1 hey ii-ay be 1 rwi1l r�(3 , ;)lld Lo create, town, lease, sell, Operate and deal in freehold ;and DO1d c-stnt es of ;Illy ;111d ill) Cl),al ;ICt•(•r l,h)!t !�f)(!V(!r, and to be ;In investor in real and pet :;anal prop(•)Ly. (c) To lend and barrow rl/oliey, he a surety, execute bail bor►ds and to execute and ciel iver, accvpt, take ;and receive 1101.es, borlds, 60bentul es or 01'1lrr (.vldmice s Lhervof, mid fllort-g ayes" trust deeds, pledy)es, or other ,ccjir-itics fur the payment of sisme. (d) To acquire by purchase, subscription, or oLherwise, and mortgage, pledge, or Otherwise disPcrse of bonds, imi cs or, other securities or evidences of indebtedness, and Lhe shares of coraul,on stock created and i!:sued by any o1 bPr corporat i(�n or corporations, association or ai:sociations, and to Purchase, hold, sell, assign, Lr;ansior, 111oligaye, 10(. tic, or rAhr.•rwir,e dispose of any bonds or: other securities or ev.idenc:es c:l c al e d by or i!,sued by any Other Cayporat ion or, coi porai ions, association or asSc)caat ic�nr. and while Lhe owner of retch stool;, t.o c Vol ci sc' all r ights, powers and privileges as such (ownership, incltldiny the right. tic) vcit:e F' the same, and to do any and al l l;lwfill ;acts or 'thinys designod to protect, Preserve, improve or enhance Lhe value of any such bonds, - 2 - / i'i ( 1 1 1(' 1 S 1�ili� t l.� Gtt 1�if)) 1 (",1?1 )�'•°i 1' A. stucl:s, or oLher �(-cur ities or evidcnc•es of indehtedness and I.o yuarantee dividends upon sh,•rres of the common stock of any of her ro) pol-at ioll in which this CmI'm i,t.io rl, i+L ,my time, may ),r intvic";lyd ,rs a �,LOCl:hr>lrler Lhc-)C-of, and to endorse or othr-rwi :e un:11i,ritue the princip"71 and in1 (.1 ust, ur ei I her I hr).r,of, of nol.vs, horrid or other evidences of inc elpte6liess c•rrated by i--sue of r;rlch col pr,rat.iun; to deal i.n its own stocks or brokeraye liusincr:s. (e) In addition, the corporation may transact any and all lawful husiness for which corporations may be incorporated urrcier the Florida General Corporations Act. ARTJ('LE :IV Authorized Shay -es The maximum numhrr of --har cs ()f sl ocY. with par value that this corporation is authorized to 1►ijve out st andind at any; uric time is --------FIVE HUNDRED ------------ ( 500>.xxx) shares of 4l . 00 parr value common stock, ock, which common st_ucY, slial l be 'crf a single class and which coiimion stock shall be Section 1244 common sLoch pursuant to the Internal RcVenue Code of 1954, as amen aced. ARTICLE V Initial Re ist.ered office and Re i !-,t rrr:d.. Ac ent The street address of the initial registered office of { the corporation is 940 N.W. 181st Street, North Miami, Florida 33169 The name of the initial Registered Agent is MELVIN WOLFE whose pr i nci pa 1 office address is 10651 North heridall Drive, Suite 200, Miami, Florida 331.76. !laving been n;ime,d to accc pt ne i vice of prr►r.c!rs for the above stated corporation aL my principal cri fie a adcli cans dar;iynat.ed in these Articles of Incorporal ion, 7 I►c,reby ;rccept to -rc:L in this capacity, and agree to comply with the provisions of r,3id Art rc],jtive to keeping open said office (pursuant to F)c r.i 3 Statute 607. n314). 1 I - 3 _ ICI?c)'.!", r n. I.'.Il.1.11,1 I C)RMA r 1 ARTICLE VI Pumber of Directors i Thc•: bus i mass of t he (.u) lour r►t i oil r1►!i I 1 1rc IlIij1►,,47c•d by a Soard of Directors cons t in of one or not e mr:►ribr•rs 1.he exact. � y , 1 number to he dcetcrmined f►um time to time in arr_cordiiiIce with the 13y-laws of the corporation. The initial 13u;,rd of Dij ct.ors shall 1 consist of one Directors. AIVP1C1. , VI1 Initial Board of hijecturs The r►amies mid a ,Guesses of the f i j st. Poaird of nirc-ctors, who, nut,ject to the Provisions of these Articles of 7r►corl.-)oration, the Py-La%,:s of this corporation, and the laay.:s of the State of .Florida, shall hold office for the filsl: year of the c•orpoi ation's existence, or until their successors are elocted ant) have qualified, are: VKHE S'1'R1.ET ADDRESS JOHN E. LAWSON 940 N.W. 1815t St.rcet North Miami, Florida 33169 P I%RTI CI,E V71 I E. Initial Inc oiljolaitor (s) r- The nartnes and addresses of vach sub-,cri).,rr t.o these Articles of Incorporation mid the number of shares' t hat rare)) agrees to take, are as follows, to,wit: NAME :;'1'Itl:l>T AL)DIt1,SS SHARES �-. MELVIN WOLF'E 10651 North Kendall Drive 500 Suite 200 Ati.ami, Florida 33176 the proceeds of which wi11 amount to it 3ce,�st $500.00. - 4 - I Ati'. �1'I'Ifl S 1';►{I!'�•r.N 1'+nl.l'I' (� f,t?r),,S P. A, r n l+lc'1' l (' 1,13' 1 X py `,aW's 50 The hoard of I)i 1 (rct.tjrs --),all ;,dopt 13y--Laws for this col- ulralion which mt(y l.,(' altvi d or rc•pt-tiled by the charcholde)-s or di rectors i.n i1ny 1nrinnc l l,(1 n�i t.t cd by the 1'.y-l.rrtrs. APTI ct,i> x Indemnification of Uiiectors land Officers 1. The coy po)-a t 1 on hr" (-by i ntic•nu) i f i r_ s any di r ec t or or officer made a party or threatened to be n.;1de a 1.arty to any t hreatetied, l,c,rccii ny or ctmopl et ed .-ict ion, suit or pror-eed i ng : (a) t;hct_1�: r civil, c1 i)nin,-1l, administ r;,tive or i 11vc?st i Oa t i ve, cat her than one by or i n the right of this corporation to p)-ucure a judgment in its favor, b)ought`to i enpose a liability or penalty on such person for an ,act t alleged to have been colldni tied by such person in his capacity as director or officer of this corporation, or in his capacity t as director, officer, cn)ployee or noent of any other corpora- tion, partnership, joint venture, "trust or other rrlterprise t which he served at the request of this corporation, against judyrnents, fines, amounts paid in settlement and reasonable i a r aLt.01•11eys, fees, actually and n(-cc!;stir) ly incur) od as a result of such action, suit or proceeding or any appeal tl)nre i- k, in, if such per son acted in good faith in the re.�l.onabl e belief that such action was in the best interest of this c:o) pora.- F L tion, a11d in c)-iminal ,actions or piac?odirigs, without rea.son•- able yrot)nds for belief that such i)ct icon was unlawful. The termination of any such action, suit or proceeding by jt)dyment, order, settlement, conviction or 111►on a plea of 11010 Uontendere or its equivalent, shall not in itself creaLe a presumption 5 - 1OII IP-4AN %W11.VI' /L 1—,I?(1`.1i P A, I.'•1L1:`IJA 01?IPA =nE �+ 9 w 7,20 that any such director or officer did r,ot act in gc)ud faith in the reasonable belief that such action was in the best 1r)terests of t1)e coo pora1. io►l o)` that he had real ;Unable gl O11nds for belief that such action was unlawful.. (b) By or in U 1 e right of this corl,(,)'at ion to 1)rocure a judgment in its favor by reason of his ))Piny or havinq been a director or of fi c e r of thi s cOi.po) at. iOn, or by 1 c•:)su)) of his being or haxring been a director, officer, empIoy(!e, or agent of any other corporation, partnership, joint venture, trust or other enterprise which he served at the rryuest of this corporation, acainst the reasonable expenses, including attorneys' fees, actually and necessarily incurred by him in connection with the defense or settle -went of such action, or in connection with an appeal they) ei n, if such pei sun acted in good faith in the reasonable belief that such action was in the best interests of the corporation. .Such person shall not be entitled to indemnification in relation to matter s as to which such }person has been adjudged to have been quilty o.L negligence or misconduct in the performance of hi.s duty to the corporation unless and only to the extent that the court, administrative agency, or investi(iative body before which such action, suit or proceeding is held shall deter►nine upon appli- cation, that despite the adjudication of liability but in view of all circu"Istil"ces of the cage, .;uch person is fairly and reasonably entitled to indomnificat.io n for such e>:1)enses which such tribunal shall ducin proper. 2. Any inde)nnification under Section (1) shall be made by the corporation only as authorized in the spocific case upon a determination that a►nounts for which a di 1 ector or officer seeks - G - t.t,%,. orrIc'rs I . A, '20 indcmnification were properly incurred and that: such director or officer acted in yood faith and in a manner he reasonably believed to `be in the }pest interest of the corporation, and that, with respcct to illy crirnina] ,jcti()n ur )!�uccr_c3irry, he h.+d no reasonable yround for he.l i (-f Lhat si)ch action was unl awful . such determination shall be made either (a) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (b) if such quorum is not obtainable, or even if obtainable, a quorum consisting of sl►are)rolcicrs who were not parties to such action, suit or proceedings. 3. The forcyoiny rights of indemnification shall riot be deemed to l i.rni t ill any way the powers of this corpoi—at ion to i rrc3c:mn i fy under applicable law. ART]CLE XI Amendment This corporation reserves the right toamend, alLer, change or repeal any provision contained in these Articles of Incorporation in the manner now or hereafter prescribed by statute, and all rights conferred upon shareholders herein are granted sub- ject to this reservation. ARTICLE X11 Powers and Riqhts_of Directors and Shareholders 1. From tirrre to time to determine whether and to what extent and at what times and places and under what conditions and regulations, the shai ehol clers and di j veto): s cif this corporat ion shall have the right of inspecting any account, hook or document of this corporation. 2. The corporation may, in its By -Laws, confer powers upon its Board of Directors, or directors in addition to the fore•- 1 •/ W of r If; 1's r ( f. x; y; +5 %','141'IIs VWO I 1 1 A t;I?O''S 1'. A. 1-11/1M11,11�1 ORIDA ,}' 0. going and in aodi t. i on to the powers author i?ed and exprettly conferred by statute. 3. Both shareholders and directors shall have the j.)ower, if the 13y-j,aws so provide, to hold their 1 e�;pe ct i ve i c eL i ngs, and to have one or n+oi e offices within or without the State of Florida, and to ker•p the hoo):s of this cc>i poi at ion (Sul-)j(rct to the provisions of t)1c strjtutes) outside the State of Florida, at such places as may from time to time be designated by the 13oard of Directors. WE, THE UNDEPSIGNED, being each and all of the original subscribers to the coirunon stock hereinabove named for the purpose of forming a corporation for pi ofi t to do busi r►css both within and without the Stater of Florida, c30 hcr'(!by make, subscribed, ac):nowleoge and file these Articles of InCol-poration, hereby declaring and certifying that the facts herein stated are.t.rue, and do respectively agree to take the number of shares of stock hereiriabove set forth as t.o each of us, aiid accordingly have here- tofore set our hands and seals this 25th day of November , 1981. i 1 OL �1 _ _ (SEAL) MELV I N 901,FE _.. _._.._(SEAL) (SEAL) k a., STATE OF FLORIDA ) #' SS COUNTY OF DADE ) I HEREBY CERTIFY that on the day and year above written, I r.rr Of' VirI's 1��I�ITt.tr.N. Ivc71.I.r r, c:,17O',S.F'. A W,IAM1. r-1 0 Q I D A 0 10-1 1 � . � t ;,d 0 �. r-- personally appeared before me, the ut► lv)-siyntrd i►utl►ori t-y, r MELVIN WOLFE ► ► and F 1.o we well known to be the i person(s) who executc'd the ftarc•Joiny Ai-t iclos of 1103.131 ion and i acknowledged before me that 1►e/she/1:1lcy the ;�lllle f1 c-ely 1 and voluntarily for the uses and pul-pores t. hc�rc in !;et forth �►1►d expressed. 1 N( TIMY PMAI,J C,�J `;'1'A'1'F j CIF ?, i3OR J DA AT LANGE. My co mllis!,ion Exp),rrrs: N01ARY POWC S1AII Of 110rD/. Al LU(A i r-- NAY C0.,,14155.1014 11.1,WS MAX 29 )Vol BONDED Imku GtN-KAL I14S , UNUtkwklltkS i r c t } f f l { t { _ g _ Lh1'�f)I I'If;l"S %':I111t•'•/N,1'll)i.IT 8 t l7P, A. 1. IAMI.1*1 )jitlp/ i DrIlartttirill o �I�11F I certify the attached is a true and correct copy of the Corporation Annual Report(s) for the year 1999 for IMPERIAL SANITATION SERVICES, INC., a corporation organized under the laws of the State of Florida, as shown by the records of this office. The document number of this corporation is F56718 CR2EO22 11 99) Given under my hand and the Great Seal of the State of Florida at Tallahassee, the Capitol, this the Seventeenth day of September, 1999 � aff -0 � —rXS L �rrrrt;trtt of �►;t1r dr4., � , •� • FILE NOW, FILING, FEE AFTER - CORPORATION ' ti ANNUAL RFPORI fir' 1, 1999 ` =o. _ I]nCUMENT # F 87 j 8 1. Cdt�nlc,n Nang IMPERIAL SANITATION SERVICES, INC. ''15T 15 $Sa0,00 f101t10A0FPAf,1IfTN1 Or STAir Kothrrtnt Narrls Sat rclmy a1 SI•Ilf• utvls«,Npc cfn1+•cruAnpus 1'r►• wnt PIArr rat Ate• i.c as ._. •MA•►rag AAArrls #110 NYY. Im. St. elm NW. gm 91 MEDLEY FE 3MN MEDLEY YL 2310 1{RLipPI —rift, c,_A0Bvi -inets-W • 24. t.1,!ruq ndAlpyo uitn, A;It M, Mc N,u1N ntd P rlc Ny1�StAte�`1�s1�.Dt►�£���-, 7el f.�y�sl,t�l•1�Q-1'ii�IC-I �i••, � CnU nl• i •tI C"Mir .l•Y 29, I_i3301 1301 S JJFEB ?5 PH 3:00 ]r•al.l\iiiti:•`:i.;.I LO{i1UA I11111111 till 10 111111Ill lip 111111111111111111111 DO NOl WRITE IN 10S SPACE 9 h�dr III; nr�,,,'n,••., nr (a1.rlJt-d 1 12�02� 1981 11 4 11 111 nppLCA i M 59-2144378 '00' NrA ni.P+l AtA► SV,75 Addd.;rlAl S SI�,i Ai ,IL•n1 �:1 •I.,. I,o•,r,•c, { [ f re FteglrNn;1 I b rbn, f,nmpnnyt 1 nNNw,q ( i 55.00 h1Ar C.r I r.t•.11 Innl (:•••nrrl,Irll ••1 A,Id!•d ►, f WC'. F, 111,'r � 1„1„ r,Al,rn nMl'•• IIIV r llll,•r/l yt•A• Inl.11ttl'hbl 1 •,,, I,rr,,.� Ih.•,.r•dy 11t, 1 1\\•!. 1 IN,1 O.,N►ms OnA Address of Comsat negltleted 4gtn1 40. No and Addles+ of New Rrplste,ed Agent C 1 CORPMTION SYStEAI % C T COti ORATION SYSTEM e2 sl,, el n•In•o'.a tr cl I,rt. N•ntlhr• ,. u•,1 nrr.a,1 1 I, 1 1200 SOUTH PINE MLgM ROAD e3 t C11=1 r) O P r -- I; ; :,1- - — 4 PIMAT10N FL 33324-011W/33 --0 1 13 0138 e+ Illy +Id+11t:1C,(t. IIN fff -O.Ctb .. 11. Pweollnt In ii,r -rmnv.q',nof srrnnnc Gal WAI? nnA Itt7 1!,OP, hn•ida SlapAns the Mn+r,• n•mN.(I il,r. xLdrnv-n! I0116, thn V°•>r of OiA. ll•nq If. rtgylrrt•:1 011 c`t 0, 1eP Ste led apenl, ln, t-Al,, In 11,t SLAIc of F III I0a SOct I chittypn WAS 1,01hnl if CA by PIII (U•sn v.l;Nni /, in,.v 11 nl 11.1111f 1 hr•r{•y' nr1 ft,1119: nl,[•n. It,I w,A rat IL 3ml,•n.A agent I am fArdhat whit, nnA ncce;d P,r nlNigabons d, Suc.tim C0,0505. I kodn Sta6110t SIGNAL URE ¢Iv..,., IIiH r•1•r,.1 n. _ ,,,. •r �. , i.l ... n,. r.,.. .:. l,i ql >•. I, •. �,.I.•r, i, •.: .. , .. 1.•. -, l„T 12. - - - - Uii ICt RS IVFO DIRE. It,ftS - 12. At,0il(ONS'CliANGES 10 DT f ICERS ANO DIRECTORS IN 12 TI �� LAWSON, JOHN E SA K ut1E,E W. H%.k1b60t1 +►-, ls�Yt c^rw' t In •b-r a,ltF,r�nracs 943VAN BLIRENST. IIs,Klllu r11,1 00 sl. EN F cfn.s,.�P HOLLYWOOD �cFL j I.c•I..S, iA' pii, • lt��htFt�,t+tf ,P l 33301 it 7I III I t� t IE11,,'T• [ fAbt :•r, ware LAVVSONJOHNEJR 77n:••I J>jtAtS 1(, ebst0 Ilrcl,►ix sa 8100N.i 93 STKLT rtsn111r1.r,a. ItC 5'� • {/14 �, zP cA,•s,sp MEDLEY FL 7.u,t . „ F } (AvA,it�Alt( T-l. 333ol (Iwl it r•n•11 �j IIEnrni. II41•�q- 11AtIf � 7 7 A \• 1 �` �,c'� �• h 3' � �.51 � T W OEI. $MCI ADrlssl „ s 11111 A•.n•I ac C'"'-,E ,+rr•.sl J. i,., v.MP aHHrr rl. ��3p1 ,nti— "}•----- 1 7-- I Ic,o•,q 1 InlR,or .. _. i1hf l.E It 1,1+i1 S,aFFI mw fsl 1)sIW 1111•, s,i"� Itc) [,• ll'� LA06, III a�1 2P F{o01L p1Y.St.iY ,r.It f,: �{, t.hvte�2-DrtUE, FL ,33.301 Tlil[ '— - -. .�... .. ... •1 II1ttEil. SlUhl [ I(.r.t,g• I Inl►'rx kLk* SIFFF t AUff1f 9S S I sI i.,1 t 4•v.A tt Writ .` .— — .` .. _- �.. _ _..... (. I bktE i E 6 1 Iu,F Cn7+ge O A&I-ty W/rE 67\Sa SlafCIA0 &s 6)s'Iti(IA'/Ya a<. (II SI_If' 1t, I horny rf,t•1yy IhAI lhn tn(n,n 11+ tU n` A wyr, 1,15 hhnq d(•cs nil r1.,7,I,ly hlr t,lo rrrnil,lnn !,t,ltr.l In Sn;,Inn 11!I gTlll[II i Il•N I:/ S1:N nU�c If, Ihrl earl. It' IIN• v,tnnnnlN,n kOceted an t`lit runup+ itJ><Ir tlt •I crfilA mural "Wt i Is I'm and n•�hrnle # n 1 IIIAt wy mynlmro Fhwl hn.e It(anmo LnaJ o11dA ns Ir m o Un;ttr ,: Ihal I om fn otfce, or dnectol o1 the tor pn 8 1 In 1 ar of IIUSlUO Tn Kihvpled to eAH Vle tll+\ 141n•11 P4 Il•d V"IAI by Chapl¢/ UUT 1 lnrid,l SLIIIIIpE and Laic a1+.,Wars In Ulock 12 or blo,k llf it rJowl I, , ;nrhmanl r.,dt An ndd,rr.5, wits, nit ol+lrr b'.n r Inpnevrrrd SIGNATURE: Al AA, (..hews".. t_ •,t1,1.0w1I11h I1 Ic,rin 120 r IWPOHAIL' OLT , ().11'. 1 1 1.) 1 14 L 1, 14 120% PM F5671)3 S1 W nu I I Vf /F I PIAVIN I Flo: Iy/0v/IpHI ('I)pV'0ImIF I'lF.Wil - R !Lin 00/1.5/199'S FEIN: 50-214437H NAhiF II'll'I.WhAt, S ,AN I j,p I I,lk:, I [,r)t 11() f;,v, f,111 JRKI, SHII-I FIA91P (Aimllul-1): 01 1 1 1 I\ L I . 1,J7, JOE I'Dol t . I I I I A.) 14 1, 10 W) I ILEIi n(A)R ANN REP (199/1 BY 04111/Ql (w9s) Hy 041111"8 m9g) r u2W/99 I. MEW). 3- OFFICERS. 4. F,'VENIS. '/_ 1-1-S)l . 8. NEXT , 9. PREY 01-11) GR: 9 / 17 /99 OFFICERiDIRWOR 01 IAIL WHEEN 1205 PM CORP NUMBER: F56718 CnRp NAME: IMPFRiol SAIIIIAIJON '.`3I.--RVIGES. J.N(_'. PRIME - 110100'.:" W 61H SIRELI WIH WHIP LL W 1.1 1 1. E 11 NAME: COSIvION. 10111 '; H 10 . ()III I . ' Ill-.i I I I I. I I ION I . I Al JI it pi qu 1 b I Wf)) FIT& S NAME' BAW I(Vi. 1)(Nit) (1 TITLE: T NAME : t A I -It - - I- 111,W)14) A I I I 1. IV K K , 111 !1 9 1 IVE 111 . Wivyl f1j"JR + NEXT. - PRIVV. 1. MENU. 2. FILINW, S. lI.P. 1. EVININ 7. LISI. S. NEXT BY LIST. 9. PREV BY LISI AIAD GR: I t "/ 1 71YI? t V!. NT t?I• I A 1 I. 1C,R1.. E. III .! .'.:.I `a Pil 4 k F CORD NUMB R _ F561.18 "Opp S i A LUG; : Ft(:1 J VF f"1I [t? O011-. 1 '.iU..'i 1Saf31 C(:JF;{•' idfaMl- IM!'t f-t1AL .iAIJLlfalJC�i•1 ;-:;(:l�V1C'I `>. itd('. (.VFNI I r E i U.LI� f:L! t ( I It l !)I I n t I. C:(Jf�!'(1f1A1 L MEf:Gl F' 06 ! 5/ 1 `?`a ' f`1f-,k(; THu 1,1980)000el".84,4 I141t.' t + NEX1 . 1. MENU. 2. FILING. 3. OFFICERS. 4. T(lf' 7. LISf . B. NE:X1 BY LIST. 9. PVFV BY 1 IK( E:N I F:k SELECTION ')ND (;N: t i } x t k; g E 1 -• �i 4 o )11t J) C1,L5 U1' J WCU121'O!ih'J' 1(rld �/Pf ,� J < <P SFL'll OF rAt r /11 I/ !: 1 �((, fll7ry%r/i 114PERIAL SANJ'rl+'rlcrN INC, The 1111(le) �'•i'J►►c'r3, for ( Ihr 11111 of f(l) 11611rl ;.I rf,11,1-11 r11 ir))) under the Florida Ger►eraI Corpoi aLic,n Act, do (es) hc,) ccby �,ciopt the following Artir.les of Inc.o)1>0)ill ic>n; I:r,mc The narnc of this CUJ po+ s,t. i On i S Jr-11'lAUAL SAW TATION sF:f2VJCLS, JiJC. A1t'1'I CLE 11 t t Term of Corporate E>:istc))ce gr r, The cot por a t ion is to 1►dve pi:) p1•t ui►l r>: i !:1 once unl r. s , a d'i'nsolvea accoldina to law. r f e h f- The 1)urp0ses for which this rarl)01-)1ior) is c)1Uaiiized b are: f (a) To c-r►gage in an industrial ,and commercial w,)ste removal service; to enyage in the buyir►y, s(-11 ing ;)))d dealing in indusLrial and cuimnercial scrap, salvr7de, )refuge, rubbish, (,1;►sh, ju))k, offal, yarhaye and debris; and to further engage in tire collection of industrial and cum- nlr.7 cial scrap, salvage, refuge, rubhi sh, L)-a sh, junk, offal, (larhage and debris. To likewise provide any and all necessary vehi(:les, containers, and other receptacles necessary fox- the hu sines s of the corporation ill - chiding the obtaining of various vehicles ,end other equipment for the transporting of sane. To further engage in the maintenance of disposal facilities for the iLenns of Lhe corporate husiness and to do all other things necessary for the furtherance of the corporate business. 1 !•1'/ C;I r'1)'1 1';stl l'.�:.1! 1'rc►1 1 I' %, 1,1;1Y.'r 1'. A. L',I/.'.'II 1'l f)1?1(,'A (b) To acquire by purchase, or of hvrw3 se, for i nvcjt;t.- ment or resaIe, and Lo own, operilth, Sul-irlivi de, ICan,e, iet► nulrtyitye, se]1 r)nd oLhr- rwisee (li !:e ►)f, for c•!!�h or on (:rediL b I Y G convey:)nce, r,c�) c enur))L for or ol-l)(•r 1riwful insl runm•nL, real j s estate, or mi>•red in Ilw SI;fle of 1.1oricla, or elsewhere, an(3 to fle.11 ill 'mo I.1af f )c ils Owi)(`l'' i'lM.-Tit or { i bi-oker, in real estate, let !:oval mid mi xt•d l)► (1ljV) Ly, ;+))c3 any i ntei'VSl. a or estaLe therein, includi)►g suhdivi,iuns, apartment houses, 1 )r.si6enc.es, sto)e, office buildings, manufacturing 5.idhls, and the lots or pai c:c] s of l;)nd upon which they t1,ay be lr�r�)1 r;rl, t)ttd to I Create, own, ]case, sell, operate! alid deal it% fry hull and 1r;::;G• )told (' -Lat us of any alid ;ill ch-ll a ter 1tih,11 !:r)(!vot-, arid to I1C ;in investor in real and 1)e) :.anal piupr) Ly. { (c) To lend and bor)ow money, he a _:ure-Ly, vmx cute Lail bonds and to execut e and del iver, +rcvlA, t ake and ) eceive r t)Ut.es, bot16s, debentllres or ol'hrr (.-•v.ici('tlres the)'eof, alid IUortgaue,, trust deeds, pledges, or other ,r--c)iri Li ur, f ur Lhe payment of .j)rle. g (d) To acquire blY purchase, subscription, or otherwise, and mortgage, pledge, or otherwise disl,c :,e crf bonds, r1r)t es or oLher securities or evidences of indebtedness, and the shares of common stack created at)(] i�:stled by .any other c:orfrorat ion or corporations, a::sociation or as;rr_)r.iations, and to pitc:hase, )told, ::ell, assign, t.rrinnf or," 111ol tfinge, plc•13(le-, or oI.hr?l•wi re of sponu of any L)o11ds or other necmiLipS Or (!vid4111ces c)i:-alipd by or l!:sood by Amy other corpoi-at.ion or, carporat ions, _association or ansociat iclns, and whi le Lhe owner o1 st)ch stock, t o vxr,-1 ci ,e al i itjhts, p(,we)•s ano pr i vi l eyes a s such ownershi p, i nc:l ud i ltg 1'.m 1' i91)t I.o vc)t:e the same, and to do any and .ill lawful acts or things desiynod to protect, preserve, improve or enhance Lhe value of any such bonds, 2 t <•1Yr l 1 I( I"S W►1111.�l.t� tYOI (I' /i t",Irf)''.�, 1' A. I.tlAMI 1101�1(?A stocks, or other sr -cut i t i es or evi(i(-rnces of i ndcht.c•dt►es5 mid to guarantee dividends opon shares of the common !',I ock of ally of lw col porat.ic))) in which i.his Col )IOr,)t ic)n, ;IL mly 1.ilne, 111;ly )jo int(•Ic..;(rd as a .tc,c):hoIder t)Pei eof, aIid to crllciCJl sc or (Ahr-rwi ne utlai i)I►tve the ))1'311cII ifild .I III (.?) cst'., or ci I h(.r I ho) (.(If, of II(Ji.(?$, holI(I ,, or i ether evioelic:es of i116c ht L.) cat (-d by i'.rue of !:uch Cur porat, ion; i Lo deal i.n its own St. ocks or b)clYcr;►c1e IMS,]IIr_ 4 (e) In addition, the corporation may transact: any and { all ]awful b(3cincss for which corpo►-at3ons may Le incorporated under the Florida Gencral Corpor:It.iOt1S Act. R c hPTJc'1.E IV r AUt)I(.,1.17ed Shm.V4,; E The maximum nulnl,cr of 2`1r+1 c's Of S1 t)c:k with l,;Ir v;13 ue that this corporation is aulhorived Lo have' bul st andin(3 aL .lily i one t idle is - - - - - -- - FIVE HUNDRED - -- -•- --(50oxxxx) shares of r l .00 par value common stock, which cc)mm11on stuck Shill] b(! of a sinole class and which c-ollunon stocl: s)►all be Section 1244 common t sLoc). pursuant Lo the Internal Rev(?n)e Code of 1954, as amem3ed. ARTICLE V f Initial Rcyist_nrcd Office and Registmed•.Acjent { The street address of tic initial reyisLered office of the corporation is 940 14.W. 181st SLreel, North Miami, Florida 3 316 9 '1')Ie r►:+►ne of the initial Regi sLPrec3 AUCInt _ is MELVIN WO).Fi: s: F wl►ose p)•incipal office acidrems is 10651 Worth Kendall Drive, Suite 200, Miami, Florida 33176. t t Ilavirl( beell lialliv(I to accelA t;vjvic:e of ))),finers for the above stated corporjttiort AIL my principal office adc ions do.nigiiat.ed in these Articles of Incorl)oration, ] h(•t eby accept to mA in this capacity, and agree to cc•)nlply with the provisions of !,aid Act relat.ive to keeping open said office (purs11,11A to Fl( i i t StatuLe W. 34). 1 1 3 _ 1.AV. GI' I*irI'S 1','IttIWA14,1Yf)1.1'1 !i l;ltc)',�,.F' A. t.tll,1.11,1 101111)A r 1001CLE VI Number of Director:; 111hc busi ness of 1 he (.'m pur ,+t ion 1 he by a hoard of Directors cOnsi �,I i ny of one or moi c ►urcml.,r•rs, the ex;ict. number to he detertit ined f)cam t jme in t ime in a(_-c.•o) dr+nce wi th Lhe By -Laws of the corpor-al.ion. '1'1►e i ni ti aJ Buarcl of Di r ert cars all consist of one Di rectors. I+Ic'1'1CI,I: VI Ini t i a] Pion 1,Cl of 1)i r cart ur: The names art(] aduressus cif the fir sl. P.oard of l)irr•r:lors, t u:ho, subject to Lhe provj!;jOtis of these Articles of Incorporation, the By-La%,:s of this corlxmration, art(] the laws of the Stale of ilcrrjc?z, shall hold otfjce for the first year of the c•orl+rir,•rtion's existence, or until their successors are elected and bave qualified, are: IUL►-IE S'f RIA."T ADDRESS JOHN E. LAWSON 940 N.W. 181st S1.ruet North Miami, Florida 33169 hPTICLE V311 lrri ti al Inc�or por iil or (:;) The manes ,and addresses of c 00) subscr i bvr _ to these Articles of Incorhoraljon and the n 111I.Wr Of :;hares i hat c'irch a( cues to take, are as follows, to,wit: NAME ';' AR'l,T ADDIII::SS SHARES r•-. MELVIN WOLrE 10651 North Kendall Drive 500 • Suite 200 Miami, Florida 33176 tbe proceeds of w)zich will amount Lo at least, $500. 00. - 4 - t J•1'1 of, rIrI S 1'/01-VI` n r,I?Q,5 l'. A. I•'.IAMI 1'l COMA .4 100,1 C 1,1; l >; t3y _Laws The Board of Di r lrct.urs nhal 1 i,d(-)pt l.y -J.i)ws f or thi s Corporation Which may be i'Iltei)deo, al i vi lid or rc•lu•i)lcd I,y Lhe sharcholders or (3i)-ccLor r, in imy mamicr pe) mi t.trd by t he By -Laws. ARTICLE x Indrmnificativn of t)i)ccto)s mid officel-s 1. The co.- po)-at ion hr i eby imlem)ii f ies itny di ) er:Lor or Officer made a party or t.hreat.enced to lj(' ii.iide a party to any 1.111-eateiicd, l)(2liciiny or CL)D1lletcd action, suit or procer-ding: (a) V.het.her civil, cl imiImI, adminiSt r:,l.ive or i ),vest i oat i ve, cat. her than one by or in the r'i yht of this corporation to procure a jimamenL ir) .its favor, hiought to impose a 1 i abi 1 i ty or p(mal ty on such pr-r son for an act al l ecyed to have been committed by such pee son in his capacity as director or officer of this co)-loraLion, or in his capacity as director, officer-, employee or mic-nt of .any other corporn- Lion, partnership, joint venture, tru t or, ol.hr.) riit etrpr i se which he served at the request: of this corporation, against .. r jt)dyn,ents, fines, amounts paid in sel.tlement and reasoriable aLtorileys' Pecs, actually Mid Ill'C(3!:SA)'lly iI)CM')MI its r7 result of such action, suit or pic)cerdiny or any .appeal thr�re- in, if such poison i,cted in good faith in the reasonable belief that such action was in the bast intcre ,t of this ro) hora- tion, and in crimin,al,acLions or p)oc:eedirigs, without reason- able yrounds for br.l i c f that. such ;ict icon was i)nl r,wf ul . The termination of any such action, :quit or proceeding by judyic+ent, order, settlement., conviction or upon a p)cta of Bolo c:ontendere or its equivalexit, shall not in itself create a presumption 5 .. t ! �� 1�1't'I('t ► N011P,41.I4 W01.1 1' (ti 11. A, IM/1"I.IA ()1?IDA I, - that any such disc -slur or officer did t►oL c,(:t in cjr)Utl faitFl in the reasonable belief that such i+ction Was in the best interests of Lhe cc,) l,clrr+l ic)n c)r l hat he hi►d rers!.ur►i)ble ►,) (,ands for belief that such .,(lion WaS unli,wf►►I- (b) By or in the right of Lhis coilloval icon to I,tOcure a judgment in its favor by reason of his heiny or havit►ri bean a director or officer of thi s Co) ))Of ill ion, or by ) c•ason of his being or having been a (3.i rector, of f icer, clnp)oyee, a ;+yent of any other cui-poration, partr►ership, joint venture, trust or oll►er entezpri se which he !;crved at the revue sL of this corporation, against Lhe reasonable expenses, including aLtorip eys' ices, :actually and necessarily incurved by hi)n in connection with the defense or nett:lemc:llt of such i+ction, or in connection with an clpl/Val theireirl if such l,c•) sun acted in good faith in the re,ason,al-le belief t:hM- nuch action was in the best interests of the corporation. Such person shall not be entitled to indemnification in relation io matters, a, to which such person has liven ad jmly(ld to have been uui l Ly of negl i aence or ►ni sconduct in Lhe performance of his duty to the corporation unless and only to the extent that the court, administ) ative agency, or inveslicz,ai iv(- body btJore which such action, suit or proceeding is held nhall detc: n)inc upon appli- cation, that despite the ad judic:ist inn of liability but in view of all cll'cums mites of t.11e ca!;(-, !;Deli pmnon is fairly and reasonably entitled to indcrnn)ificaLic)n for such cxpenses which such tribunal shtl l l ducin proper. 2. Any indemnification under Section (1) shall be made by the corporation only as authorized in the nl)(Icific care Isl,on a determination that amounts for which a di 1 ector or officer seeks G i.t.v orric:rs VI/•.1A1.11 /))tlt?A I `O 0 ' a iridemnification were l)lopeily incurrcrd and that. such direc-l.or t: s or of f icer acted iri good fai Lh and in a rnal,nrr he i casonably fie] ieved to lie in Lire ).pest iritcrn�;L of Lhe c•oi-poiat.ion, aril that, wiLh respect. to lcny r:riminaI .,ccti(m err l)rc,cc•c•cling, he iirld 110 reasonable yiound foi- helic,f Lhat !.uch action was unlawful. Such determination shrill lie made either (a) by the Board of Di rectors by a majority vote of a yuorLim con ,istirry of clirector, who were riot parties to such action, suit or proceed iitg, or (b) if such (Iuorurn is not obtainable, or even i f o))t a i icabl e, a cluorurn ccrnsi st i ng of share_holdr-is who were not parties to such action, suit car hrucee(33nc)s. 3. The foi e•going rights of indc:mni I ication .hal l rout be c;c L-med to l i.rni t iri any %:ay the pci%-mrs of t hi s coi poi iA ion to i lrciclrrn i f y uncier appl i cabl a law. ARTICLE Y,I Amendinen t This corporation reserves the ricj)it to amend, tiller, change or repeal any provision contained in these Articles of ]ncorharation in the manner now or hereaft.er prescribed by statute, f and all rights conferred upon shareholders herein are granted sub- ject. to this reservation. I ARTICLE X11 Powers and Ri )As of Directors and Shareholders 1. From time to time to OeLermine whethor and to what extent and at what times and places and under what conditions and regulations, the shai eholders and di1 cIctui s of this coi lcorat ion shall have the right of inspecting any account, Book or document of this corporation. 2. The corporation may, in its I3y-Laws, confer powers _ r upon its Board of Directors, or directors in addition to the fore- 3 t. I'I w Of I'ICI S VM411►,�A14 V101 i 1' 8 Go 1?()'*,") 1'. A. I.;I�•Lgl.t'l r)MDA �; � 2 0 4 i, going and in addi t i€rn to the )rowers :4ut)lvr i zcd ;,lid r->, rsly conferred by statute. 3. Both shareholders and have the j�Uwer, if the ny-Laws so icle, to hold their r esp(.-cl i vr_ nic-nt irrgs, and to )rave one or more office, within or without the "Late of Flox'ida, a►)d to ker_•p the books of this crrtl,crrat.jon (,u),jr-ct to the t,tovisions of the Otil amide till, St;+i.r, of rJorida, at such places as may from Lime_ to time he d(•sir►l)aj.(--d by t ire 110,)rd of Directors. WE, T1►E UNDERIS I GNIED, being each and all of the crr i g i n,r l subscribers to the coimion !;Lo(:k hvrnina)-)ove rrarnc•d for the propose of forrniny a cotDorat,ion for )rtoFiL to do busiiiens both within and without the State of Florida, do hr_reVy make, subscribed, a0mowledge and file these M-Liclr_s of Irrrurpuration, berc:by 6eclariny and certifying that the facts herein Stated are true, anti do respectively agree to take the number of shares of stock hereir►above set forth as to each of us, and .Iceordiriyly b ave here- tofore set our hands and Seals this r2501_ day of _ November 1981. 1 � (� (SEAL) MELV114 901.FE t _..... _ _.. _...-(SFAL) _ _.... -....._(SEAL) STATE OF FLORIDA j 3 SS COUNTY OF DADE j I HEREBY CERTIFY that on the day and year above written, I A%Y01'1*If I's ""IT""1! 1':s')I.I')'ro G170',5.f.Il, ►..IAMI VI ORMA pro 0,-,o flu i t,crsonally aPheared before me, the uI►dl�l ;iynlrll ,►uthority, MELVlN WOLFE to lne we] 1 known to lie the person(s) who executed the farc'(jclijig ArticI(.:s of IW-0)l+c,ra1 ion ioid i ackncw]ccdcled l-)efore ►ne that he/shrfthey the !;�tme- fl e(--]y S and vo) u1►tari ly for the uses O"d JIM-POSes 1 llc"rc'in "t fol th and expressed. 4-6 -111� 14t1'Pirlty I'11H1,1C';TA'1'F' OF -i3OPl DA AT LItItG}:. 6 f1�� Ccnun►i sr;ic�n i:�:J�.i rc•s: NOIARV 1`01,11C S1A11 O1 ►flair?/. Al Lord f MY {U—HASS1011 Ir. MS H.+t %D lYH5 110I1DID lmku Gl,vckAt 114S. O?JtAkw&JltRS } F F E i. t. gg t r is e t` L LW QVI'Ic1*5 %,.,1 1mtul4, viol rr 1a l;i�c)�'.�, I'• A., L IAMI, I'1 t)uIt)J i'E.00 lk, Mr. Joel E. Maxwell, Esq. (Interim City Attorney): Or... Vice Chairman Plummer: That's what I was trying to recommend. Mr. Maxwell.: ... you may want to leave yourself a little room, in case you finish earlier. Vice Chairman Plummer: What? I Mr. Maxwell: You don't want to have to sit around 'tll seven, should you finish the agenda early. Vice Chairman Plummer: I said, unless we finish earlier. Mr. Maxwell: OK. That would be the P&Z (Planning and Zoning) agenda. Vice Chairman Plummer: After the P&Z... Commissioner Teele: Mr. Manager, I will agree to... Mr. Chairman, I will agree to whatever you want to do as the Chairman of this meeting, in the context of the order of the day and how you move the agenda. Vice Chairman Plummer: Sir, the... Commissioner Teele: But, just so... Just, so that the Commission is on record, and the Manager, I would very much like to have a discussion about bringing back the fire fee with a procedure that the fire fee be used strictly to address the capital needs of the Fire Department coming up with an emergency ordinance today to address the fire fee, so that the fire fee is used only to address the capital needs of the Fire Department. Before, it was 51 or 52 percent, which was the total budget. The capital needs were about two to ten million dollars ($10,000,000) or whatever it is. I would propose that we take up today, an emergency ordinance to fund the fire fee, limit it to capital items. And, I need to know exactly how much the capital backlog is. But, I can tell you where you are going. You getting ready to start trying to raid the CDBG (Community Development Block Grant) to buy fire trucks. And, that ain't happen, guys. So, you know, we may as well start trying to figure out how to work through this thing together, or we need to agree that we are going to all go separate ways. I also would like an ordinance this evening, an emergency ordinance, a companion ordinance that will address, with Commissioner Gort's permission, the need to bring some sanity to the commercial accounts of garbage. I' Because, I can tell you what's going to happen. We are all going to vote to put the fee on the homeowner. And, that's not right. And, there is no reason why we allow a half a million dollars ($500,000) of garbage diversion to take place. We have got some 21 accounts, and today when we bring this up, Mr. Manager, I want " accounts. And, who is paying and who is to know exactly how many yd-Tapes 1 & 2 8 March 24, 1998 '�P ?� 0 not paying' But, there are some 21 people who have permits. And, what I would like, Mr. Attorney, is for the ordinance to transfer this from an open permit to a "true franchise." Ten, twenty, year franchise kind of concept that allows for a major fee t:o be paid. Initiation fee, like a quarter of a million dollars ($250,000) one time. And, let's start about getting real m,)ney in here. And, I can tell you this. I have talked to three of the five people that are paying, they don't have a problem paying up a quarter of a million dollars ($250,000) each on an initiaa_ fee. And, we need to talk in terms of a transition rule for those people who have not been paying that provides that if they are going to come currently, they have got to pay treble damages. Because, let me tell you something, it's 21 people that are getting permits that... And, of the 21, 15 are not remitting one dollar. ($1). Not one dollar ($1) are they remitting each year. The industry acknowledges that, Mr. Manager, that there is probably as much as a half a million dollars ($500,000) of garbage being diverted out of the City of Miami in net. dollars to the City. So, I think there are some things that we need to start talking about in a serious way that we do. The fire union has got some ideas. I know that Commissioner Gort has been looking at some specific ideas. But, I think, you know, we don't need to wait any longer to start having a serious discussion about whether or not we are going to come up with the revenues to run this City. And, I am particularly concerned about the Fire Department. And, I think... I have had to drive through downtown, today. That fire today, was a serious fire. And, it involved a response from Miami Beach and Metro -Dade, or at least Metro -Dade. And, two hours later, the fire was out of control in downtown Miami. If that's not a warning, if that's riot a clear message that we need to take care of the business of the City of Miami, then I think, you know, we have... We really are missing the boat. And, so, I don't want at all to belabor this point, Mr. Chairman, as it relates to the ordinance. But, I am here to day to you, and to my colleagues, like the Tallahassee legislature, there is nothing we do more important than item number nine. And, I just would respectfully urge the Commissioners... Commissioner Gort: Mr. Chairman. Commissioner Teele: ... to look at this item seriously and let's just don't wait around until the Manager feeds us up something. And, Commissioner Gort, I apologize. Vice Chairman Plummer: Mr. Gort. Commissioner. Gort: Commissioner Teele, well, I'll bring my discussion later on when we discuss the item. I agree with you 100 percent.. I think we should agree and discuss the revenues that we are going to do. And, I think the Manager, at the least, have received instructions from me. In approving this budget when it was first presented to me, I had the full understanding what the budget was, and I made my motion based on that. And, yd-Tapes 1 & 2 9 March 24, 1998 r (1) (2) I It CiTY OF MIAMI -' 1 LOBBYIST REGISTRATION ' Lobbyist Name, �CAST n' NAME, f IRST NAME, W Business Phone ;.: Business Address / +% � � �''f ' ''-y�� �" r r 'r , ��, �? �i ZIP Z Principal Represented PAOr, (.✓•9 .,l ;�r'r%��� r�'':> �rl�,� , �� , .. �� c/ N , t ✓. 7 � t m 1.1 � Principal's Business Address +'') t� Yip - jr? T3TF�'i~RENT F`R0 (3) Specific Issue lobbyist has been retained to lobby Of representing a corporation, Partnorship or trust, give business address of chief officer, partner or beneficiary of same, and the names and addresses of all persons holding, directly or Indirectly, at least five percent (5%) ownorahlp Interest In said corporation, porbiorship or trust 1 ,/y'_f 1 ',� /t /� �i'✓;�1? _-- - (�'� rltr'GT f%l,+?r✓Cf)'s,I`�� - �z1�. 'It•�'r•r'.i�,y t1(�i-�"i Jr9��!`l f N,� iti.d y Sri,' a ,4 4,10 i'r[��rEL :►4:;vr�y. (4) LobCyists shall state the extent of any business association or financial relatlonship with any member(s) of the City Commission, any member of City staff before whom he lobbies or [ntendis to lobby. Lobbyists shall pay all registration fees ($500 annualty, plus $100 for each principal represented and for each issue a lobbyist has been retained to lobby on behalf of any one principaQ, and specifically define the issue for which they ,are employed. (The Clerr�icc shall reject any statement which does not detail the Issue on which the lobbyist has been employed). I do solemnly swear that all of the foregoing facts are true and correct, and I have read or am familiar with the provisions contained in Sections 2.313, 2-314, 2-316, 2.318 and 2-319 of the City of Miami Code, as amended, Including "annual registration, withdrawal, reporting requirements, definitions, examinations; penalties for violations and contingency fees.` Signature of Lobbyist; ~ ' State of Florida, County of Dade Swor� to and gubsqrib9d before me this C' �� ,'_day of ' l� J`_"�ZlC�1�yz: a ar'y or / pu C1er Ent Oat e �3 19 `r • Entered by it Y1 ��.� 6 (file7orm/Io-6 y s reg s ra ion -a `r,12Y {peg OIrICIAI NOrAnY Si.AI O. F.STHEn GUriil)[RO k is x CUA!MISSION NUMN n C C 5 0 15 14 MY dU T_ t�i DADE WASTE HAULERS COUNCIL, INC. BOARD OF DIRECTORS NAME COMPANY ADDRESS PHONE/FAX DAVE MCWILLIAMS MAC -PAC WAS IE SERVICE 362-7763/691-0520 2900 N.W. 72`1 Street 389-8528 (cellular) w Miami, FL 33147 (954) 252-7621 (h) RODNEY WALTERS ATLAS WASTE, INC. 769-2783/687-1549 850 N.W. 140' Street Miami, Fl_ 33168 MARK LAROCCA AMERICAN WASTE, INC. 556-0077/556-0436 81 2637 WESWEST�� S"f'REET Back-up Fax HIALEAH, FL 33016 (954) 581-5690 k MR. LOUIS DiVita DELTA RECYCLING (954) 968-9994 3300 N.W. 27AVENUE (954)974-3828 (FAX) POMPANO BEACH, FL 33069 (954)214-7128 (cell) (561) 230-8148 (h) MR, GREGORY R. DAVIS GARBAGE, ROLLOFF, (305) 620-0620 t DEMOLITION (305) 672-0393(FAX) 1602 Alton Road, Suite 602 Miami Beach, FL 33135 I 1 } CADE WASTE HAULERS t i , h4EAWRSlJS7 MEMBERS ADDREU PKNE FAX CONTACT A&B Roikoff Svc., IM 2095 W 76th Si. Hia*ah, Fi 33018 305-382-f= 305-382-S878 Wayne-- ` Arnerun WmarDisposal 2637 A' 3y ST, Hislesh, FI 33C16 20$-55"77 305-558-4438 'Mark Urocu - t A#lasWeste, Inc. 68B NW'34 !;t.,N Miarnt Fi 33588 306-709.2783 3054187.1549 Rconey - Big .Apols 12*r 11tion Removai 4-001) NW -6 Averse. Mieril, FR 33142 305-833.8976 305-436-1933 RcaaR — G� Captain rash. Inc. 3238 I+IP 29!h S T .. Suite 20C, Miami, Fi 33142 33S-836.5340 305433-dCS65 CoA, as Rom— � Davis Sanitation 85 Ives. Dairy FoMd #T 5-8, Miami, P 33179 3G5-653-c384 3d5453-9G44 may — t Delta Pe(,eycling Cora. 3300 NVY 2'+.h AvenLz, Pomoano Bch, F13MS 954-988-9994 954-970-^r5; AnWio Marzano— Galaxy Dump Tn:C�in®, I= 159", W 73 >tr^.et. !"We3h. =1 33C14 3CS-231-W;1 :"-� Ernesto Vidal— -?7_a Gaffe. RC%-ff'':)ern0AJ0n t C1 ' K 3trM,-M13r:,i, F? 32354 30-&"J-r820 30542C-3CO3 Gpg Canis — - General Hauiirq Service, inc, P.D. 3cx 42C&Id Miami.`:' 3314"<•0854 3C5-32-9-M 305-3245.1877 Barry Busts -- Jr1A nu;rst iar 'Haste 94B, W 73 .Str¢et Miami. Fi 33150 305436.71 N 305-a38-71.44 3'Ad Mocre- -ter?y Con'.ainerService 3890 W DCS+.MERCLAL BL'M.;#2'Z 300400•'2389 2S4-735-27'47 . c-%eh Cella Cmce Mac Pac. Waste Sery ce, Inc. 2 s0C N`lY ?2 SreeY, ?hia^^i. Fi 33147 305-362-f ?53 _0_r-&, 3 iC Gavid MONVIam8 ?.t-. 'Waste Cc+lecticrr Service, inc. 3= N►11 25th atra8t, I'Aami. Fl 33142 30�33-t 5'i 305-33:-�±995 Ra;nbcn iv'aste Service P.C. 30x 1'0718. Hiiaiean. F, 3.3011-DC40 ' C035 7. ?-c, 305-821-4ra17 Z-A4 G97 ?05-d91-0520 Ral; it Claz— 4�9 ^ AAX— i) U S&S Nat,Cral Was;e, In^. N 21,8r Rd ton 3,mch. Fl 3?A37 -•6; Z-53 to �03 Trash Hauling Servwm F=O Baax 92A381. Hcrn.estwa. FI 33M 305-253.5835 3C5,252-412 Ai Penda%rass - l nited=nvmnn-errral Service 2.50 NVI 25th Av!%e. 4Uam,. F► 33142 US-637-5078 3243'-2435 Carl Mi1;or� 19 Iota •ne!nbars Attorrep: "=ano isa 17W W 19 Sir3et. #Wj. Hialeah, F133M4 335.55&4.218 305-324-1753 water 4-23.98 0 ti 0 s., ... CALVE WAS TE HAULERS MEMSERS UST MEMBERS ADDRM Pt#O(VE FAX CONTACT A&B Raiiol# Svc„ Inc. 2095 W 7em ST. liia;eah, Ft 33018 305-362.1337 305=382.587e Wayne- i American Wwe;Disposol 2a37 W 31 ST. Hialeah, PI 33C16 305-55&X77 305-55&0438 Marls Larocca - ...� Atla91+ rite, Ina 685 NRN'30 st.N Mi3m+, 17133168 305-769.27e3 305487-154D Rodney -- w� � r S3 g Apple Demolition Removai 49100 NW 38 Average, Miarru, FI 33142 305-833.8978 305-436.1933 Robert -- ' Captair -rash, Inc. 3236 IYB 26;h ST.. Suite 20C Miami, Fi 33142 305-835.5300 3054334093 Douglas Ross -- Davis Sandaticn 85 fives Dairy Food. #T 9-8, ..Mlamr, Fl 33170 303.653-2384 305-353-9040 Ray - Dane Receydir►g Carp. 3300 NVY 27th Aver.we, Pomoano Bch, FI 33M 95A-968-9894 9$4970-0537 rW(o Ma no- Galazy Sumo Tmc�4ng, Ina Str»et.'�ialeah. FI 33014 30-231-471 -3G5J. 96 } Ernesto Vida)- GartKe. RclsoFf, Cemotcn 2701 1" ' 33 trzel, Miami, FI rr056 3C3-820-4t320 30542C•3CO3 Greg Davis - - General Hautirg Service, tnc. P.C. 3cx i2CLK4 Miami. F 32142-0$54 305-325-M 305425.1877+ Barry Bun - JAA inutstriar Waste ir58 NY'1,J73 street. •Waml, FI 33150 305-336.71Co 345-a36-714a 34lie Mcore— + t;erly Corftainer Service 3890 W 2CMSI,PC'A;. BL'vV *212 800-a8D-2389 cseo- Della Croce - mac Pa, Waste Service, Inc. 2906 NIN ' Bred, Warni, Fr 33147 305-382-7763 30569--.0820 David McwIllams - P.h.'r'rsste Cc Ie-cfcn Service, Inc. 3222 NW 21th Street, Miami, F 331a2 305-333-1571 305-a-334095 ! ear.= - N Wasta Service P.D. Box 1'0738, Hiaiean, F, 33011.0040 305-82'481' 3G5-89i-052C R3Ipn Clez- S&S Nal:arai Waue, Inc. ' C435 N State Rd 7, i3rr',lton each. s•133437 -664-7464087 -ae1`1-7- . Xex_ - Z - �C�Z�� ,�"� ��Ca`�� 2���-• ocl'1, ' Trash Hsui:n6 3.ervbce PO Box 924361, Homestuc, Fl 33092 305-253-W5 305-252-4812 Ai Pendergrass - L53 " 103 0 Lriited EwronrrArtal Service 2C50 Nip'/ 25th Avenue. Miami, fl 33142 345.837-5078 305437-2035 Cavil MiRon-. 00 •- 19 tote rent •*rS Attorney: Lj=eno isa 1790 W 49 Stmet. #200, Hialeah, FI 33014 305-556.4268 305-a24-1753 .� upcatec 4-23.99 Yam. a z 0 w W .a o 0 aaCitY.l,.GIX/lL0 Jdh't2(o� �d't�=• �rncw«T <mntTnrEi SU(Ir 300 (305)556 4266 FAX (305)R2f 17;3 September 28, 1999 Mr. Walter J. Foeman Hand Delivered City Clerk City of Miami 3500 Pan American Drive Miami, FL 33133 Re: Dade Waste Haulers Council, Inc., Board of Directors City of Miami Code Article VI. Lobbyist Dear Mr. Foeman: In accordance with Article VI (Lobbyist) Section 2-651., et., seq., I am enclosing the required information describing the Board of Directors of the Dade Waste Haulers Council, Inc., as presently constituted. Please add the attached information to my lobbyist registration file. s Sincerely, i Luciano Isla, Esq. f j LI/lc I s Enc. g1 i i F {'.: P V 7 /V0 V L _ tEL= Sep � 99 ADtu INIRTRAT1of3 (c) Any elected official who is R partner in a law firm or a stocUolder in a profeseionni nsso- ciation must. (144clove, in writing, to thn city clerk the name of nny client whose repTvrent.ntwn MUlt$ In n contributiot) (rf iel) p-T cCtat (!r rim". yr tho gTonn inonn n (1) 1n thc- )E�v flag/ in +h► ,ch 4+ d of'si i-M i­ Si purtiter: (2) TL the l.rr,f«R innrl t r;so::ist;io:i i.ts L:•)tich nnid (1Mci 0 i-•, :( rt sc}:ho}ci(r or hii:R lin nvcnrrrilijs mttrest; •:r (3) Th the <icctr:; of,;cij_3 dixectly (d) Every jwriinn whri ict o)nviclf.-d of a violation of this: P ection rhall be pkiiiishmi rse im-ovided in section 1-13. (Ord. No, 1021$, p 1, 2-1.'2-87; cwiv 19,90, fi 2-309) ARITC1,1: W-1. JOb3F YISTS SeC. 2-651. Apphembitit.y. Notwithstanding tuly prvvivion in the Code of the city, as amended, to the cont.rriry, the following shtaU be applicable in the city (Ord. No. 1(705i7, § 1, i-1& S6; Code 19$0, 3 2-311) See- 2-992. Pcnait.v Any pemon in vie}ntion of any provision of this article shall be subject to the penalty ria nmvided in section I -IS. (Ord. No. 10087, § S. 3-1 R-86; Coder 1980, 2-312 ) City Code cross rtPnrauaa—G(:nr:ral ponittiy, 1-13. Seo. 2-653. Definitions. AS Used in this article: Compensation me aria riioney or anything; of vaaluo or financial beneSt rccF=;ved in return for the performance of lobbying activities. Contingency tee means r. ftae, honu8, commii,- sion, or no►imonetary ►mnrfit ziN cOnlpcSisatioil which is dependent or in txily way contingent on the enactment, defeut, modification, or utliwr out- come of any ordinance, resolution or Action of the Stapp. No. 2 12=09 No.009 P.02 t 21653 city commission or unv resolution, action. revorv- mendrrtion or rlr-vision of any city honrd or of the City rnanrarcr (IT city st.ttf.f. �,t-JJFIt•:r,"ol" i'.irtlfo, ri po�,r)r_jlt, rer,-aa 4l tit►r)tY, lean, .-dvrs1ce, rrimbimternont, rie,pnait, r,r a.ny- t.11111►Z of VnIl.lt• ryind e by it 111hhviO rir priccipral for t.ho purpopi4 of lobhyillc;. Governricni trr mcnnns «nyotf- ernment, vvh-•thcr cicctnI. Fz I1q! inte,ii (•r hind, pair] or nnpniri, wlic• ir. p=-tins orz h�.7:,'cl.d' r•f the CS»it.c(f Stntep, the State of Florid.n_, t,r art). :isresacp, Political subdivoi.on, vpvciail diiitrict., county or nlurlicipality of t.hr.. State of Florictn. Lo6b- ier sr rnn1a all paid peif oro,,, 1;rrrl4, corpo- ratic,ris ccmrloyed or ret.flirkf'i by r 1.rincipml who seeks to encnurnpt- the 1?maRaur,, dofiin.t, or nivdi- fication of nay ordinance, rt-�snitition, action or docfaion of the city cominirsrion, or t►.slyt resolution, niC,t.irm, de6fiion or r(womn1cildatioll of any city hoard ur committer-; or a17y action, decision, or vocr)nlrii imdation of the city rnanrgrr during the limn+ puriod of the+ critire decision -Finking piwenrl ern t;ucih action, decisiun or reconln]endntion which foreseeably will be reviewed by the city commis- ,Un, or a city board or coitirnitt'.u. l.,�;bhvisr also rlieiinR any mcmber o1 the staff, of' the "lrbbyiast" (rap defined hie rteinobeve) vylio re- ceives for hiniaelf or herxelf- tiny compi-ris ation, remuneration or expanaes for conductinL, lobbying uctivideai., Ltsberyisr do" not mead aii attorney who Is a memo-er of the. P lorida B r reprt!meenting n client in enforcement pruceedingii beforr= the. codes en- forcement board, ur before the nuisance abate- ment board, or Lbaicipl nary or grievance proceed- ings befort Lhe civil riervice 4oard. Lobb'ty yiel dunot Ynt—vdi a city -w hen hen acting in hire official cauccity, or a city consultant vllleil actiIlg ill t+nch cap{►city. Lobbyist doe's not inean a government em- ployee acting in hi-Ohc+r official opacity. Lnhkvist does not mean n £oraigt: dignitary appearing in his/her official cupucity. CD2:39 09/24/99 11:08 TX/RX N0,8824 Q P.002 M tr' TIL= St?p 24e99 1 s.b5s MIAMI CODE ,Lvbkvijrr dnoa not mean n pwrson vrhri nivnr, ptil)liMbf--!t or eft Pm}>1opPd by A nA1A A lnrer, uerim- ical, radio station, tr)rvision Ft.ntion or ot.hnr bassi fide news medin. L ?L,j,yist floe^ »nt mrtnn H pvT-prcn whet m:'rvly appe.aro before the ti Rvor, city colmmist+ion, co v baArd or committee, the City' nintinFer or city r-,Oiff in rase inei.ividilnl Cf..pncity for tht- ptirpo!if, of re l.f- repremrntsstion to ehprer>sa Support for or clppo'. 4- tion to irny onl.(nrtucr, xzaoS<ativn, dceirion nr Action of that city rornrttias~i"n; t;r action, rernmiltpI drtion or fiprfasosy of Fsny c•il=, board or cnrnmittt-e; or any Action, decinian or recomrnCTt.�:ln£ion of t.lre Innyor, city managel- 01 city et_csx Lobbyist dorfs not mrsitn it perrou apnt�i3ri.isg Solely to pro -Ode factual infmmation r€yuested by the inayor, n mEmbcr of the city coma-wj". ion or a city board. Principal Means the pervon, firm, corporation, or othclr entity, whether for profit or nouprofit, which has retsinod a lobo}ist, (Ord. No. 10087; l 2(aXl), (2), 3-18-66; Ord. No. 10181, § 1, 11-1.3-86; (Frd, No. 10478, § I, 8 6-814; Code 1980, § 52-313; Card. No. 11a63, § 2, 3-20-97; Ord. No. 11627, § 2. 7-24-97: Ord. No. 11564, § 4. 10-28-07) City Clods croam Safer®aaa»— (ucla anforcmmrnt baarti, 2-612 eL seq.: civil mrn-im txiatd, l i(,•tab rt pmq. Bee. 2-854. Rpalstratdoen; fem, dixalrinure rw- quilimmeutsy log of regWared lob- byists; excanpflons frosu payment of fee. (a) A person may soot lobby ai city official, fa city board member, tite city manager or city staff, until such person has regititcred as a lobbyist with the city clerk- Such regisiaatioin shall be due upon initially being mtainwi as fa lobbyist by a principal, prior to any type of lobbying activity, and mhnll be ronewed on n year)y haais thers after. The annual regi-steratson fee for elich lobbyist shall be 1500.00 as an initial registration fee, plus an additional fee of $100.00 for ej eh principal repmaentod for cinch lnnxie lobbirA on bohal£ of rsny cne principal The reostxution fees required by the Fmotivii almll be deepovited by the city clerk into a separate account and shall be expended for Supp. No. 2 12:09 No.00a P.03 jmrlNtaaa of recording, trnr.scrintion, fedminiAtrst- tion fund/or an other afspociated coccus incurred in maintnininr these rmords for tevailability to the psiltlir.. ThI N city vommit; cicerf rnm.y, fir tt.s dincrf teon, wnivv the reVistrt!tioiv fv*, in dcnsoi)s1,tntrd in- t;tflncPF+ of fi,nxnosl 1111'0ahip Rvj-ftrd(VPfa cif thse clot-^ of the i.tIifiM r -ii;cilrts(i>>tI, t,li Ir 4It' I�'I,'I" Iet,- ,, ^tif-.n r. �zha) I oxIiinn Dt,, nrnbt:r-.2`1 of micIt cilI.in- 1hir pp!", and nhs!l he mire-7-0. o" n rIl)C'.ndr r Yetyr llosifi. (h) Every person requiredi to rcgister as A ;obbylet shall: (1) Regiriter on forms ).ernparC-A by the city Clerk. (2) Pay an initial regifatration fee of $500.00, plus an additional fire of $1W.00 for each principal repi-eeCnt.ed and for Inch issue the lobbyist hart been retained to lobby on behalf of unv ono principa); rases (3) Disrlose, unde+r oath, Ow, foliowing infor- mntion; a. Lobbyist's naine cold business ad- cirpiw' b. Name and business uddreas of cuch principal roprei3mit; C. The tipecific iattue on wlaifAi lie or she has been retuiaied to lobby; and d. If the lobbyist rcprct;cnta a corptira- tion, partnerahip or trust, the name and huninnis;d fiddretis of the chief officer, partner or 4. neficiary of the corporation, pr_rtnemhip or trust and the names and addresses of all per- sons liolcWig, directly or indirectly, at Ieaet five percent ownerohip inter- est in said corz:�oration, pwtnerahip or trust. Aseparabe registration form shall bH filed by the lobbyist and an additional fso of $100.00 shall he paid for each principfal represented and for each issue the lobbyist has been retained to lobby on behalf of any one pnncipul. Such ingua alkali be described with its much detail tits its prneticni, irichiding, though not limited to: is specific description CD2:40 09/24/99 11;08 TX/RX H0.8824 P,003 All TEL = goP 24 ,g9 ADMINISTRATION (where avuhcabler) of a veudina re.- qU"t. fhr irir.'itAtion 10 trill, ordine ce, resoluli0ri, 01& (1,iV•etr item" on the ngcndal The citF• Orrk or the else).' riouirn!-r— ltr,li rri<-±I r.ny r' rg- ietrntion vtrktvmt+rit kuhich dotry not provider a Oenr dceicri0ion cd' the specific i5-110 011 10rich 0111,11 iol113vist. 1111ta hs•cn rotztiTWd to ) (III lry. L.vt+l?;'rKt.n nhnl) icfi8ler on rm b+art+re, Aprit 1, 1997, rind Year)} In nccor- durwo wit.it tl,e ),r„�leioriE of t.lsin section. (c) In addition, cNvrry rvj irtrfurt t.hfill 1w re- Llisitr�d to strata .nr-l— ont1� et.,"e v direct or indirpet hartuness nssoCiRtiorl' purtne;- ship, or f111anci.al rcltrtaonalup with the innyor. any member of the city coministuon, n11y member of a city :board, the city irizuiugerr or a mombrr of the city 5tnff tlefore ivhoni lip, lcrbbien, or intondu to lobby. (d) The city clerk shall rnuiutairi a lop;, which shall he uptinti-i on a qunrterlY hrww by April 15, July if), Octobcr 13 Sand January 15 of encll year, reflecting the lobbyto: rt glAtrPtion.q filed in iiet:or- dance with this: suction rune) shall bc° dist.ribuuNd to the mayor sand city rommitcion. (e) This mayor, all members of tho city comnua- sion, or city boai-dri, the city manager and city staff shall be diliZent to w4certain that persona r"uirt-d to register pur nuunt to t.hie s ctfon hnve complied, by requesting rocord of ccmplinnee fro:a the city clerk. Tlie mayor, members of tbca Litt' cornmisaion, of city hoards the city nianager iced city staff' may not knowingly permit a purtion ,who is not regitite!red pursunnt to this Section tts lobby. (f) Each person who xaithdraws ria as Iobb-,,iat for a particular principal shall file An apprr)printe notice of withdrawal conrcrning representation for that prinvipial. There :Shall be no fee required for filing x notice of withdravitil. (g) The validity of any action or dotormirxutinn of the city, commission or any oilier city hoard or committee shall not ha affected by the failure of any person to comply with the provisiunti or this section. 8ripp. No. 2 12 : 10 No . 008 P i 04 W 2-ri55 (hl 'hu Pr fnlln-ing rovcra .rtvbu)l )-o roQuxr"J tx, rcXister biA will trP exf`rnpt frorli lla%'Inl� the reg- is4ratlon fee: (1) A permin %vho, purquant to Zile terina of a collective bnr(_nining a freencrit, has been designated awl if- 3'rr rccoplizCil by the city rr. t. ?c)?rt �cninti�'� ter +1 s.{�(leLt,ive hRrl;ninrn Arai( cornixrF.rri s�f�.ity rmploy- ee-s; (2) A prrvorifn) mlpeferlrig h<_foi-e the: cs„ilmia- NiEre:, cnxllrtitt:e^, t-.r 1±�;ftril *rrs 1,,•hrt)f (if the mmmunity's intercefat, ore rr vokintnnr mid without cvnlpenHrttion, r'^.rpretcnti.ialt the vnnitine• FS t, b, ,ns il')l rr?EtathtlEvl :• oramni xut.nrrr. uklVll as zf L.r<xpa era asftociation, it c- civic or larriicovmerr+' nnf cintio 11 public intcreet group, .A chtsmber "f cornmerce, or n ror.,rehantn' rturocation. (i) All rr soritration forms :4)al) ht� open to the public upon the fililig thereof. (bird. No. ltlflt37, � 2(nY,$), (b) -ts31, ;3-18-86; Ord. No. 10181, 4 1, 11-I:4-,P6: Code 198o, � 2-:�14, Ord. No. 11469, ¢ `2, :4-2t1-97, Ord No. 1156.1, � d, See. 2-655. Annual expendituirox report. A lobb3,iFt crhall annually :submit to the city cltirk'A nffice a ni' led ataturnent under oath Ust- _t1g 1%11 lobbying cxpeenditziree wid the sources fi-o:u .vlxich t-ttntin for Tnaking lobbying experrdi- tvrs:N� have, carnN. The iohbying ek-prrnditurQx shall include, t)ut riot be limited to: meals, entertain- nient and gifEri fur public officers and employetts for the preceding caleudar year. Dobbying expen- ditures Hhnll not include the lavbyiiit'i} own per- soni n1 exp- tterrt for lodging, meals, travel, Stilary, sand office Crpc-nSCs. S--rch staternent of expendi- tures, entitled " tlnniial Exp-mc itures Ritport" shall be clue on .11anutry 15 of ouch year. Such state- ment shiall be rendemd on the forra provided by the city clerk's office and shed) be o1wri to public inspection. Stich tstutemcat rhall bit filers, even if there have been no expenditurcoa during the pre- euding calcninr year. (Ord. No. 10087, ti 2((,), 8-18-86; Card. No. 14811, � 1. 7-13-89; Cudes 1980, ff 2-:ilti; Ord. No. 11409, 0 2, 3-20 97) CD2:41 0 f' 7 / 09/24/99 11:08 TX/RX NO.8824 P,004 tL- Sep 24'99 12=10 No.008 F'.05 ," �... # 1.6" &ec- 2-6M. lldtriRory opinions. 1NWIl Cann (a) Aa lobbyist, w1wrl in doubt about the rappli- cobility st.nd intt?rprettation of thin Articlo its n ptarticulsr context, shall aotiauit in NrhtinF the facts for aaa sldvir-orz' opinion by the cfty itwml(zY. The City fittnm"V shall W-rild .i Ptivar::r1"}' pinrtlorin to tviy iot-by-iFt r•ho oe c l.A mlvie;� An tco whr—OhAr s h., facts in n t),art.icialar vitat- 1h'tnlld cotastitutc ni Violation of t1 im -vchon A)) ndvitior_y opiiiitiru; (if the city satiorney shell lie nusubcTed, dated and furnished to ibo rite clerk's office and ,,bit)! l,c open to piih►ic ia7� c!itan. (b) Vie city clerk'F office rhnll hcc'p rill ndvi- nury cipiaiiota?s tsf thfi city ettor nty relat.itig I,, lobbyista and lobbyLng activities, AA wa?lt au fa current. list of registered lobbyists and their re- apective reports required under this nrticle, all of which shall be open for public intipoction. (Ord. No. 10087, § 2(f). (g), 3-18 86; Code 1980, § 2-317 ) Sqec. 2-657. 1 onaltien for Aolutiorju. (n) Any lobbyist Nvlio fruits to film the-, nnnctnl expenditaarca rlrirt by the- Innuary lfi AwAdline each calendar year shall be subject to a fine of $25.00. (b) Upon verification of a lobbyist's failure to Me the annual exrx ndituret3 report, the city clerk ishali notify the lobbyist by certified mail dint the annual expenditurc6 report nluot be filed within lava buaaineau dayu fallowing receipt of than aaotice. no name of Any lobbyism who fails to enmply with said requirement shall be automatically removed from the list of fictive lotk3data. Should said person wiuh to re -register ab a lubbyiat, lt&Ole shall submit a new registration form accompa- nied by w $500.(0 rrgnpop �rntinn fft: phin tiny nod id) outataandiug f zvu caccrurad prior to re-:mgiatraatio a. (c) The city clerk rhrall ,submit a'z report to the city commis;wion as to tho-Mi lobbyiiiti u,•ho have taUed to comply wst7t reglstTution an(Vor the an- nual filing requirement of this ordinance. (Orel. No. 100A7, 2(111, 3-tR-R6; Code 1080, § 2-318; Ord. No. 11469, 2, 3-20-97) 8e+c. 2.668. Contingency foex. No pet,Aota tahnll retain or employ a lobbyiat for componstation based on at contingc-ney few, and no per." to Aht.11 ncccpt nny rtirb rmployment or rem- oter any Rervice for compensation based on a cont-ingcric)' G,^ 4Orti. Nti 11469, v 2,,1-20-97) :�+ccaa. �t•(;C*fs--?-Ftf'Kt. FtEart�rti�t�ct. ARTICLfs VII. AFFLIiAIt "tTIM ACTION Sec. 2-43P1. Definittonn, For the purpoec of tMr, tartish, the following teralas, pltxnaes, words and their dcrivntives shall hsav" thar following nwixniri,q: . irmativc action means all t'ictions in recntit- ment, hiring, ispj-.,T afiini; sand olhcr urftsts which ❑rr detsigned to eliminatso the effects of past dis- rrfminntinn. AffirnantiuF nrrirrt plan mf,uny that written plum by which t.ho t it}• ootsa birth the specific: affirma- tive (actions ►.,y % lnoi it will aliTmnnti. and rernedy tht untitatrlrrunrtafuti„rt tuul/oc L,a�d�rutiliE&t.ia.i of ininorities umd women. The affirmative action plan shall contain goals and tirnetfablea. Dircrirninaiiun r.acrum mzy nk.t ur t5cty Which nanv advcnmcly alYcet the employ rnt�nt opportuni- tiem of illdividuaals b4-c3use (if race, color. re-lirfaon, sex, national origin or other fsactom tli at, by law, may not bf, crniiidtrrr^d ati a basis for employment fictions. Ueats and tzznrtahle rnetinK the projections an cuiployer makes of the nunterical repret3entration of minorities load women Uely to be achieved in tho-w poi:itionia in which they have been underutilized. Lahor marker means t1w stundard by which the employment Participation of Ncoinen and minciri- M5 its mp asured, basNd upon their xrgpective ir,cidoncza in l:Sro liif'r �F hlivaui �ivilirri Soiior Farce. *City Code vroae rrfor�ncaa—Aialsr*;b4ivz 8ctl4R eadva scary botim, p 2-wn et aeq ; aft1rsnotive action plan requtrad or hiddern on city motraeta, IB-l36 et seq. Supp. No. 2 CD2:42 09/24/99 11:08 >~70 99- TX/RX N0,8824 P,005 0 E t CITY CLERK'S OFFICE: LOBBYIST REPORT i f Name: f i Abrams, Michael Principals: Tel e-Communications_ Inc. Issue: Franchise Transter Name: Alvarez, Ramon Principal: Estoril, Inc. Issue: Request for approval of MUSP Name: Arnold, Deborah J. (Non Profit) Principal: Coconut Grove Sailing Club Issue: Lease Name: Ayaviri, Mario B. E Principal: The Church of Jesus Christ Issue: Building variances Name: Bailey, Herbert J. Principal: 8325 N.E. 2°d Ave. Corp. Issue: Real Estate lease from The City of Miami 305-856-0376 Name: Barreto, Rodney Principal: T.C.I. (David Krone) Issue: T.C.I. Cable Contract BFI Commercial Collection System Name: Bercow, Jefferey Principal: Terranova Biscayne Plaza Issue: SD9 Signage Name: i i Bishop, Brian C. (Non Profit) ti r Principal: Coconut Grove Sailing Club Issue: Lease negotiation i } Name: a Brenner, Richard M. Principal: Flagier Street Properties Issue: Approval of Class # Permit i 1 09/21/99 9:20 AM "`i4V Name: Burke, Judith A. Principal: Basketball Properties, Ltd. Issue: Development approval for adjacent parcel to American Airline Arena Principal: Multiplan USA Corp. / Brickellinvest Join Venture Issue: Development of Bayshore Palms Condominium Project Principal: Biscayne 7/9 Development Associates , Ltd Issue: JMD Delaware, Inc. % Mickv .Anson Name:. Callahan. Courtney Principal: Gunster, )'oaklcy, Valdes -Faun Issue: Road closure on N.E. 63 Street for Atlantic Properties Associates Name: Canton. Mirta (Mikki) Principal: The Miami Herald / El Nuevo Herald Issue: Newstrack Ordinance Principal: B.F.I. Issue: Trash Houlers Name: Carter, Harold B Principal: Republic Services Issue: Recycling & Solid Waste Services Name: Chad, Williard Principal: Charles Leemon Issue: Rezoning of property at 2500 Brickell Avenue Name: Cory, Jack i Principal: Republic Services Issue: Recycling & Solid Waste Services F i Name: 7 Cosicher, Moche Principal: Jorge Muniz Change of Zoning i Name: Darrach, Donald M. t Principal: 666 Biscayne Blvd. LTD Issue: Special Exception Parking at 666 Biscayne Blvd. - Paul Cejas Name: i De La Fuente, Bob Principal: No principal Issue: N/A r Name: F De la Pezuela, Enrique F Principal: Acosac Corporation Issue: Zoning Variance 2 09/21/99 9:20 Alv'r { f Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Principal: Issue: Principal: Issue: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Principal: Issue: Principal: Issue: Principal: Issue: Principal: Issue: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Deen, James Silver Bluff Harbour Approval of Major tIse Special Permit for property located at 1660 So. Bayshore Ct, Diaz. Julio Key Real Estate Development II, Corp. Request for variance at 194-218 S.E. 14 St, Dougherty, Lucia A. Biscavne Bav Tower, LLC Approval of Major Use Permit at N.E. 36 St. & 5 - 7 Ave. Silver Bluff Harbour Approval of Major Use Permit at 1660 S. Bayshore court Estoril, Inc. Approval of Major Use Permit at 1395 Brickell Avenue Key Real Estate Development II, Corp. Request for variance at 194-218 S.E. 14 St. Eager, William No principals Approval of Major Use Permit at N.E. 36 St. & 5 & 7 Ave. Echemendia, Santiago S. Pan Am Air Bridge NIA National Office Partners Approving the assignment of Miami Tower Association & Miami Retail Eagle Garage L.L.C. Special exception for surface parking lot Flamingo Garage Special exception for surface parking lot New Century Community Development Corporation Determination between the Proposed developer and Allapattah Station Design documents Point View Association Opposition to public hearing apr. by Key Real Estate Dev, at: 194-218 Brickell Ave. Fabregas, Jose Codec, Inc. N/A Fernandez, Ben Hasred, Inc. Land Use and Zoning Gallagher, Laura L. Media One Cable Television / Transfer of franchise from TCUAT&T to Media One 3 09/21/99 9:20 AM J ( ... Wj 2 O f a 1 Name: Garcia -Toledo. Rafael Issue: Victec Environmental Services Principal: Rafael Garcia Toledo Name: Garcia -Toledo, \` icky A. Principal: Saxon Development - Issue: Zoning Matter Principal: Tavlor Development and Land Co. ! Coral Station Issue: Zoning Matter / Coral Station Principal: Tibor Holler Issue: Major Use Special Permit Process Principal: Taylor Development aiid Land Co. J Riverside Publix Issue: Zoning Matter / Riverside Publix Principal: Editorial Cernuda, Inc. Issue: Zoning Matter 2727 S.W. 10 Terr, Principal: Mahi Shrine Holding Corp. Issue: Land Use and Zoning Change 1500 N.W. River Dr. Principal: Corradino / Public Health Trust Issue: Zoning Change and Major Use Special Permit Principal: Victec Environmental Services / Solid Waste Issue: Solid Waste Franchise Agreement Principal: Ader Properties Issue: Land Use and Zoning Change Principal: Coral Way / Point Development Corp. Issue: Major Use Special Permit for Brickell Bay Village Principal: N/A Issue: Representation at UDRB Biscayne ! Publix Principal: Tobv Prince and Kathryn Brigham Issue: Rezoning of property located on S.W. 2nd Ave. And 13 St. i Name: Gonzalez. Alfredo L. t Principal: N/A Issue: NIA Principal: F. & R. Management Issue: Amendment Article 6 Section 602 of the Zoning code Name: Gutierrez, Armando — Principal: Republic Services Issue: Solid Waste Recycling RFP ! Name: f Hamersmith, Philip i Principal: Oliver Heard / Law Firm Issue Assistant Heat Law Firm Principal: Browning Ferris Industries E Issue: {� Representing Bill Redman and Jeanmarie Massa to Assist in initial business development Name: Held, Gary M. j Principal: Dade Heritage Trust Club Inc. (WITHDRAWAL) i Issue: 401 Brickell Ave - Ecological Site Principal: Charter Club, Inc. (WITHDRAWAL) Issue: Biscayne Bay Tower Project - 501 N.E. 36 Street 4 09/21/99 9:20 AMP I- � � ,S L it Name: Helfman. Stephen Principal: Erie Corp. Issue: Appeal tiled by Ronald Leventhal & Dorothy i Name: Isicoff Laurel M. s Principal: Roose-Mianii Inc. / Bayside Center Issue: All Issue with City of Miami relating to the Miamarina & Bayside i Name: r Isla, Luciano } Principal: t Dade Waste I-laulers _ Issue: Proposed District Franchising - Commercial and Multi -Family Principal: Fortune of the Chi, Inc. Issue: Zoning change Name: Johnson, Hugh Principal: Estoril Inc. Issue: Approval of a Major Use Special Permit - 1395 Brickell Ave. Principal: Fotune of the Chi, Inc. Issue Zoning change Name: f Judson, Clyde W. (Non Profit) Principal: Black Archives Foundation Issue: Historic Lyric Theater 1 1 Name: Karlinsky, Fred E. Principal: First Union I Issue: Debt Insurances Principal: Insurance Servicing & Ajusting Co. 1 Issue: Claims Administration Name: Kasdin, Neisen O. ; Principal:. Enrique Morales Issue: Certificate of Appropriateness for 5960 Bayshore Drive _.. Name: Kennedy, David T. Principal: Republic Industries Issue: Solid Waste Privatization ' f } 2 t i 5 09/21/99 9:20 AMv J rr e l ,y Ah Name: Kennedy, Rosario Principal: The Orient Express Hotels Issue: Zoning Change Principal: Hope Center Issue: Special Funds from Governmental Agency Principal: Sylvester Stallons Issue: Tree Restriction Principal: 8325 N.L. 2"' Ave. Corp.Procurement of a Commercial lease from City of Miami Issue: Name: Kreutzer, Franklin D. Principal: General Hauling Services Issue: Commercial Hauling Name: Lederman, David P. Principal: Miami Telecommunications Inc. Lssue: Rezoning, Neighborhood Plan Amendment - Special Exemption Name: Lewis, Lynn B. Principal: No Principals Issue: Platting and Lard Use t Name: Litman, Neal S. Principal: Genesis Trust / Sylvester Stallons Issue: Tree remover -Mitigation Plan 1 Name: Luft, Jack L. Principal: Luft Consulting Inc. Issue: Dacra Companies,Craig Robin, Design District Issue: Zoning App for Sylvester Stallone, Shubert & Bass Attorneys Issue: Dinner Key Unified Development, Project Gold Krown Inc.. Issue: Zoning Case - 3674 S.W. 26 Terrace Name: McCullan Jr., Floyd W. Principal: _ Publix Super Markets, Inc. » Issue: Publix Super Market - 4870 Biscayne Blvd. j Name: McDowell, Carter N. s Principal: Brickell Walk Limited of Florida Issue: Zoning Matter - Brickell l f Name: McMahan, Mark P. Principal: , Genesis Trust Issue: Tree Restoration C 6 09/21/99 9:20 A Name: Melton 111, Eston E.. Principal: Onix Florida Issue: i Regulations to waste hauling chief officer: Michel Gour Ven Ne Name: Menendez, Juan C. Principal: The Taylor & Taylor Partnership Issue: Applications for Variance for 2891 Coacoochee Street Name: Morrall, Matthew E. Principal: Republic Services Inc. Issue: Commercial Solid Waste Issue Name: Munford, Bobbie R, Principal: Bobbie Munford & Company Issue: Waste Management j Principal: Florida Parking Enforcement Inc. j Issue: Towing and Immobilization of Motor Vehicles Name: O'Donnell Jr., Anthony J. Principal: David W. Swetland & Barbara Lange jjj Issue: Appeal of Historical/Environmental Preservation Board Name: Padron, Jim (Jame) Principal: Terranova Biscayne Plaza Issue: SD9 Signage Name: i Pardo, Adrienne F. Principal: Farmer's Market at Coconut Grove Issue: Appeal of Class II Permit for 3220-3240 Florida Ave. i Principal: Washington Mutual Issue: Special exception for property located at 5800 N.W. 7`h Ave. t Principal: W.C.G., Inc. Issue: Appeal parkipg variance for 3120 Commodore Plaza Principal: Assemblies of God Foundation Issue: Special Exception at 2190 S.W. 9t' St. & 2174 S.W. 9" St. Name: Pastoriza, Gilberto Principal: Extended Stay America, Inc. / II Palazzo, Inc. Issue: Amendment to Zoning Atlas Principal: Nitram Holdings, Inc. Issue: Variances Principal: Coconut Grove Park, Inc. Issue: Rezoning/Special exception Name: Peterson, Gary E. r Principal: Mr. Michael Smith Issue: Historic and Environmental Preservation BP for Apartment Project Approval 954-523-3356 Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: _ Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: L Plummer, Timothy J American Airlines Arena American Airline Arena Plunket, lack Estoril, Inc. Approval of a Major Use Special Permit for 1395 Brickell Avenue Price, Stanlcv B. Sol Mandel/Harold Chopp Land Use Applciation for 3674-3680 & 3690 S.W. 59 Street Proctor, Jerry B. JM Properties of South Florida Zoning &: Comprehensive Plan Development at 16-20-24 & 28 N.W. 36 Ct. Rivadeneira Gonzalez, Mara Maria Rodger/Mary Lumannick Parking Variance Robbins, Kent Atlantis on Brickell Condominium See list submitted of condominium owners Rodriguez-Chomat, Jorge Florida Public Telephone Assoc. Miami, FI. Public pay phones Rogers, Richard Key Real Estate Development 11, Corp.. Request for variance at 194-218 S.E. 14 St. Rosenberg, William P. Silver Bluff Harbour Approval of Major Use Special Permit at 1660 S. Bayshore Ct. Ross, William ' Estoril, Inc. Approval of Major Use Special Permit for 1395 Brickell Avenue i Saqui, II, Angel .C. Fortune of the C.HI i Change of zoning property at 2723, 2731 and 2733 N.W. 6 Street 09/21/99 9:20 AM e >f r• �r,20 Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Principal: Issue: - Name: Principal: Issue: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Schlosser, Thomas L. Biscayne Bay Tower LLC. Major Use Special Permit & street closure at N.E. 36 Street - 5`n & 7"' Avenues Schnettler. Jack Jan Holdings, Inc. MUSP Process Sharpton. Darryl K. Sharpton, Brunson & Co. Estori l Incorporated Request for approval of a Major Use Special Permit for 1395 Brickell Ave Shubin. John K. Almany Investors/Lazaro Milton Opposition to rezoning at 3674-3650 S.W. 26th Terr. Bristol Tower / Homeowner Association Opposition to Major Use Special Permit for residential development at Brickell Ave. Shulman, Allan T. Richard Schechter 169 East Flagler St. #300 Sieger, Charles N/A Approval of a Major Use Special Permit at N.E. 36 St. - 5 & 7 Avenue Sisser, Enc R. Oral Health Services N/A Sklar, William K. Cedars Health Care Group Special Exception, platting and zoning Straw, Carl B. (Non Profit) Coconut Grove Sailing Club Lease Negotiation Thomas, John H. Floribbean Hospitality, Inc. Proposed code amendment 5D-310 (Item 2, Sept. 21, 1999) 305-858-2122 1 ji 9 r t L 09/21 /99 9:20 AM S 9 „-, 7 /2' (} Name: Ullman, Joanthan D. (Non Profit) Principal: National Sierra Club Issue: Virginia Key in front of the Waterfront Board Principal: Sierra Club Issue: Virginia Key, Public Park; F Name: Vazquez, Javier L. Principal: Yeong Yuh Shen Issue: Change of Zoning Name- Velazquez, Gloria M. - Principal: Washington Mutual Issue Special Exception at 5800 N.W. 7"' Ave. Principal: Key Real Estate Development Corp. Issue: Request for Variance at 194-218 S.E. 140' St. Principal: Allen Greenwald t Issue: N/A Name: Washington, Lynn C. Principal: The Urban League of Greater Miami Issue: Northwestern Estates - 134 Unit Affordable Project i E Name: Weems, Lori K. Principal: Browning Ferris Ind. Issue: Solid Waste Management Name: Welfberg, David A. Principal: Coral Way Investment Inc. Issue: Application for MUSP for a proposed development project at Brickell Avenue t i Name: r Whitlock, Robert s Principal: Estoril, Inc. Issue: Approved at a Major Use Special Permit for 1395 Brickell Avenue y Name: Ziff, Oean O. (Non Profit) - Principal: Friends of Wain Wright Hammock Issue: Stallone Tree cut + s t • i, C" STATE OF FLORIDA ) COUNTY OF MIAMI-DADS ) CITY OF MIAMI ) I, WALTER J. FOEIL9N, City Clerk of the City of Miami, Florida, and keeper of the records thereof, do hereby certify that the attached and foregoing pages numbered I through 10, inclusive constitute a true and correct copy of a listing of Lobbyist Registration By Name and Principals Represented and last updated September 21, 1999 at 9:20 a.m. y IN WITNESS WHEREOF, I hereunto set my hand and impress the official seal of the City of Miami, Florida this 21" day of September, 1999. 1. WALTER J. FOEMAN City Clerk ' Miami, Florida By:��_�-UC 1 i Deputy Clerk x 1 , f (OFFICIAL SEAL) s j { A 99- 720 L CITY CLERK'S OFFICE: LOBBYIST REPORT Name: Abrams, Michael Principals: Tele-Communications, Inc. Issue: Franchise Transter Name: Alvarez, Ramon Principal: Estoril. Inc. Issue: Request for approval of MUSP Name: Arnold, Deborah J. (Non Profit) Principal: Coconut Grove Sailing Club Issue: Lease Name: Ayaviri, Mario B. Principal: The Church of Jesus Christ Issue: Building variances Name: Bailey, Herbert J. Principal: 8325 N.E. 2"d Ave. Corp. Issue: Real Estate lease from The City of Miami 305-856-0376 Name: Barreto, Rodney Principal: T.C.I. (David Krone) Issue: T.C.I. Cable Contract BFI Commercial Collection System Name: Bercow, Jefferey Principal: Terranova Biscayne Plaza Issue: SD9 Signage Name: Bishop, Brian C. (Non Profit) Principal: Coconut Grove Sailing Club Issue: Lease negotiation Name: Brenner, Richard M. Principal: Flagler Street Properties Issue: Approval of Class # Permit .,3 Name: Burke, Judith A. Principal: Basketball Properties, Ltd. Issue: Development approval for adjacent parcel to American Airline Arena Principal: Multiplan USA Corp. / Brickellinvest Join Venture Issue: Development of I3ayshore Palms Condominium Project Principal: piscavne 7i9 Development Associates , Ltd Issue: JMD Delaware, Inc. / Mickv Arison Name:. Callahan, Courtnev Principal: Gunster, Yoakley, Valdes-Fauh Issue: Road closure on N.E. 6; Street for Atlantic Properties Associates Name: i Canton, Mirta (Mikki) Principal: The Miami Herald / El Nuevo Herald Issue: Newstrack Ordinance Principal: B.F.I. Issue: Trash Houlers Name: Carter, Harold B Principal: Republic Services Issue: Recycling & Solid Waste Services 1 Name: Chad, Williard Principal: Charles Leemon Issue: Rezoning of property at 2500 Brickell Avenue _ I Name: Cory, Jack 4 Principal: Republic Services Issue: Recycling & Solid Waste Services i Name: Cosicher, Moche Principal: Jorge Muniz Change of Zoning i Name: DaiTach, Donald M. ' i Principal: 666 Biscayne Blvd. LTD Issue: Special Exception Parking at 666 Biscayne Blvd, - Paul Cejas Name: De La Fuente, Bob Principal: No principal Issue: N/A Name: De la Pezuela, Enrique Principal: Acosac Corporation Issue: Zoning Variance 2 09/21/99 9:20 AM J fl ._ 7 � jj J d v r Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Principal: Issue: Principal: Issue: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Principal: Issue: Principal: Issue: Principal: Issue: Principal: Issue: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: Name: Principal: Issue: km Deers, James Silver Bluff Harbour Approval of Major Use Special Permit for property located at 1660 So. Bayshore Ct. Diaz. Julio Key Real Estate Development II, Corp. Request for variance at 194-218 S.E. 14 St. Dougherty, Lucia A. Biscayne Bay Tower, LLC Approval of Major Use Permit at N.E. 36 St. & 5 - 7 Ave. Silver Bluff Harbour Approval of Major Use Permit at 1660 S. Bayshore court Estoril, Inc. Approval of Major Use Permit at 1395 Brickell Avenue Key Real Estate Development 11, Corp. Request for variance at 194-218 S.E. 14 St. Eager, William No principals Approval of Major Use Permit at N.E. 36 St. & 5 & 7 Ave. Echemendia, Santiago S. f Pan Am Air Bridge N/A National Office Partners Approving the assignment of Miami Tower Association & Miami Retail Eagle Garage L.L.C. s Special exception for surface parking lot Flamingo Garage Special exception for surface parking lot New Century Community Development Corporation Determination between the Proposed developer and Allapattah Station Design documents Point View Association Opposition to public hearing apr. by Key Real Estate Dev. at: 194-218 Brickell Ave. Fabregas, Jose Codec, Inc. N/A Fernandez, Ben; Hasred, Inc. Land Use and Zoning t Gallagher, Laura L. Media One Cable Television / Transfer of franchise from TCl/AT&T to Media One 3 09/21/99 9:20 AM (). f p. 7 0 Name: Garcia -Toledo. Rafael Issue: Victee Environmental Services Principal: Rafael Garcia Toledo 5 Name: Garcia -Toledo, Vicky A. Principal: Saxon Development F Issue: Zoning Matter Principal: Taylor Development and Land Co. 1 Coral Station Issue: Zoning Matter / Coral Station i Principal: Tibor Hollo Issue: Major Use Special Permit Process Principal: Taylor Development and Land Co. / Riverside Publix Issue: Zoning Matter/Riverside Public Principal: Editorial Cernuda, Inc. Issue: Zoning Matter 2727 S.W. 10 Ten. Principal: Mahi Shrine Holding Corp. t Issue: Land Use and Zoning Change 1500 N.W. River Dr. Principal: Corradino / Public Health Trust Issue: Zoning Change and Major Use Special Permit Principal: Victec Environmental Services / Solid Waste Issue: Solid Waste Franchise Agreement Principal: Ader Properties Issue: Land Use and Zoning Change Principal: Coral Way / Point Development Corp. Issue: Major Use Special Permit for Brickell Bay Village Principal: N/A Issue: Principal: Representation at UDRB Biscayne / Publix f Issue: Toby Prince and Kathryn Brigham r Rezoning of property located on S.W. 2"d Ave. And 13 St. Name: Gonzalez, Alfredo L. Principal: N/A Issue: N/A Principal: F. & R. Management Issue: Amendment Article 6 Section 602 of the Zoning code Name: Gutierrez, Armando — Principal: Republic Services Issue: Solid Waste Recycling RFP Name: Hamersmith, Philip Principal: Oliver Heard / Law Firm Issue Assistant Heat Law Firm Principal: Browning Ferris Industries Issue: Representing Bill Redman and Jeanmarie Massa to Assist in initial business development Name: Held, Gary M. Principal: Dade Heritage Trust Club Inc. (WITHDRAWAL) Issue: 401 Brickell Ave - Ecological Site Principal: Charter Club, Inc. (WITHDRAWAL) Issue: Biscayne Bay Tower Project - 501 N.E. 36 Street 4 09/21/99 9:20 AM r r� d L PON Name: Helfman, Stephen Principal: Erie Corp. Issue: Appeal filed by Ronald Leventhal & Dorothy i Name: Isicoff Laurel M. f Principal: Roose-Miami Inc. /Bayside Center Issue: All Issue %vith City of Miami relating to the Miamarina & Bayside i Name: r Isla, Luciano Principal: Dade Waste I-laulers _ Issue: Proposed District Franchising - Commercial and Multi -Family Principal: Fortune of the Chi, Inc. i Issue: Zoning change Name: Johnson, Hugh Principal: Estoril Inc. Issue: Approval of a Major Use Special Permit - 1395 Brickell Ave. Principal: Fotune of the Chi, Inc. Issue Zoning change Name: Judson, Clyde W. (Non Profit) Principal: Black Archives Foundation Issue: Historic Lvric Theater Name: Karlinsky, Fred E. Principal: First Union Issue: Debt Insurances Principal: Insurance Servicing & Ajusting Co. Issue: Claims Administration Name: Kasdin, Neisen O. Principal:. Enrique Morales Issue: Certificate of Appropriateness for 5960 Bayshore Drive Name: Kennedy, David T. Principal: Republic Industries Issue: Solid Waste Privatization Name: Kennedy, Rosario Principal: The Orient Express Hotels Issue: Zoning Change Principal: Hope Center Issue: Special Funds from Governmental Agency Principal: Svlvester Stallons Issue: Tree Restriction Principal: 8325 N.E. 2°d Ave. C orp.Procurement of a Commercial lease from City of Miami ' Issue: Name: Kreutzer. Frankiin D. Principal: General Hauling Services Issue: Commercial Hauling Name: Lederman, David P. } Principal: Miami Telecommunications Inc. Issue: Rezoning, Neighborhood Plan Amendment - Special Exemption Name: t Lewis, Lynn B. Principal: No Principals } Issue: Platting and Land Use Name: Litman, Neal S. Principal: Genesis Trust / Sylvester Stallons Issue: Tree remover -Mitigation Plan Name: Luft, Jack L. Principal: Luft Consulting Inc. z Issue: Dacra Companies,Craig Robin, Design District Issue: Zoning App for Sylvester Stallone, Shuben & Bass Attorneys Issue: Dinner Key Unified Development, Project Gold Krown Inc.. Issue: Zoning Case - 3674 S.W. 26 Terrace Name: McCullan Jr., Floyd W. Principal: Publix Super Markets, Inc. Issue: Publix Super Market - 4870 Biscayne Blvd. Name: McDowell, Carter N. Principal: Brickell Walk Limited of Florida Issue: Zoning Matter - Brickell k Name: McMahan, Mark P. Principal: Genesis Trust Issue: Tree Restoration 6 09/21/99 9:20 AM ;� d Name: Melton III, Eston E.. Principal: Onix Florida Issue: Regulations to waste hauling chief officer: Michel Gour Ven Ne Name: Menendez, Juan. C. Principal: The Taylor & Taylor Partnership Issue: Applications for Variance- for 2891 Coacoochee Street Name: Morrall, Matthew E. Principal: Republic Services Inc, Issue: Commercial Solid Waste Issue Name: Munford, Bobbie R. Principal: Bobbie Munford & Company Issue: Waste Management Principal: Florida Parking Enforcement Inc. Issue: Towing and Immobilization of Motor Vehicles Name: O'Donnell Jr., Anthony J. Principal: David W. Swetland & Barbara Lange Issue: Appeal of Historical/Environmental Preservation Board Name: Padron, Jim (Jame) Principal: Terranova Biscayne Plaza Issue: SD9 Signage Name: Pardo, Adrienne: F. Principal: Father's Market at Coconut Grove Issue: Appeal of Class II Permit for 3220-3240 Florida Ave. Principal: Washington Mutual Issue: Special exception for property located at 5800 N.W. 7`h Ave. Principal: W.C.G., Inc. Issue: Appeal parking variance for 3120 Commodore Plaza Principal: Assemblies of God Foundation Issue: Special Exception at 2190 S.W. 9°i St. & 2174 S.W. 9' St. Name: Pastoriza, Gilberto Principal: Extended Stay America, Inc. / 11 Palazzo, Inc. Issue: Amendment to Zoning Atlas Principal: Nitrarn Holdings, Inc. Issue: Variances Principal: Coconut Grove Park, Inc. Issue: Rezoning/Special exception Name: Peterson, Gary E. Principal: Mr. Michael Smith Issue: Historic and Environmental Preservation BP for Apartment Project Approval 954-523-3356 7 09/21/99 9:20 AM fy i� 0 Name: Plummer, Timothy J Principal: American Airlines Arena Issue: American Airline Arena Name: Plunket. Jack Principal: Estoril, Inc. Issue: Approval of a Major Use Special Permit for 1395 Brickell Avenue { Name: Price, Stanley B. Principal: Sol Mandel/Harold Chopp Issue: _ Land Use Applciation for 3674-3680 & 3690 S.W. 59 Street Name: Proctor, Jem B. Principal: JM Properties of South Florida Issue: Zoning & Comprehensive Plan Development at 16-20-24 & 28 N.W. 36 Ct. Name: Rivadeneira Gonzalez, Mara Principal: Maria Rodger/Mary Lumannick Issue: Parking Variance Name: Robbins, Kent { Principal: Atlantis on Brickell Condominium Issue: See list submitted of condominium owners Name: Rodriguez-Chomat, Jorge f Principal: Florida Public Telephone Assoc. Miami, Fl. Issue: Public pay phones Name: Rogers, Richard Principal: Key Real Estate Development I1, Corp.. Issue: Request for variance at 194-218 S.E. 14 St. Name: I Rosenberg, William P. — Principal: Silver Bluff Harbour " Issue: Approval of Major Use Special Permit at 1660 S. Bayshore Ct. Name: Ross, William Principal: Estoril, Inc. Issue: Approval of Major Use Special Permit for 1395 Brickell Avenue Name: i Saqui, II, Angel .C. Principal: Fortune of the CHI 4' Issue: Change of zoning property at 2723, 2731 and 2733 N.W. 6 Street 8 09/21/99 9:20 AM Name: Schlosser, Thomas L. Principal: Issue: Biscayne Bay Tower LLC. Major Use. Special Permit & street closure at N.E. 36 Street - 5'h & 7'h Avenues j Name: Schnettler. Jack Principal: Jan Holdings, Inc. t Issue: MUSP Process Name: Sharpton, Darryl K. Principal: Sharpton, Brunson & Co. Principal: Estoril Incorporated Issue: - Request for approval of a Major Use Special Permit for 1395 Brickell Ave Name: Shubin, John K. Principal: Almanv Investors/Lazaro Milton Issue: Opposition to rezoning at 3674-3650 S.W. 26`h Ten. Principal: Bristol Tower / Homeowner Association Issue: Opposition to Major Use Special Permit for residential development at Brickell Ave. Name: Shulman, Allan T. Principal: Richard Schechter Issue: 169 East Flagler St. #300 Name: Sieger, Charles Principal: N/A Issue: Approval of a Major Use Special Permit at N.E. 36 St. - 5 & 7 Avenue i t 4 Name: Sisser, Eric R. f Principal: Oral Health Services. Issue: N/A Name: Sklar, William K. ' Principal: Cedars Health Care Group Issue: j Special Exception, platting and zoning P r Name: Straw, Carl B. (Non Profit) Principal: Coconut Grove Sailing Club Issue: Lease Negotiation ` Name: Thomas, John H. ?: Principal: Floribbean Hospitality, Inc. Issue: Proposed code amendment 5D-310 (Item 2, Sept. 21, 1999) 305-858-2122 i 9 09J21J99 9:20 AM Name: Ullman, Joanthan D, (Non Profit) ' Principal: National Sierra Club Issue: Virginia Key in front of the Waterfront Board s Principal: Sierra Club Issue: Virginia Key. Public Parks Name: Vazquez, Javier L. Principal: Yeong Yuh Shen Issue: Change of Zoning Name:- Velazquez. Gloria M. - i i Principal: Washington Mutual Issue Special Exception at 5800 N.W. 7`" Ave. Principal: Key Real Estate Development Corp. Issue: Request for Variance at 194-218 S.E. 10 St. Principal: Allen Greenwald Issue: N/A Name: Washington, Lynn C. Principal: The Urban League of Greater Miami Issue: Northwestern Estates - 134 Unit Affordable Project Name: Weems, Lori K. J Principal: Browning Ferris Ind. Issue: Solid Waste Management Name: Welfberg, David A. s Principal: Coral Way Investment Inc. Issue: Application for MUSP for a proposed development project at Brickell Avenue i Name: Whitlock, Robert Principal: Estoril, Inc. Issue: Approved at a Major Use Special Permit for 1395 Brickell Avenue i Name: Ziff, Oean O. (Non Profit) Principal: Friends of Wain Wright Hammock Issue: Stallone Tree cut i0 09/21/99 9:20 AM z a - i 1 STATE OF FLORIDA ) j COUNTY OF MIAMI-DADE ) ! CITY OF MIAMI ) F i I, WALTER J. FOEMAN, City Clerk of the City of Miami, Florida, and keeper of the records thereof, do hereby certify that the attached and foregoing pages numbered 1 through 10, inclusive constitute a true and correct copy of a listing of Lobbyist Registration By 1 Name and Principals Represented and last updated September 21, 1999 at 9:20 a.m. � IN WITNESS WHEREOF, I hereunto set my hand and impress the official seal r of the City of Miami, Florida this 21" day of September, 1999. t i { I WALTER J. FOEMAN City Clerk Miami, Florida i By: / Deputy Clerk f (OFFICIAL SEAL) , f , i T. gcp 24'99 12tos Nn.O?8 p.01 TEL ! City of Miami Office Of the City Clerk - Facsimile Transmittal Sheet FAX NO. �'�' f f - - r `> 3 FROM: LUr 17 , ��-,_- -C 305-858-16I0 REMARKS: t i i TOTAL NUMBER OF PAGES. INCLUDING COVER SHEET: Office of the City Clerk - 3500 Pan Ainecican Dnve P.0, Box 330708 Miami. Flonda 33133 Miami FL 33233-0708 305-2$0.5360 tr'i G� 09/24/99 11:08 TX/RX N0.8824 P.00t �fi L Sep 24'99 ADMIN16TRAT10N (c) Any elected official who is n partnor in a law firm or a stockholder in n professional Asso- cintion muRt, dipciose, in writing, to ow city clerk the name of any client whose rp)rreRentntton results in a contribution of ton )VI -el -lit or rYnnt of this prong inennsa: (1) To the law Drill ill which Hurl f)(1101RI 14 It partner; (2) Th the prvfrrmionnl nssocintion in which anid oflicinl in n stockholder or ttan an ownernhip interest.; or (3) 73 the elected official directly. (d) Every person who is convicted of a vl0tatlort of this Rection shall lie punished nn provided in section 1-13. (Ord. No. 10219, 1 1, 2-12-87; Code 1960, § 2-309) Barer. 2-8R0--2-080. Reserved. ARTICLE VI. L01333XIS'M Sec, 2-651. Applicability. Notwitltstanding rury provision in the Code of the city, as amended, to tho cont.rnry, the following sh»A be applicable in tho city. (Ord. No. IM87, 4 1, 3-18-86; Code 1980, $ 2-311) See. 2-682. Penalty. Any person in violntion of any provision of this article mbsil bo subject to tl►e pennity a* provided in aelotion 1-13. (Ord. No. 10087, 4:i, 9-1R-RA; Code 1990, § 2-312) City Code crow referent+- .ncrn) r wnalty, 4 I•I3 See. 2-863. Oe1 initionls. As used in this article: Compensation means money or anything of valua or financial benefit received in return for the performance of lobbying activitit,x. Contingency fee me.nns n fag, bonuB, commie- nion, or nonmonet&ry benefit an compeneation which is dependent or in any way continpont on the enactment. defeat, modificntion, or other out- come of any ordinance, resolution or action of the SUM. No. 2 12`-09 No.008 P.02 fi 2-633 city commission or any resolution, action, rerorp- mendntion or der.!;;ion of any city board or of the, city rnnnrt(;e.r or city staff'. F,ri�rr..lrNuf monrrn n pu%mcnt., disttibution, lash, ndvrincc, rcimbtrrsamont, dernnit, nr Ariy- thinR of vnlue mode by n lnhhyiO. fir principal for the purposra of lobbying. Governmrnt rmplcs -re metros nny ngent of gov- -t-nmcnt, sht,thcr elected, appointed or hired, rnirl or linrniri, who ie rioting no, hrhnli' of the l Tnited Stntna, the State of Florida, or any agency, 1lo1iticaI subdiviaimi, specinl district., county or inunicipality of tho State of Fioridn. Lpbbvirt mennt% nil paid pernons, furs(,, corpo- - ions employed or retsinad by a principnt who near+ks to encnurnga the pteosaga, elefent, or modi- fication of ally ordinance, r"alution, action, or (Incision of the city commission; or miy resolution, nct.ion, decision or recomrncndntiorl of Lilly city hoard or committee; or any action, decision, or r ocommendnt.inn of the city .manngrr during the tuna pariocl of tha entire de aion-rnnking process 1,11 such action, decision or remmmencintion which foreseeably will be reviewed by the city commis- sion, or a city board or committee. I,oblyist also mearts nny member of the stnff of life "lobbyist" (ne defined hereinnhove) who re- cniveA for himrself or herself nny compen"Oun, remuneration or expenses for conducting lobbying ►activities: Gobbyin does not mean an attorney who ten A nfember of the Merida Bar representing n client in rnfnrcement proceedings heron+ than code an- forcement board, or before the nuisance nInte- ment board, or disciplinary or grievance proceed- iogs before life civil service board. I,obbpiet does not metal ex city employee when ecting in his official capacity, or n city consultant w)len acting ill ranch capacity. Lobbyfst does not mean a government r.m- ldoyee acting, in his/her off►cir3.1 capacity. /..ihhyict does not rnetan n fnra;go dignitnry ppearing in hirdher of'llcial capacity. CU2:3? 09/24/99 11:08 TX/RX N0.8824 459— 7`d0 P.002 N T'[=L Sep 24 ` 09 12 ! 09 Nd : nt?11 P - 03 1 A�S9 ► IAMI CODE Lobby4re d000 not mean to pnrsctn whn tt-t^nR, Publish" or is rmploynd by a newspaper, period- ical, radio station, teirvinion stntion or (it her burtat fide nevus media. LoG6yist dr+-n not. rnerwn P person whn mt rely appoara before the mnvor, city comminniun, city' board or committee, the city rnnnnaor er city rtnff in an individual cnpncit.y for the purpoRe cif nelf- represent_cstion to express support for or oppo"l- tion to any ordinnucc, rreolut:imi, dvciFivrt ter action of tho city oommiaaian; or any r, aolut.iort, action, rec(rmmendntion or dociainn of nny city board or committee; or forty action, decision or recommendation of the mayor, city manager or city staff. bobhyi.nt doe% not mean a person sppoatring solely to provide fact -tint information requested by the mayor, a member of the city commission or a city board. Principal means the person, firm, corporation, or other entity, whether for profit or ttoriprofit, which has retained it lobbyist. (Ord, No. 10087; 11 2(nXI), (2), 3.18-86; Ord. No. 10181, j 1, 11-13-86; Ord. No. 10476, is 1, 9 13•88; Coda 1980, § 2�13; Ord. No. 11460, § 7, 3-20-P7; Ord. No. 11527, § 2, 7-24-97: Ord. No. 11G64, § 4, 10-28-97) City Cod* crow anlorcoment borxd, j 9-818 r't seq.; cavil aet+ita trrard, i AO-00 rt" bee. 2-654. Rok Ntratio n; fast; diselosura re►- quirements; lag of registered lob- byists) exemptimp from payment of fee. (a) Apexmon may not lobby a city official, a city board member, the city manager or city staff, until such person has registered as n lobbyist with the city clerk. Such registration shall be due Upon initially being rntained an it lobbyist by a principal, prior to any type of lobbying activity, and shall be renewpti r%n n ywarly bnRin theranftor. The atnnual regititerntion fire for each lobbyist shall be $500.00 as an initial registration fee, slats an additional fee of $lD0.00 for each principal rwpmRanted for ench innue lobbind on bohnlf of any ane principal. The registration feels required by We nactivn elisl! be deposited by the city ctcrk into a sepa ratQ account and shall be expended for Supp. No. 2 lrrtry,tittata of recording, transcription, administrar- tion and/or any other ntanocinted costs incurred in mnintaining Lhene rmo"ly for availability to the public. The cit,v commix=Pion mr+,y, in its (lincrfation, waive the reRist.ration fee in demortstinted in- stances of financial lwrdtawp. Regstdlesa of the dtstt« Of the ittit.ied tc�intravtion; ell lalthyintn' r.'g- irat rat.irrtn shell (�x(tit•n I lncnrrtbnr Al of er)ch cnlnn- d ar }•ets.r, and Qhnll be r^±tcu ed on n rnlendnr yenr hnsaH. (b) Every person ttgttiied to register as a lobbyist shall: (1) Register on Rums prepared by the city clerk; (2) Pay an initial registration fee of $500.00, plus an additional fee of $+100.00 for each principal represented and for each issue the lobbyist hat; been retained tat lobby on behalf 14 nay tint. l,rtrrclpnl; and (3) Ilieclose, undRr oatb, the following infor- mation; a. hobbyist's natne and business ad- drese; b. Namo and businesn address of each principal reprc,sant; C. The specific issue on Which he or she has been retained to lobby; and d. If the lobbyist reprenentes a corpora- tion, partnership or trust, the name and huninos» nddrusw of the chief officer, pertner or beneficiary of the corporation, partnership or treat and the namen and addresses of all per- sons holding, directly or indirectly, at lettot five percent owne"hip inter- est in said corporation, partnership or trust. A aseparate registration form shall be filed by the lobbyist and sit additional fee of $100.00 shall hw paid for each principal represented and for ench issue the lobbyist has been retained to lobby on behalf of any one principal. Such iRRUR shall be described with as much detail as in prncticnl, including, though not limited to: a specific description Cn2:40 AIN 01 rk r.t 09/24/99 11:08 TX/RX N0.8824 P.003 0 i1'LL = SPp 24' Ora 12st0 No.008 p.04 . ADMINISTRATION (where applicable) of a pending re- quest fnr proposals, invitation to bid, ordinance, resolution, or A given item on the agenda. The city cleric or the clerk's dpAig-riot, Altall rP.i'ect any rC,g- iptrntion vcttete+ment which does not pmvide a clear dcscription of the specific issue otr 101ich stub lobbyist hnn been retained to lobby. L.obbyistn shall resister on or Wore April 1, 1997, and yenrly theren(ter, in nccor- detnca with the proN-inions of thin section. W In addition, every rei?imtrarit shall be re- rpAv.eti to •iota % +Aor oath tier rnintcnco of nn/ direct Or indirect husinens association, pcartnor- ship, orfinancinl r 1ation%Wp with the mayor, any member of the city conurrinaion, nny member of n city board, the city warnnRer <)r n member of the city ntaff before whom he lobbies, or intonds to lobby. (d) The city clerk shall maintain a log, which shall ho updated on a quarterly hnmis by April 16, July 15, October 1.5 and January 13 of ench year, reflecting the lobby)tat m istrr-tionn filed to ©ecor. dance with, this %action find shill be distribute-d to the mayor and city commission. (o) The mayor, all members of the city commis- sion, of city boardn, the city mnnpger and city chaff shall be diligent to nacertain that persons ro quired to register peu-nuant to this section have complied, by requesting record of compliance from the city clerk. The mtrynr, members of the city commission, of city boards th" city manager and city staff may not knowingly permit a person who Is not registered puraunnt to this section to lobby. M Each person who withdrnwe As n lobbyist for a particular principal shall file An apprnprinte notice of withdrawal concerting representation for that principtrl. There shall be no fee required for filing a notice of withdrawal. (g) Tho validity of tiny action or dnterminntinn of the city commission or nrty other city hoard or committee shall not be affect(Ld by the failure of tiny person to comply with tho, provisiorm of this section. Aerpp. No. 2 1 2-655 (h) Tht+ fnllnwing r+are++na •hall to roquirod in resister but will be exempt from pa}dn fir the reg- iAtratimi fee.: (1) A person who, pumunnt tic the terms of n collective hnrgnining agreement, has been designated and in no recognized by the etty sea a reprenentntive of n collective htgrgetining unit eompomed of city employ- 0"; (2) A pernon(n) appearing hf.'CM the Commis- sion, mmmittne, or board on h,-half of the rnmmunity'n interest, Elm n voluntnt+r rued without compennntioll, representing the pmitinn nf n Kona f-..lo community argmni zut.tt,n curls an 0 taxpayers' n99occatron, a civic or homcowne"' nw mcintion, a public interest group, a chaml.er aaf comrnercr, or n merchantR' a pocation. G) All r((gjntration forrno shall i,r open to the public upon the filing thereof. (Ord. No. 10087, § 2(nX3), (b)-4d), 3-18-86; Ord. No. 10181, 4 1, 11-19-9ri; Code 1.080, It 2-314; Ord. No. 11469, ¢ 2, 3-20-97: Ord, No. 11564, 4 4, 10-28-97) Sec. 2-855. Annual expendituroa report. A lobbyist shell annually submit to the city clerk's office a signed statement under oath list- ing nil lobbying expenditures and the source% from -.9hich hinds for mnking lobbying expendi- tures have come. The lobbying rypendlturaw ahall include, but not be. limited to: meals, entertnin- ment turd Kith for public officers ana employees for the preceding calendar year. Lobbying expen- ditures shall not include the lohhy+nt's own per- aonnl etxpensen for lodging, meals, tTnvel, salary, and off ce expenses. Sitch statement of e-apendi.- turen, entitled "Annual Expimclitures Report" shill be due on January 15 of each year. Such state- ment shtxll be rendered on the form provided by the city clerk'a office and shall be open to public inspection. Such t+tntement shall be filed, even if them have born no expenditureK during the pre- eading c.Moncinr year. ('Ord. No. 100A7, $ 2(v), 3-18-86; Ord. No. 1oe11, � 1. 7-13-89; Code 1980, § 2-316; Ord. No. 11489, 6 2, 3-20 97) CD2;41 09/24/99 11:08 'fX/RX N0,8824 P.004 ■ fits Sep 24 ` qg 12 ! 10 N0.009 P,05 MiAMI CODE goe. 2-668. Advierery opiniv ace. (a) A lobbyist, when in eloubt About the nppli- cability and interpretation of t.hiA etTiclo in n particular context., nhnll subinit. in writing the fact,a for an nd-Osory opinion by the city Attorney. The city tittnrriny Amll render Advisory opinions to Any )obbyint who ecckre ndvicio As to whot.hAr t.hn facts in A psirtirtilar cnar would institute a violation of this nertiom All Advisory opininnn of the city Attorney shall be numbered, dnted and fumished to the city cle.rk'n office turd Rhall be open to public inspection. (b) The city clerk's office shall k"p nli ndvi- nory upinionn of tho city sttorney relating to lobbyists and lobbying Retivitien, As wHll w4 n currexit lint of registered lobbyists and their re- spective reports required under this article, all of which shall be open for public inspection. (Ord. No. 10087, 5 2(f), (g), 3.18-86; Code 1980. § 2-317 ) Sac. 7s-t369. Ponaltlee for violations. (n) My lobbyist who fetll-s to Rlw thr Antitml expendiknrcA roport by thr. .lcinunrT 115 doadlina each calendar year shall be subJect to a fine of $25.00. (b) Upon verification of a lobbyiat'e failure to file the annual expenditures report, the city clerk shall notify the Iubbvist by certified mail that the annual erpenditures report uivat be filed within tivn huoinrae days following rv�eipt of tha notice. The name of any lobbyist who fails to comply with said requirement shall be nutomatically removed from the list of active lobbyists. $hotild snid person wish to re -register as a lobbyist, he/she shall submit a now regietratlon form necompn- nierl by ea $VM.00 ro,%�"ntrntion few plum nny And All outstanding firies accrued prior to ro-rvgiRtratiort. (c) The city cleric ahali submit a report to the city eommisnion an to thr.we lobbyists who have tailed to comply wiht registration andlor the an- nual filing requirement of this ordinance. (Ord. No. 10087, 4 2(h), B-1&813; Code 1080, § 2-318, Ord. No. 11469, § 2, 3-20.97) Sapp. No. 2 Sec. 2.659. Contingency fe e& No ptiet,#Rcm Ahnll re`tnin or employ n lobbyist for compensation bRAwl on A continat ney ft-r, and no person r-ha-11 nccept nny such t:+mhloymtant or ren- der any >ae.rvice for compensation based on a contingency fer•. (Oril. No. 1 i 469, § 2, 3.20-97 ) ecit. 2-050-2•15ft0. Re rued. ARTICLE V11. AFFIR !'1lt►TIVE ACTION POLICY* Sate. 2-69I. De-11nitionst. For the purpose of this article, the following terms, phrases, words and their derivatives shall hnvr. tho following, menninp: Affirmativc action means all nrtions in recruit- ment., hirinl;, upgrading and other Arens which art; designed to eliminate the effects of past dig- criminntion. /)ffirmatiup nrtinn plan rnenns the written plan by which tho city Aotn forth the npecific atTirmn- tivo nctronn by .which it will a)iminnte And remedy the underTepreetentatiun tuid/or miderutileratiort of minoritit'w and women. The affirmative action plan shall contain goals and timetables. Die crimirTEseian mime arty Act or rctei which may ndva"ely affect the employment opportuni- ties of irtrlivith.mis because of race, color. religion, sex, national origin or other ractors thnt, by law, mny not bn conRiderrd ren a basis for employment actions. (kCvrlB and timetahl." menns the projections ren employer makes of the numerical representation of minorities and ~women likely to bo achieved in thoAe positions in which they have been anderotiIized. Labor market monnrt the standard LAY which the employment participRtion of women and minori- ties in mensured, hnaed upon their rpa pective ins-idonco in 6tro Uibr of R4iaiai civilian labor Foroe. *('ity Curie+ rma■ rrtorencwa—AfCtrmstive ett�tion ndvi gory bonrd, Q 2-97rt et neq : nmrmntive netion plain required or hidd*nt ren city mntretcw 8 m-tui to *wry. CD2:42 AIN 99- "90 09/24/99 11;08 TX/RX N0.8824 P.005 a (1) (2) AM 1 CITY OF MiAMI - _ LOBBYIST REGISTRATION Lobbyist Name GUTIERREZ, ARMANDOUST NAME, FIRST NAM ` , Business Phone 305-858-841 1 Business Address 2600 S.W. 3rd AVE. SUITE 301, MIAMI,FLORID zip 33129 Principal Represented REPUBLIC SERVICES Principal's Business Address 751 N.W. 31st. AVE. FT. LAUDERDALE, Zl 33311 (IF DIFFERE14T FROM ABOVE) (3) Specific Issue lobbyist has been retained to lobby Of representing a corporation, partnership or trust, give business address of chief officer, -partner, or beneficiary of same, and the names and addresses of all persons holding, directly or Indirectly, at feast five percent (5%) ownership Interest In said corporation, partnership or trust SOLID WASTE, RECYCLING R.F.P. (4) Lobbyists shall state the extent of any business association or financial relationship with any members) of the City Commission, any member of City staff before whom he lobbies or intends to lobby. Lobbyists shall pay all registration fees ($500 annually, plus $100 for each principal represented and for each issue a lobbyist has been retained to lobby on behalf of any one principal), and specifically define the issue for which they are employed. (The Clerk shall reject any statement which does not detail the issue on which the lobbyist has been employed). 1 do solemnly swear that all of the foregoing facts are true and correct, and I have read or am familiar with the provisions contained in Sections 2-313, 2-314, 2-316, 2-318 and 2-319 of the City of Miami Code, as /amended, including - "annual registration, withdrawal, reporting requirements, definitions, e a mha tions, penalties for violations and contingency fees." Signature of Lobbyist; , State of Florida, County of Dade Swom to and s4scribed before me this L day of .�t/Lr� 19 G' Entry Date 19 (f le:fomVio"B6y t reg strati n-a) 1,gyr Entered by 1PRY P0,9 OFFICIAL NOTARY SEAL G�� SYLVIA LOWMAN COMMISSION NUMBER v� a CC451599 MY COMMISSION EXP. OF FVC APR. 29,1999 (1) (2) CITY OF MIAMi LOBBYIST REGiSTRATIOiV Lobbyist Name Business Phone Business Addrel Principal Represented Principal's Business Address ZI OF DIFFERENT FROM ABOVE) ---- (3) Specific Issue lobbyist has been retained to lobby (if representing a corporation, partnership or trust, give business address of chief officer, partner, or beneficiary of same, and the names and addresses of ail persons holding, directly or Indirectfy, at least five percent (5%) ownership interest in said corporation, partnership or truss. (4) Lobbyists shall state the extent of an business association or financial relationship with any member(s) of the Ck Commission, any member of City staff before whom he lobbies or lnte ds to lobby. Lobbyists shall pay all registration fees ($500 annually, plus $100 for each principal represented and for each issue a lobbyist has been retained to lobby on behalf of any one principal), and specifically define the issue for which they are employed. (The Clerk shall reject any statement which does not detail the issue on which the lobbyist has been employed). I do solemnly swear that all of the foregoing facts are true and correct, and I have read or am familiar with the provisions contained in Sections 2-313, 2-314, 2.316, 2.319 and 2-319 of the City of Miami Code, as amended, including 'annual registration, withdrawal, reporting requirement,, definitions, examinations, penalties for violations and contingency fees.' V Signature of Lobbyist: / _ A� ,---. State of Florida, County of Drado Swo to and subscfted before me this ��ay of i Entry Date a (file:fomVIo-b-6yist registration -a Y-r 0 or ep or c Entered by 00 P,RY PU OFFICIAL IO'TARY SEAL;. \ % O, Ali ESTHER GUERRERO `G `�03 COMMISSION NUMBER CC507514 y MY COMMISSION WE (^. (1) (2) CiTY OF MIAMI LOBBYIST REGISTRATION Lobbyist Name UA IST NAME, MI Business Phone Business AddressZip Principal Represented Principal's Business Address Zi (3) Specific Issue lobbyist has been retained to lobby (if representing a corporation, partnership or trust, give business address of chief officer, partner, or •.. w. Rv�l=,.1- r{ n�. +"-^ ?^[! ♦�+;C r5!I*!^N. tT�l •. Cd ;�wf r►. -:.� vi �!r��.. �.Ys dlrectly oe Indirectly, at least five percent (5%) ownership- Interest In said corporation, partnership or trust. (4) Lobbyists shall state the extent of any business association or financial relationship with any member(*) of the City Commission, any member of City staff before whom he lobbies or Intends to lobby. (PEEASE EXPUIN, IF APPLICABLE) Lobbyists shall pay all registration fees ($500 annually, plus $100 for each principal represented and for each issue a lobbyist has been retained to lobby on behalf of any one pnncipall, and specifically define the issue for which they are employed. (The Clerk shall reject any statement which does not detail the issue on which the lobbyist has been employed). I do solemnly swear that all of the foregoing facts are true and correct, and I have read or am familiar with the provisions contained in Sections 2-313, 2-314, 2-316, 2-31 a and 2-319 of the City of Miami Code, as amended, including "annual registration, withdrawal, reporting penFsiUeSTor vioiations and coniingeiivyiEstrs. Signature of Lobbyist:Ep_� 'J FAL State of Florida, County of Cade Z�• oFE1 NDY I VC -TIERSTARY N CiNDY J PET-EFcSGN " Sworn to and subscribed before me this NOrrARY PUI3LJC �TE OF FLORIDA day Of (__' o�i ,19� COMMISSION , Entry sate 19 Entered by (file:form/lo y►st registration -a (1) W Lobbyist Name CITY OF MIAMI LOBBYIST /REGISTRATION Business Phone- I Business Address 7S 1 A, u. Zip (2) Principal Represented I A < Principal"s Business Address zi (IF DIFFERENT FROM ABOVE) (3) Specific Issue lobbyist has been retained to lobby (If representing a corporation, ppartnership or trust, give business address of chief officer, partner, or boneficlary of some, and the names and addresses of ail persons holding, directly or Indirectly, at least five percent (5%) ownership Interest in said corporation, partnership or trust. / (4) Lobbyists shall state the extent of any business association or financial relationship with any membor(s) of the City Commission, any member of City staff before whom he lobbies or Intends to lobby. ,Al- lxll (PLEASE APPLICABLE) Lobbyists shall pay all registration fees ($500 annuaity, plus $100 for each principal represented and for each issue a lobbyist has been retained to lobby on behalf of any one principal), and specifically define the issue for which they are employed. (The Cleric shall reject any statement which does not detail the issue on which the lobbyist has been employed). ! do solemnly swear that all of the foregoing facts, are true and correct, and I have read or am familiar with the provisions contained in Sections 2-313, 2.314, 2.316, 2.31 E and 2-319 of the City of Miami Code, as amended, including "annual registration, withdrawal, reporting requirements, definitions, examinations, penalties for violations and contingency fees." �1,1'<Y PU OFFICIAL NOTARY SEAL Signature of Lobbyist: 6� ICARLA GAIL POLtZzi � 1C8950ii NIR#DEp CC723487 State of Florida, County of Cade �rF �.�n�4 r� R. 9, EXPIRES to and sutzcribed before me this JFd a, NptW-5HDrep5f7y Mery i Entry date 19� Entered by (file: orm/lo gist -registration-a) (1) CITY OF MIAMI LOBBYIST REGISTRATION J Lobbylst Name C c. r,t,F/ 'T 7 ..'/ LAa I/rvAmm' rltiZ2� I rr,Amt:' MI _-- Business Phone_ Business ,Address f ti-. /- ,(. _ ±," n"; (2) Principal Represented p Princl atsBusinessAddress c t (3) Specific Issue lobbyist has been retained to lobby of representing a corporation, ppartnership or trust, give business address of chief officer, partner, or beneficlary of same, and the names and addresses of all persons holding, directly or indirectly, at least five percent (5%) ownership Interest In sold corporation, partnership or trust. (4) Lobbyists shall state the extent of any business association or financial relationship with any members) of the city Commission, any member of City staff before whom he lobbies or Intends to lobby. r IF APPLICABIE) Lobbyists shall pay all registratJon fees ($500 annually, plus $100 for each principal ! represented and for each issue a lobbyist has been retained to lobby on behalf of any i one principal, and specifically define the issue for which they are employed. (The Clerk shall reject any statement which does not detail the issue on which the i lobbyist has been employed). i 1 do solemnly swear that all of the foregoing facts are true and correct, and I have read or am ' familiar with the provisions contained in Sections 2-313, 2-314, 2-316, 2-318 and 2-319 of the City of Miami Code, as amended, incl ingt `annual registration, withdrawal, reporting requirements, definitions, exarninatic�n , pe ies f violations and contingency fees.' ny p OFMIAL NOTARY SEAL 1P u I KARLA GAIL POUZZI Signature of Lobbyist: °ti >v 7 `' cowAmom , ,, , CC723487 OOFEA SKMEX FMS State of Florida, County of Da � €f1.0' MAR. 0,2002 o� to and sggscribod before me this day of _ .fir ,19 j Entry Date 19 Entered by (file:forrn{io ylst registration -a) :,i (2) rye, CITY OF MIAMI LOBBYIST REGISTRATION Lobbyist flame " r G7 CUIP)ME, FIRST -NAME, MI -<2— M rq Business Phone Business Address i_,1 t�""'-- Principe] Represented U/� t�i SF' = D `mot c>� w ' r o z Principal's Business Address 5e; V ST�� ,ce-0*rzIp VF DIFFERENT33�41 (3) Specific Issue lobbyist has been retained to lobby (It re resenting a corporstlon, Eaftnership or trust, give business address of ofilef officer, partner, or anafiolary of some, and the names and addresses of all persons holding, directfy or indirectly, at least five parcent (5%) ownership Interest in said corporation, partnership or trust (4) Lobbyists •hall nuts the extent of an business assoclatlon or financial rein lonship wfth any member(s) of the C4y Commission, any member of City staff before whom he lobbies or Intands to lobby. ©NE VqJUSE e Lobbyists shall pay all registration teas (SSW annually, plus $100 for each principal represented and for each issue a lobbyist has been retained to lobby on behalf of any one principal), and spec tf9calfy define the issue for which they arc employed. (The Cie *hall reject any statement which does not detail the lsaus on which the lobbylat has bean employed). I do solemnly ewaar that all of the foregoing facts are trua and c otTaet, and I have read or am familiar with the provisions contained In SQctions 2.313, 2.314, 2-316, 2-318 and 2-319 of the City of Miami Code, as amended, inciuding 'annual reglaUstion, withdraws], reporting requirements, dofintUons. examinations, eneWee for vio!stlona and contingency f*es,' Signature of Lobbylae: State of Refida, County of Dade Sworn to and aubecribod before mo this day of .S t± f ygt'26 ,1 fl-M Entry Date 19 (11 10orm/lobbyist registration --ay- ZO'd S00'ON VS:Ot 66,aZ daS L.. o77 e Entered by LL �O�?,QY pL@r'� OFFf10TJEFFREY� gEAL CCOSIS17 �rFojr o�Q w ono 01 :�31 collect mid diRpo-,e oral[ cmmillercinl, recycling, and multi -family accounts in the City of Nfintni eginning October 1, 1999, 9111(1 thug resuiting in the nun-relic.wal of the DWI W existing City of Mit,rni licenses, and lass of r.ustunicr nrcuuntr; by Scp1cm1-,vr 30. 1998 ,nie mernhers of the DWI I(- liuve expl-cssccl gr;ivc 1in.ulci.rl cuni-ein over adoption by the City or Miami of said legislative prupngrll and csClissivc liccnsilIg deal sought by All Service Refuse Co., Inc., and estnbli9hing thereby an exclusivc or limited nunitx•x of ti,111ciiises in the C;ily c1f (Miami. 'Ilie i "IC has commisnioncd dii3 legal research in preparation for potential court action to stop the npllnlvcd implemuntiltioil an(1 cillictniew of Such legislation and what they believe to tx 9 dir. Anti-Tnist and Restraint elf Trade tactics 1�), All Sc► , ice Refuse. Cii., Inc.. a11d the City or Mi,ulli restricting the number ofqualifted solid wa to haulers permitted in the City. The DWI I(; members have requested that the legal elements giving rise to their potential cause of action Ix: researched and analyzxd within the body ol'existing i:cdejal and Stale, anti-trrlst statutory provisions, as well as. restraint of' trade, untair trade prcicticc alld CLIT1Slili li0iliil I-Mv . l 11. ISSUES FOR LEGAL REVIEW A. MUNICIPAL CHARTER AND CODE PROVISIONS ISSUE: Whether tite City of Miairli ntny. consistent With its 111tuticipal charter and code, as well as state law, ,sward an exclusive ftunchicr fir the collection and disposal of solid waste in residential and comntercial Areas in the City without tirst, submitting the exclusive franchise award to the municipal electors for their approval al a rel'erendwn held for (lint purpose? Page 6 of 16 t , 1 " CONCLUSiON- No. Ilic wtinmi City Comniissitmer, Ittay riot unilalvililly amend the municipal Y charter but may, only propose aI► amendnient which mu.at be submitted to the municipal elector for flit -it approval at a telOeudurn hod lisp Iht►t purpcise. The present Miami City Charter wri.s .1doiltcd by the city cottitnission oil January 21, 1921. and ripproved by the municipal electors in at rctetcndurii held mi fvlay 17, I921. 'section 3 of the city Charter provides: The City shall have power to: Section 3 (h) "T'tiblic service: To furnish any Intl till public service" Section 3 (i) "Public utilities: To purchase. hire, construct, own, maintain, oper;ttc or Tense public utilities, incguding street railways, electric, light, telephone and iclegraph sysicnis and workers ('or - supplying the city and it., itihr►tiitants with water, ice, gas for illuillinaling and Beating purpose~, diiicl elet:tric energy for illunlin,itiiig, licaling or ligmec l,urT�ciscs. Section 3 (n) "Franchise- St.jbj(-(-1 to the Provisions of the Co»stilution of Florida Said of this charter, both inclusive, lei grant lianchises for public utilities." Section 3 (0)-Scwage, offill, ashes. F!arbnue. etc: To coll%cct and tlisptise of scwag;e, offal, aslie.s, gatbage, careusses or dead animals, And other refuse..." Section 39 (j) Franchise and public utilitirs... l;xcluaivc franchise prohibited "No exclusive frnnciiiye or extension or rcne%val tlicrcof Shall ever be grturted. Subsectiori (1) of s. 166.0.11, U.S., provides the inrtliod for ;unending municipal clinricrs. According to that subscciiwi, the governing; body aftfic illunicil-,ality, by iirtlinance. or the electors of the niunicipatlily, by petition sifncd by 10 percent of the registered clQetuis, may proposc an amendment to ariy .ection or all 01'01e Municipal charter with (lie exception of that part getting; out Cite municipal boundaries. 0 Page 7 of 16 S9— 720 t 'Me ttturticiptal governing body is dhetactl to place the proposed amendment on the ballot at tile, next gcnctal clectiun or at a special election called for this purpose. `iection I WO); t (7) provider; putt, if the prta}vscd an►cridn►ent tcccivc:c t11r Lv orahlc %oiv of a nmjut ity of the mtnlicipnl cicctots "uuni; in tilc r('li•rcildmi), tht, gtivctnirig laxly sllall ►itcorporatc that rimer ttnnent into the chmict mid (tic a copy ol, the revised charter with the Delutrtment (it ":I,nc, at «vhicll Imic tilt: revised charter shall hccome et3cctive. seoiml Kier 011 (1) prt7vicics that it municipality mrly amend it ; c.1►m ter as described above, even if' the rhartcr itself provides wherwise. Accordingly, the Miami City Commission may nut unilaterally amend the municipal charter to award an exclusive franchise For conrt►lmial and multi-14mily solid %%amc collection and disposal but may only propose nn amendment contained in a truly enacted ordinance which trust be submitted to the municipal elecaots for their apprcaval at a rclercndum held 161' that pulposc. Attotttcy Gctleral Opinion Nos. 075-176 and U79-80. In regards to competitive bids and request fur proposals for solid waste collection and disposal: Section 29-A(b) of the City C.ltartcr (Contracts for public work or improvements) provides that ":any public �caaks or improvement contract for more than tell thousand collars ($10,000.00) shall be away icd to tile lowest responsible bidder alter public notice tt►►d using and using such competitive sealed bidding methods or may be preaanted by ordinamn e... Nvtwithstnnding the foregoing, the city manager may wt►ive competitive scnlcd bidding:; rtletlwds by Makin); a written finding that a vnlid cmct-gency c.-Nists ur that there is only vtle ( I ) re1501111WIC ;c►urec nl'cupply, cvhicll lirldirlg trust be ratitled by a two-thirds vote of the ct►tmllission after a pruperl} adket-O;:e(t public hearing .All invil,►ti(mts l6r bids, re(Iticsts fur proposals or other notit►caliotl Shall ctr►llain a reservation of 1110 tight by the t.'ity to reject all offers." Accordingly, the Miattti City Commission may approve a competitive: sealed bid process in lieu of a single exclusive iiartchise arrangement. it should he cautioned that by going to a Page 11 of 16 A competitive bid solicitation, the City triny avoid the exclusive franchise iclerendum requirement by awarding a litnited number of regulatoty permit licerises (two tjr mote) without calling, tticin "tTE111Cht9t9" Since the. provision of Scctiun 29-A(b) aic already included in the City Chatter, competitive bids solicitation do not require an tuimidnicni tti tits Chatter by referendum. Ilie City adiiiinistration and commission would simply follow the te(p.tircrtients rot the competitive bid sulic'ttatioti turd ordinances or requested amending chapter 22 of the ('ode (0iirbage and other solid tivaste) and awarding the colilrttet to tits lowest respunsible hidder (or Iid let's). Alternatively, the City could follow a "Retluest tiir Proposal- melhod and not it competitive bid process. However, a request for proposal process. instead of a competitive scaled bidding method, would requitr a written fitulhig by the City manager that a valid emergency exists, i.e. the garbage was not 1wing picked up, and that only this (I ) ieasortuble source nf` supply existed, this is unlikely given the large number of current city permitted licensees. Futiliet more, the waiver of competitive bill nictliods must be ratified by an affirtuativc vote of two -thirsts of the Commission after a properly advertised public hearing. Two-thirds of a live member conunicsiun consists of 4 votes. B. COMMERCE CLAUSE VIOLATION ISSUE: Whether a town's waste ninnagertient system thut grants to a single hauler an exclusive license to provide nonrecyclablc garbage collection and disposal services within such tctwn's district to tile'. exclusion &Wall private garbage haulers from the convnercial garbage collection market, violates the Comnicrce Clause ot'tlie United Page 9 of 16 99— �iZu iAM ovi PART i CHARTER AND RELATED LAWS* Subpart A THLE CHARTERt Sec, 1. Body politic and corporate; name; seal; right to contract, sue, and be sued. Sec 2. Corporate limits. .a..:rj Sec. 3. Powers, See. 4. Form of government. Sec. S. The initiative. Sec. 6. The referendum. Sec. 7. Regular and primary elections of commissioners. See. 8. Form of ballots; what candidates in primary election for mayor and commissioners placed on ballot. Sec 9. Declaration of election; how tir vote decided. Sec. 10. Distinction between general and special municipal election. Sec 11. The recall, Sec. 12. Filling vacancies for mayor and commission. Sec.. 13. Election when terms of four or more commissioners expire simul- taneously. Sec. 14. Commission may investigate official transactions, acts and con- duct. Sec. 15. City manager —Qualifications; term; salary; sickness; sickness or ahsence; removal. Sec. 16. Snme--Powers and duties. Sec. 17. Same—Examinatiun of affairs of departments, officers or employ- ees. Sec. I& Departments established. Sec. 19. Creation of new departments; discontinuance of departments. Sec. 19-A. Authority to create and discontinue departments by ordinance not limited by other charter provisions. Sec. 20. Directors of departments. *Editor's note —Part I of this volume sets forth, for the reference of the user, the charter and related legislation deemed advisable for inclusion by the city. Also included in this part is a listing of special acts relating to the city. tEditor's note —The present charter of the City of Miami, excepting the later amendments and additions thereto, was prepared and proposed by a charter board of 15 citizens elected at a charter board election, held January 21, 1921, The charter prepared and proposed by such board was adopted by the electors of the city at an election held May 17, 1921; and Lawn of Fla., ch. 90240921) validated, legalized and confirmed the proceedings in the election of the charter board and the adoption of the city charter, but did not enact the charter in full, The charter was amended by the legislature in it-9 regular session in 1923, and the amendment was confirmed by the eler.torate of the city at an election held July 17, 1923. At the session of the legislature in 1925, the entire charter was reeriacted as contained in Laws of Fla., ch. 108470925). The charter as contained in Laws of Fla., ch 1084 7(1925) has been amended at subsequent sessions of the legislature, and by the electorate pursuant to the provisions of section 5 03 of the Dade County Charter. This version of the charter represents the text as amended by Ord. No, 9861 and approved by referendum on September 4, 1984, which amended the charter in its entirety, and as approved by final judgment in the case of the Rolle v. City of Miami Circuit Coeut Case No. 8.1-07522. An, to the charter are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Obvious misspellings have been corrected without notation. For stylistic purposes, a uniform system of headings, catchlines and citations to state statutes has been used. Additions made for clarity are indicated by brackets. 04 County Charter reference —Municipal charters, § 5.03. State law references —home rule powers of municipalities generally, F.S. § 166.021; charter amendments, F.S. 3 166,033. Supp. No. 2 CHT:1 - ?&a o CHARTER AND RELATED LAWS / Sec. 21. Department of law. Sec. 22, Department of public service Sec. 22-A. Department of water and sewers; water and sewer board. Sec. 22-B. Department of public welfare. Sec. 22-C. Board of trustecs of Jackson Memorial hospital. Sec. 23. Department of off-street parking; off-street parking board. Sec. 24. Department of public safety. Sec. 25. Supervision in divisions of police and fire. Sec. 26• Suspension and removal of chief of police and fire chief. Sec. 27, Finance, department of finance. Sec. 27-A. Limitation as to levy of ad valorem taxes for public library and i library system. Sec. 27-B. Levy of taxes. Sec. 27•C. Tax assessor. Sec. 27-D. Board of equalization. Sec- 27•E. Assessor to have power of county assessor; general assessment roll. Sec. 27-F Signing and endorsing general assessment roll; return and pre- sumption of validity. Sec. 27-G. Copy of assessment roll annexed to warrant commanding collec- tion. Sec. 27-H. State law as to taxes applies. i ISec. 27-1. Reserved.l i Sec, 27-J. Discounts if taxes paid before certain time. Sec. 27-K- R'hen taxes become delinquent; interest rates on delinquent j taxes. Sec. 27-L. Tax certificates; interest rate thereon. Sec. 28, Chief procurement officer. Sec 29-A Contracts for personal property, public works or improvements, unifici-I development projects, and real property; safeguards. !L 1 S Sec. 29-B. City -owned property sale or lease --Generally. See. 29.C. Same -Watson Island. Sec. 29-D. City -owned waterfront property; leases with nonprofit organiza- Lions; authorization to waive competitive bidding and referendum t requirements; terms of lease. Sec. 30. Local improvements. Sec. 31. Temporary bonds. Sec. 32. General bonds. Sec. 33, Bond anticipation notes. Sec. 34- Execution of bonds. Sec. 35. Municipal court. Sec. 36. Civil service. Sec. 37. Pension funds. Sec. 38. City planning and zoning board. ---=j Sec. 39. Franchise and public utilities -Ordinance requires four -fifths vote of commission; approval of ordinance by voters; limitation on duration of grant. Sec. 40. Subdivisions. Sec. 41, Conduct of a city business; compensation, duties, and oaths of officers and employees. Sec. 42. Power to appoint boards or commissions of citizens. Sec. 43, Continuity. Sec. 44, Suits against the city. r i' Sec. 45. General provisions. Sec. 46. Bureau of legal aid. Sec. 47. Credit to prisoners for work; costs in criminal prosecutions, y' Supp. No. 2 CHT:2 a 39- 710A L r` CHARTER LAWS OF FLORIDA, CIIAI TER 10847 An act to amend and reenact the Charter of the City of Miami, in tile. County of Dade, and to fix the boundaries and provide for the government, powers and privileges of said city and means for exercising the same; and to authorize the imposi- tion of penalties for the violation of ordinances; and to ratify certain acts and pr(x:eedings of the commission and of the officers of the city. Be It Enacted by the Legislature of the ,State of Florida: See. 1. Body politic and corporate; name; seal; right to contract, sue, and be sued. The inhabitants of the City of Miami, Florida, within the boundaries hereinafter designated, or within such boundaries as may hereafter be es- tablished, shall continue to be a body politic and corporate under the name "The City of Miarni," and as such shall have perpetual succession, may use a common seal, may contract and be con- tracted with, and may sue and be sued, plead and be impleaded in all the courts of this state and in all matters whatever. Case law reference —The city is a governmental entity created by the state. it is a public institution designed to promote the common interests of the inhabitants in their organized capacity as a local government, and its objects are governmental, not commercial. 1liami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So. 2d 194, 165 A.L.R. 967. The city is a municipal corporation and is not exempt from paying interest on its obligations. highway Construction Co. v. City of Miami, 126 F2d 777. See. 2. Corporate limits. The corporate limits of the City of Miami shall include all the territory and inhabitants within the following area, and no other: [For the latest legal description of the city bound- aries, the user is referred to exhibit A of Ord. No. 9861, on file in the office of the city clerk.] Editor's note The territorial limits of the City of Miami were fixed pursuant to Laws of Fla., ch. 156870931). Further special acts extending, enlarging, or otherwise changing the corporate limits include laws of Fla, r_h. 15821(1931); Laws of Fla., ch, 18685(1937); Laws of Fla., chs. 21393, 213960941); Laws of Fla., clis. 23,105, 23409i 1945); Laws of Fla., ch. 26021(1949); laws of Fla., ch. 57.1583. W 43 The board of county commissioners of Dade County further extended the boundaries of the city (Primrose Park) by Dade County Ordinance No. 63-6, sdopted March 5, 1961 County Charter reference —Method of changing city boundaries, $ 5.04. State law reference Municipalities within Dade County to adopt annexation or contraction ordinances pursuant to provisions of county home rule charter, F.S. ¢ 171.071. See. 3. Powers., The City of Warm shall have power: (a) Ttrxes and assessments: To raise annually by taxes and assessments in said city, such sums of money as the commission herein- after provided for shall deem necessary for the purpose of said city, and in such man- ner as shall be hereinafter provided for, and in accordance with the constitution and laws of the State of Florida and the United States; provided, however, that no tax or other evidence of city indebtedness shall be iinposed oft the bonds of the city, (b) Streets, parks, bridges, servers, grade cross- ings, speed of vehicles; services and rates of motor vehicle carriers: lb pave, grade, curb, repave, macadamize, remacadamize, lay out, open, close, vacate, discontinue, widen, and otherwise improve streets, alleys, ave- nues, boulevards, lanes, sidewalks, parks, promenades, and other public highways or any part thereof, and to hold liens therefor as hereinafter provided; to construct and maintain bridges, viaducts, subways, tun- nels, sewers, and drains, and regulate the use of all such highways, parks, public grounds, and works; to prevent the obstruc- tion of such sidewalks, streets, and high- ways; to abolish and prevent grade cross- ings over the same by railroads; to regulate the operation and speed of all vehicles using the streets, highways, and railroads within the city; to regulate the service rendered and rates charged by buses, mo- torcars, cabs, and other vehicles for the carrying of passengers and by vehicles for the transfer of baggage. (c) Special or local assessments: To impose special or local assessments for local im- provements as hereinafter provided and to enforce payment thereof. CHT:3 S,119- 72� L 113 i CHARTER AND RELATED LAWS (d) Contracting debts and borrowing money: Subject to the provisions of the Constitu- tion of Florida and of this charter, to con- tract debts, borrow money, and make and issue evidences of indebtedness. (e) Expenditures: To expend the money of the city for all lawful purloyes. (f) Acquisition and disposition of property and services: (i) To acquire by purchase, gift, devise, . condemnation or otherwise, real or per- sonal property or any estate or interest therein, inside or outside the city, for any of the purposes of the city; and to improve, sell, lease, mortgage, pledge, or otherwise dispose of such property or any part thereof. (ii) To acquire fir dispose of services inside or outside the city, by purchase, gift, or otherwise for any purposes of the city. (iii) To lease to or contract with private firms or persons for the commercial use or management of any of the city's waterfront property, but only in com- pliance with the other requirements of this charter and on condition that: (A) the terms of the contract allow reasonable public access to the wa- ter and reasonable public use of the property, and comply with other charter waterfront setback and view -corridor requirements; and (B) the terms of the contract result in a fair return to the city based on two independent appraisals;' ind (C) the use is authorized under the then existing master plan of the city, (D) the procurement methods pre- seribtA by ordinances are observed. Any such lease or management agree- ment or proposed extension or modiG- cation of an existing such lease or management agreement which does not comply with each of the above condi- tions shall not be valid unless it has first been approved by a majority of the voters of the city. WN Nothing herein contained shall in any man- ner affect or apply to any project the financ- ing of which has been provided by the authorization of bonds to be issued by the city. (g) Public property and iniprovenients: To make and maintain, inside and outside the city, public improvements of all kinds, including municipal and other public buildings, ar- mories, markets, and all buildings and struc- tures necessary or appropriate for the use of the city; to acquire by condemnation or otherwise all lands, riparian and other rights, and easements necessary for such improvements; and to rent or, lease from any person any land or building within or without the city or any part thereof for any municipal purpose. (h) Public service: To furnish any and all local public service. (i) Public utilities: To purchase, hire, con- struct, own, maintain, operate, or lease local public utilities, including street rail- ways, electric light, telephone and tele- graph systems and works for supplying the city and its inhabitants with water, ice, gas for illuminating and heating purposes, and electric energy for illuminating, heating, or power purposes. (j) Water supply: To acquire inside or outside the state such water, lands, and lands under water as the city may deep: neces- sary for the purpose of providing, piping, and conducting an adequate water supply for the city; to lay all necessary mains; to erect and maintain all necessary dame, pumping stations, and other works in con- nection therewith; to make and enforce reasonable rules and regulations for pro- moting and protecting the purity of the water supply, and for such purpose to exer- cise full police powers and sanitary patrol over all lands comprised within the limits of" the watershed tributary to any such supply wherever such lands may be located in this state; to prevent by injunction any pollution or threatened pollution of such water supply and any and all acts likely to I 0 CHARTER 43 impair the purity thereof; and for the pur- reasonable duties or fees on vessels coming pose of acquiring lands or material for any through or using said landings, wharves, such use, to exercise within the state all docks or warehouses; to regulate the man - powers of eminent doinain. For any of these ner of using other landings, wharves, docks, purposes, the city may acquire by condem- and warehouses within the city; to pre - nation, purchase, or otherwise any estate. scribe and enforce reasonable rules and or interestin such lands suhject to what- regulations for the protection and use of ever conditions or reservations may be rea- said property; to advance to the Govern- sonable. The said city may sell or supply to ment of the CJnited States, with or without persons residing or located outside of the interest, funds to be expended in harbor city limits any surplus of water it may have improvements to be made by the govern - over and above the amount required to ment in or near the city, or directly affect - supply its own inhabitants. ing the city within Miami Harbor and the (k) Rates of public utilities: `Yo establish, im- approaches thereto, if such work has been duly authorized by laws of the United States; pose, and enforce rates and charges for and to issue bonds or notes to obtain funds water, gas, electricity, and all other public for such advances. utilities or other services or conveniences operated, rendered, or furnished by the city (n) Franchises: Subject to the provisions of the or by any other person. Constitution of Florida and of this charter, (1) Telephone and telegraph ivires: To require both inclusive, to grant franchises for pub - the placing of all electric wires and also all lic utilities. telephone and telegraph wires in conduits, (o) Sewage, offal, ashes, garbage, etc.: To col- underground, and prescribe rules and reg- lect and dispose of sewage, offal, ashes, ulations for the construction and use of garbage, carcasses of dead animals, and said conduits and to enforce compliance other refuse; to acquire, construct, or oper- therewith, and in case of failure or refusal ate incinerators and other plants for the of the public utilities companies to place disposal or reduction of such matter or the such wires underground and comply with utilization of any part thereof, and to ac- the rules and regulations thereof, to con- quire by purchase, condemnation, or other- struct such conduits and place the wires wise any estate or interest in any water, underground and maintain a lien against land, or land under water within the city or the franchise and property of such compy- within any county in the state for such nies. disposal, reduction, utilization, construe- (m) harbor and shipping facilities: To estab- tion, or operation. lish, construct, maintain, and operate, both (p) Abatement of nuisances, etc.: Ib compel or inside and outside the city, public landings, cause the abatement and removal of all wharves, docks, and warehouses; to dredge nuisances within the city or upon property or deepen harbors and rivers: or any branch owned by the city beyond its limits by the or portion thereof-, to install turning basins, person causing the same or by the owner or build jetties, and otherwise improve the occupant of the property where the same harbor and shipping facilities of the city, may be; in the event the city incurs any inside and outside the city and inside and cost or expanse for such abatement or re - outside harbor lines where such improve- moval, to claim a lien against any real ments outside of harbor lines are approved property involved; to require all real prop - by the United States Government or its erty within the city to be kept clean, sani- proper agencies; to acquire by condemna- tary, and free from dilapidated, deterio. tion or otherwise all lands, riparian, and rated, dangerous, or unsanitary buildings other rights and easements (necessary for or structures, and weeds, undergrowth, ruh the purposes aforesaid; to lay and collect) bish, debris, trash, or unsightly and unsan CHT:5 SJ- 0 t CHARTER (2) to require proper and adequate extensions of plant and service, or the maintenance of the plant and fixtures at the highest prac- ticable standard of efficiency; (3) to establish reasonable standards of ser- vice and quality of products and prevent unjust discrimination in service or rates; and (4) to impose such other regulations as may be conducive to the safety, welfare, and accom- modation of the public. (e) Extension of public utility. All extensions of public utilities within the city limits shall become a part of the aggregate property of the public utility, shall be operated as such, and shall be subject to all the obligations and reserved rights contained in this charter and in any original grant hereafter made. The right to use and main- tain any extension shall terminate with the orig- inal grant. In case of an extension of a public utility operated under a franchise hereafter granted, such right shall be terminable under the same conditions as the original grant. (0 Subject to terms of charter commission and electors not limited. Every public utility franchise hereafter granted shall be subject to all the terms and conditions of this charter, whether or not such terms are specifically mentioned in the fran- chise. Nothing in this charter shall operate to limit in any way, except as specifically stated, the discretion of the commission or of the electors of the city to impose 'terms and conditions in connec- tion with any franchise grant. (g) Copies filed and recorded. Within six months after this charter takes effect, every public utility and every owner of a public utility franchise shall file with the city, certified copies of all the fran- chises owned or claimed or under which any such utility is operated. The city shall compile and maintain a public record of all public utility fixtures in the streets and other public places of the city. (h) Accounts. Accounts shall be kept for each public utility owned or operated by the city, dis- tinct from other city accounts, and in such man- ner as to show the true and complete financial result of such city ownership and operation, in - eluding all assets, liabilities, revenues, and ex- penses. The accounts shall show the actual cost to the city of each public utility owned; the cost of all extensions, additions, and improvements; all ex- penses of maintenance; the amount set aside for sinking fund purposes; and, in the case of city operation, all operating expenses of every descrip- tion. The accounts shall slow as nearly as possi- ble the value of any service furnished to or ren- dered by any such public utility by or to any other city or governmental department; they shall also show a proper allowance for depreciation, insur- ance, interest on the investment, and estimates of the amount of taxes that would be chargeable against the property if privately owned. The com- mission shall annually cause to be made and printed for public distribution a report showing the financial results of such city ownership and operation, which report shall give the information specified in this section and such other informa- tion as the commission may deern expedient. M Effect on previous grants. Nothing contained in this charter shall be deemed to abrogate or terminate any right or franchise heretofore granted by the city to any public utility, provided that all public utilities now in existence shall comply with the requirements of this charter and all ordi- nances enacted pursuant thereto. (j) Exclusive franchises prohibited. No exclu- sive franchise or extension or renewal thereof shall ever be granted. See. 40. Subdivisions. (a) Plat requirements. Any owner of lots or grounds within the city who subdivides same for sale shall cause to be made an accurate plat of said subdivision describing with certainty all grounds laid out or granted for streets or other public uses. Lots intended for sale shall be num- bered by progressive numbers or described by the squares in which situated, and the precise length and width shall be given of each lot sold or intended for sale; such plat shall be subscribed by the owner, acknowledged before an officer autho- rized to take the acknowledgement of deeds, ap- proved by the director of public works, and rt- corded in the office of the clerk of circuit court h- and for Dade County, Florida. No such plat shad CHT:57 LU A CAR ItaI\r:, INC. 1. 'I OWN ( IF ('I,AItHIA(IWN, N.1. 1677 l llr a%114 till. 1677 (19w4) ty, that. both voatrls in the llres••nt cast, all lvear to have relied 11llon, jtidgin:,, from thcit• references to "inhrreni power." sec App. il, Pet. for Celt. A-2 and A-5: App. 180. We think, howevct', that( lht, powrr ached for here is quite I'cnulte I'ronl wluli coluls rr,. quire in order to perform their functions. Wo have rccogni>cd inherent anthori(y In appoint counsel to investigale auld prosecute violatiol) of, a cool l's orch.l'. )'otr,lq e. 11,011•rl Slates r.r 14. 1'011on rl Fil.s S. 1...181 l.'.�. 787, 107 S.Ct. 2121, 9i, i:.l•:d.2d 7,10 (1987). Iiut the only order here was 11e11 the suit he dismissal, a disposilion that is in no way flouted or inlperilc d by the allel"ed hrcaci of the settlement agreeinelit. 'I I'v sit nation would he quite diffcrcnt if Lhe 1+!ones' obli gntion to Comply tcilh the terms of the scllle- ineat agreenuvnt hail been made part of tilt, Order of diRnlissal----vither by sop:wale Ilrnvi- sirnl (such us a provision "retaining jurisdic- tion" over the sett lerncut agreement) or by incorporating the terms of the ,ettlemont agreement in the order. In that event, n breach of the atrrrrnualt would he .1 violation of tile order, and ancillary jurisdiction to cnfome the agvealrent would therefore exist. That, however, was not the case here. The judge's luere awa[rness and approval of the terms of the settlement agreement do lint suffice to malm them part of his order. [6-8) The short. of the matter is this: The suit involves :1 claim for Ill-vach of a contract, part of the consideration for which was dismissal of all earlier fedend suit. No federal statute mal:es that connection (if it constitutionally could) tit(, bae:is l'or ft,deral- court jurisdiction over the vont'act dispute. The facts to he rlrtertnined with regard to such alleged breaches of contact are quite separate from Iho facts to he delcrnlined in the plincipal suit, and automatic jurisdiction over such contracts is in no way vsSential to the conduct of federal -cowl business. if the parties Trish to provide for dw court's en- forcement of a di+missal-producing; settle- nuvnt agr(cnlent, they can, souk to do so. When the dismissal is pursuant to F ederal Rule of Civil Procedure 41(a)(2), r hich speci- fies that the ueLioll "shall not be dismissed at, the plaintifl"s instnu•e Sava• upi+rl "l-del• of the court mid upon such tornls orni conditions a:; the court drools propet-," (lac parlim,' c'ompli- ance with the terms of the Settlelltent cnn- tract for the court" "retention of jurisdic- tion" +1ver the settlement colitrart) play, ill the com't's discretion, ill, one of the terms set t'olih in the order. Even when, as occurred here, the dismissal is pursuant to little 4101)(1)(ii) (witch does not by its terms vw- powcr :1 District Conrt to attach conllitions to the pal -ties' stipulation of dismissal) we think the court is authorized to enlbrnly the settle- nleut contract in its disnlissall order for, what has tho saute effect, retain jurisdiction over the Sodemcnt contract) if the patties alrt•ee. Absent such action, however, enforcement of the "Ot.lenleilt agt'l'et)1l•Ilt is fill' State Courts, nu{es;; there is some indeperldenl basis for federal jurisdiction. we reverse the ,judgment of the Court of Appeak and remand for further proceedings consistent with this opinion. It is so ordered. w Q S11 N11"11"SYSUM T C- ;':`ATA i(69E; INC., 'r e!al.;'petitiainers;l v. TOWN OF CLARKSTOWN, NEW YORK. i No. 92-1-102. Arg red Dec. 7, 1993. Decided May 1(i, 1994. Toam stied operators of recycling facility to etijoin them froth violating local ordinance requiring that solid waste processed or han- dled within town be processed or handled at town's transfer station. The ApIwIlalte Divi- sion, Supreme Court of New York, Second .hulicial Department, Harwood, ,I., 182 1678 III vIiIIIth,IME ('01 A? 'I, lit POIt'1EIt A.U.2d 21;1. 5N7 N.Y,S.2d (NI, affirmed i;r,ult of stttilt nary jodgment for town. Ccriilwali was g7•anted. The 'Sopt•cnle Cou►•t, .jm�livv Kennedy' held that: (1) ordinance rct-nllalod interstate cononerce, and 12) ordinance im- pernlissihly di rriminated ap;ainml iulelstatr rn►l ltn'rre, Reversed and renlanded. JuFticc t)t'olmor filed opinion c•oncor- ring in judglorot. ,Mistime Seuter filed dissenting opinion in which Chief Justice Kehnquist and ,Justice 131acknlun joined. 1. Commerce 0-52.10 Health and i;nvironinent 0-25.5(5) Town's ordinance requiring that all solid waste processed or haudlcd \:ithfn town he processed or li;mdlcd at town',-, transfer sta- tion "regulated interstate c•onuneree,•' as its eentl(Imlc etfevis were interstate ill Peach: ily requiring operators of recycling facility to send nonrecyclnhle portion of its waste to transfer station at additional cost, ordinance drove up cost for out-of-state interest to dis- pose of their solid waste at recycling facility and, even as to waste originant in town, { `yt ordinance prevented every one except fit - wed local operator from performing initial processing step, thereby depriving out: of- stafte businesses of access to local market. U.S.C.A. Const. Art. 1, § R, cl, :3. i See poblication Wi yids and Phrase, 1 for other judicial Constroctions and def. initions. 2. Commerce (�-12, 13.5 r; In determining whether local ordinance is valid despite iL, undoubted effect on inter- state commerco, court considers whether or- ', - dinance discriminates against intersUite com- merce, and whether ordinance imposes hur- r j den on interstate commerce that is clearly l excessive in relation to putative local hene- ij fits. U.S.C.A. Const. Art. 1, § R, cl. 3. ' The syllabus Consfitulcs no part of live opinion of the Court but has been prepared by the Reporter of Decisions for the Convenience of tilt, reader. J 3. l omnivic e C-12 ('entnd rolionale for interstate coul- nlcrce rinnsc'm rule against discrimination is Ice prohibit state or municipal laws designed to effect local economic protectionism, hm's that would excite (home jeadousir's and r•etadia- lot,v mcasures that CollAitutiou was hilend- ecl to prevent. 11S.C.A. Const. Art. 1, § H, cl. 3. ,J. Commerce e-52.10 Ifealth and Fan ironment 0-25.5(5) Town ordinance. requiring that all solid waste processed or handled within town he processed or hamllcd at town's transfer sta- tion discriminated against interstate com- nlerce and, thus, \vas invalid under interstate commerce clause, even though ordinance erected no har►•ier to import or export of any Solid waste; ordinance discrinlirlated by af- liming only favored operator to process waste that was within town's limits, and town had number of nondiscriminatory alterna- tives for addressing health and ettvirolunen- tal problems alleged to justify ordinance, Stich as uniform safety regulations enacted \without object to discriminate. U.S.C.A. Const. Art. 1, § 9, t•l. 3. 5. Commerce C-13.5 Discrimination against interstate com- merce in favor of local husilless ot• invest- ment is per se invalid, s:l\e in narrow class of cases in which lntulicipality can denlnrlStt•ate, under rigorous Scrutiny, that it has no other means to advance legitimate local interest. t I.S.C.A. (:oast. Art. 1, § R, cl.:l. 6. Commerce 0=62.75 Revenue generation is not local interest that can justify discrimination against inter- state commerce. U.S.C.A. Const. Art. 1, § R, cl. 3. S1111abu , * Respondent town agreed to allow a pri- vate contractor• to construct within town lim- its a solid waste transfer station to separate See United Rtatel e. Delloit Lutoher Co., 200 U.S 321, 337, 26 S.Ct, 282, 287, 50 1_Td. 499. moo.•. •�avn�^ra��.-nuv�. .. rw AN'.11M 0D_ ? ,I , � d ,;, recyclall operate t.jme the To final town gu. the facil rhal•gc 1.1 ed the d on the pt waste flr flow cunt at•dous s deposited cyders !if may rece facilities, bring not station, C waste the the tippir been sortt was shipp state destl court, see this residt Lion. The to the to" tional, ant Meld: fates the C (a) Th cononerce. direct loci designated its econoul I3y reguil•ir able portior State to tht cost, the ore of -state int waste, it a es of access ing everyon for from p Step, Pp. 1 (11) The interstate c See Philadc 617, 624, 98 3. l omnivic e C-12 ('entnd rolionale for interstate coul- nlcrce rinnsc'm rule against discrimination is Ice prohibit state or municipal laws designed to effect local economic protectionism, hm's that would excite (home jeadousir's and r•etadia- lot,v mcasures that CollAitutiou was hilend- ecl to prevent. 11S.C.A. Const. Art. 1, § H, cl. 3. ,J. Commerce e-52.10 Ifealth and Fan ironment 0-25.5(5) Town ordinance. requiring that all solid waste processed or handled within town he processed or hamllcd at town's transfer sta- tion discriminated against interstate com- nlerce and, thus, \vas invalid under interstate commerce clause, even though ordinance erected no har►•ier to import or export of any Solid waste; ordinance discrinlirlated by af- liming only favored operator to process waste that was within town's limits, and town had number of nondiscriminatory alterna- tives for addressing health and ettvirolunen- tal problems alleged to justify ordinance, Stich as uniform safety regulations enacted \without object to discriminate. U.S.C.A. Const. Art. 1, § 9, t•l. 3. 5. Commerce C-13.5 Discrimination against interstate com- merce in favor of local husilless ot• invest- ment is per se invalid, s:l\e in narrow class of cases in which lntulicipality can denlnrlStt•ate, under rigorous Scrutiny, that it has no other means to advance legitimate local interest. t I.S.C.A. (:oast. Art. 1, § R, cl.:l. 6. Commerce 0=62.75 Revenue generation is not local interest that can justify discrimination against inter- state commerce. U.S.C.A. Const. Art. 1, § R, cl. 3. S1111abu , * Respondent town agreed to allow a pri- vate contractor• to construct within town lim- its a solid waste transfer station to separate See United Rtatel e. Delloit Lutoher Co., 200 U.S 321, 337, 26 S.Ct, 282, 287, 50 1_Td. 499. moo.•. •�avn�^ra��.-nuv�. .. rw AN'.11M 0D_ ? ,I , � d ,;, recyclall operate t.jme the To final town gu. the facil rhal•gc 1.1 ed the d on the pt waste flr flow cunt at•dous s deposited cyders !if may rece facilities, bring not station, C waste the the tippir been sortt was shipp state destl court, see this residt Lion. The to the to" tional, ant Meld: fates the C (a) Th cononerce. direct loci designated its econoul I3y reguil•ir able portior State to tht cost, the ore of -state int waste, it a es of access ing everyon for from p Step, Pp. 1 (11) The interstate c See Philadc 617, 624, 98 MN I,, i'�c'. i. '1.1►11 \ O1' ('i„II;hN'IV►Y\ \. ;`.1. Ifi7!1 I'll,- nr 114 S ( I (I'1941 ree%;clahle i'l-oni IlItoI-( ('vclnIIIi` items :Illd I operate the Lrcility for five years. at \c)lirll fillip the town would hug' it for nm dollar. To finance the tr:oisftor station's co;i, the town iniar:int(,e(1 a mioinium cc:lsh' flocs' to the facility, for i,thirh the ctill i'arlor cooi(I Charge the hauler a tipping felt which exceed- e(1 the disposal cost of un::(,rled 'Adid cc•a.'le on the private rlcn•lo'l. In ordi'r to upset the waste f1mr g1larmAve, the town adopted ;I Ilow control ol-dilmucc. rellniring all unnhnz. :u•dolls solid ccithill the tour to he dol(osiled at the t:nlsf r station. While I(- cyclerg like petitioners icollectively ('arhotiol may receive solid ccaslc at their i:wIl sorting facilities, the co'dimtnce re(tuirc:• them to hying tlonrecyclahlc residue to tilt, t•ansfor statioll, thin forhiddin); them to ship such waste themselves and requiring them to p;lY the tipping fee on t'osh that has alread*' liven sorted. After disrovering 111:0 t'arFlone was shipping 14onrec,elahle cc•ast,' to out- l'- Maio destinations, fie t '.vn tiled suit in st:ne (•curt, ;:poking an injloe•lioo re(tllirint! that this residue he shipped to the trculstol, shl- lion. The coul-t grunted sumulcu;v judgine111 to the town, finding the ordinanlr con titn- tional, and the Appellate Division nilimic(l. //rid: 'the ilow control ordinance wit, Imes the Commerce (;;'use. I'll. 11181-IGS1. (a) The ordinance regulates interstate cortuneree. Wide its immediate effect is to direct local transp in -4 solid Nvaste to a desilmated site cvithiu the lor:ll ,jurisdirtinrl. if: economic effects ;ore int('t:state ill renrl,- Ry re(iuirinh Carboni, t,I send the nolu•ecvc•i- ahle portion of waste ii reccicv.s from nut of ;Mate to the transfer station of an additional cost, the nt•dinance dri e: 111) lie ro:t for out of slate illff-Yests In lit pn::e of then• solid wast(. It :Ilse delrr•ivrs 1 nt-1A A;kIo lit l<iner'.,- vs of :seep: i1) the local marl(et, hy p revert- ing evr`ry'one except the favored local opera- tor front performing the initial processing' tl1) '1'hc ordinance disrrinlilmics againsd. interstate c'omillerce, and thus, is ilw'did. Nee 1'lriludr'1l hiu v. M if, Jersey, 437 U.S. 617, 624, !Ifs E.CI. 2531, 535-31l, 57 L.Ed.2,1 All hough (Ili, ordm:nu'e cl•ert< It,, ll:trri e1 (o 1111t inrp(1I'( or 1•>liort of an) solid (caste, the :n'ticde of eounnerce here is not so umc'h tn` Waste itself, but mill, r the srrcil-v of plovi'ssing and disposioe of it. With respect i1, this stream of rnnunrrrr, (he nrdioartre di .rr inliu;tles, For it allows old the favored 1vl1(•r:Uoe to tlrore>:s «;e-h` Ihat i< i.Ohin the 111.+n's louts. I1 is tin less dirrrinlinator} I,eCallso ill -stale nl• in-lo it III''I('t`SSon'; are :lh I1 rocrred h}' tiI( I rn11111iIi(111. t T., ('.y., i)• r(,r ,Milk ('n. r. ,llolIi ml, :t ill 1'.ti.:111,1, 71 N I'(. :.rill,. 9,7) 1..Ed. 3'::1. I•maoring a single lot A proprietor makes the ordiu;mc(.'s pro- 0'11iollist direct et,en more ncate, for it sllnelchcs cunlpclition ill till` \ ;ISte-lu•ncess- im, service altorl-ther, 14-miog no room for outside investment_ I'l1. 16142 -iG83, (c) 'I'll(. t(mit (Ines not lark olher lu(I:cns to nih•anev a legitimate local interest. it could mldrv::s;Illel,ell hc;il(h :ual safetc proll- lem:; tilrongh non(liscliminatol-Y altermitives, such as uniforin safely I1•Itlllations Owt would emure that colnt1e111011•• 1111 nut ,md('iprire the 111;lOel 1),v eluting collet•, (tit emirotl- nmoltal safeU'. .luslil'vinkr the oldivanre as a ww. ill �,tet`r• solid ica>:It, :nt•;i%. from out-of- to-, 1, di�'po:4 sites that the town might deem 11aru1fll tit tilt, 1-IMIt"mnenl cool ld its police p(mcr he%•nnd its jurisdictional hound- :I1111S. Moreover, rho '1J•dinmlee's I'v%e ue gel -rating purpose I,y ilself is not :I local inh-rest that caul justify disi-rinlil!ntirnl ag;unst iut(rrstzlte contnu rce. ll' =lseciai fi nm ring is needed to ('11sure lilt, irausfer s1:11inn's long -torus lhr tnli'n 111:1,v slil,mlizv the f:lrility through gener(1 taxes OF nanlicipal hand:<, but it nln}• not colplo} (li�'(limillatorY relml;ltion in give the pro,iec't mi a1h'anlage over ri%al oot-oi' •tnh• husioess- 182 App.l)ii'.2d 21:t, 6ti7 N.Y.N.'_'d Gtil, fret ersed :old rctuandcd. KENNEDY..1., tleliceretl the opinion of fie your!, ill %%hirh STI-XENN, SCAI.IA, '1'111)MAN, mid 1 INtiitl lf(i, .l.l., jl-ined. OVONN(11{, L, filoil n1l opinion concurring in the jil,lgouyll. 5MITI?I{, J., filed a 11is..eotilig opinion, ill which REHNQUIST, t'.,I..:old ]tLACKMUN, ,1., ,joined. aw� i r t vArm 1680 111 INIIPIt1,1IF, ('()1111,T It POlt'I I';It Betty Jo Christian, Washittl",ton, iR', fill - petitioners. William C. Bra' --hares, WAshhiglnn, DC, for respondent. For U.S. Supreme Court, br•iofs, see: 1993 WI, 433038 (Pet.11t•ief) 1993 WI, 4:33043 (Resp.i lief) 1!03 Wit M123,19 (Reply.11r'leO JmMice KLNNEDY delivered the opinion of the Court. As solid waste output continues apace and landfill capacity becomes more costly and scarce, state and local governments ary es - pending significant. resources to develop trash control systems that are efficient, law- ful, and protective of the enyirmanctit. The difficulty of their task is vvidalt from the number of recent cases that we have heard involving waste transfer- and tr;•atnlent. See PhilmIcfphia r. New Jrrscy, 4:17 U.S. 617, 98 S.Ct_ 2531, 57 L.Fd.2d .175 (1978); Chemical Waste Afanagemrrrt, /rrc. r. /truer, 501 U.S. --, 112 S.O. 2009, 119 l,.F.d.2d 121 (1992); Ford Cratiot Sanitary bind.011, lur. r. 'Wic•h- igan Dept. of' Natural Resotrrcrs, NH U.S,. 112 S.Ct. 2019, 119 l,.Ed.'ld 1:19 (1992); Oregon Waste sy.strms. /lire. n. Department of lsrtvirrnurrcntal (oinulity of Orcyorl, 511 U.S. 114 S.Ct. 1345, 128 L.Fd.2d 13 (1994). The case decided today, while per- fiool Zv" Pridge and 1p• highw;l.v nlinnicr; from Ncw .lt'rset'. Within Ito• tm.n limits arc the tillage of Nyack and the h:uu- IN of West Nyack. In ,jugust 1989, Clarlis- town enteral iltto :1 consent decree crifh the New York State Ilepartmellt of h;m;ironnu n.. 1411 (it nser-•alioil. The tmwn ata•ecd to clo,,e its landfill located on Itoute :10:3 in West. Nyack and hnild a neu• solid wattle Ir:ulsh r station on the saint site. The station would receive hulk solid and scpnrid(t rccycl- ahlc front lot) recYchthle items. Itcoycl:ll le waste would he haled for shipment to :1 lecy- cling,* facility; nonrcc;crl:thle wash•, to a suit- able landfill or incilwrntor. The cost of huilding the transfer station Nvac cstinucted ;it $L4 million, A heal lui- vate contractor agreed to t•onstrncf fhc facili- ty and operate it fill• five years, aRet• which the t(rwn would huh• it for one dollar. During those lice years. the town guat•anteed a mini- mum waste (lode of 120(hill tolls per year, for which the contractor could charge the hauler a so-called tipping fee of $.`tl per ton. If the station rceeired L•ss than 120.000 tons in a ye:u•, the town promised to make op Ow tipping; fee deficit. '11w object of this ar- rangement was to amortize the cost of the fr•:ulsfcr t•tation: The town would filcmcc its rlew facility with the income generated by (he tipping fees. C: &- A CARIi(INI;, INC. r. FMVN, ill, t'!„11t1i5'i'i111'ti, ;d,l'. 1681 i'Itr n. 114 Sit. 1677 (19941 processing of solid waste, and \:uiom rck•1te i companies or persons, all of wNnn we desig- nate Carbone. Carbone operat••s a recyr•liog center in Clarksiown, where it receives hall; solid waste, -arts and bales it, :trrd then ,;hill, it to alher processing facilities —nntch as on curt at the tom's new transfer Station. While the now control ordinance pei•nlits ri• cyclers like Carbone to cuntinur receklim solid waste, § 3.(% it trquhvs ileum to brim: the nonrecyclable residue froth that waste to Me Route TKI station. It thus forbids ( A bone to ship the nru rer•yclable waste itself'. and it requires Cm -boric to Tray a tipping fee oil trash that Carbone has alt easy sorted. 1n Mmvh HML a tmoor•-tr, AT containing 2.3 bales of solid \waste struck rut merpass on the Palisades Interstate Parh%vay. When the polies• investigated the acc•idenl. they discos Bred the truck was carrying household waste from Car•bone's Ciarkstown plant to an Indi:uta landfill. The C'larlatu,. n pnlice pill Carbone's plant wider sun•eillance and in tit( - next feiw days wood six inure tractor trestle r leaving the faeilily. The truck. ako con tained nonreeyelable waste, originating both within and without the town, and destined for disposal sites in Illinois, India no. West Virgi nin, and Florida. The tower of (;Iarksto+wn sued petitioners in New Fork Suluente Court, Rockland County, seeking an in,junetiou requiring Carhnne to ship all nunr•ecyelahle waste to the Haute :3U:3 transfer station. Petitioner', 1-ospottdnil b} suing in united States llistrict Cout•t to en- join the now control nrdi»:utcc. Ou July 11, the federal court granted (10-Me's h&W - tion, funding a snilh•icut likelihood thattit,- ordinance violated the Colnnu•n•(- Clause ol, the I foiled Siall" Constitlit iou. C.A. Cor hoist•, lire•. r. Clnikstowit, 770 F.Supp. 8.18 Fora' days k'ttcr, the Neu• York courl granted judgment, to respondent. The court sins red me now cottt.l of ordinance constitutional and enjoined petitioners to conlidy with it. The federal court then dis- solved its hijunt-G)II. The Appellate I liyision affir•tued. 182 AM'. lliv AI 213, 587 N.1•.SW OM (2d 15pt.W92). The eoui•t found that the ordinance dirt not disc•r irninate against interstate contnlerce be- cause it "applies evenhandedly to all solid waste processed iwitW the Own, mgai•tlless of point of WOO ld., 5M7 N.&S.2r1, at ON. The New York Court of Appeals denied peti- tioner;' motion for leave to appeal. So N.1`311 7646 Mil N.Y.S2d 1:3K 605 RE.2d 571 (1992). We granted certior:ui, S08 U.S. and now i•ewer:se. 11) At th(- outsei we coniir•m that the (]fin• control ordinance duce retnrlate interstate cominer•ce, despite the tmcn's position to the contrary. The town says that its ordinance reaches only waste %within its jurisdiction and is in practical effect :1 tltlartntim•: It pre - "As g:u•bagc Awn entering the stream of interstate conuncrce until it is made safe. This reasoning is pt•entised, however, on an outdated and mistaken concept of what cutl- stitutes interstate coitumme. While the ininiediate effect of the ordi- tiance is to direct local transport of solid waste to a designah•d site within the local jinisdict-ion, its ccmunnie effects are inter- state in Peach. The Carbone facility in Clar-listoywn receives and processes waste Awn lilaces other than taarkstown, including frona out of Stnte. Hy requiring Carbone to send the nnnne* laltle purtinn of this waste to tit 1(oute :10:3 transfer sU:tiun at nn addi- tional coat, the now control ordinance drives up tho cost for oul-ol•-dale interests to dis- Put! of t1wir solid waste. h"ul•tFiernuire, even as to waste originaot in C'larlir.tow•n, the ordi- nnnce prevents everyone except the favored local operalor front perforating the initial pt ace: sing st+'p. ` lw or'dinatu•e Hill', d(-- prives nut-of-stato bnsiness(-s of access to a local marlwt. These ev000ntie etTcet.s are tonne than enough In hying the ('I:nlrstoun ordinance within the purview of the Com- merce Clauses It 15 well settldd that fiction:` are within the domain of the Cornmerce Clause if they burden inter:sLite commerce or impede its free flow. NLRB r. Jones &t 11 r t.% U 1682 114 SUI'1iEME COURT 111"1't)RIT'l,lt Lauphlfn Curl Corp., 301 U.S. 1,:11, 57 SA't 6115, 621, 81 i,.Ed. `Z93 (1937). 12) 'fhe t'c:d iiiestirm ire ,Nhether the (lmv control ol-din:un e is valid des]rite its indouhl- ed effect on inh,rtt;ate comillo •ce. For this inquil-Y, our c;m' law yiolds two lines of anal.sis: Cast, whether the ordinance dfs eruminates :rr:rinst inlcl•statc corlunerce, i'lldodelphin, 137 U.S., nt 11,21, 1.1,14 S.Ct., at 2535; and sr ond, whether• (he ordinance imposes a hirdcn on intel-1:11e connnerce. that is "clearly excessive in relation to the putative local henefit-," Pike r. 13r•urr Church, Inc., :197 U.S. 137, 1,12. 90 S.Ct. 8.11, 817, 25 L.Ed.2d 174 (1970). As we tinri that the ordinance discriminates against inter- state commerce, we need not resort to the Pikr test. 131 The central rationale for the r•tdc against discrimination is to prohibit state of - municipal laws whose object. is local economic pr•otectionisrn, laws that would excite thence .jealousies and retaliatory measures the Con- stitution vvas designed to prevent. See The Federalist No. 22, Ill). 143-145 W. Itossiler ed. IMM (A. i#amilton); Madison, Vices of the Political SYstelll of the Unitcd States, in 2 Writings (if Janes Macron 362-31J:3 (G. Hint ed. 1901). We have interpreted the Commerce Clause to invalidate local lawra;w that impose commercial barriers or discrimi-„ nate against air article of commerce by rear: son of its ori);in or destination out of State. See, cp.• Philadc1phio, .cobra (striking down New Jersey ::t:torte that prohibited flit, )*rn- port of solid waste); Ilnrrltr.s e. Oklahoma, 4.11 U.S. 322, 99 S.Ct. 1727, GO E.E(I2d 250 0979) (striking down Oklahoma law that pro- hibited the export of natural nlinnovvs). [41 Clarkstown protests that its ordi- nance does not discriminate because ft does riot differentiate solid waste on the basis of iLs geographic origin. All solid waste, re- gardless of otigin, must be processed at the designated transfer station before it leaves the Gm'». Unlike the statute in Philadel- phia, says the town, the ordinance erects no barrier to the import or export of any solid waste but requires only that the vvnste hr channeled through the designated facility. Our initial discussion of the effects of the crr•dinance on inlet'stale commarr•o goes fill, toward refuting the town's (.(intention that there is no discrimination in its regulatory scheme. The town"',own al•giments go the rest of the way. As the town itself points out, what ntakcs Ilan ha).c a profitable bnsi- ness is not its oven worth hilt the fact that its possessor nntst ]ray to get rid of it. lu other words, the article of colnrnerce is not so much the solid waste it:,elf, hilt rather the service of proevssing and disposing of it.k With respect to this stream of commerce, the flow control ordinance discriminates, for it allows only the favored operator to process waste that is within the limits of the town. The ordinance is nil less disc•liminatory be- cause in -state or in town processors are also covered by the prohibition. in Ural Milk Co. v. Modison. 340 U.S. 349, 71 S.Ct. 295, 95 LEd. 929 (1951), we struck down a city ordinance that required all milk sold in the city to he pasteurized cvifhin five miles of the cite lines. We, found it "inmlaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate connterce." Id., at :354, if. 4, 71 S.O., at. 298, if. •1. Accord, Fort Cratiot ,Sonilory Landfill, Ine. v. Michigan 1)rpt. of A'ahcral Ilrsom-rrs, 50.1 U.S. —, --, 112 S.Ct. 2011), 2024, 111) L.Ed.2d 139 (1992) ("[Ojur prior cases teach that a State If (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause, by curtailing the movement of articles of commerce through subdivisions of the State, ' rather than through the State itself'). 11) this light, the flow control ordinance is just one more instance of local processing requirements that we long have held invalid. See jlinnr,sota n. Barhrr, I136 U.S. 31:3, 10 S.Ct. 862, 34 L.Ed. 455 (1890) istriking clown a Minnesota statute that required any pleat sold within the state, whether oliginating within or without the Slate, to be examined by an inspector Mthin the. State); Foster - Fountain Packing Co. e. Hapdcl, 278 U.S. 1, 49 SP1. 1, 7:3 L.Ed. 147 (1928) (striking down a Louisian expniled r been rear Haltdel, 2' (1928) (st Statute for U.S. 38,5, f (striking c required and stamp another S, 397 U.S. (1970) (sh required a packaged ,South-Cei. 11'rrnuickr. L-Ed.2d 7 r(!glllation be procest port). 'I'll is that the service, shrimp hu plived of 'el -vices• local laws shrimp, or nesses thu The not design and the deman the prefer eonceivalih above is tI vol,s a lint ference ,jn: the nrdillp the local pt milted pa:= city to cliff Who want+ have built radius. TI here squelr eessing set for invests [51 1)is. commerce : ment is peel C & A CARBONE, iNC. % TOWN OF t'i,AltKr;l'OWN, I A. 1683 t'It,,s.114 SAI. 1677 (1994) a Louisiana statute thnl forbade shrimp to he exported unless tilt, bends and hill),, find first been re mowed within the state); .hthl,..,oi r. Nnildel, 278 U.S. 16, 49 S.Ct. f, 7:3 I,.i?d. 155 (19281 (striking down nnal,,gous l,ntti:.iama statmt.e for oysters); Tttamrr r. 11•ilscll, 331 U.S. 3Rfi, 68 S.Ct. 111'it3), 92 i,.J•:d. 1-160 (19,18) (striking down South Carolina statilte that requited shrimp fishernlom to unload, pack, and stamp their catch before shil,l+ing it tit another State); I'ikc r. Bruce ('lurch, Inc„ 397 U.S. 137, W SAA. 814, Zit L.l-.d.2d 174 (1970) (striking down Arizona statute that required all Arizona-gro\tin cantaloupes to be packaged within the State prior to export!; Slept -Central ThOrr Urrclopiurnt, lvc r. ll'itrniickt, 467 U.S. 82, 101 S.O. "237, 81 i,.EA.2d 71 (1984) (striking down ;tit Ahwka regulation that required all Alaska timber to be processed %vithin the ;Mate pl iot• to ex- port). The cs�,eutinl vice in law, of this �„rt is that they bar the import of the processing service. (tut -of -state meat inspectors, nr shrimp holler, ot• milk pasteurizcrs, aro dc- pt•ived of access to loCA demand for their services. Put another way, the offending local Jaws hoard Thal resource-' be It meat, shrimp, or milk —for the benefit of local busi- nesses that treat it. The flow contt•ol ordinance has the same design and eftt�ct. it hoards solid tiwnt te, soul the demnnd to get rid of it, for the benefit t+f the preferred ln•ocessing facility. The oily conceivable distinction from the cases ched above is that tilt, flow control ordinance tn- vors a single local proprietor. Hot this, dif- ference jnst nudces the protectioniA effect of the ordinance inure acute. Jn Urao Milk, tile local processing retluirement at least i,•r- nlitted pasteurizers within fiwo miles of the city to cottt}tctc. An out -of -stab pas+curiior who wanted access to that nlark"t might have built a 11:osteurizing facility wilhill the r;uhus. The 11ow control ordin;urce at is�lw here squelches vo mpctition in lilt, waste-plo- cessiug service altogether, leaving no room for investment from outside. 151 Discrimination ngrainst, interstate conmlPree in favor of local busine,,9 or invest men( Is p,,,• se invalid, save in a narrow class of cases in which the nmmiripality ran (lemon- strite, under t•igol-ous ser)itiny, thadt hit§ fin other mean9 to advance a legitimate local interest.- Afniue n. ToYlor, 477 U.S. 131, 106) S.Ct. 244Q. 91 LI-A.2d 110 (1986) (upholding Maine's han oil the import (if baitfish because ;1lainc had no other \way to prevent. the :spread of parasites and the adulteration of its liatiwe fish species). A mother of amid contend that the flow ctottiol ordinance fits into this nm•row class. They suggest that as landfill share diminishes ;tilt] environmental eicanup costs cscalate, measures like flow control become necessary to cnsnre the safe handling and proper treatment of solid wart e. 'fhe teaching of our rises is that these ar},nu cents must lie rejected absent the cleat•- e�,t shoving that the unobstructed flow of interstate conmmerce itself is unable to solve the local problvn. The Commerce Clause picStintes a national market free front local L•i:islation that discriminates in favor of local interests. Here ( •larkstown has any number of nondisrr]11011:11ory alternatives for ad- th ,sing the health ;tilt] enwiromnental proh- lc•lns alleged I,, justify the ordinance in tpit - tion. The most obvious would be uniform safety regulations enacted without the object' to discriminate. Those regulations would en- sure that c•ompt,titor, like Carbone do not nncicl•pricc the Inarkct. by cutting cornets oil cnwironnuntal safety, ;for may Clarkstown justify the flow con- trol ordinance as a way to steer solid waste a�>ay from nut -of -town disposal site-s that it illiplit deelll harniftil to the environment. To do so would extend the town'; police power heyond its •jal•isdictionul bounds. States and localities now not attach restrictions to ex- perts or imports in ordcl• 1.1) control coln- Incrce tit other' Ia(rx. lioldmin r. G.A.F. srclig, Inc., 291 U.S. fill, W) S.Ct. 497, 79 t..lA 1032 (193VR) (striking down New Yot'k law that prohiflitcd the sale of Milk unloss the price paid to tit(- original nsilk producer egt,alle(j the mininnum required by New York). 0f 11;9 1684 111 SUPUPINIl; COURT RE11011,111"R 161 The flow control ordinance does surer a central purpose that it norlprotecli+nlist reg- Illation vol ld not: It. ensures that Ow town - sponsored facility hill he pl•ofU:lhle, so that the local crinlrartot- call huild it :ulll CLIO(s town caul buy it hark at nominal cost ill fnI• years. In othut• words, as the most candid of (rrriici and evvii Clai-lcslown admit, the now control ordinance is a fin:uu•ing nlc:oau•e. It itself, of course, revenue Keueralioll is not :1 local intevest that can .justify Ilisclimination 8g:1n1St interstate er li Ill Ile l•ee. 1)t ltt'1'1C{tie .. Stales could impose (Ii+c•rimitIatory taxer; against solid wash otifrin:lting outside the State See Chemical 1 (vdr 411uru(gclorlll, Inc. r- 1I+(nt, 504 U.S. —, 112 S.t't. 20011, 119 I,.Ed.2d 121 (19921 (striking down Ala- bama statute that imposed addition i fee on all it MNIOnS waste g011et•ated outside tit(,, State and disposed of within the state); On - goo Wnste Systems, Ir1r. c. Dep.,lrlmeut nf• Environmental Q+rulity of Oregon, 511 11,5. —, 114 S.Ct. 1315, 124 L.Ed.2d 13 (1994) (striking down Oregon statute that impose-d additional fee on solid waste generated out- t side file State and disposed of Ivithin the State). Clarkstown maintains that special finanl:- ing is necessary to ensure the long-term. to survival of Mie designated facility. If so, the a tilt ri' may subsidize the facility,;lhrough gen- i oral taxes or municipal, bents. "A'+,c EIlcryy eI Co. of Indiana it 1.irl:burh, 481; U.S. 269, SsiB, + r� 108 S.Ct. 1803, 1810, 100 L.Ed.2d air2 (19,1,$). _iA But having elected to use the open market to earn revenues for its project, the town Islay not employ discriminatory regulation to give that project an advantage over rival busi- �; • nesses from out of State. "j 'Though the Clarkstown ordinance may not �Y in explicit terms seek to regulate interstate commerce, it does so nonetheless by its prac- tical effect and design. In this respect the 4 i ordinance is not far different from the state tart• this Court found invalid in Bnrk n KI(yk- endall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. } ( 6><3 (19215). That statute prohibited common I carriers from using stat.0 highways over cet•- ' Cain routes without a ceililicate of prd)lic I convenience, Writing for the C'otlrt, Justice Pranduis said of the htw: "Its pritnar;y pur- pose is not regulation %%•ith a view to safely or to const'rc:Ilinu of the highwrlvs, but the pt•o- hihition of compclition. it deternlines not, the rlvolilr•1• of use, tint the persons by whom the higha•;t}•s umy he ust'd. It prohibils suet use to some persons while permitting it to others for tho Sam(, purpose and in late same manner, Id.. at 31i,-316, •15 S.Ct., :It :1',26. State :rod local govern nlentc may not use their t•egnlalory potter to f:lvor local etller- ptise by {Irohihiting patronage of out of -state c•orllpelilm-, or thcil• flvililies. Wc, revet•se the jndplivrll and remand the east' for pro- covdings nol inconsistent with this dveision. It i.e so ordered- APPi,NDIR To OPINION OF Till COURT TowN OF CLAR6aTowN Local Law No. 1) of the year 1990 A local law entitled, ':SOLID WASTE TRANSPORTATION AND DISPOSAL." ile it enacted by the TOWN BOARD of the 'town of CLARKSTOWN as follows: Section 1. Definitions unless otherwise shited expl•essly, the fol- lowing uortds and expressions, where used in this chapter, shall have the meanings as- cribed to them by this section: ACCEPTABLE WASTE —All residential, commercial and industrial solid waste .I:; de- fined ill New York State Law, and Regula- tions, inchlding Construction and Demolition Debris. Acceptable Ww4te shall not include hazardous Waste, Pathological NVaste or sludge. CONs•rituCTION AND DEMMA TION DF,BRIS--Uncontmninated solid waste re- sulting from the construction, remodeling, repair and demolition of structures an(] road:; and ltncontatninated solid ,,waste con- sisting of vegetation resulting from land Clearing :rod grubbing, utility line mainte- nance and seasonal and slorill related clean- up. Such waste includes, but is not limited 09 ` '•, 1111^gp�•MIIr1R+nr. .. r.7•,�MAM, ^ FM ••., �y�„,•.. yAr,yr�-, ,r•yMt'�'�, • T , n, - f�;'f�<�°�1f��;t,'a�+�{4ni'1> � �,,,tq�• �r )���}?(��i+iCY����}�j•{�'•�? IL C h 1 CARBONE, IN(% v. 'I 1WIN O t'1.:11t1�;;'I't►11'N, N.1'. 1685 t'lle n+ 114 R.t i. 1677 (1994) APPENDIX TO OPINION Or supply treatment plant, or air pollution con- 1'Hh. COURT—(.'ontiluled trnl facility. to bricks, concrete and other masonry mate- rials, soil, rnck, wood, wall cowrings. plaster, (it., gall, plunilling lixturos, III In-asbestoR in- sillatioll, roofing shingles, a phaltic pave- ulent, elvetricai Icititur and cornponentti con- taining no hazardolls liquids. 1110:11s, hrush tri•alss clip pillns and leaves that are incioelllal to ally of t}to above. i{AZAItDOUS WASTE —All solid vastc designated as such anldei- the hm ironinc•ntal Consen•ation Law, the Comprehensive Ellvi- r•ontnental Response, Compensation and l,ia- hility Act of 1980, the Resourvc consel-vatioil and Rcroyei;y Act of 1976) or any other appli- cable law. PATHOLOGI('-- AL WASTEWaste mate- rial which may he considered infections or hiohazardous, originating from hospitals, public or private Inedical clinics, depnrtolcnts or reseai•eh laboratories, pharnulcoutical in- [histries, blood hanks, forclisil• uieilical dc- partulents, nn lluarics, veterinary facilities and other similar facilities and includes equipment, inshunnonts, utensils, fonlites, laboratory waste (including pathological 141,e- einiens and fnnlitCF attendault thcrctol, surgi- cal facilities, e[Iuipmcnt, bedding and utensils (including pathological specimens and dispos- al fomites attendant thereto), sharps (h*vilo- dermie needles, syringes, etc•.), dialysis unit waste, animal carcasses, offal and body parts, biological materials, (vaccilwc;, nlodi[ roes, ete.) and other similar materials, but [lee, not include only such v aste mmvI.ial which is drler•nlinoci by vvidi-nee satisfactory to the Town to lulve bran re.ndcrcd non-infertiooz and nun-hiohazardou i. PERSONS ---Any individual, paitnership, corporation, association, trust, buccinesa It list, .joint venturer, holly or utlivi. entity, howsol-ver c,•nslituted. IINACCEPTABLH "'ASTE—Ilazaidous Waste, Pathological Waste and sludge. SLUDGE —Solid, semi -solid or Iirluicl waste generated from a sewage treatment plant, warstmater treatment, plant, water TOWN —Mien used herein, refers to the Town of Clirkslmyn. Section 2. General Provisions A. Intent; T'nrposc. 1. The intent and inu•pose of this chapter is to provide for the transpor•l.ation and dis- position of :111 solid waste Mthin nI• generated tt•ithin the 'Town of Clarkstown so that all acceptable solid waste generated within the Tott'n h, delivered to the 'Town of Oarkstuwn solid waste facility situate at Route 30,3, West Nyack, New York- and such other sites, situ- ate in the Town. as may he approled by the Town for recycling, processing ol• for other disposition or handing of acceptahle solid waste. 11, The powers and duties enumerated in this law constitute proper to'yn purposes in- tended Gl benefit the health, welfare and safety of Town residents. Additionally, it is hereb•; found that, in the exercise of control over tho collection, tram:portation and dis- posal of solid lya."te, the Town is exercising essentiai and proper governmental functions. 13. Supervision and Regulation. The 'Coati Hoard hereby dosignates the Director of the Department of Enyiromnen- tal Coulroi to he responsible fir the supen.3- sion and regulation of the transportation and disposiUm of all acccptalliv waste generated within the Town of Clarlistown. The Di- rector of the Departnu•nt of Environmental Control shall he roe possible fur and shall �Itpe11'Ibr the 'Towli", :i l'li1'ilivs ill c(tillivellull with arty waste collection and disposal agree- ments entered into hetween the 'Town and third partic:: and shall report to the Town Board wiLh respect thereto. C. Power to Adopt. limes and Relnrla- t ions. The 'fawn Board may, attar it public hear- ing, adopt such rules and regulations as may be necessary to effectuate the purposes of this chapter. At least seven (7) business 1686 111 Still RhIM1.11 COURT Itl•;t'(ilt•1'i;It Ai'PENDIX TO OPiNION OF THE COURT—C'ontinucd days prim. notice of such public heat'intt shall be published in the official newspaper of the Town. A copy of all rules and regulations prnnutlp,:uod hr'reondre and noy :uncndnu•nls thereto shall he filed in the off"we of the Toren Clerk upon adoption and shall be effec- tive as providers therein. Section 3. Collection and Disposal of Ac- ceptahlo Waste. A. The removal, transportation and/or disposal of acceptable waste within or gener- ated within the Town of Clarkstown shall he exclusively disposed of, controlled and regli- lated I)v the 'Town under this chapter and Chapter 50 and Chapter 82 of the Clarks - town 'Town Code, together rtith such rules and regulations as the 'Town has or may from time to time adopt. B. All acceptable waste, ;is defined here- in, except for constmetion and demolition debris, shall he removed, transported and/or disposed of only by carters licensed pnlxuaut to the rerluiremenu; of Chapter 50 of tile, Clarkstown Town Code and any anionlnlents thereto. All other persons are hereby pro- hibited front removing, transporting or - posing of acceptable waste, except for con- struction and demolition debris generated mithin the Town of Clarkstown, and except as tray he provided for herein o• in the rules and regulations adopted pursuant to this chapter and/or Chapter 50 of the Clarkstown Town Code. C. All acceptable waste generated within the territorial limits of the Town of Clarks - town is to he transported and delivered to the Town of Clarkstown solid wa to facility located at Route 303, Nest Nyack, New fork or to such other disposal or recyehng facili- ties operated by the Town of Clarkstown," or to recycling centers established fly special Permit pursuant to Chapter 106 of the Clarkslown Town Code, except for recyclable materials which are separated from solid waste at the point of origin or generation of "In a :.Cparatc zoning ordinance, file Town dc- clarcd that it shall hire only one designated such solid waste, which separated ,recyclable ntnterials may he tr;znsported and delivered to facilities within (It(, Town as aforesaid, of. to situ outside the toms. As to acceptable ;waste hronghl to said rev ,veling fltcilitic::, the ttnrecycled rosiduo shall he disposed of, at a solid waste facility operatvd by the Town of Clarkstown. 1). it shall be unlawful to dispose of any acceptable waste generated or collected with- in the Town at any location other than the facilities or sites set forth in Paragraph "C" above. Section 4. Lisposal of Unacceptable Waste. A. No imaccepLable waste shall be deliv- ered to the Town of Clarkstown solid waste facility situate at Route 303, 'Vest Nyack, New York or other solid waste facility oper- ated by the Town of Cl:u'lcstmin of re('1'cding centers established by special permit pursu- ant to Chapter 106) of the Clarkstown Town Code by any person, including, without limi- tation, any licensed carter or any municipali- ty. Failure to comply with the provisions of this section shall be subject to the provisions milt re.-pect to such penalties and enforce- ment, including the suspension or revocation of licenses and the imposition of lines, in accordance tlit.h the provisions, of this chap- ter an(Vor Chapter 50 of the Clat'VA.own Town Codo and any amendments thereto. The., Town Board of Clarkstown may, by res- olution, provide for the disposal of sewer sludge, generated by a municipal sewer, sys- tem or the Rockland Comity sewer district, at a disposal facility situate within the Town of Clarkstown. B. It shall he unlawful, within the rTowm to dispose of or, attennpt to dispose of unac- ceptahle waste of any kind generated .% thin the territorial lifrlits of the Town of Clarks - town, except for sewer sludge as provided for in Section "A" above. Us,n,tc, station. Town of Claikstown Zoning Corte 4 1 oG-3. Stj ~ �'q ry,T negR'�r..... v�iral.!w'r1'/rva.r". re r•+n�+'re ��Tr� w. ,. n.�w��.:+Mnr�v r v . . rY .� i See Wk. Clal A to d able era( dins ' aCCE ated Tow fine, Cod' Iishe 106 B. imps was( and with: teed said bish cone( Lure. posti the Secti Wast I'll for c opera Board t.inle, at sai decteci on llc 1097, Sect io Not this el this cl riot M mot riot ex fense, each d ',r���; Y,715 t t. ��lltCl l PP.�:'•., , �.Y�t;.. I'j ���•li: �. iqa a.i�.)! t��'�w C & A t',1RBONl., INC. P. TOWN (11• ('I.AI(KS•1'M1N, N.Y. 168 ('Ur m% 114 S UI. 1677 (r9941 AI'III�,NDIX TO OPINION i)l' ted to continuo uhsdl constitute a-eparate '111h; (;OUI(T---Continued offense hereunder. Section 5. Acceptable and Unacceptable Section 8. Repeater; Severability Waste Genci ated Outside the Town of Clarkstown. A. It shall he unlawful, within the Town, to dispose of or attempt to dispuso of art-pt- able or unacceptable waste of any kind gen- erated or rollected outside the territorial Hill - its of the Town of (,lark:<tow•n, except for acceptable waste disposed of at a Town oper- ated facility, pursuant to agreement. Willi the Town of Ciarlistown and rc+ clables, as Ill? - filled in Chapter 82 of the Clarkslown T,nrn Code, brought to a recycling center estah- listred by special permit purstant to Chapter 106 of the Clarkstown Town Code. lt. It -hall tilt itnlaw•ful for any person to import acceptable waste or unacceptable waste from outside the Town of Clarkstow•ti and droop same on any property located Within the Towu of Clarkstown and (o pro- ceed to sift, sort, mulch or otherwise mix the said material witdi dirt, waste, garbage. rob- bish or other srihstance, hawing the effect Of concealitat, the contents or origin of said mix- lurc. This In -,vision shall it,,( apply to crna- posting (if acceptable waste carried oil( liy the Town (If CIarkstown. Section G. Fees for Disposal of Acceptahlepf Waste at Town Operated Facilities. There shall be separate 1,-os a :,;iablishI d for disposal of acceptably v rite af. Town operated disposal facilities I'll(! Town Board, by resolution adoplei from time to tittle, shall fir the various: fees to he colltci"d at said facilities. The initial fens to he (."I- loclod are thoso adnpl"d by ibe'I'own Board oo December 11, I;i:)U by RvFI„lotinn Numbor 1097. �ectinn ^r. Pea,:dfies for Offenses. Notwilhsl: iding :Iny olhcr pro i•,ion rot' this chapter, tilt- violation of :oat' provision of this chapter shall be pimi.AlitHe by a fine of not more than One thou sand dollars ($1,000.00) or by imprisonnwut for a period not exceeding fifteen (16) dais fur each of- fense, or by both fine and imprisonment, anti each slay that such violation shall be perrnit- Ordinmices and local laws or parts of ordi- nances ur Iocal laws heretofore enacted :tit(] inconsistent with any of the terms or provi- sions of this chapter are hereby rellealed. In the event that any portion of this chapter shall he deelu•etl invalid by :I court of compe- tent jurisdiction, such invalidity shall not he deemed to affect the remaining portions hereof. Section 9. %Vhera Effective. This chapter shall take effect immediately neon filing in the office of the Secretary of State. .rushee O'CONNOR, concurring in the judgment. The town of Clarkstown's flow control (ir- dinance requires all "acceptable waste" gen- erated or collected in the town to he disposed Of only it tine town's solid waste facility. Town of Clarkstown, Local Law 1), §§ 3(C)— (I)) (1t)(m) (Local Law I)). The Court holds today that this ordinance violates the COM- merce ( lam;e because it dfscrinaitiates against interstate conmaerce. Ante, at 1682. 1 agree with tht nrajority 's ultimate conchs Sion that the ordinance violates tite dornuint Commerce Clouse. in rely view, however, the to%vn's ordin:ul v is unconsti(utional nut LeC;IIV;C of fsa ial ,+r effeWtfwe discrinainati„n against interstate cnnuncrce, but rather Ito - it imposes -,Ili excessive burden on in- terstate commerce. i al!�n write separately to address the eontoir(ion that now control ordinances of dais sort have liven expressl;, anthm'W'd by CiIngress, :and :ue thus outside the purview of the dol-n1:a11t Commerce Clause. The scope Of the dormant Cornrrltrc•e (.:louse is a judicial creation. On its face, the Clause provides only that "Idle Congress shall have Power . , . To regulate Commerce among the several States...." U.S. (;mast., Art. 1, § 8, cl. 3. This Court long ago III J 49 - imp 1688 11l S1+1'lth:,1ll. I .0IIit'1• ith;l'Ui0 ER concluded, however, that the Clause not only empowers Congress to regulate interstate cornlnel•ce, but also imposes limitations on the States in the absence of cill gres�^otlal nclion: "•Phis principle (pal (till• econorrtic tnrit 1s the Nation, :vhich alone has the gamut of powers necessary to control of the econo- my, including the vital power of erecting customs harriers against foreign competi- tion, has ar: its corolhiry thnt the stales are not separ;tHe econonic units ... jiVlhat is ultimate is the principle that one state in its dealitiv, %with another may not place itself ire :c position of econonde isolation." 11.1'. Ilooci cf• Sons. Inc. r. Url Mond, 336 U.S. 525. 5:17-538, fig S.CI. 657, l;(;5, 93 LEA. 865 (1919) (internal quotation nllu•ks and citations omitted). Our decisions therefore hold that tl(e dor- mant Commerce Clause lio•bids States and their subdivisions from regiflating interstate counneree. We have generally distinguished between tWo types of impermissible regulations. A facially nondiscrirninatorj, regulation sup- ported by a lekitirnate state interest. which incidentally burdens interstate commerce is constitutional unless the burden on interstate trade is clearly excessive in relation to tiro local benefits. See Bmuvt-Frrrot(ilr i)i,slill- ea:s Corp, r. New 3'ol•k Stair Liquor Authori- ty, 476 U.S. 573, 579, TOG S.O. 2080, 2081, 90 L.Ed.2d 552 (1986); Pikr r. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 81.4. 847, 25 L.Ecd.2d 174 (1970). Where, however, a reg- ulation "affirmatively" of- "clearly" diselinli- nates against interstate cotnnlerce on its face or in practical effect, it violates the Constitu- tion unless the discrimination is delnonstr•a- bly justified by a valid factor unrelated to protectionists, See Wilomin.y r. Oklohonro, 502 U.S. —, 112 S.Ct. 789, scull, 117 L.Ed2d 1 (1992); Maier e. Toylor, 177 U.S. 131, 138, 106 S.Ct. 2440, 2447, 91 I-Ed2d ] l0 (1986). Of course, there is no clear• lie separating these categories. "In either riitu- ation the critical consideration is the oeral] effect of the statuN,i on both loc•ad and inter- state activity." Brown -Forman Ilisfillrr:s, srtlo•n, 476 U.S., at 579, 106) S.Ct., at 2054. Local Law 9 prohibits anyone except the town-aulhori7Vd Transfer stati(Ut operator From prot-f";sintj tliscarded Nvasle and ship- ping it out of town. In effect, the town has jdven a waste processing monopoly to the tranr:t•cr �4adion. The majeri(y concludes that this pr•ocessirlg monopoly facially dis eliminates against interstate enmmeree, Ante, at I642-1053. in support of this con- clusion, the ma,jorit;; cites previous decisions of this Court striking down regulatory enac•t- nlents rcrluiring than a particular ccononlir activity he performed within the jurisdiction. See, r.g., lh,on Milk Co. c. Aludisou, 340 U.S. 349, 71 S.Ct, 295, 95 L. Ed. 329 (1951) (unconstittit ictrial for city to require milk to be pasteurized xcithin live miles of the city): Minnesota a'. i arbrr, 13f; U.S. 313, 10 S.O. 862, 34 L.Ed..155 (1890) (unconstitutional for State to require meat sold within the State h) he examined by state inspector); Foster- Fo)trrtnirr Porlciuy Crr. r. llnl/rlcl, 'L7S U,S. I, 49 S.Ct. 1, 73 L.Ed. 1,17 (1928) (uncommitu- tional for Slate to require that shrimp heads and hulls must be remove(] before slu•imp can be removed front the State); Soa(th- Centml Timbrr i errlopilwO, Inc. n. Wim- nicke, 467 11.S, 82, 104 S.Ct. 2237, 81 L.Ed.2d 71 (1984) (nnconstitotional trot• State to re- quire all tirrrber• to he processed %%ithin the State prior to export). Local Law 9, however, lacks an important feature common to the regulations at. issue in these cases --namely, discrinuir(atiotl on the basis of geographic origin. In each of the cited cases, the challenged enactment gave a competitive advantage to local business (is a group vis a-vis their out-of-state or nonloe:tl competitors rrs a l/rnup. In effect, the regu- lating jurisdiction--hn it a State (Pike), a count]' (10)1 Cr•otiol Sanitary Lamllill, I),c. v. ;llichif1m; Dept. a(Notural Nrsnurrc•�, m U.S. --, f I-- S.C-t. 2019. 119 LEA.2d 1:39 (1992)), of. a city (I1ran Jlill;)—dreix a line around itself alul treated those inside the line more favorably than those outside the lime. Thus, in Pike., the Court hell that an Arizona law requiring that Arizona canlalollpes he 0 j i !3 0 �W n•R�7„yranfs., s,• 1a w1PwPVK1_`151P • , • s. . —11 M1ll-W" TP —• . 1^ W.WWrW"­ ��'/•'rINp7*��^7�'�N-_.,,Vj• �,• �+(trt. 'r (r�rr^'^T'u•�73�.i'";.{ A.(I�.{"� xt*-3r'mrt '�° lrackag out of ' inter;st: Ct'ittlirla pac)cag eompet Milk, the cif perhne the Cit e(1 insi distinct tage or to all t to:tjorif I'vet.lt' r protect effect, discrim In rr terms the ha' cussed reg(r lad. Local 1 t.reatlnr compar nomic i monopr compet the ore basis w ed I>v t action: cally to process to{wn's in -towel of -town not age against Law 9 all pot( cessdng chosen I boli, signifie, In consi tdons sit fently r, C & A t'Altli(1N1;, inky % I•O11'\ OF t'L:V1F5'{'t1\4'N, N.Y. 1689 t I(r ❑, 114 S Cl. 1677 1191141 packaged in Arizona beforo being shlppoo nut. cif state facially discrinlinited sgaiiwl interstate cntnmcr•rc; the benrfit. of trio crimittalory scheme bencftted the Arizona parkagiog industry, at the oxl,cnse of its competition in California. Sinlil: rly, it) /rrrur Milk, (m which the tna•jorily h( avily relics, the city of Madison drew a lint :u•oond its lrerimetet• and requited that all mifh s((Id in the City be pastelu-imed (1111y by dame= lerat- ctl inside tilt, linty. 'I'Ilis 1}lee (If p�enl!raphie distim-tiou, M6011 confers an eeolmtuic a(Ic:u1- tage on local interests in gen•r:ld, is ronlulon to all the local processing cases synod by the majority. Awl the Court has. I believe, cor- rectly concluded that. Ihesc ;n ranitetnents my pr(:lectionist either in purpose I(1• practiral effect, anti thus amount to virtually per se disctitnination. In my view, the majority fails it) come to terms with a sigrti(icani. distinction between tine laws in the local proces:ling cases dis- cussed above and Local Law !t. I (ttlikv the regulations we have previously struck down, Local Law 9 (toes not give more favorable ireatnu•nt to local interests :r- a group :is compared to out-of-state or out -of town ero- 11oluir interests. itadler. the ga rlin to sortint; monopoly is m-hieved at the exlleose of ail competitor,~, be they local or nortloral. That the ordinance (toes not discriminate on the I-msis of goof-:1phic origin is vivicil;; illost.rat- ed by the identify of the plaintiff ir1 this very aetion: petitioner is a lovol rec;veler, physi- cally locatc(1 In Clorksloow, that desires to process waste itself, and thus h} pass the tovn's designn designated transfer facility, Beranse in-tovn processors —like potitioner- and out- of-lowyl processors are tre;(te(1 e(plall, I cao- n,t ap-ev that. Local Law 9 "(isvi iorinates" against interst to conunerce. i%athor•, Loral Law () "discriminates" evenhartde•dl• attainst all potential participant:: in the w.(s1c pro ce:ssing husinesr. , while henc l-Iting only Ow chosen operator (if the transfrr• facility. 1 believe thi:1 distinrtit)n has inure doctrinal significance thaw the majority aclulmvledges. In considering state health and safety regula- tions such as Loral Law 9, we have• consis. tently recognized that the fact that inicrosts within the regulatitlr jurisdiction are equally affected by the challenged enactment coon- sal*ainst n finding of rlisrt imination. And for good reason. The existence of substan- tial in -state interests harmed Ity a regulation is "a powerful safi•tvard" agatiust. lelrislativo discrininaliou. ,lli?mc,,ulo r. (:loner LmI Cr•rarrrrryi Co., .149 U.S. 4150, 473, it. 17, 101 S.Ct. 715, 728, n. 17, (iri 1,.Ed.2d (J59 (1981). The Court generally dofers to health and safety t•egulaliolls hvealls(, "their hill -dell usu- ally falls ott local econotuic interests as :cell as other SL•Ites' erononic interests, thus in- suring that a State's own political processes will serve :Is a rhea; against unduly burden- some regulati+nls." R(jY nt))(f Afolnr Trfms- Ir)r•folion, !ur•, r. tier•, -134 U.S. 429, 441, it. 19, 98 S.Ct. 7'7, 715, it. 18, 54 L.Ed2d 664 01,178). Sect :list) Kassel r. Corosoli(lol(d Freighlrrays Corp, of lkl., 450 U.S. 602, 675, 101 S.Ct. 1309, 1:318, tit L.lid.2tl 580 (1941) !same). Thu." while there k ttti bright line sep:u•ating those ettac•trru•nts which are virtu- ally per se invalid and those which are not, the fact. that it) -town eompelitors of the transfer facility are equally hurdeued by Lo- cal Law !) Ieads me to conclude that Local Law 9 does not discriminate against inter- st^rte commerce. II That the ordinance sloes not discriminate against interstate commerce does not, howev- er, end the Commerce C'lanse inrluiry. Even a nondiscriminatory regulation may nonethe- less impose an excessive burden till interstate trade when considered in 1-14mion to the loc:d henefits conferred. Sov lirnn•rr-1••urrrrorr Ilislillc'rts, •176 U.S., at. fi79, 106) S.Ct., at 2081. indeed, we have Ioliv recot!niZed that "n hm•- den imposed Ity a State upon intrrslale conl- mor•ce is not to be �astaioed siruply because the statute imposing it applie.; :dike to ... the people of tho State rnaeting such stat- ute." Ilrirrrrl;r r r. lichm(m. UN 11.S. 78, Sa, 11 S.Ct. 213. 214, 34 L.h:d. 8112 OHM) (iot(r- 11•(1 quotation marks and citation omitted). Moreover, "Ou, extent of the burden that, will be tolerated will of course depend tilt the nature of the lueal interest invohcd, silt] on 1690 114 Si}1 R 111, COURT ltlTOII;TER whether it could be. pr•olloted as well with a lesser impwt on interstate activities." Pikr, + 397 U.S., :it 1,12, 90 S.C't., at 817. Jmigccl against these Stauldards, Loral Laav U fails. The local interest in proper disposalof waste is ok-imudY significant. But this inter- est could Lc achieved by simply tccluiring that all a;tmv disposed of in the town ho pt•operly processed sornewficrc•. For exam- ple, the town could onsur•o proper processing by setting spovific standards with which all town processors must comply. In fact, however, the lown's purpose is narrower than merely ensuriuf• proper dis- posal. Local Law 9 is inlendod to elwilre the financial viability of the transfer facility. I agree with the majolily that. this purpose can be achieved by other means that would have a less dramatic impact nil the flow of goods. For example, the town could fimutce the project by imposing taxes, by issuing nurnici- pal bonds, or even by lowering its price for processing to a level competitive with other waste processing facilities. But by rccluiring that all waste be processed at the town's facility, Ow ordinance "squelches competition in the, waste -processing serviev altogether•, leaving no room for investment from out- side." Antr, at 1683. In addition, "Idle practical effect of I Local Law 91 must be evaluate(] not only by consid- ering the consequences of the statute itself, but also by considering how the challenged statute may interact pith the legitimate reg- ulatory refdtnes of the other States and what effect would atise if not one, but many or every, Ijurisdictionj adopted similar legisla- tion." Wyoming v. Okhrlronra, 502 U.S., at --, 112 S.Ct., at 791 (quoting lacuna v. Berr Instihrte, 491 U.S. 324, 336, 109 S.Ct, 24:11, 2499, 105 L.Ed2tl 275 (1989)). This is not a Coln.Rev.Stal. § 30-20.107 (Sol)p 1993): Conn. Gen.Stat. § 22n-220a (1993); 1)eI.C'odc• AnnAit. ' 7, § 6406(31) (1991); Fla.Stat. k 403.711 (1991); IIaw.Rcv.Stat. § 340A-3(a) (1985); Ind.Code §§ 36-9-31-3 and -4 (1993); Iowa Codc § 28G.4 a (1987); 1-a.Rcv.Stat.Ann. § 30:1307(9) (West 1989); Mc.Rev.Stat.Ann., Tit. 38, § 1304-B(2) (1964); Mino.Stat. § I I5A.80 0992); (ltks.Code ZMJ Ann. § 17-17-319 (SuppA993); Mo Rev.Stat § 260.20" (Supp.1993); NA.Stat.Ann, §§ 13.1E- h}potlmtical lrquir;t. Over 20 states have enacted statulca authorizing local govern- mcntq to adopt now control Ilttt•s.' if the localities in those States impose the type of restriction on the mutetuent of %east(, that ClarksLown has adopted, the free movement. ol• solid waste in the MI-ealn of commerce Mill be sever,ly impaired. indeed, pervasive flow con(rol would rusult in the type of ha)kaniza- tion the Clans, is primarily inlcnded to pre- vent. See 11. P. aloud & Sr rrs, 3313 U.S., al 537-538, till S.Ct., at fi64-(ir5. Given that malty jurisdictions are colltem- plating ot• enacting flow control, the potential for conflicts is high. For example, ill the State of New ,terser, ,just moth of Clarks - town, local waste may he removed from the State for the sorting of roc;tclables 'as long as the residual solid wasle is returned to New Jerset" Brief for New Jersey at Ami- ells ('(trim, r+. Under I,ocad I,aw 9, however, if petitioners bring was(, from New Jersey for recycling at their Clarkstottn operaLion, the residual waste may net he returned to New Jersey, hilt must be traasport.ed to Clarkstown's tt misf,r facility. As a conse- quence, operalions litre 110itiollers, cannot comply with the requirements of both juris- dictions. Nondiscriminatory state or local laws which actually conflict with the enact- ments of other Stales are constitutionally infirm if they burden intot•state commer•cr'. See Bibb v. Norgjo Firight Lines, Inc., :359 U.S. 520, 526-530, 79 S.Ct. 962, 966-96!4, :3 L.Ed.2d 100:3 (1959) Uutconntitlitiunal for Illi- nois to require truck mudguards when that requirement conflicts with the requirements of other States); Soothr•rrl Pori,+ic (,a. t'. Arizona r,r rcl. Sullivan, :325 U.S. 761, 773- 7 74, 65 SA I, 1515, 1522--1.)2 3, 89 I., Ed. 1915 (1945) (same). The increasing minhcr of 22, .19AAA-5 I1Yrti1 )901 and Sapp 19u1); N.C.Gen.Slat. § 130A-294 (1992); N.ItCent Code., §§ 21--29-06(6) and (8) (Supp.1993): (arc. Rev.Stat. §§ 268.317(3) and (4) (1991): Mt.SOn, Ann., Tit. 51, § 4000.303(c) (i'urdon SuppJ993); R.I.Gcn.l.au•s § 23-19-10(40) (1956): Tenn.Cude Ann. § 68-211-814 (Supp.1993); Vt.Stal.Ann, Tit. 24, § 22(11h 0992); Va.Cnde Ann. § 15.1- 28.01 (Supp.1993). of)— r; l•d1� - "�...+n►rON�v!S'"r ,wA+flFpwO+sir.sal.^.v...,*na'�M>'�'.7�Ala'+iw7APo.'�q�1�►rav+�.�yN�c�t'7�R�Nw•renae��FT•ipMr,+r4,'wi� L 10.1 , V. 11111IN lit' 41'ARWilItM; ' NA 1691 cyle na 114 S.C1 167. 11994) flow control regirnes virtually ensures sottte inconsistency helwecn ju•isdiet.iolls, with the effect of elimiunting the nun•rrrlent of waste between jurisdictions. i therefore enuclude Chat the burden local Law t) ilnposus on interstate, commerce is excessko in relation to Clarkstown's interest in ensuring a fixed supply of waste_ to ripply its project. III Although this Court cats --and often docs--- enfo►•ce tine dorm:mt aspect ofthe Colnnu'ree Clouse, the Clause is prfnurrily a I,rranl of congressional authority to regulate coln- nlerce atltong the Siates. :llrlicos Natiorud Association of Bond lawyers (NAIti,) argruos that the flow control ordinance' in this case has horn :uthorizell by Coltivvels. Given the residual nalnr of our authority under the (Mails", :old because Ilm arttuoicnl Brat ('on- gress haS in fact anthorizcd fl•rly control is snh:aanti:ll, 1 think it appropriate in address it directly. Congress must he "unmistakably clear•, hel'ore we will eolichidt, that it intended to permit Mato regillali'rn which would other- wise Violate the dormant Connnerce Clause. ~oath—Cridral 7Yorbrr, 467 U.S., at ill, I04 KUL at 2M2 (plurality opinion). See also Spor•ho.se a. Nrbrosk(r ex rrt. I_rmcglas, 458 iLS, 94L i)1iQ, lit SAM =61, :3466, 7:3 i, E(I.2d 1254 (1982) (finding consent only Micro "Corni;ress' ititcnt and poliry to sustain maw legislation troll) attark under the (")tn- nlerc,! Clause was e�preSsly statell") (cita- tions, and internal (inolation nnarks olnitted). The State or locality has the i,un•den of dem- ouMn;cting this intent. Wyoming r. (Ahr- horno, 502 U.S., ;it — 112 S.11., at 2 t5 L Amirrrs N'1HL argoe:: that 5nhr•hnpter W of the i3, Srnlrco ( •ow or vntion alld Rccovory Act of 141i (R('IIA), pi S.tat_ 2M. ns nnwmh ed, 42 1 I.&C. N till i i r t .srq. Hurl its arum? punts, renurve thr c•onstitlit ienal constraints nil local impleluclifalion of Ilow control. R(;RA is a sweepim SLAW intended to regrulate solid waste: froln vrodle to grave. In addition to providing specific federal Stan- dards for the ►nanagenient of solid waste, RCRA Suhehapter IV governs ":hate or IQ einual Solid Waste flans." Among the oh- jert,.iverc of the ;,uhchaptor is to "assist in developing will encouraf±ink nurthndS for the disposal of solid Waste 1%hich are environ- mentally Sound"; this iS to he accomplished by federal "assislculcc to States or regional authorities for comprehensive planning pur- suatit. to Federal guidelines." k 6911. Under the Act. 8tat1's are (u submit solid waste mannhernent plans, that "prohibit the estahlishflip nt of new open riunnps within the ~late;' and ensure that solid waste will he "utilized fill• resourco trcovury or .., dis- posed of in s:umary lamHIM fir otherwise disposed of ill an cuVirofill ientally Sound nwmw& § 11it.ftt(:U(2). The plans roust also Insure that Stale :md local governments not he "prohibited under Slate or local law front nctmtinting and entering into long -terra con- tracts for the Supply of Solid waste to re - Source recol•ery facilities lurl from rutering into long-term contracts fill- tine operation of such facilities." § 691:3(a)(5). Amir•ox also poilltS to a statement in a (louse Report addressing § 694:3(a)(5), a statement evincing mule concern with flow control: "This prohibition ion slate or local iaws prohibiting longterm contrartsl is not. to he construed to affect Stall planning which moll rrgrrir•r fill di::rordrd rirntcriobx to hr trr,rrsportrd to a poriicutor• torolion...." II.R.Rep. No. ctt_14c,11, 1), 34 (19761 (emphasis added), I I.S.t'ncie Cnog. & Miniin.News 1976), i)p, 6238, 6,272. Finally, in the 5oli!f Waste 1,isposal Act Anuenrhncnt.s of 19,141, Congress authorized EPA to "provide technical assis- tncn•e lu St:Iles land brat );nVrrnnlcnts1 to m-sist ill the r•erru)yat or modificaIiIll of legal, iustihttinna{, Hill) erononlic 'mpediments "hole have the effect of imiedin.g the deyol- epou'nt. of systellis and facilities )for ce-nnrce r,•coVor;y{" § 69181d)(i). Among the ohsta- chW to effective resource recovery are "int- periirnentS to institutional arrant;erucn4s nec- c�Saly to undertake projects ... fucIndblg the creation o/'special districts, oothoritirs, or cort.lowtions uOrm rrecrssary hut'iug the 169'L IiI SITHEI iI', COURT Itt,Pt►RTEI t howrr to scrtvr tHr supply of waste nr a pr•oiref." § 6948(03)(C) (emphasis added). ( arrce with ornrcuv NAM, that lhesr references indicate that Conln•e:;s rxpec'led local governments to implement some form of (low control. Nonetheless, they neither individually nor cumulatively rise to the level of the "explicit" amthorization required by our dormant Commerce Clime decisions. First, the primary focus of the references is on lel"al impediments imposed as it result of slate ---not fedet•al---Ian•, ire nddilion, the reference to local withority to "secure the supply of vast,'," is contained in § 6918(d)(3)(C:), wbich is a delrgation not to the Rtates but to VPA of .rrrthorily to assist, local government in solving waste supply problems. EPA has stated in its implement- ing regulations that the "Stale plan should provide for srthstale' cooperation and policies for free and unrestricted movement of solid and hazardous waste across State and local houndmIes." 40 CFR § 256,4200 (1993). And while the house iteport seems to con- template that municipalities nmy require waste to he brought to :t partirulm• location, this stronger language is not reflected in the text of the statute. Cr. 1111ded Slott's v. Nordic: Pillage bur., 503 U.S. ---, ---, 112 S.Ct. 1011, 1016, 117 I-Ed.2d 181 (1992) (for waiver of sovereign inummit}•, "jijf clarity does not exist lilt the textl, it cannot be supplied by a cortunittee report"); 1lcllnrrrth v. nluth, 491 U.S. 223, 230, 109 S.Ct. 2397, 2401, 105 L.Ed.`ld 181 (1989) (saniv). In short, these isolated reference; do not satisfy our requirement of an explicit statutory au- thorization. It is within Congress' power to authorize local imposition of flow control. Should Con- gress retisit this area, and enact legislation providing a clear indication that it intends States and localities Gr implement flow con- trol, we will, of course, defer to that legisla- tive judgment. Until then, however, Loral Law 9 cannot. survive constitutional scrutiny. Accordingly, I concur in the •judgment, of the Colu t. ,Indict- 5OII'I kit. w•ilh whom THE CHiF.i.' Jtis'i'ICI'; and Justice 13LACKMUN join, dissenting. 'i'he nlnjorily nasty imoltr "aril setllyd principles of nor Contrnerco Clause jurispru- drnce," onto, at, lim, but it does so to strike' doNvu an ordinance unlike anything this: Court has wer invalidated. Previous cases have held that the "negotivai' or "dormant" aspect of the Conurterre Clause_ renders state or local Ivgdslation nnconslitutional when it discriminates a(tainst out-of-state or ont-of- town businesses such as those that pasteur- ize mill:, hull sill -imp, or mill lumber, aml tilt - majority relics on those cases because of «•h:l Ow have in conunon with tills (1ne: out-of-state processors are excluded from tile, local market (here, from the market for trash processing serviees). What the majority ig- nore:;, however, are the differences between nut' local processing cases anti this one: the exchision worked by Ularkstown's Local Law 9 heslows no henefrt on .t class of local private actors, Vitt instead directly aids the t;ovrrmuent in satisfying a traditional gov- ernmental responsibility. The la,v tines not tiiffere utiatc between all local and all out of - town providers of a service, lint instead be- tween the one entily responsible for cnsuvtlt that the joh get:: done and all other entcr- prises, regnt•dless of their location. The or- dinance thus falls outside that class of tariff or protectionist measures that the Commerce Clause has traditionally been thought to bar :hates from enacting against each other, and when the majority subsumes the ordinance wilhin the class of laws this Court hats struck down as facially discriminatory (and so avails itself of our "virtually prr se rule" against such statutes, sec Philadelphia rr. Nrrr Jr)-- sey, •1:37 U.S. 617, 624, 98 S.Ct. 2531, 2535, 57 L.Ed.ld 475 (1978)), the m.kjotity is in fact l,"r•eatly extending the Clause's dormant reach. There are, however, good and sufficient reasons against expanding the Commerce Clause's inherent capacity to trump exercises of state authority such as the ordinance at issue here. There is no indication in the record that aay out-of-state trash pr•ocersol• ... �.�y,•.. .. - n .•'i�^TT'� . , •• r+.�yy. .(,. •.\ •�1RTrA►'. .. .r• vnT7►+ ,^'fv1✓1... , .. ..- IVJlit 1 i.'e, 4; ' .�..r e, ti r� rh. r ti v. ,i .. ,. `' +• 1�r >� Gam, �- , ^ , A. ;Q 4 C & A t'MIt(►NE, IN( a. I'(►111' OF 1 1,) m;T(► VN' N.), 1693 till Olt It,7i ,rv`1At r: has Flren hartued, or Ili:it till, inter talc, movement or disposition of trasl• will b,• if- fected am Whit. To th" degree Local affrcis the market for trash provossing ser- vices, ft does so otll}• by subjecting Clarlts town residents and husinescl,s to llurdvlvfar different from the burdens of local favoritism that dot•nlant Collimerce t'l,ulse jlu•i<4pru- detice seeks to toot (lilt. The town has found a wily to finance a public imp•ovrmolit, not by trollsfetring its cost (o lint -of -state ,•co- nomie interests, but by spreading it ant•+o blg the local grtrerators of trash, ran equitae result with tetldencics that should not disturb the Comnlerve Clause and should not be disturbed by us. Prior to the 1970's, getting rid of tile trash in Clarkstomi was just a matter of taking it to the local dump. But rarer the course of that decade, slate regillators cited till - for dutnping in vio;ation of ruviro!nrn nlal laws, and in August Ilr;:'a the town entl,r,•i into a consent decree tcith the New )'ork State Uepartmeut of I:nvironmontal Com:, r- valiotl, promising fit dose• t 1, ImIditll, rb :ut up did vilvirolnneul:d dallmite, :not make nc-»• arrangements to dispose (w1 till, tomi" s,•lid waste. CLtrlcsto»-n agreed to build :t for station" where the tt»vn's trash would I . brought for sorting (will recyclable flmleri:tl and haling the Aunt, I cyclable r,•sidue for loading into l:,lag-until tnicks hound i•„;- nttl- of-state diFilosai sites, Instead of },uildinil till, mmsfer stati• l itself. Clarkstown contracted xvith n itrik:11" company to huiid the sl;tton and run it for five years, a11or which till, town coldd ho}• it flit. $1. The town based the size of tip• facility on its het estimate of rho ;uuoont ,-I trash hlcal resitli-Ilk would gp•norate and till dertook to deliver that :1111wilit In till, trall- fer station eat•h year, or fit paty :t spbstsnliai pl.nahy In oolupl,tts'ttt• flit' ;Illy >.Ilovlfidl This "pnL ur Iaty" contract, logcticr kith tht. right to elt:n•gl, all $.`(1 "lipping" fce fur vash 1. The utrhnallce bas exCvI'lions nut at iv.uc bctc (or hazardous wasU•, patllulugiral WItSte, ant[ sludge, and fur sourer scp:u:ucJ IeLvdably� colleell,d at the transfer station, »as Invalit IS) assure file company its return ,m investuumt. Lot,:Il I-ItV t', the ordinarire at, issue hrrn, is an integral part of this fimtncing scheme, it prohibits individual trash -generators with- in the lo»•n from evading paYmi'nt of the $81 tipping fee In• regrliring that all residential, corlIll crcia1, and industrial waste generated or collected withill the torn he delivered to till, transfer station. \\'►tile Clarkstown resi- dt my may dump their waste at another locai- ly licensed recycling center, once such a pri- vate rerYelet• cldis (wilt the recyclable materi- -IN. it roust dispose (if any residue the same way other Clarkstown residents del, by taking it to till, town's transfer station. Local Law 3C, 31) (1990),' if out-of-towners wish to dispose of their waste in Clarkstown or recycle it there, they miter the town subject to Ov. same restrictions ns Clarkstown resi- del'u" in being required fit use only the totcn- opc-rated t1:1114cr station I,r a licensed recy- cling center. § :,A. I'otitioner (' & A ('arhone, Inc., operated a rec;•clirig center in Clarkstown, according to a stall, pl.rtltit aulhorir.ing it to collect waste, sc•lim-ale (flit the reeyclahll.s for sale, and dispose of flit, rest. In violation of Local l,ac•• 9, Carbone failed to bring this nonre- cychhic resi,luc In till. town transfer station, Intl tools it tlirecilY to out-of-state incinera- tor:, and landfills, including some of the very s;SlIw ones to which the Chill:stown transfer station -ends its Ira:;h. Apparently, Carbone It .; e,i the Clarkstown facility ran account of till, $51 tipping foo, saving C arhune mon- ey, hilt, costing till' town thousands in lust reel uu daily. ill this rr;ailtingr legal action, Cnr•I•one's c(wntploint is one that any Chirks- tu»at tt•ash gl.neralor could have made: the town has vrvatcd a monopoly on trash pro- cessing ser vivvrl, and roe:idvnts :use ran longel. i'rce Itr providt• Ihl,re services for thcrnseives rtr tr, contract 1•61. them with others it, a ruutr;;illy agreeable price. »hhh can be disposed of %villlin or outside the lu»,t, Loral L;cw 9, §§ 1, 3C (1990), 1694 III Slll'1(I;itiE COUIt'I' I(I;I•0I01,11 it We are not ralled upon to itidgo flip ulti- mate wisdom of crraiing this lovill mollolmly, but we are nslwd to say wilvOwl. Chirlts- town's monopoly violall's the ('nnuucrce Clause, :Is long read by this Cotu-I to'linlit the poer'r of state and local governments to discriminate against interstate commerce: "IThel 'negative' aspect of the Ommierce Claus, prohibits economic protectionism — that is, regulatory ln,astu•es designed to brnefit in -state economic interest, by bttr- dening out-of-state con)petitors. 'Thus, state statutes that clearly di. orintinate against interstate connrlerre arc rot tini•ly struck down. unless the discrimmation is demoll.4rably justified by a vapid factor unrelated to economic protectionism." New l;ner( y Co. of Indinmt P. Limbach, 486 I.I.S. 269, 273-274, 108 S.Ct. 1803, 1807, 100 L.Edbl 302 MRS) (citations omitted). This limitation on the slate and local power has been seen implicit in the f'nnmlerce Clause because, as the ma,iority recognizes, the Framers sought to dampen regional jeal- ousies ill general and, in particular. to elitni- nate retaliatory tariffs, which had poisoned commercial relations under the Articles of Confederation. Antc, at 1682. laws that hoard for local bnsinessys the right to serve local niarkeL5 or develop local resources work to isrilate States from each other toil In incite 2. The arguable exception is Pike v. Preece Chioch, Inc., 391 U.S. 137, 90 S.Ct. 844, 25 L Fid.2d 17.1 (1970), where the Court invalidated an adminis- trative older isurcd pursuant co a facialtp neuu:d statute. While the order discriminated on its face, ptohibiting the interstate shipment of re- spondent's cantaloupes unlcNs Ihcy were first paekagctl locally, the statute it sought w en(otce merely required that Arizona-groxs•n cantaloupes advertise their State of origin on each package. in Part lit. i discuss Ito lint, of cases in which we have struck down statutes that, afdunrgh lark- ing explicit geographical soiling mudiani-arts, arc discriminatory in practicnl effect. 3. The area encompassed by this provi,iun inclod- cd all of Madison except the itmways of the municipal airport, plus a small amount of imin- corpor:mcd land. Svc The Madison slid Wiscon- sin Foundation, "Map of the City of Madison" (1951). retahaton, Since no Slate would StArld by while another advanced the pronomic inter- est t of its own husiness chases at the. ex - {tense of its 11t,iPhhors. A The majority argues that resolution of the issue before its is cunt.rollcd by a line of cases in which }ve have struck ,tort state or local laws that discriminate against mit-of--Oto or ont-of-town providers of processing solwires, See ,,tote, at 1082-1683. With perhaps ono exception,*' the laws invalidated in those cases wpn' patent), dis:crintinatory, diflhren- tinting ltk.y their very terms between in :A:de and onl ni' Aatc (or lot A :Intl nonfovah pro• ces sors. (11te ot•dinallu, for example, for -)ad selling pasteurized milk "'unless the s:mle shall have Iwon pasicuri•rt,tl anti hnttlml ... within a radius of, five nlifes from the central portion of the City of Madison. ..."'s Awn Milk Co. rr. ,1 foclisnu, :310 11.".:349, :350, v. 1, 71 SAA. 295, 2961 it. 1, 95 1J,,A.:329 (1951) (quoting ("choral Ordinances of the Of y of Madison s 721 (WIM). The other laws ex- pressiy discriminated against cotnrnerce crossing slate lines, placing these local pro- epssing cases squarely within the larger class of cases in which this Court has invalidaled facially discriminatory letris)ation.4 As the majority recognizes, Local Lrc,v 11 Shares t�xn features with these local process- 4. See, r.C. C'hrmwol unrest• Afaltwrcnww, in . v. Hier,,. 504 U.S. — -, 112 S Ct. 2009, 1 19 1..1'.,I.2d 121 (1992) (Alabmna staltnc taxing hazardous wadi mil w iginaling in Slaty! Lt %-(M err c O1Mhoma. 5;02 U.S. .----, 112 SA 1. '1811, 117 I_.Ed 2d 1 (1992) (Okl;i1mm a statute requiring puxcer plimis to burn at Iviw 10 percent (tkla- homa rmncd coal); K<Iv f w rr r C'u. nj ludi<uut v. hmba(h, alit) U.S. 26Q. lug S.O. 1803, fill) I -Ed 2d 102 (1989) (Otis clatitte awarding tax credit for snics of clhano) only if it is product d in Ohio or in it State that awards similar tar breaks 101 Ohio•prodnuVd ctl otoll; Nr tr EnRldnd /v one• Co, v. A'rn• llarnpslure, 4s; 1) S. 131, 102 S C(. 1096, 71 I..F.d.2d 188 (11r82) (New flwnp.hirc stance prohibiting hydrovlccu-it, power hrmr br- ing sold oil of State scilbom pet mission from the !',late'-, Public tlrilitics Commission); Nnghrs v. U!:hrhmmi. 441 U.S. .122, 99 S.Ct. 1727 NI L F_dld 250 (1979) (Okihhonta law forbidding outd•state sale of natural minnows). 0ej-- y0 ••.1nvF=a�ere'�.'•'�. - 1fpVVA-7.7+++`r''F ..•• 'wwwv+r'• w,*." VOq V1PPm q r..• •. •.1gRi7i:+Rf�•'R`NaRy Beat»• •14fw, i17 - - "{, F x •r,+r t ir� r ,rs�,.! -/ h •t �:i i•' ,.li ,�Y P. �t',t�lfllt�+1v"(./.iL C S 1 t'ARIIO'ii., CNC 1. '191WN OF CIIIth�TulCti, 1.1'. 1695 ('Its av 114 S I t 1(,,7 t 194.11 ing cases. It 1•ehllates a proccssin}r scrviev available ill jiltarslate cl+ninwrev. i.r., the sorting and haling of solid waste fill- disposal. And it dotes so in a t'ashion that eschtlit, ont- of-lon'n trash ilroce.-�sors Ily ih; vvey louts. These i,atallels Itchtecn local Lan' 9 and tit(- stahttes ill-eviou-,ly invalidated confer initial plausibility on the I majority's classi(lcatioll of this case \\.jilt tlulsc earlier ones on l)r0ce:;v- in1*, and they c\ctl hr•ing this on(- \\ithitl 011. rllfist p'lleval Imijimage of some of ihv Wier c•as(-s, abhorring the tendency of such stat- utes "(o impose an artificial riodity on the evotlonlic pattern of the Toolor r 1'. 11'itsc(i, :131 U.S. 38.), 4t)l-Stl(i, IN ;i.Ct. 1156, 1166, 92 L.Ed. 1460 i19-lh). Ii 'Chore arc, however, hotlt analytical and practical differences between this and the earlier pmeessing c: ses, differences rho I11a- •orit1• illiderestimiltes ut• owl -look" but \06ch, if },'Overt their dnc, should pre\.ent this case from heinfr dccidell the same iv:q'. I iI.A. the forms fit' t1I:11.10 own, - ordinance tm or it sin - };le procesr•.ov, not tilt- class of ail moll busi- nesses located in Clarkstimn. Second, the one proprietor so f:evurd is cssontially all aQenl of the Imillicilml governnuvlt, \much (unlike C:11-611l, or other privalo trash pro- c('ssors) nae+l vilsttro the relll,Iv:d of \\ante aevordifig to neveptaide aalldalds Ill' public health. Any disclimillation workod by Local Lan• 9 tills fails to pn,duce the sort of ontrc- preneurial favoritism "ve have lurviously de- fined :old condemned as protectionist. 5, Ser }i l"h 6lurid l MAI Dili onil, rat, Jth I. tt'min(cke, 4h7 t1 S xz. 0.1, Ina S t 1 2217. 22It ,S1u1c 11il:11u-uc 11r1,1. 1 Hannrr// Nrrrhrrti, hI,-. 303 11 S 177. 18S, o ) iN SII. Sit iI1, n 2, S2 AM 734 119kmo odmq •t hr, ill Irrtihih I Schur "'boldto Ldh i4imillallp tip'll ihcrsr tcidlool lilt, Shur"l. 11.,Iu 11111. (", 1 11a 1-11. 340 U y .149. 354, 71 'i,Cl, �9i 911. N'i I..Fd 329 (1951) (in ' ,,t rcutll, rut ecuurinli, hill l err ia-„Irrflog a ntaiol 1- ,.0 mdo,lry a! .tin+l cuml,r- olion 11,1111 mill 11 tin Slole, Madiwu Illanik. dncrimiomirs cumnlcltt,, 'this it cannot do ... ); t,,, ter-h nu Nt(II II Al, I. ill): C., r. IldstJT ST I1 S I, 1 t• 49 S ('I. 1, 1 71 I,Td 147 11928) (sfconrt• rlrl,onslitolional hrcaosc it 1lvmisl file canning ul the locat and the maim factulr of brat; it- loui-Jolla" it,.nad ill nitusil. The outclarnlin}r featllr of the statutes Irvielvecl in the Meal i+rocessing cases is their tlistioction hehvecn two classes of private economic actors acem'difi r to location, favor- ifig shrimp honer•\. tvitilill Lonisiamt, milk ImAvilrizors within fire mill's of the center of 1ladison, arnl so fill, tiro h'o:;tcr-Forn)tccitl l't)ct,iou Uo, r. libly,lrl, .:7ti U.S. 1, 19 S.Ct. i, 11 LET 147 (19284 Dom ,Bilk ('I). v. Afridi- soo, Snpro. Since nothing in tiles(- local itrocessillg l:nvs \invented n prulifrvation of local htlsitlecses nithirl till, Stato or town, the out-oetot\.tt proces:;ol•', n'et'c not excluded as Hart and 1wreel of it };moral exclusion of private fit•tns from till' martcct, hilt as it nsuh of dkv)-irllirlation aniong such Brills :Iccurding to reogrophy alone. It was he- O.'MM' of that discrindmltioll in f:lvol, of local iw4incssos, In-eferred at till' expense of their ,lut-ni-towel or ool +:estate ­ofopclitor5, that Ihr, ('out't St1'nek dott•n Ilmse meal processiuK 1:ms ' as rl:lssic i'mooph's r11' ill(' ecotlonlie prWeetiunisnl fit(. dormant Conuoerco Chitlse plrisprodellc•e ;tints to prevent. In rho words of olte coillmentalor stttnnlaririnn, our case i:ne, it is laws "ad,glted fill• the purpose of improving (he conlpetilive position of local ernllutllic actors, .just 1wen se they are local, tjs;t-ejs their foreign cemlretilut's" that of - tend the Comtuercr ('lause. 11c}tan, The Sil- Ilreme Coul•t and SI;1to 1'rotertionisnt: A1ak- i,tg Sense of the Dormant ('orntnetre ('1:1use, �1 Ilich.l,Rev. I(1',11, II:;S (IIISC1. The ('om- l)nntr,wa e. 1t,;4,1. I11, U', '1 1, 12Z, Ill S.( 1. AT !d 1 1.1 1 lid 447 r1N= (,cool, kdilnr h,cunu it nc,c said It'ilit is "'list,linoitatiurl allcol%Sl the Ill IOUL14 Witt hn�iucs ill olh,•I Statc, to in." Ill tilt, lnudu, 1, :old iw"inr„ ul Mloocso- O f Sue ak" Jwu (,Limit .4uulhur 1,nI,111/l, her, 11n ht)t,u1 Ap/ , / N"llrr,rl Kr+„uI r . 504 U.S. -, 11-' tit I. 2019, :I124, I P) I . &2d 101 (1092) (slalmv min-m Ire,. ;ur.r It ilIo(CL111 \oral tua.le 111odtarl huol ,nnrl,rotinn Ium1 mil-1 sl.,lr is;r,t, )n ndro rl•. v,L„ ,cck If. o..c load w:r.0.• di'p-ol :ara�"J, Millad.11,11m %, .Vco- diem,v, 417 II S_ of7, t,_'h h27, 98 S.i'I 2i11, 2,17, 57 l.lidld 41�; 119781 (Ncty .i(lscv 'mac nut disu hninallcl al!ainsl :ludo\. of rnnuuerce coming hunt uolsidt, tilt- St;dc onless ,hero is sumo Icw"'o, alxut (rani fhcil oligin, to otml lhum J1111-both") p r 16911; III S11111HEN11; l'UIIRT 1tlAIM(TER tnerev (Curse does tint otlivi-Mse protect ac- eegs lu local tnarkels. Id., at 1128R The mtt,jorit.•v rer ognizrs, but discount~, this difference between laws favoring all local actors :and this law favoring :1' lIglc nnnlici- pal one. According to the nlajnrily, "this difference just makes the prote(•tiottist effect. of the ordinance more acute" bccmise outside investors cannot even build competing Gtcili- tics within Clarkstmvn. Aide, ;it Ui�z:i. But of tout:se Cjarkstowil invcslors flee the same prohibition, which i" to say that j,or:Il Law 9's exclusion of out-Ade capital is p in ill' a hroadct• exclusion of private vnpit:d, not a discriminatinn against out -of -slate inceslnrs as such.' Cf. 1,rteis t•. kT Itter.slntrnl Ahm- agrr:s, Inc., 4,17 ll.ti. 27, 100 SA 1. 2(109, 61 L.Ed.2d 702 (1980) (striking down statute prohibiting businesses owned by nut -of -state banks, hank holding companies, or trust com- panies from providing ineeslmr•nt advisory sciwiccs). Thus, while these diffvrences filar• tinder:score the ordinance's anticompetitive 6. Sce also Smith, State Ili;crirnin;,liuns Against Inlcrstate Conttnerce, 74 Cal.l-,Re%, 1201, 120.1 (19861 ("The nub of the matter is chat discrimioa- torl' regulatiuns all, almost inytumbh' invalid, whereas nondiscriminatrny rcI ui:oi m=: nm much molt likely to smyive"; "I'll regillation is dis- criminatory if it imt,uses greater cronomic bur- (Icns tin Ihose uutsid'. the slate, to the cnnromic advantage of those rs ithin"); L. '['title, Anict iL an Constitutional Law •117 (2d ed. 1088) ("11*jhc negative implications of tilt eommi-tee• t.lan;e dcri%e principally huin a l,nlrlical ihvory of un- ion, out from an ecruruorir theor v of love oade. l}te lonction of tale , lauw• is u) enure national solid:nity, not ccunnrnic vlhcirncy ). 7. The record dues tint indicate svhother local or out-of-state investors own the prnate firm that buill CIarkstown's m:lnsfet station Inr the munic- ipality. 8. In a potentially related argnrnent, file majorfty says our case law stipputts file proposition that an "ordinance is no Icss disciiminafory because in -state or in -town woccssols arc also covuied by lftsl pn'ohibition." Arun, at 1682. If this state- ment is understood us (filing away will, the dis- tinction between laws that disc•riminale hawd on geography and those that do not, :nthorily for it is lacking. The majority stipports its stacnu•nl by citing front a foutimte in Dealt Anll, lhit "jiji is immaterial that Wisconsin milk Icing outside the Madison area is ,objected to the same pro. effect, 01ey substantially mitigate ally protee- tionist cfl'crt, fur suhjccting nut-of-towil in- vestors :Intl facilities In flip snme constraints as local ants is not. ernnmlic prolerfimlism. Sec Nvir F)irrllry ('n of Indiana 1,. hinrllarh, 446 Il,ti„ at 27:1--274, 1108 S.Ct., at 1867- 1'm s." Nor is the monopolist created by Local Law 9 .just :norther priva(e company stlevess- fully enlisting local government to protect the jolts and profits of local citizens. While our previous local processing cages have harrcd discrimination in markets served by Iwivate companies, (larhstnten's transfer sta tion is essentially a municipal facility, built and operator under a contract with ill(, 11111- nicipalit}• and soon to reyel•t entirely to nlu- rlivilml owner'hip." This, of rout -se, is no more coinridcnce, since the facility lu rfolnls a Inrnlicilml function that tradition as well as stale and federal law rerngnize as the domain scr,plum as that Ino%ing in interstate cum. mcr ee," 340 U.S , at 154, it. 4, 71 S,( t.. al 298, n. 4. hill that obwIlataxt nicrely rccnl rtimd Ihat our durnnntl Conuncnc (lauscjwisl,nidcncc cs- ttods In ntnnicilc,lities AN rscll as to State; and inyalid;tes Ixoglaphi,:d trstrictinns phrased in miles as Well ns In terms of l,ulioCcll hound;uirs. 'ibis trading is (unfiininl bs• the f;rcl 111a1 the Dealt 111/4, ( unrl's unlh explanation Inr its slate ntenl was to cin' a taw striking down a statute forbidding Ihl' Nulling of "'aliv Irish meats ... slaugltt, red unc hundred miles or oycr lion, the place at which it is uttered for sal:, until yid (•urpl it has hc,n insect lr,f at a cost lu it, owner of a perm pet punnd Rtmwwr v. rrr,ur. 118 I S. 78, 90, 1 1 R ( 1 211, 21 1, 1.1 1 I'.d. 862 ( 18y1 ), (ttuounr A, 1s ill Va. 1881r 18lrt), p. 63, ch. 80). That the 1110i'll itV here rites also 10 Fort Glallnt 1 Arid! 11 1'. All, 11, ;nil Derr,. Of A',m ral Heonlres,'tibia, may indicate that it rca(Is !)tint Milk the same syay 1 do, bill then it (annul use the case to stand Im tilt- trot. radical proposition I ynnled ahoy(•. 9. At the r•nd of a 5-year Ic11n, (luring, (yhich till' pliyatc rnnuactnr nceeiyes prurrts sufficient ro in(Incr it to Prmide the plamu in the lirst place. the town will pr(snnurhly step into the contrac- tor's shncs Inr Ow nnnrinal dollar. Such r-on- tracts, vnlfving a pliv;tc company to build. opel- atc, and thin ItaeaCr 1r, local goyernnrrnl lilt expensive public flnpruyrment, enable rntmici- palilics to anp,ily pnhli( lacilities without rcsnrl. ing to nnulfripal fund. or credit. ( & A CARBON)-", I'M'. %. TOWN, OF 11„WNS'i'U11'N', N.1'. 169 t'It, ,, 114 ,-t-1. 1677 (I1t9.1) (it' local governnleIll. Throughout the hi"lorY of this country, Inuuicilrtlities have tslken re- sponsibility for disposing of local garbage to prevent noisome smells, obstructilm of the streets, and tln•eats to public livnith,t" and today 78 pel•cent of landfills I-veviving nuluici- lial solid waste are own d by local govel•rt- ments. See U.S. Fflmil•ouIII �Iltnl Protecli it AIMIQ, Resource Conservation Will Recov- ers• Act, Subtitle 1) Study: Phase 1 )deport, table 4-2, p. 4-7 (Oct. 1986). 7'hc Mitimial Government provides "technical and financial assistmce to States ill- reltional aulhoritie, for conrpreheusive planning„ with regard to the disposal of !-lid waste, .12 IT.'-.('. � GliII, and the State of New fork authorizes ►oval govermnonts to prepare such nninagenn•nt plans for the I•l-oper disposal of all solo) waste generaled within their jurisdictions, N.Y.G:uvir.('onsetc.Law § 27-0107 tllcKin- liet• Supp.1991). '1'llese genel•a1 provision., underlie ('larkstown's lttnl•e sl,ecifa• obli- gation (under its consent decree ceith the New York State Department of h:nvironme n• tal C'otlsemaliona to establish it l.ran.4el• sta- tion in place of the old town clone)+, and it is to finance this: transfer station that Local Lao,( 1) was pass-)). The Ilia ,joritg ignore: this distinction he tweelr publiv alld private enlerpri,e, egnatillu, Local Law IG "lIo:trdjingj" of solid waste for the unlnicipal tralsfer station with the detcign and effect of ordinances that re,trirt arces, to local nnarkets fill• the banefit of local pri vale firms. Antir, at 1683. But private bllsi liesses, whether local ol• nut of, State, rr<I M. Fot ceautple, ill 1764 the .tinoib Carolina Let• I'l tute• eslablshcd suer( connnissioo I , (Awilvston ,%doll the poet 'le l'-moNt ill) plot, awl t uhhislt, In sn li I nprt i+lm c nr pll, c s, in - lit.,[ )lac nit{ local, as then shall a11,0 Act of Awl! 10. 17r,4• Ti I lot •vctc Anntetdaoi rrnanl, eallicr, • Iljhv iull•,ttlastrrs :utd s, A, p<'rts mdaincd opal sll such Iclusx• be hlonldt w Jumping -grounds Heal ill(- Ciis• 11:111 and Ill, r,allows or to ollel desicomed places " N. l;oodsein, Dul, It :pal f ill lisp on the fiudsoll 1t1 11077 rd I locked, sonic , onnnuorties It.o..• , ny,lovrd (h,iv waitO mklillmwvs is ptlsuit ill Ihesc gnak ofdin:utcc•. Ilis I „tut h:Is•Ixvi,v upheld against ronslinttionol inn, k See CahlMonr Redwood omipour e. S,orirnrc Redutnon (Yorks• I99 II.S. serve the laic•;IIv fill erests of their• o1cn11'�4, and Ihere is therefore n111� recap 11•eason other than economic prolectionisnl fill- favot•- ink local husilnesses over their nut-of-ton•tn competitors. The local govet•nment itself oc- cullics a very different market position, how- evct•, beilnlr the one emit} that enters the Imo ket to servo the pulllic iliteresl of local citiz�,ns quite apart from private interest in private gain. Reasons other that( economic protectionism :re necordingl)• more likelyto explain the design and affect. of an ordinance that favors n public facility. The facility as; constructed might, for (sample, be oar that private econoillic actors, left to their own devices, would net have huilt, brit which the locality needs ill order to abate (or guarantee against creating) a pinhlic nuisance. `there is some evidence in this case that this is so, as the New York State 1)epartrn itt of Emviron- mental ('on,vrv;ttitIn would have had no rea- son to insist Mat ('larkstocvn boil)) its own transfer station it' the private market had furnished adequate processing capacity to meat C:larksboen's needs. An ordinance that favors a municipal facility, ill ally event, is one that favors the public sector, and if "We continue to rrc•ognize that the States occupv a special and specific position in our constitu- tional s.N•stenl and that the scope of Congl•ess' authority under the C'omilnerce Clause must reflect that pn it inn." Gmvio v. Son A)Ifnrrto Mcb-opolilml %Tonsil Altlhoritr{. •hill U.S. .,28, 556. 105 S.Ct. 1005, 1020, N3 I..i'',d.2d 1016 (l!ISii), then sul•Cly this ('court', dormant t'orluoerre Clause jurisprudence mu,t itself 4W,, 20 S.CI. lull, 50 I..F.d. 204 (I4o5) (uphold- ing al"ainst it takinps cludIclipe all m(linanu• iv,Iuirillp that all lttltbilgr in San Francisco be disposed ol, lot n ft•r, at lac ilitics helonl•in)t I(I F.F. Sharon), Ganblrt v. Alulmr'w, Pit) ll S. i 'i. 26 S,Ct. I06, ;0 1. F.d 212 (I005) (tpAnld in)t against clue pn,eess clulllenve an ordinance rccpuling that all imbagv in Delroil be eullrcicd mid disposed o1 by a sintde city ,onuactor). It is not mete inattention Ihnt ha•, It -it these tine old , ays tore Iu,nl stllr,ctpt•ol a"I'visiotr. Ior (lu•Y illusnate that civil ;t the hcipht of the hwhrrvr cra the Court tvcogiliml that for Inuniripalitit's stro;glholt III 11ltt0 11161 grnbage problems, the Constitution (lid not tcgtiic unim1wded private enterprise. p f% h", J e� 4 t,., Wk mt 1w �- ; 1699 111 tilll'II1;11F, t't)f'li`1' it1;1'Olt'1'ISI{ see that FavoringMat(—,facilities differs from (liscriniinating among )Iriwnte economic actors, and is much less like ly to he protectionist. Laving estahlished that Local Law 9 does not -CIA,(" the competitive class identified ill previous local processing cases and that Clarkstown differs correspondingly from oth- er local processors, we must ask tiwhel her these differences justify a standard of dor- mant Commerce Clause review that diffor•s front the virtually fatal set•utitty imposed in those earlier cases. I helievc they do. The justifreation for subjecting the local processing laws and the broader class of clearly discriminatory commercial regtdation to near-f.ttzl scrutiny is the virtual certainty that such laws, at least in their discriminato- ry aspect, serve no legitimate, nonprotection- ist purpose. See Philadelphia vr. New Jer- sey, 437 t l.S. 617, 624, 98 S.Ct. 2531, 25:35, 57 L.Ed.2d •175 (1978) C'ff lhere simple econom- ic protectionism is effected by state legisla- tion, a virtually prr se rule of invalidity has been erected")." Whether we find the "the evil of protectionism;' ;d., at 6213), 98 S.O., at 2536, in the clear import of specific statutory provisions or in the legislature':: ultimate purpose, the discriminatory scheme is almost always designed either to favor 100al indus- try, as such, or to achieve some tither goal while exporting a disproportionate share of the burden of attaining it, which is merely a subtler form of local favoritism. Id., at. QG- 628, 98 S.Ct., at 25311-2538. On the other hand, in a market sr•l-•ed by a municipal facility, it law that favors that sin- gle facility over all others is ;I ltw that favot•s; the public Sector over all private -sector pro- cessors, whether local or out ((f Mate. Be- cause the favor dos, not go to iocal private 11. For the rare occasion tahcn di•.criminatory laws arc the best %chicle Gil (urtha ing a legid- mate state interest, Alum, v. Tavl,w, 477 U.S. 131, 106 S.Ct. 244o, 91 1A.A.2d Ito (1986), provides an exception, bill eve need tint address that exception bete hccausc ibis ordinance is not subject to the presumption A uncon.titrnionality apptoptiate for protectionist legislation. competitors of out-of-state firms, out -of -stale governments will at the least lack a motive to favor their own firms in order•to equalize the po-itions of private competitors. While a preference in favor of the government nrly incidentally function as local favoritism ns well, a more particularized enquiry is neces- sary before a court call say whether such a law does in fact smack too strongly of evo- nomic 1+lntcctionism. If Local Lan• 10 is to It(, struck down, in other words, it must be tinder that test nrost readily identified with Pike r. 13rncr Chm-ch, lot-., 397 U.S. 1:17, 90 S.Ci. 944, 2u L.Ed.2d 171 (1070). III We have said that when legislation that does not facially discriminate "comes into conflict ttith the Commerce Clause's over- riding requirement of a national 'common market,' we are confronted with the task of effecting an accommodation of the cornpeling national and local interests." Hunt v. }i,vsh- ingf on Slut(, Applr Adrrr•fi.siny Comm'o, 1:12 Ii.S.:333, :350, 97 S.Ct. 21:14, 21,15, 53 L.Ed.2d :38:3 (1977). Although this analysis of com- peting interests h;c; sometimes been called a "balancing test," it is, not srF much an olren- ended weighing of an ordinance's pros and cons, as in assessment of whether all ordi- nance discriminates in practice or other%ise unjustifiably operates to isolate a St:lte's economy from the national common market, if a statute or local ordinance serves a legiti- mate local interest and does not patrartly discriminate, "it ,%ill b, upheld upless the burden iulpoaed on (inlerstatel commerce is clearly excessive in relation to the putative local henefits." Pike e. Bruce Church„ Inc., snpr(r, :397 U.S., at 142, 90 S,Ct., at 847. The analysis is similar to, but softer around the edges than,'t the test a•e employ in cases of 12. WIVIe discrimination is nut patent un Ihr lace of a statute, the party challenging its c•oustittr- tiunality has a more dillictih talk, but apptopri- alcly so becattse the dcurgcr posed by such loess is generally smaller. l)isctimination Ihat i, not patent or putposc(ul but "in effecl may be suh- stm+tially less likely to provoke letalialion by olhrr slates.... )it tilt- swords of Justice Hntmes, etc•n a clog distinguishes bell%'( -'err hciog 'tune '0 -„y5.r,q.,,p�.i..oe.- r•�411f*i11PRR+lAI,Mf..,err....MiRflpltr✓.,RryCw•.iki{i'�1'R16 ty!i • l , t btl r.1t:•�i LarO 10i r F,..'th �,t(; 1(1„� � l `•t ovvvt discrimination. "I'I'lilt, question I+('- c(Inles one of dcgrec," :nt(I its nnsncr (le- Itends on the nature of the burden on ildor- state conirnerc•e, tilt, nature of the local inicr- est, and the availahility of alternatitr nleth- nds for advancing the Inca) intcri .t without hin(lering, tit(' natiolud one. It1., al i.12, 1 Its, Pt) SAIL, at 8,17, 81!1. The prilnart' burden ('arhone attributes to ntiw vow 1.1it nrdinarocs such :is I.Iwal I.mv !) is Ihat they "In•ecI'ot Irish d'ronl )ring sent ill this tiles( cost -effective likiIflsal facilities, :uid insulatis this dv:,ignalcd flcilitp front all itrice c'otilllet ition." Brief for 1'011iomr 32. in this cn-r. c•ustonicrs mint imp• �.l 1 per ton more fill- (Ilnni,ing (rash :It tilt, ('1:n•kstow'n transfer slatim) th:ut they would pay of ('ar tu- h+e's facility. althttugh Ibis dollar• figure ili('stnitbiy overstalI A the burden hY dis- guising some dilfcrrurc:= Ilowcen this lis.w according in its slni(' licrolil, !rid lton-citl of ('m'boms's waste >Irc:(m vilinpri:;cs Irc;yclable cardboard, while the ('larkstown f:u'iiity takes all Inmincr eS less yalualllc wa le, "Mich iL treats with :'lat e-it' the -:r't eoyroll mental technology not cnlidoyed ;it (':n•- bnnr'.: more rudinwotarY chant. Fortunately, tilt' drdlar cost tit' the harden moll not be pinitoiWed, its nature being more significant Omit its economic extent. When Ave look to its nature, it should be clear that the monopolistic character of, I'livol Law Wz effects is not itself suspicinlls for purposoi,: of the Comnlvire ('trust-. A►thongh the Huht to compete is a hall nark o1' the Amcriran economy and local ncvtiipolics aw stli'J"l-1 to chalicngc under tilt- cct;inky-old Mhcrmall Act " the lmv ttr iwilospohcs tor, rather, the anthol-ity to dismctnl,cr anti p-luilirc 1herU :trims from If stalut,.l v. not :1 colistittit ional, mmnfi:te. No Inner than the Fourteenth hlr,I nc, r ;Intl bring+ f i, ke,l. " Sim II1. 7,4 c',,1. i Ih•c , ;it 1 25 1 tipu+uul'. ()AV, 11.0.1" s 'Ihr (onl- most Law 1 1 1 NN i II •, e :,I„+ P. e;ul. I I", till fnrrlle Canal alid SI;I1 hwc,titnlisnt. 111at.oll, Fensc of the 1)ni nulm Cunuac',r CLnuc. 8•1 N1irh.L.Rry I091, 11't 1134 (1986), 13. Sot• IS U.S C. §§ I and 2. Indeed, other 11ttw e ottol ordinances h;icc been challenged tinder list, Sherman Avi, alihnttidl wilhout success where olunicipal ticlrndar,ts liar. availed Them Amendment, the ('onmcrcc ('lames „duce not ciiact Air. ilerbcl-t tilmncer's Social Statics ... joi l embody I ImHit'll lar economic theo- ry, whelhrr of itater•nalisrn ... of. of laissez (rrirc" LorhmI, I'. Nciv York, 19.4 U.S. 45, 75, lit, S-Ut. 539, rilti, 49 L.Fd. 937 (1905) tilohncs, J., dissootingl. The dormant ('ont- m rive t'lause does. not "i rotecltl the Irarticu- hir structure of mrthuds of operation in amyl In: l-ko." I" I:rml ('oro. r•. Covenlor Of ,11(t, 437, I ,S, 117, 127, 98 `.('t. 2207, 2215, 5-1 I_Nd.2d 91 (197,S). The oil}• right to ctimilrsto that it Iaoh'cts is the right to com- licte oil terms inllvIwildent of one's location. While the monopolistic nature of t)te huI'- den rowdy he disregarded, :uiY la'o>p;liihirllir tltscriminatot•y viettictlts must h(, asseSSed with care. \\'e havo already obscned that divre is no gc+ograi llic;ilI,v based sel('etioit among private firms, and it is clear from the kwo of the ordifumce flint nothing hinges oil the suorcc of tr:lKh that cotcrs ('larkstown or nlloo the destitution of the proevsSI'd waste that leaves tilt' tl:111,41'r station. There is, to III, sore, an inc'identnt local economic benefit, for tilt- lived to ilroress CUirk"t(.W.". trash in ('larkstow•tt will creat" loom ,jobs. Hut this ducal boon is mitigated 1),v another fcalure of the ordinance, in that it finances whatever hcnefits it confers tin the town from the inu'kets of the vvly citizens who i a';sed it into law. (ill the Iww4liml+ie assumption that nr one can avoid producing sonic trash, every resident of ( 'Ill kstowl must hear n portion if the hurdcn Local I.;m. 9 impost's to sup- port the municilial Immopoly, an unch:n•acter- istic fe:turo id, sklhte:: claimed tit violate the t'ouuuerc•c CI.' IIse. It}+ way of contrast, most of the local pro- evsAng statutes ire have previously invalidat- vd imposed relluircnitvts that made local of lilt' ♦talt• a,(ion rx--lion to Ill,' allti- Im-.I low•, .'iris lhirtaj)-,1»ryorrcerl (l n/' I, Mimi. -, 12 1' 2d 'i,lq I( At, IQS4): (•cone/ hin'a 1 ePoe .SN itm%. lit,. t' tic, ,th+tm1 ,Vennlnditanl Solid It',I+fe Ap,i rr. 71'; 1 .2,1 -1 Ili (CAR I'WY That this State of NewPork's 11,illand-(ltomack Late, 1991 N 1 1-aw's• Lit. 5G9 WcKionc}•1, atillimircx c'latkstow•n's flow control otdinaricr allay explain why no Sheiman At'I claim was outdc hrrc. 1700 114 `U{ REN1 i{; COURT 321;1101011"lt goads more expensivt, as they headed into lfrlfr, 16119-IrOl, n. 2, 99 L.Ed. 1915 (1945). the national inarket, so that out of -state here, in contrast, every voter in Clarkstown economies here the Imik of any burden. Re- pays to fund the benefits. of flow control, gailting that Alaskan tunher he nlilleti in that however high the tipping fee is set. Since, State prior to expert would add the villue of indeed, the Annulate to use the town facility the milling; service to the AL•Iskl n ectrtlonly at will only null(• a difference when the lipping; the expense of Some other ~tale, but would fee raises the cost of using* the facility above f not burden the Alaskans who adopted such a what till. nl:u•ket would otherwise Set, the law. IT ,Srodh-Crllll•rrl Timbre Ocv lop CIal•1(;;tnwn votcro-, are funding, their benefit i mrnl, Ili(-. v. lt'unniche, 467 U.S. 82, 92, 101 by :Issessilly Llietuselvo." anti paying an ('co- S.Ct. 22:17, 2242, 91 L.E(1.2d 71 (1980. Sinli- nonlie penalty. Any whiff of economic pro- larly, South Carolinians would retain till, fi- tectionisol is far from lit ious.lr, nancial hene(it of a local processing relluire- An evittihintion of the record Confirms ment. fur Shrimp without paying; anything[ A(eldirisnl that ettforevilletit of the urdinanve snore themselves. CT Toomel• v. 1t'itsrll, :334 portemis a ('orlmn'rce Clause violation, for it t1,s., at 403, lib S.Cf., at 1165.11 And ill show^; 01A lho hnl•ffen fulls eniil•ely on Philadelphia n. Nru, der:sego, 4:37 1I.S., at 628, ('larkstnwn 1'esidenls. It' the reefing von- 98 S.Ct_, at 2537, the Stale attempted to taineli esideuce tlntl ('iarl(shlan's ordinance export the harden of consul-ving; its sc:u'('t' hm•dt'livil oll,-of town pro,idor:s of garbage larlditil Space by barring the inIPn't'It itlll of sort iIli,' :Illd It:tlltlg! s0C\iiTS, ratht'r Ihall Just out-of-state waste. also Ilr4,wi-1'(ll•Illall tilt, local hllsllless that Is :1 1,al'i1. if) this case, Distillers Corp. v. Errs' York Stair Litlllor plat filct might It(' Slgrnifivnilt. But pl'tlllellvi. Authority, 47fi U.S. 57:3, IM, 106 S.Ct. 2080, has preseuteli no m-ificlice that there are 2084, 90 L.Ed.2d 5C12 (11180) (priee reduction transfer silltiuns outside C'Iarkstnten capal,lc s,I for in -state consumers of alcoholic heverat(t's of handling, the town's business, and lltc rec- �. procured at the expense of nut -of -state ion ord is devoid of e.idenet that such eutcrpris- s; Burners). Cow•ts step in through the dor•- is have lust business ;ts a result of this s.j mant Commerce Clause to prevent such ex- ordinance. Cf. Pikr v. Itrucr Chlll•rh, hr., y ports because legislative action inlposillgi ll "'principally 397 11.S., :It 145, !)(1 S.Ct., at 9•14 ("The Nature burden upon those without fit(! of theei hurdcu is, con>titutionalh•, rnor(, Sig - state ... is not likely to he soh• coed to nifirant than its extent" and the danger GI he >7 those political restraints which are normally avoided is th:lt of laws that hoard business a exerted on legislation where it affects ad- for local resi(lents). Similarly, if the record F verseiy Some interests within the State."' Supported an inference that above-marketSordh-Cenh•al Timber, scup, 4t;7 U.S., at pricing*, ill the Clarkstown transfer station 92, 104 S.Ct., at 2243 (quoting .South f'nr caused less trash to now to out-of-s,hte hild- olinu State Ifighlcv111 Ucpf. v. Nurmuell fills and incinerators, th:lf, gnu, Inig;hl lime YI 13rothrr.4, Irlc., 303 U.S. 177, 185, 1). 2, 58 cunsliUltinnal sig nifiruuo. There is, hnwrv- ,, IA S.Ct. 510, 513, it. 2, 82 L.Ed. 731 0938)); see er, no v iderlce of ally disruption in the flow also Southern Pocifir Co. 1•. Arizona r.r rel. of trash from curhsidvs in C'larkstnwn to Sullivan, 325 U.S. 761, 767-768, if. 2, 65 S.Ct. landfilis in Florida and 011io.ls here we Can 14. 1 recognize that the economics differ it a Slate to tilt- rc,icicnts of CLukstno n. ,cut-of-tuwn flash does not enjoy a significant price advantage ncty prucessals %cho would Irnc souEhl claiksluctn's its neighbuis and thus cannot pass along the business in the ahscncc of floc. cuntmf Hut as added costs associated with its local tccocessing we will see, the absent,' .I c1id"lue of iniul; In mquiiement, but such States are milikeh' to such Ili clfminadcs Oull to P.11311cill bile. adopt local processing tcyuileou•nts Inc Inecix•ly that reason. 16. In till'- ctrinexl, nuts Thal the contfict lu'.ticc• O'CONNI)R hypolhcsizes hemcen alahiple flow• 15. This argument does not alone foreclose the control laws is not one d,at occurs in this case. i t possibility of ecortonlic plulectionisol in Ibis If Catbonc was processing trash Irani New Jer- case, as the ordinance could burden, in addilion sev, it wns making no attempt to rcutrn rile 1,1� t� r.r !r 1' `•'^^•�rx+lt":'r''Y�:r,�' T'T'Me're+•'79IaNFrc.l1 .•7v nY!•'.IRACJ�yR*"•��M�r�lR41�Y...7a'.�'+ec�4'R s;ll;,:sii, t.A.,.S•,,t^'r.Yj1� t,Sl'-4'.v y+.v '�I�I i�.lt�' • .. � ti C & A (', MIONh;, INC. v. '{Y►WN OF CLAIMS'I'(►15N, NA. lull ( nt• as l l4 till. 1677 ( 19941 collfidelillP say (lull III[, ollll' hllslm FF l,I:l :Is a result ,It I leis ordilmlice IF hUsilwe s lost it) Cl;u Iatot� n, as cnstoe fors who had used I ar- hone's facility (it -ill ;v,uv ill respow:v to any hit•hrr fees Cm —hone nl;ly hare to institute to aff,Ird it:: share of cit; set•vices; but husiuess It ill i'larl:a(1u o ;I a )'I•,<IdI If a ('l:o'Ls- trnt'n orditumve k not ;1 hurdctt Ihat off'mIs the ('(Institution. '1'itis skeptivisnl th:11 1in)tcctitmism is afoot here is rnnftrilled again w'hivi we (villd-, the l;ovcrnnlental inlerest, app:lrlvllly scl-red by the loc:d lacy. As inrntionod ❑tt'cally, the Stair ail) its mtnlicipalities need pron'pl, svilitory trash ln'ores�ing, which js inlp ra- tive wlu'tllor or not the private Illorl,et :wes lil in servo this lied ;it an aff llvlahll. pl wt, also to contjunc (loing •o drpcnd;lhly into the iiltuv. The state and locsll gi,vernnn.vlts ;-)moo have a suhstanl ill inh'rest in the ilol, control featuro to minimi>'e tit I risk rtf' limmc•ing this service, for while then• Inny he an element of cmggoration in the 4:1tement that "it Iv - Source recovery facilities cannot he built rin- less they arc guaranteed a supply of discard- ed nritcrial," iI.N.Rep. No. 94 Mal, It. 10 Ua7G), U.S.Code Conp & Admin,News VG6, it. 6248, there is nil tinestion that. a "plit ill. pay" contract of the type Clim-k:aown signed will Ile a significant inlhleenlent to acct'pt Itill nicipal responsihiljly to gmiantee rlli- fwmcc•cc{cd residue Ririe. And (h"uirtic:+ill, l'alhone could haec t"Whiled MIll hotll fl"%%: conic,) mdinancc., a, (larkstrncn's Iale ir(pui„1 I,,.A pin..c,sing, %%hill- Nrtt Jctsit's lc(Inil, I oitl)' ihal :nt"; post)„(rc smp, a dn" be wtui m d it) the Statc. Boll mmc loadatn"ttlalh', teen 1; a nontlisclinlinatot. oildm:uice tonllir+s It tilt dic laic of Snmc taller juu•dictinn, Ih;u Iael w( nId not ill il,rlf, lead to its iltca(idatien in Ihr vacs Justice U'CUNNII(t citcs, tilt slatutcs ;It iwic SvIN'rd no I"g.iliiirtlr ,Late riitclrsi ll•.il ttciyh"d :yt;InlSl Ihr hnidrn on inlri,nur oml Inc(('" Ihc'u tu11110%,I- oiled. scr 11,10, r. ,\Nit:, Ili) Firigtll l.inrt, Ill, , 31,0 U.S. 520, 525, 79 S.I (, 962, 965, 3 LF&2d 1001 (1954) (modgnnlds Illinois re(tuiled on tin, ks p'lsscss no safelc ;)(I.tantayc hill ci:aic new h;vald%): smilln^n Al. Il. it C',i e. ,lti;nnd rI iri ,Sidi mm, 125 I1.S. 7a1, '779, 65 S.CI. 151.`m, 152i, Sy L.F.d. 1915 (19,15) (Atirona statute i illiting lengih of thins "a ffol(is at must slight and dnl,ious adctlMagc, it aeI•., trilh respcct In sa(c10 11crc, in contlmll. we kill we that file nnllikit,alilv's interests atc snh- slanli:d and that it,,, alleloalivc Imam for old• vi"lle,v nild smlitofloll III It:R h prilvessing. x note disposal with mininml environnurnlwl tinlivige requires serious enpital iavel;lnuent, ill., at at, will there are limits on miv nlutlici- pality's ability to iron• deht or to finance facilities out of tax tvvcnues. i nileeticin of the public fist. is a legititmOv local henelit direcily advanced by ills onlinarlce and gtlitc Inllike the gencl-alized afhantage to local hltsinesses that we 1un'4, condelrmcd as pro- lef tionist in tit(' p;Ist. ee Negan, 81 Mich. i,.Rev. at 1190 +"r:Iisinl� revenue fill - the state t'rasnr} is :t frdcrnlly cot*nir:thic hcuelit prote('tiotlisill is not); cf- [*m-1 (ilroliol Simi- fario bilidltll, lrrr. r. ,llichigon /Irli1. of iMit- o rail Ur.soo rres, root I !.S. - - -, --- , i 1'..1 S.CL'2U1;1, 2023, 11) I,.Fd.2d 139 (1992) (last' {notects private, it'll Illlhlirly nwm d, waste llkpos;d capacity for +lonle.;lic user; PhHot - th'llthio I'. A'iit, ,it re( ,t, •117 1 i,ti., at ti27, it. ti, ak S.Ct., at 21-537, it. Ii (expressing no (Ipillion :Ihout :Mate':: poavr it) favor its own resi- dent:; in granting access to stsdo-mvrled re- soul-ces)•r: Moreover, Iloly cont'ol offers an addilional ht'nefit that. could not he gained by filulncing through a suhsilly derived front go1wral tax revcnncs, ill spreading the cost of the Glcility auuntg all Chu•kstown residcnts who gelict•- ate trash. The ordinance does, of coal -At" tancinh Iheul arc Icss ilt•,ir. hlc :11111 po(cntitdly as disroplive oif inlclaal" .onnriit,c. Fin:tlic, in ;ulc (onllict hclte"r❑ HmI innntl Ili. -If Icances oltlt %%wic m(hin Ili, tuiisdicli'm and fi'm c l- ulu that ica,hcs hr%mid (tcolmimi, te:nte migi- limin)t lucallv In h" iriit: nod all, r I,toi ",Sing rl ctth"icl, it Mlle h" Ihr );lit, r that should yrivv tva-t foil acgulatinp umdrl, 1 ornoliny tsholly'lul ill SLilc. Sr" i i'mtt I wMWI 1h,rt1lriM Cmp. I'. ,�'rn• )',ill: .St,ar i.igmn Authnrirv, 47n I1.S 573, ilia W. iOo S ( I NIRU, 21194-208(,, 917 1, Ftl.2d �52 119y0. 17. The Com t dill sal ikc dottlt ('alilm llia's dcpics- silm-c•la han nil Ilic '•imilmlation" of ilidigeot Llhou•is despilr illc SIaI,'s )nmleslAitins that the statute ploteticd Ill" I,llhlic list IIIIIII the Mullin u( add itimml outlncs lot poor relic(, hill the court stlrsse(I the Stanllc'S direct ellcct till inutlit;rnn(s instead of lelyiog on luny indilml "liccls on the ))IIhIIC pol'Me. sec i.Wwwoli v. Cedilontia, 314 U.S. 160, 174, 62 S.Ct. 164, 167, 86 L.F,d. 119 119A 1). 1702 111 alPRh;Ni1', t tlrit r ltl;Pux'rt:it protect taxpayers, ineltding those who al- ready support the transrer slalion hY patron- izing it, from ending np nith the rah rot oinking prrn•ision fier trash pro- ducers lii,e Carbow" who world rely on the municipal facililY %ahi-a that was wh-mita- geous but opt out m henever the transfer station's price rose ahove the market price. in proportioning each resident's burden to the amount of trash generated, the ordinance has the added virtue of lu•o'iding a direct and measurable deterrent to the generation of unnecessary waste in the first place. And in tiny event it is far front clear that the alternative to fiow control (i.e., suhsidies from general tax revenues or municipal bonds) would lie less disruptive of interstate commerce than flow control, since a subsi- dized competitor can effectively squelch com- petition by underbidding it. There is, in short, no evidence that Local Law 9 causes discrinihiation against out-of- town processors, because there is no evi- flence in the record that such processors have lost husiness as a result of it. Instead, we know only that the ordinance causes the local residents who adopted it to pay more for trash disposal services. But local bur- dens are not the focus of the dortnant Com- merce Clause, and this impo•<ition is in any event readily justified by the ordinance's le- gitimate benefits in reliable and sanitary trash processing. r + • The Commerce Clause was not passed to save the citizens of Clarkstown from them- selves. It should not he mielded to prevent them from attacking their local garbage problems with an ordinance that does not discriminate hetweeu local and out-of-town participants in the private market for trash disposal services and that is not protectionist. in its purpose or effect. Local Law 9 con- veys a ptiyilege oil the mmnicipal government alone, the only market participant that bears responsibility for ensuring that adequate trash processing services continue to be available to Clarkstown residents. Because the court's decision today is neither com- pelled by our local processing cases nor con intent hhith this Com-L's -( :ason for inferring a drnnuuh( nr negative nspect to the Commerce Clause in the first place, I xespectfnlly dis- sent. SECU11rrY SERVICES, INC., Petitioner V. It; 51ART CORPORATION. No. 93-281. Argued Feb. 28, 1091. Decided May 16, 1994. Carrier which had filed fur• Chapter 11 relief sought to recover freight undercharges. The United Gates District Court for the Eastern District of Penns}ivania, Donald W. VanArtsdalen, J., entered summary ,iudg- ntent in favor of shipper, and carrier appeal- ed. The Court of Appeals, Rosenn, Ch visit Judge, 996 F.21l 1511i, affirnned. On certiora- ri, the Supreme Court, Justice Sorter, J., held that bankrupt motor carrier may not rely on tariff rates which it has filed with the Interstate Commerce Commission (ICC), but which are void for nonparticipation under ICC regulations, as basis for recovering t1n- dercharges. Affirmed. Justice Stevens concurred and filed opinion. Justices Thomas and Ginsburg dissented and filed opinions. 1. Carriers ez189 Section of the Interstate Commerce Act (ICA) prohibiting carrier from charging (it - receiving compensation different from that specified in its filed tariff creates strict filed rate requirements and forbids equitahle de- ...,+em >;t:v"wor-:t•.;s"-s�+�Y'� 't . -a.. .,v�nat'+P^cW �ii ..sI�FF,�'RFtF�Fv�.�, r rlh.,MtA11�i'�"x%i+'� �I.0 t`�'F�' "7`i t. t �i �qjl •kL if r Y a �d's`.i�'$ � R'if;'= �l �'� T����� i i i('ftt�l it l 4 i r f t a k st 2:./475— RESOLUTION NO. A PXSOLUT I ON , WITH ATTACHMrri'r (S) OF TKE MIAMI CITY COMMTnATOnr A.PPROV3MG THR r)TRRCTOR OF SOLID WASTF'S SELECTION OF THE QUALIFIED FIRMS TO PROVTDR CdMrl.ERCIAL c;OljTn WASTE ' HAULING SERVICES WITHIN THE C:TTY OF MIAMI, AS 1_iGTED CAN FXPTATT 'A' , ATT3a HEV iiEFtETC) AND rej= A PART HEREOF; Ft.-. ; f;FR AT; rPORIZING THE _ C2's`Y M:ANAGF'P. TO ECU E NOT7-EY.CLU31 VE t FRANCHISE AGREEMENTS, IN SUBSTANTIPJ LY THE ATTACHED PORM, WTTH qA, L: QUALIFIED PROVICERS rOR. SAID riI?f2ViCT S CJrC)N TIiF AnOPTION OF AN ORDI1GWCE BY THr CITY C`Cj1vjN1T-qFTCN RELAT.'INC, TO TTIE CR- TION OF FP. NTCH2-nc'u IC`t, •THE COLLECTION e AND DISPOSAL OF SOLID WASTE Oft RECYCI-JUALE AND 1 RECOVERABLE MATERV211,S; AND PItOVIDINC; POR AN EFFECTIVE DATE. F WHEREAS, purauarit to Motion 99-397, adopted Suns8, 1999, the City ComiraiQs;Sgn accept-ed the Adrnfn4rrr-,vxri.on1 q xecdmtnend6ktion0j .in connecta.on with the issuance of=ranchian agreements for cityw1de commercial solid waste collect -Lon axed disponal caarviCe�; k'MEREAv, Plix-Euant to Motion 99-39B, &doptcd June 8, 1999, the City Commission directed the! Ciry Mrnager r-o p;repare a Request for Oual:fI'catIcns ' "RFO•, 3 for 1-;& LL ] and 'KRSR-P%�, pursuant to IJo. 99-553 the airy commission authorized and directed the Citv Manager to issue r.h^ i t M J� r�9 Too a3zinaHN TOSCOV990s Wd oC'Z'T 8s%CV/60 RFQ for they provision of solid waste hauling servicer, and direetad the City Manager, to instruct tbFk ni.rector of Lhe I partntritc of Sh] ld Waste to evaluate said rapponaes and determine thm- cpjal.i.fied providers', and WHERFS, qualified pxvviders are selected herssin, ' provided that the City of mi.ami amend its City Code Lor the granting of franchises for commercial solid waste c:ollectlon; NOW, THEREFORE, 22 IT RESOIrJED BY TKE COMMISSION OF THE CITY OR NT-hKT , FLORIDA Section 1. The recitals and Zindinge contained in the Preamble to this Resolution are hereby adopL.ed by reference thm:e*nc7 and incorporated liereln as if fury set Furth in this Section. Sectl'on 2. The Director of Solid Waate' a meslectinn of the qualified films to provi.de3 commercial solid waesroA hauling mearvi_cc:e; in the City of- Miami as linte-d on Exhibit ��� , sattaeehcd hereto and made a part bereat , are hereby apprnVMd . Section 3. The CiLy Maixac;ey iz hereby authorized to ex®cute non-exclum-,» f a chine- with tha Qeslected firma upon the adoption of an ordinance- by tha City Comrsission relay-Ing to the creation of franchisee for the collection, as,d 0 ' k 2 Z O o ti�Z,T.p'32I13 TOSM990C XVd OC:ZT 661M00 C00'c1 MR -ON XN1. , BC:9j 66/CZ/60 r I disposal of svlid waste__ or recyclable an Section a . This Renolution s immediately upon its adopr--ion and sic-7.zzat PASSED AND ADOPTED this d ARTTEST i TER J. FOWMAN, CITY CLERK APPROVED AS TO FORM ANn CORRECTNESS ALRITAN7 WO VIL LLC CITY Al , DP-t= w a Mew { ti recnvrreblC ttlatCriesl.t3. ral.l become- effectivw ur. a vT the. mayor.!' i i ay of 1�99- i +E-Zj,AROLLO , MAYQ-R ti f f t t j i i. c f' he if trie Mayor doiem not atgn this Resolution, it *hall benmo ef=eettve at a the end of t4a calendAr days+ from th4- since St wan pamood -=a adoptt►d- Zt t;Ye Kokyor vbraao Lhi.a SicboluLic.un. it ahail, lftreemw arreetive immediately upon vvwr.-4 rya nF tbo "tc, }-,y rhA cat r.y t^nnn+��nvra r.a. - 3 - IL x COIF 2I3nf1aux T09COMOV XVJ WIT GT 66/CZ/60 V a tip, ,., CITY OF MIAMi Ft-pMOA INTER -OFFICE MEMOnANDUM i iht Honacablc ivlayvc and o� a SEP a 1599 FILE Memb s of the City Commission '` a E` T Approval of Non -Exclusive Franchise Agreement for Commercial Solid Waste Accounts Donald q. Warshaw AEFERENCeS i City vlanager ENCLOSLRES 1 The following information is being provided as backup informZ60A t0 the September 28, 1999 City,. Commission agenda item refers= the awarding of a Non Exclusive Franchise Aglroement for Commajal Solid Wastc to qualified companies, 1999 the City of IMiami Commission roved the submission of a request for On July 27, ty approved qualification (RFQ, see attached) for Commercial Solid Waste Hauling Service. This R.FQ had s attached a Non Exclusive Franchise Agre=ent between the qualified companies and the City of tlit;aml On AI10nTct 6 1949 the RFC) was issued with a resronse due date of Au" 27, 1999. j On august 30, 1999 a wnxrnitt= comprised of City of Mtarni staff as well as outside agencies (City of Homestead Public Works, NUatni-Dade County Solid Waste Management and City of ;Miami Beach Depaftment of Solid Waste), met to review the responses and selected those that were deemed qualified. w ¢ual-fed Responsc3 Dirgualrfred Responses l l.: e 0 Rig Apple Superior Waste Services of FL, Inc. 9 General Hauling Service, Inc. American Disposal Integrated Wastc Service of Tampa Bay, Inc. Lopefra Corporation Mac Pac Waste and Recycling Services, Inc. t' j ONYX Florida LLC V►Wastc Managcrncnt of bads County BF1 Waste systems of North America, Inc. VICTEC Environmental Services, Inc. v WASTECO, Inc. t United Environmental Services of South FL, Inc. ? a Bayside disposal. Inc. i e Liberty Recycling Corporation Atlas Waste Corporation E: Chemical Conservation Corporation Imperial ae.nitation Service, Inc. P.H. Waste Collection. Service. Inc. Simco Recycling Corporation F: r Delta Recycling Corporation t { i, TOI�j iI3Z.L113iI}I T09C6V920C YVd LZ :10 68; SZ /e0 r L f a� As pan of the RFQ responses, a proposal from Imperial Sanitation Services IncJRcpublic Services, (nc., was submitted under section l l of the RFQ which allowed an option for any applicant "to submit concepts or ideas that arc innovative in nature to provide for more eflicicnt solid waste services. These innovative concepts to be considered shall provide methods to accomplish the City oafs of better city negulatiora, to promote greater Competition, innovative or Hove( SCrvtcCS and section shall not create any obligation on the Qiy to__enteT into _ an r1 eement based oft the al innovative idca(s), nor include the ides) in the final ag_rcemcnt. However, th_i_s information may, at the City's sole cotton, be incorporatcd m the final agreement." We stave assessed the "innovative proposal" by ImperialiRepubltc. We arc not recommending the incorporation of any of the issues listed in the proposal, due to thern not being responsive to that R.FQ. The so-called innovative proposal is acmally three options (South of 636iNorth of the Miami RiverlCi"ide) for exclusive rights ., to service corr=crcial solid waste accounts. Districting/exclusivity is not in accordance to the process approved by the city toms Wion, imtructing the administration to proceed under an RFQ for a non-exclusive franchise agrt:ernent for commercial solid waste. The issue of districting or excl-asivity was widely discussed at previous city commission meetings, and the commission apmed with the administration's recommendation against it_ Am assessment of the Franchise Agreement yearly revenues versus the Imperir>alRepublic proposal was conducted for the citywide option (see attachment). This ImperialfRepunlic proposal would produce to the City of Miami approximately an additional S522,000 a year. Should the City Commission wish to thatch that increase in the franchise agrmmmt, it could he accomplished by increasing the permit per account fee from S50 to $75. This additional S25 per account would generate an additiotn! $525,000 ($25.00 x 21,000 accounts) for the franchise agreement. This would also do away with some of the inherent problems with an exclusive franchise (ie, loss of choice by the businesses, doing away with all the other providers (large and small), and future problems with price controls due to lack of competition). On the quesdons of price controls, both the Franchise Agreement and the ImperiaMepublie options, provide language which only permit price hikes due to increases in operating costs, such as tipping fees, ctc- The concerns raised of excluding recyclables has been addressed by the law department. It is their opinion that we can and have obtained our 20% franchise fee for the collection of recvclables. This would only apply to those recycling companies that charge their customers to pick up and haul. If they do not charge, or if they do not haul, they would not be subject to this franchise agreement. We haye been collecting under our current system a 20% surcharge of the gross receipts for all of the items hauled by the indus%y, We collect apotroYimately S4,000,000 per year in the franchise fee (20a/o surcharge). It is estimated by the industry that as much as 4% or as low as 10% of the current solid waste flow could be deemed recyclable. If the commission were to exclude recycling, it would be encluded from all of the companies, and they could deduct from the 20% (cc any items which meet this criteria. 'I*his could negatively impact the revenues by as much as S1.6000.000. an03 uszs.;lsax rust;tlrasnc tv.4 cz: Lo ae: tta1®o We do not recommend to exclude recyclables, and the law department Bets confident in their opinion reference the legality of collecting our fees. We ve recommending that the City Commission give the city adminisa-ation approval to enter into a franchise agmcmcnt with the nineteen (19)-qualified companies. On the FYOO budget, we have increased the revenues expected from commercial solid waste accounts by S I million due to US 6-ancKi.,;c reernent. DHW MP C: Raul Martinez Assistant City Manager Attachmeats: Resolution for Sept. 28, 1999 RLF Q Non-exclusive franchise agreement List of vAwdon committee List of companim qualMed/disqualified Copy of ImpezialiRepublic Proposal FCC COMpariSOn ft. AChi3C 4gMCM=t Vtr3W Imperial(Republic Legal opinion reference recyclables. ADORNO & ZEDER -�r-VlP PF 91 a i i MIAMt, FL.ORIbA 33,33 i 'E._E�•i J+.E �305 8S8 5555 t ♦-AC$IMILc (30S1 058-4777 September 24, 1999 ALFPEOO L GONZALCZ waiTfR 5 btpSt' I Raul Martinez Assistant City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 l Re: Request for qualification (hereinafter "RFQ") No. 98-99-090 with respect to private waste collection disposal services to commercial establishments and multi -family residence with four or more units within the City of Miami ("City") Dear Mr. Martinez: This will confirm that the undersigned represents Waste Management of Florida (hereinafter "Waste Management) with respect to the above -captioned. BACKGROUND The City has undergone a very comprehensive effort to update and improve the commercial waste hauling industry. This process has included a variety of public workshops attended by both the industry and the public at large as well as various public hearings before the City Commission. These hearings have resulted in many changes and improvements to the commercial waste hauling system of the City. The last remaining issue to be decided by the City Commission (hereinafter "Commission") is to determine if the City should adopt the Republic Industries' (hereinafter "Republic") proposal ("Republic Proposal") which will in effect grant one vendor the exclusive right to a part or all of the City or the proposal put forth by the City of Miami staff ("Staff Proposal") which advocates granting a non-exclusive franchise to qualified franchisees which will allow all qualified proposers under the RFQ to compete for business within all areas of the City. I have attached the Staff Proposal as Exhibit "A" and the Republic Proposal as Exhibit "B" to this letter. stitaml1red two t1le public record in conne(1iins-; IYftf item I. FORT LAIN)ERpA _-c • - SnrA aGrgN • , _ .. %L_ Raul Martinez Assistant City Attorney City of' Miami September 24, 1999 Page 2 ANALYSIS QF PRQPQSALS There are both business and legal reasons why the Staff Proposal is superior to the Republic Proposal. BUSINESS BASIS The business basis and reasons why the Staff Proposal is superior to the Republic Proposal are as follows: 1. Preserve Jobs and Existing City Businesses. The Staff Proposal will insure that all qualified proposers under the RFQ (nineteen (19) companies were deemed qualified under the RFQ) will continue to engage in business within the City and not be put out of business overnight as would occur if you selected the Republic Proposal. In the event the Republic Proposal is accepted, Waste Management which is located in the City, in contrast to Republic which is not located within the City would be forced to close its City operations. This would result in a loss to the City of over Nine Hundred Thousand Dollars ($900,000.00) in franchise fees, over twenty-seven (27) million dollars in operating expenses and 300 jobs. This loss of revenue and jobs will be compounded by each vendor put out of business by the Republic Proposal. 2. Republic Proposal is too General. The Republic Proposal is too general and leaves too many open issues. Here are some of the open issues: (i) Are prices under the Republic Proposal to remain in effect for the life of the franchise or just for the life of the contract between the existing hauler and its client. If the latter, then the time frame for no increases to the rates will not be very long and the City can expect large increases since Republic will own a monopoly. i (ii) New accounts and new services are not covered at all by Republic's agreement not to increase prices in the Republic proposal. Consequently, they can set these prices at whatever levels and having a monopoly they will be as high as possible. ADORNO & ZEDER A PROFESSIONAL ASSOUATiON 90- "12-0 4 Raul Martinez Assistant City Attorney Cite of Miami September 24, 1999 Page 3 (iii) To the extent that the Republic Proposal has open issues or is not clear. Republic has no right after the opening of the bids under the RFQ to correct such inaccuracies. To give Republic that right would be unfair to the other bidders. 3. Staff Proposal more Lu ra iv . The Staff Propgsal is more lucrative to the City than the Republic Proopssal. I have attached as Exhibit "C" a chart which clearly shows that the financial benefits of the Staff Proposal are better for the City than the Republic Proposal. If the per account fee (which is not allowed to be passed through to the citizenry) is increased from Fifty Dollars ($50.00), as assumed by your staff'to Seventy-five Dollars ($75.00) then the Staff Proposal generates more money for the City. 4. Freedom of Choic . The citizens of the City want and in accordance with the Staff Proposal will get the right to choose their commercial waste haulers and their commercial waste rates will be determined by a competitive market system and not by a monopoly. 5. Non -Competitive Process. If the Republic Proposal is chosen, the City would not have availed itself of a competitive process in order to get the best price for granting an exclusive franchise for all of its commercial waste and thus is likely not to have received the best price for such a lucrative contract. If the City chooses to grant an exclusive franchise it should bid said contract competitively through a request for proposal that sets up mandatory criteria and requirements and of course that elicits bids from more than one company. This RFQ was not meant to elicit competitive bids but simply to qualify potential franchisees under a franchise program that allows non-exclusive city-wide franchises. JEGAL BASIS The legal basis and reasons why the staff' proposal is superior to the Republic Proposal are as follows: I. CLt3: Charter Prohibits the Relhlie Proposal. The City Charter in accordance with Section 39(j) prohibits exclusive franchises in the City. I have attached as Exhibit "D" a memorandum of law that discusses the issue in detail and concludes that the City cannot issue an exclusive franchise as proposed by the Republic Proposal 2. Vested Property Rights. A non-exclusive franchise gives the franchisee a vested property right in that franchise. Accordingly, if the City grants an exclusive franchise to Republic it ADORNO & ZEDER A PROFESSIONAL ASSC= ATiON Raul Martinez Assistant City Attorney City of Miami September 24, 1999 Page 4 effectively «ill prohibit the other vendors from exercising their rights under the current non-exclusive franchise. The case law as shown in Exhibit "E" will support a cause of action against the City by the holders of non-exclusive franchises in the event that Republic is granted an exclusive franchise in accordance with the Republic Proposal. 3. Ta •in . The Citv_ cannot interfere with vendors' existing contractual obligations without paying just compensation in accordance with Article 10, Section 6 of the Florida Constitution and the Fifth amendment to the Constitution of the United States. 4. Competitive Bidding* Required. The City Code at Section 18-78 (a copy of which is attached hereto as Exhibit "F") requires that all contracts over $4,500.00 must be competitively bid. The RFQ did not amount to a competitive bid of the exclusive franchise referred to in the Republic Proposal. The RFQ is a process that determines the qualification of bidders, not a competitive process for determining the lowest price for a service or product. 5. Republic Proposal is not Responsive to RFQ. The Republic Proposal is not responsive to the RFQ, a copy of which is attached hereto as Exhibit "G", in two basic ways. First the RFQ required a proposal of five years with no renewals and the Republic Proposal is for eight years with a five year option. Secondly, the RFQ does not permit a bid for an exclusive City franchise. It is clear to us from the minutes of the last hearing on the 8th day of June, 1999, attached hereto as Exhibit "H" and Section I I of the RFQ ("Optional Section") that the RFQ allows for innovative ideas and concepts but only within the framework of a non-exclusive franchise. The entire industry, including the nineteen (19) qualified proposers with the exception of Republic interpreted the RFQ in this way since none bid an exclusive system under this Optional Section. This makes sense since at all times the industry as a whole objected on legal and business grounds to granting any one entity a rionopoly over the City as the Repub is Proposal requires. 'Hie Optional Section as set forth in the RFQ called for inclusion of "concepts or ideas that are innovative for more efficient waste services". The Optional Section of the RFQ concludes with the City reserving the right at its sole option to incorporate any such ideas into the agreement. Agreement under the RFQ is defined in Section 1 and 2 of the RFQ as the non-exclusive City-wide agreement between qualified haulers and the City under the RFQ. Since by definition the term Agreement is a non-exclusive agreement it is clear that the City through its RFQ was looking for innovative concepts and ideas within the framework of non-exclusive franchise and not an exclusive ADORNO & ZEDER A PROFESSIONAL ASSOCIATION 0 9 — % /w v Raul Martinez Assistant City Attorney Cite of Miami September 24, 1999 Page 5 franchise such as in the Republic Proposal. This is the only rational way of reading the RFQ and clearly excludes the exclusive franchise under the Republic Proposal. The case law in Florida as set forth in Exhibit "I", requires that bid specifications be clear and unambiguous and if they are not it requires that the matter be rebid. We believe that the RFQ is in fact clear and unambiguous and required all bidders to bid on a non-exclusive franchise agreement even under the Optional Section, The Optional Section clearly applies to new ideas and concepts within the context of a non-exclusive franchise and that is how all bidders understood it except for Republic. To read the RFQ in order to allow an exclusive franchise is contradictory with the plain language of the RFQ and would mare the specifications so unclear and ambiguous as to require a rebid under Florida law. WASTE MANAQUIFNT POSITION Waste Management supports the Staff Proposal as does everyone in the industry with the exception of Republic. The Staff Proposal is more lucrative to the City than the Republic Proposal while insuring freedom of choice and a price structure based on competition and free market forces for the citizens of the City. Should you have any questions or comments, please do not hesitate to contact the undersigned. Sincerely yours, Ad c: Board of City Commissioners ALG/R.LTRGEN/245646 ! ADORNO & ZEDER f A PROFESSIONAL ASSOC ATION s�- '��9.® CITY OF MIAMI FLORIDA r.� The Honorable Mayor and Members of the City Commission FROM Knal4dH. Warshaw City Manager INTER -OFFICE MEMORANDUM ookrE MAR 2 9 1999 sua.IECT Second City Commission Workshop regarding Franchising Solid Waste REFERENCUornmercial Accounts ENCLOSURES FILE The following is being provided to the Mayor and the City Commission as additional information obtained after the initial City Commission workshop which was held on February 23, 1999. Second Industry Worksho On March 12, 1999, a second Commercial Haulers Industry workshop was held. The written materials which were provided by the Commercial Haulers at that meeting were submitted to the City Commission on March 22, 1999. Attached you will find a summary of the comments at this meeting. Overall, all but one objected to the franchising by district, but most did provide some suggestions reference franchising, franchising by district and other related issues. Monies owed to the City which have been collected since October 1998 The city has collected $209,681 since we started to overhaul the current system of billing and collections (sex attached memo dated 3/24/99). We have identified new billing and collection procedures which can and will result in fines or revocation of their permit for companies which fail to pay their bills in a timely basis. We currently have two companies, Waste Management $235,542.77 (mainly on the so called exempt accounts issue) and Coastal Carting $118,523 who owe us monies. Additionally, BFI also owes us an unspecified amount from the so called exempt accounts. We are in the final notification and mitigation steps, before removal of their current permits. Quak 9ZLife Improvements The committee discussed and agreed on many reasonable improvements which would enhance the cleanliness of the city, location and appearance of the current bins, hours of service by private haulers, etc. Changes may have to be made to the current ordinance, but most of the enforceable wording currently exists, but the city just hasn't been real diligent at enforcing these issues. We have started a higher level of enforcement to address some of these quality of life issues. During the industry workshop, the haulers were not opposed to being held to a higher scrutiny by the City. 99— r.0® L Haulers to pick up at city facilities We assessed the feasibility of Commercial Haulers picking up at city facilities at no charge to the city. An attached memo (dated 3n4/99) describes the estimated actual costs to the city for servicing all of its facilities (MRC, Parks, Police Stations, City Hall, NET Stations, etc). T"he savings to the city in actual dollars is estimated to be $347,000. Additional efficiencies would also be obtained, since it frees up positions which would be used for other general cleanup duties in our neighborhoods. It is estimated that four employees would be available due to these efficiencies. The assignment of which company services which city facility, would be based on what type of franchise or ordinance process the commission approves. Under Franchsing by District,the company obtaining the right to service an area, would be responsible for servicing, free of charge, all city accounts located within that district. Under an Exclusive Franchise Not By District, agreement, or the current ordinan, format, the assigrunent of city accounts would be used on the volume and value of businesses handled by a hauler. Should, hypothetically, a company control 200/6 of the commercial accounts based on dollar value, they would be assigned to service 20% of the city facilities (see attachment depicting the first five months of fiscal year collection history and per company, percentage of total revenue control). The actual assignment process as to which facility each company services would have to be explicitly and fairly worked out with the industry. Community Cleanups The committee recommends mandatory participation, free of any charges to the City, by haulers in community cleanups. The process of obtaining participation would depend on the type of franchise process approved by the commission. Under Franchising By District, the company who services a district would have to participate on a specified number of cleanups in that district. Under an Exclusive Franchise Not By District agreement, the same format and formula used above in deciding who services which city facility would be followed. Under either concept, the participation in community cleanups, free of charge, would be a mandatory caveat for any hauler to conduct business in the City. Permitting qL4ccounfs The committee has identified a deficiency in the current system. We have no database as to which company services what account, nor level and type of service. During the committee meetings and at the commercial haulers workshop, we were made aware of the permitting procedures currently employed in Miami Beach under their Exclusive Franchise Not By District agreement. Thew franchise agreement mandates that prior to a commercial hauler commencing service of an account, that a per account permit must be submitted to the city for approval (see Miami Beach permit application attachment). The City of Miami may charge for the account permit, and insure that prior to service commencing that: level of service is adequate to prevent overspilling of bins. location of each bin is appropriate. condition of each bin is acceptable. 2 99- "1Zu L The permit would be renewed annually. As far as revenues expected from this account permit fee, hypothetically should we charge a $50.00 fee for our estimated 20,000 accounts, we could gross yearly recurring revenues of $ 1 million dollars. This charge would be spread throughout all the companies, depending on the volume, not value of the accounts. This charge may be attempted to be passed down or actually passed down to the customer. Under France By Distric the customer would have no options other than paying the increase. Under Exclusive Franchise Not By District agreement, the customer could seek more competitive pricing from another permitted company. Rol!-© s .The Committee recommends that whichever franchise option the City Commission decides to adopt, that the same requirement principle be applied to roll -offs, The recommendation is that if Franchise By District is approved, only the hauler having the right to conduct business within that district can conduct roll -off business. If the Exclusive Franchise Not By District agreement is approved, any of the permitted haulers can provide roll -off services throughout the City during the duration of the agreement. The only change we would recommend on roll -offs is a higher permit fee for roll -offs than for normal bins (attached you will find a roll -off permit application from Miami Beach). Franchising The committee again reassessed the issue of franchising, and discussed more indepth the two types = of franchising: 1. Franchising with exclusive districts 2. Exclusive franchising not by district Franchising with Ercl=ive District This type of agreement gives the hauler exclusive rights for a specified time period (3-5 years) to pick up all commercial accounts within a geographical area (designated district). The committee again unanimously recommends against this concept, based on the same issues highlighted on the February 22, 1999 memo previously submitted to the City Commission prior to the initial workshop. The committee feels that the difficulties with price controls, the issue of dictating to customers who their service provider is, the passLng off to the customer of any high entry fees, the disappearance of some current conunercial haulers and the possibility of litigation are sufficient problems not to justify the Franchising by District option. Should the commission disagree with the committee's recommendation and would like to move forward on this approach, we recommend two options on creating districts: 3 eg- "��� #1: Maintain the current boundaries of the 13 NET areas and allow companies to bid by NET area, with the company with the best deal for the City of Miami obtaining the right to service that area. We may want to limit the number of areas a company can contract to maybe three arras, to insure that one company does not monopolize the entire workload. Some of the negatives with this option is that the largest companies will likely only bid for high volume areas, which may leave out the smaller volume areas (SW Coconut Grove 160 accounts/ 4vertowm 373 accounts/ Model City 678 accounts) with either no bidders, or small haulers attempting to obtain the right to service a smaller area and maybe not having the capacity to service it properly. This option would probably also do away with most small haulers who do not have the capacity to handle an entire NET Service Area, not even a small one. i 1 Qp 202. Create six districts by merging together NET Service Areas. Our suggested districts being: 1. Downtown and Gvertown NET Areas (approx. 4623 accts.) 2. Upper Eastside, Little Haiti & Model City NET Areas (approx. 2813 accts.) 3. Wynwood & Allapattah NET Areas (appi .c 3343 sects.) 4. Coral Way & East Little Havana NET Areas (approx. 4198 accts.) 5. West Little Havana & Flagami NET Areas (approx. 4180 accts.) 6. Northeast & Southwest Coconut Grove NET Areas (approx. 980 accts.) Let it be noted that the number of accounts is an estimate, and the dollar value of the accounts may vary significantly. Under this option the same bidding process as in option #1 will be followed to obtain the best deal possible for the City of Miami. Again we may want to limit the number of areas a company controls. This option places high value areas together with lower value areas, therefore insuring the same level of service provider. By limiting the number of areas to six, we will definitely be cutting out all the small haulers who may not be able to submit as competitive a bid, or won't have the capacity to service this large an area. Should the City Commission decide to Franchise by District, the administration would need guidance on these two options, or on any other area division suggestion the commission may have. Exclusive Franchise rot By District The committee looked at this option, which is now being used by many of the cities we queried. Under this approach, commercial haulers would have an opportunity to enter into a long terns agreement (3-5 years) to obtain commercial accounts anywhere in the city. There will be an entry fee assessed for companies to enter into this agreement. This fee would not be so high as to exclude any small hauler who may want the privilege of obtaining accounts in the City of Miami. The fee also has to be fair and even since it does not take into account volume of business. South Miami currently assess a yearly $5,000 fee for commercial haulers to pick up in { their city. We would have to establish a reasonable amount, but if hypothetically we were to 4 go �4 ��ll,y. i assume the South Miami $5,000 fee and if fifteen companies wanted to do business in the City of Miami, theoretically S75,000 in additional annual recurring revenues could be obtained. Even though any prices assessed to the haulers would ultimately be attempted to or passed do%u to the customer, under this non -district franchise system, the customer has the right to shop around for a better deal amongst the permitted companies. Under this Exclusive Franchise Not By 1?istrict concept, the period for companies to sign the agreement would be determined, and once that period is over, no other haulers would have the opportunity to pick up commercial accounts in the City of Miami for the duration of the agreement (3-5 years). It gives the permitted haulers the business advantage of exclusivity. Special provisions would have to be worked out in the agreement for companies going out of business, companies being bought out, or losing their franchise due to non-compliance. i Com�mloee Recommendwion The committee recommends to the city commission this Exclusive Franchise Not By District option for the following reasons: 1. It provides an opportunity for some additional revenues for the City. 2. Allows price controls to be balanced by a competitive market. 3. Does not take the choice of service provider out of the customers hands. 4. Allows most, if not all of the companies to continue to provide services in the city. 5. Provides more enforcement power than the current city ordinance process, since companies actually sign off on an agreement stipulating their responsibilities and penalties. We look forward to hear any further suggestions from the City Commission at the March 30, 1999 10:00 A.M. Commission Workshop. /Ii DK/m DHW p c: Raurmartinez Assistant City Manager Committee Members COMMERCIAL HAULERS WORKSHOP AT MIAMI CITY HALL MARCH 12, 1999 Caveat: Please be advised the following questions were presented by the City In a letter dated March 541h that was sent to all comimerctul haulers in advance of this nutting. ne responses listed below are not verbatim responses, but Instead reflect a summary of responses front noles taken at that meeting. Verbatim tesdmony was not transcribed, but tapes are available and can be obtained front the City Clerk's Office as the meeting was tape-recorded Question # 1: Should the City decide to franchbe by district what should the parameters of the districts be? How many districts? R"esp0nses: Waste Mana ement: Based upon the volume of the solid waste commercial accounts at the present, three (3) districts were recommended. It was recommended that the same volume of accounts that a firm currently possess remain the same in order to be equitable. Garbage Roll -Off Demolition : It was recommended the City be divided between UghVheavy industrial and industriaUresidential. Recommended a type of lottery system of 5-6 districts (depending on the inning), with 2 heavy industrial, 2 light industrial, and 2 multi -family. Mac Pac Waste : He recommended the City not put anyone out of business and allow for the small fins room for growth. He recommended the City keep the 13 districts (NET) and that the downtown area be given to one of the largest haulers, the next largest area to the next largest hauler, and so on. He advised that the City could locate 13 districts in a fair way that allows room for growth for the smaller haulers. If there are 20* licenses, a district could be divided in '1: for 2 different haulers. Mac Tne Waste Reeyiing: It was recommended that if there had to be districting, the City should be divided by a lottery system, with the big firms having as much to lose or gain as the smaller ones. BFI : Advised that all the haulers are against districting except for one - Republic. He advised instead what the City needed to do was solve waste collection problems to generate income to the City. American Waste: (Mark): he advised the City should fix the current problems, such as the littering issues, as the large haulers control 80% - 90% of the market now. If the City is franchised, only 2-3 main players would be involved. Republic (Jack Cory - representing Lazaro, Imperial, and All Service Refuse): In favor of franchising, he advised that 9 of the 12 cities surveyed by the City have a form of franchising, such as Miramar, Weston, and Wilton Manor. w; s.� AA 09— B 20 L Comm mW Houlen Wmishop W; (cont.) Question M 1: Should the City decide to franchise by district, what suggestions would you have to create Initial price controls and future price increases? Responses: Republi.c:He advised that when the existing permits expire, the prices established by the firms expires. When permitting, the City cart ask for pricing and look at prices charged by each firrn. He suggested survey the districts, and require such things as community cleanups and new containers. Mac Pac: Advised that the law states that the City cannot regulate prices. (Cited the OPA - Office of Price Administration regulations). Advised the City should avoid price controls, as competition controls the price, and the focus should be on enforcement as competition works. Garbage Roll -Off (Greg Davis): Distributed an Internet except from Margate where the rates increased once franchising went into effect. He advised the free market system keeps rates low. If there were to be a price increase, he suggested utilizing the CPI, but questioned how to handle increases for disposal fees, labor costs, machinery, fuel costs, etc. Waste Managcment: Advised the: legal issues would have to be reviewed, such as the Charter and the Code to see if exclusive franchises are allowable. He advised that those who lose will go to court and that contractual relationships between firms and commercial establishments would be effected. Advised that there are safer routes than franchising, and reported Miami Beach has non-exclusive fi=chism. Macrae: To franchise and establish price controls, an example was given of charging residents $9.50 per yard ( much higher than the current rates) which would adversely affect the residents and franchises would monopolize the market. Question # 3: Should the City decide to create long term exclusive franchises, what suggestion would you have toward this option? What would be an appropriate franchise fee? (Discussed a franchise could be exclusive, but not necessarily by districts, including a franchise fee and & allowed to compete for a set number of years without allowing others to enter the market until a specified period of time) Responses: General Hauling: They advised the taxpayers will pay more for garbage pickups as the additional costs will be pass.-d on the consumer. Two firms now have in excess of 90% of the market, and that market forces make the prices competitive. If a certain amount of money would have to be paid to enter, the smaller firms would be forced out, the prices raised, and then higher costs passed on to the consumers. It was recommended the problems be fixed without passing the costs on, and enforce any attempt to pass on the costs with "teeth." Mac Pac: The firm advised that his suggestion was the lesser of two evils, and has a better protection for the residents than franchising by district. a 09— "r20 Command Houlen Workshop MI (coot,) Mac Tac Waste: Advised the City cannot restrain trade, and that the City in the past has given up water, electric, and gas services. BFI: An entry fee that would generate revenue in the $10,000 - $12,000 rate per firm would be reasonable, but that ability of the smaller firms to pay would have to be considered. Another option was to increase the franchisc fees by 5%, which would generate an additional $700,000 - S800,000. Smaller haulers should be given the opportunity to compete, and a customer should be able to choose based on the service provided and the price. Garbage Roll -Off: They provided the. example of Mimi Beach where the system works somewhat due to Code Enforcement. Prices there are considerably higher than in Miami, but the haulers pick-up at restaurants 7 days per week and utilize closed containers in air conditioned facilities. Advised the franchise fee there is 14%, and that the 20% fec by Miami is high as it is. American Waste: Advised a reasonable entry fee be implemented if this had to occur so that the smaller haulers can remain in -business. Mac Pic: Entry fees should be based on the market share to protect the smaller haulers. As the size of the haulers grow, increments should be established so that they can also increase. If the 200/6 was to be bumped up slightly higher, everyone would be affected across the board the same. Additional revenues for the City could be generated as them are things "slipping out of the back door" that need to be addressed. Waste !Management: Advised that haulers who are well regulated, dedicated, and financially stable best serve the City. For a 10-year franchise, the system can be regulated by the City but there needs to be an equitable way to cost it out. He advised that the City needs to commit haulers to community cleanups, and dedicate a certain % of revenues per hauler to clean up the City. Advised that other areas such as roll -off construction containers that are regulated very little but roll -off containers create a great source of debris on the roads. They recommended an annual licensing fee on a per truck basis, and a one-time lifetime fee, with requisite insurance and other requirements in place. They recommended the City to well -regulate the haulers, but not to franchise by district. Question # 4: Should the City decide to continue the current free market system, what would the industry be willing to do ih reference to enhancing the aesthetic featured of the City, e.g., in -kind services for city facilities, community cleanup projects three or four times per year, the issue of under -servicing accounts or the use of undersize containers, hours of service near residential areas, improved overall appearance of dumpsters /bins, etc. Responses: American Waste: The City should play a bigger part working with the haulers and the customers, and should intercede more as enforcement is needed. 3 ; -� "j90 4 CITY OF MIAMI, FLORIDA INTEROFFICE MEMORANDUM 0 Raul Martinez DATE March 24,1999 FILE Assistant City Manager sug,ecr Private Hauler Audits t FROM CIer Chircut AEFEAENCE3 Treasurer ENCLOSURES The Companies that were audited and invoiced since September 1998 are as follows: NAME INVOICE DATE AMOUNT STATUS Waste Management 9/15/99 21,173.40 paid Kimmins Recycling 1/11/99 187,368.00 paid United Environmental 2/05/99 1,140.00 paid f "Waste Management 2/24/99 235,542.77 not paid *Efforts are ongoing to oollect the amount outstanding from Waste Management. ` There is also Coastal Citing LTD, Inc. that has a delinquent balance estimated at $119,523.00. i PC/GC:ii 6 I cc: Elliott Prem er, Internal Audits Clarence Patterson, Solid Waste I I 's ! i i 1 1 i i 720 rd 2 0 L CDMPMrCIV RMIen wortahop V1 (Door.) Republic: There is a problem of service as there is no commitment to the community. The current system is not a free market system due to health / safety issues. Efficient utilization of public streo--u having 18 trucks (example) going down them is bad public business. The City should be franchised to improve the overall cleanup efforts. BFI: Suggested a Review Board be established that can be managed by the City. They were not aware of exclusive district franchise in the U.S., as the cities in Broward are exclusive to a single hauler but the cities are much different than Miami. Question #/ S: Creation of an industry/city/citizens review board. Responses: Mite Pac / Dadp Waste Hauler Council: They welcome a Board to interact with and to open lino of communication, not to speak of pricing but for Sons, problems, and new ideas. Suggested the City look at Miami Beach to enhance the current system. Suggested the City also use code enforcement through the Cone Enforcement Board rather than this Board as this Board should only be used for policy purposes. Waste Mannement: Welcomes the idea to include the industry, residents, and officials and agrees that this would increase the communication and address problems. Question # 6: Any other suggestion which will improve the current system or suggestions to encourage franchising by district. Responses: Mae Pac: The industry can give the City suggestions to cut prices and to make ends meet as the City is losing money as the City is not running it (residential hauling) as a business, which needs to be done. Equipment and the personnel used ( 2-3 totem and driver) is not cost effective and there is touch better equipment now being used as everything is now automated with only 1 driver. The one-time entry foe will not resolve the S 7M waste deficit. He advised he is aware of pilfering by City employees where is City is hauling entire loads of trash but the City is not making any money as an employee(s) directly receives tahe money from the establishment. He offered to speak with the City about these situations. There should be a better use of the technology in the market today, such as "tole -teak" which tracks by computer the trucks and their respective routes all day. The small haulers would welcome the City to become a commercial trash hauler with them. It should be noted that of those haulers present at this workshop, only one hauler, Republic, expressed it was in favor of franchising by district. l,. Commcrc,a) Houlcn worluhor )i 11/09 (cons ) a BFI: Provided an example of the permitting process in Miami Beach where there is real communication of minimum standards with commercial establishments. When a customer changes haulers. Miami Beach is notified (new hauler notifies the City) and there is an appropriate service level requirement There is a quarterly meeting and the City is notified of service decrease (service per week or the size of a container). There are regular meetings with the City discussing accounts that have problems, both on streets and on full blocks, and they all look for solutions. The Chamber of Comme-ce is also involvcd as there is a proactive approach to find solutions to the problems. Mac Pac: There should be code enforcement and better communication. He discussed the "stop service situations" when haulers don't get paid, and the need to catch delinquent customers earlier. Suggested haulers should work closely with a designated person within both the City and in the firm. inspectors should be sent out when they are notified a business is not paying a hauler in order to give the business a warning. For new construction or remodeling, there should be placed in the Code that the container should be an enclosed container as that would improve the aesthetics of the area as is done in Dade Co. All of the haulers should also create a 1-800 hotline or a complaint line where cidzens could call in to the City when they see a location filled with overflowed containers and the City would act on that call to enforce. Regarding community cleanup efforts, haulers should only have to give containers on a proportionate basis for events, but only depending on the market share of that firm. For in -Lind services, they are willing to cooperate proportionately to help but the City should pick up the disposal costs. They distributed photos and advised the City does not have enough inspectors, and that the costs generated would increase revenues. Welfare -to -work individuals could also be put to work in the communities. Containers may need to be refurbished and overflow containers would be found by these inspectors. As haulers cannot blow the whistle at clients who do not pay for a sufficient amount of service, or have a large enough container as they would lose the account, he recommended it be the City's responsibility to do so by Code and the hauler would work with the City to enforce it. Waste Management: As the customer has an excuse for everything, Miami Beach solved the problem as the hauler is responsible for everything within 10 feet of a container and must clean up the area The City is notified, who sends out inspector. If a problem continues, then the hauler is to cease picking up the garbage and that this works well. For in -kind, it was recommended the City take a % of the franchise fee to set aside at an equitable portion and the money and how to speed it will be discussed later. For community cleanup, it was recommended the City require every truck that is licensed to be put to work I or 2 days per year as it would be an equitable distribution. Limits of hours: as this is a continuing problems, it can be solved with real communication by the City with the industry and in a non -adversarial way. General Hauling, Recommended the City put in the Code a provision that requires a hauler to report a problem, then the hauler will call the City. The hauler will first tell the customer to solve the problem but that they would have no recourse but to notify the City as required. Waste Mares mcnt: The audit procedure as it is works but if they won't pay, the City can't collect. Suggested a bond so that non-payment of fees would go against the bond as a recourse by the City. Mac Pac: The storage of recyclables outside of containers is a real problem, and if a firm is going to recycle, it was recommended the City get viable recycler as cardboard boxes are a fire and rodent problem. Photos of this problem were displayed. a �i 99-2Q L i N CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO D�►YE FILE Raul Martinez ?March 12, 1999 Assistant City Manager p SUWECT R E Collections procedures -6,r,Xb 3 ',A9 on Private Hauler Audits FA01A Pete Chircut + v REFERENCES Treasurer ENCLOSURES The Finance Department's procedures on private hauler audits are as follows: 1 1. Audit is received from interikl Audits Department 2. Collections Section personnel reviews the audit recommendations 3. Collections carry out the rocommendation Finance is responsible for (e.g, billing) 4. Letter is sent with invoice attached, payable upon receipt. (Copy to Internal Audits) 5. If payment is not received within 15 days, a collection letter is sent out (Copy to Law Dept., Solid Waste) 6. Collections pe rrsoanel will follow up with a phone call to be sure the notice was received and discuss payment with the company's contact person. 7. If payment is not received within 36 days from the date of the original invoice, a second letter is sent out indicating payment due plus a penalty (amount calculated). This letter will also state that the Solid Waste .Dept. will be notified to revoke permit. (Copy to Law Dept,, Solid Waste Dept.). 8. If payment is not received after the second notice, Solid Waste Department will notify the Private Hauler that the permit will be revoked. (Copy to Finance, Law & Internal Audits) 3 CrY Of M"I. FLORIDA INTER -OFFICE MEMORANDUM TO Raul Mwtnez DATC q 10 FU: Assistwd Cfty Manager su&x:cr! Estinurted Solid WgWe CosU for ProkIng Service to City Facilfts WEMNM: Dire" Dopodffml of SNId W"te O�w esUmsted ooV of proAding swAm to city offkm. pwio. police sM fte statow, ffmin", d&y me oentm, and NET offim 13 pmvkJad below Thm cost sm"W lndL4*s our e0knaW of soft fs" " ottw cosft provxW by ft DspstrswA of MAget &,4 MmVwrox Ttwe sm fow poeftm assowd to this funcft*k t*o Wasts CoftcW OperaW Ire m-4 tm WavW Cofkmtom. SoW Wm% Smvks Cost for City FadNes Dads County ScWs Fe" 247,010 EqUkxrWt Man! W rl I I - um"&Fuel 58,366 Nrm Capital Pmhas" sw P.Sowm for CaptW FROPPIGIN6.84 I of I TOT& S 347,141 MTAL 10. Oft 90- 720 ammE. CrrY OF MW►1f WWATE W1La t OCT. M TO SEPT. is t gAME Oct >M Nov. 00 On fii is% fig Feb. Cl Mw-W Apr-0i L" AMS Ail-* Ai4 90 S6pL 99 Too* % d Cates wC-rp- j AIERfCM i AM emoo 190.00 moo 0 BRotiwito-00" 6AK 600.00 600.00 64i.60 Moo "too 3,74Q60 0: WNW 122,330.56 126,403.61 117.84726 123,461.0i /17,46420 � am,tp.66 36: CAPT.TRA tW. 4t610 2320 AM30 666.PO 646.70 0 CLLAN-T1DC YAWS SAnS3 30D.o't Mervd we MOwb MwvQwAert d Do" Carp 6 7Z16 00 0,4 COA VAL CARTM am &wr 7f 0.St2.70 0 EkNVb)WWMTAL MW 107164&91 6] O&M 67AS&to 62,191A 1Q' 064EIIALKAULM 4imo0 a3" 3,667A6 2.01" 14AiE11 31AK04 1S M"0Wi WCAT1d11 6,2nV MUM Mk M13 110,6iT1.ii6 162 as 11.0 LAZM0 VO4" M48VI 4&W4.01 ffmWd 90 tape 9-ftil m 13713" U MAC PAC 0.03 1,020.40 17Zo7D A 2.34M 0.1 f•+1111un 1,0MM 604M S" 960.1f0 2.076A0 } CM09 u IIOU^ AMY SYWM i,3T0.00 1.o7Ao0 1,6Uo.0o 1,614.00 1 S 58100 W $a= otocyc 210 O.00 1,i0' n 1,iR16i 0.1 WTIf3) DeMowbdwr "too 1,66131 11" 1,6'l6AY S.277.00 0 3 wAsm MOYT OTr owx 104,Y1TT.30 56254-38 d2.OGZ41 0.00 120.40" 392.2io." 23.6 1,66721131 AUCRODGW Crr 21,173.40 0.00 o.00 0.00 a00 lamzoo 209,041.40 TOTAL COUJL-r M 361,24326 301.497.40 3M306.10 166,932.711 431,4XV 10lMCq 1,6TO.in" `s 4 f { E It 1 09- "i20 CITY CAP MIAMI BE.P CH 140 MC ARTHko., CAU89WAY MIAMI NZACM FLORIDA 5.1139 SANITATION DEPARTMENT OFFICE OF THE DIRECTOR TELEPHOI' M. (906) f FAX: (305) t ROLL-071 VHRXIT APPLICATION OW _ N.B. OCCUPATIONAL LIC.I APPLICATION DAXXt sj=VICz ADD➢ 25s t LocATzow or Roxj,-077t PRIv Ti P1t0PZRTx t PUBLIC FICOZY 'X s DUWP9'T=1 CAPACITT s 'tSDee' mi--T PSS[ 6 t �s FZOXX APO s - _ PAZ nos omw/CCwl7ACT0Ks --- Pao" no t - Ir r oaf c.-s°Itaer: rsvILDI�o 7r7�tas DJ= PM=C mcs s aam vzmaT ! DATi TES AND CONDWOM MR LOP,-AWT A COM P= CKAFM U A Orr I M COOK OF MW arT Or MAW B Aar panda far R*S-Off CaUmism wM bt itaaed an" the SvAam of C> qxa 14A of tha Code of the Cky of Mersa" 9"Ch Piadids. bM flea, ==piied *Uk. Roo Off Camakw a shA bs rAwed act two os db a ion cnwvmd b7 tha &Yt where kxm W oa pubk property. the as of ha aim" and tefiam Nom Is om fisvp Is prokbb4 (so wan as 00 resained m --) wfi>sitt tm /slier of tha Cary of Phi Efts. rwdL MW Canuamr gMa rah r wd piaca oMs) W ter to tba t of vwb pamut M Sactioa 20,11 Of the Code of me ary of mbrAi seat. tea. Whas piaoad cc ttse. ! Putil-a f mfi b' y rA at' -00 P-V *=4 tSa--t bs to the puidAa - or �_t t�-%��iF� �'�'tf' 1� t-n �r+t i'k•res��r*rt �e�.ta €arr=_r,s WE KERIM Af3PM to SO o7 tha above terms vz& this apPSWba OAR OR BUILDING CONTRACTOR ROLL-077 CONTRACTOR PRZNT NA" — — — PRINT NA" J It'd C a CITY OF MIAMI ®EACH SANITATION DEPARTMENT 140 MC AATHUF= CAL ©IRU''OA ) 673-7 PERMIT APPLICATION FOR PRIVA`!'E GARBAGE COLLECTION Location Date Name of Building Type of Building: Apts.� No. ----/Hotel No. of Rooms__,r/ Commerical: Sq. FeetRestaurant No. of Chairs_J Owner/Agent/Manager: Address: Phone Contractor: License Address: Phone Service Cu./Yds. Dumpster(s)/Location Tines per Week/Days of Week _ S M T W T F S The permit for Private Garbage Collection will be issued after the provisions of Chapter 14A of the Code of the City of Miami Beach, Dade County, Florida have been complied with. Dumpater(s) shall be placed and kept on the location approved by the office of the Sanitation Director who will forward to the applicants, all the information regarding this application. The permit will be issued after verification of no outstanding debts with the Billing Division of this City of Miami Beach, Florida. The City of Miami Beach reserves thG right to continue the Billing for Waste Sarvicc until the permit is issued. The Contractor shall not deliver and places dumpater(s) for service prior to the is:suanco of such permit per Section 14A-6 of the Code of the City of Miami Beach, Florida. Parsons or firma Who violate the above provisions shall be sub- jected to prosecution and may be fined. WE HEREBY AGREE to all of the above terms under this application. Applicant Print Name Contractor COI 'ERCIAL HAULER PERMi7 FEES MUNICIPALMES 3 `iLLiwt�++.����" Y:i� Ilk ■ r*.� �� r .... 9 9 ` 720 n 0 TOTAL P.Bt e7 r.� �j 1 I It 11 dwflis i �tEl� UBL IC &% SERVICES, INC, LULQYA2IVEPIR SALE ES2"0HE JE FL0tf NT—.WLlf WAM SERYIGU INTRODUCTION - Section 11 of the RFQ No, 9e-ar09e states: As part of this Request for Quailflcations, the City is provlding the opflon for any Applicant to submit concepts or Ideas that are innovativO In nature to provide for rnom efficient solid waste saryices. These Innovative concepts to be considered shall provide nwithods to accomplish the City goals of better City regulation, to promote greater competition, innovative or novel servlcos and services to promote tho beauthlication of " City and the health and welfare of Its citizens. Thla section shall not create any oblig*Uon on the City to enter Into any Agreement based on the Innovative idea(*), nor include the Idea(*) In the final AgreemenL Liawover,.this information may, at the City's sole option, be Incorporated in the final Agreement. Pursuant to that language, Republic Services, Inc., by end through its subsidiary, Imperial Sanitation Service, Inc. Collectively (the 'Company"), Is submitting the attached throe Warste innovative proposaItoptions for more efficient solid waste services in eddltion to the original proposal submitted and attached hereto as requested in RFQ No. 98-g9-90, The proposaVoptions are labeled: 1) Option A Is for all Miami commercial solid waste accounts South of 836: 2) Option I3 for all Miami commercial solid waste accounts North of the Miami River, and 3) Option C for exclusive raty-wide service of commercial solid waste accounts. The specific options that are attached, address the Issues of solid waste concerns raised by the City and its Staff during the discussions leading up to this RFQ and raised In the Optional Longamgo of the RFQ Specifically, the Company's proposals create a common goal with the City to promote the public health and welfare of Its citizens. The Company's proposal include the purchase of new equipment and containers, as set forth in the mspective options and provides for significant addit onai license fees to the City that are not passes through to the commorciai customer. In addition to the new equipment and savings to tho coal morci€1l customer, the Compar!y will to accountable for Issues arising within their exclusive franchise. The Company is aisc providing community cleanup and servioe to municipal fatalities, as set forth in the RFQ, at rio ad- t to the pusinews. Finally, exclusive districts will allow the City to audit it18 Company easier, as the Company will have the responsibility to locate the accounts and levels of service for the auditor, thus orwuring that the proper franchise fees ara paid to the City. L I OPTION A This proposal Is for provision of the exclusive commercial solid waste services to all commercial accounts South of SR 836 Dolphin Expressway. (Sea Map A) The Company agrees to provide commercial solid waste services to the City of Miami commercial solid waste accounts at their current prices. The current price will be determined to be the prices a_ctua!�_bei0_paid for cunent services to each account In place on the date of the award of the Exclusive Franchise Agreement. Those priori shah regain in erect for the life of the contract subject only to disposal costs Increases and Increases due to the change in the Consumer Price Index The Company reserves the right to seek increases only in extraordinary arc instances with City permission ;ouch as disaster rellef, etc.) and Company will pay a twenty percent (20°%) franchise fee on these services. This will maintain the current franchise fee monies collected. In addition, the Company will pay a yearly license fee of Nine Hundred Ninety Thousand and 001100 Dopers ($990,000.00) and will provide a total of Four Hundred Ninety -Five Thousand and 00/100 Dollars ($495,000.00) worth of service to the City for community cleanups and solid waste service to municipal facilities as are currently provided. The license fee, the municipal service and the community cleanup will not rasult in any increases to the customer for commercial solid waste service The Company wili purchase in excess of Three Million and 00/100 Dollars ($3,000,000 00) of new equipment and containers to be used in Miami and will enter into an cleat (8) year Agreement with a five (5) year option exercisable by mutual Agreement. This results in the following: SUMMARY OPTION A $990,000 Annual License Fee $ 7,920,000 $495,000 Free Service to City $ 3,960,000 Total 8 Year Agreement Savings and Additional Revenue $11,8$0,000 1) NO PASS THROUGH TO CUSTOMERS 2) EXCESS OF $3,000,000 IN NEW EQUIPMENT AND CONTAINERS 3 i sir 20 L 0 OPTION 8 ibis propo"I is for provision of the exclusive commercial solid waste service to all commercial accounts North of the Miaml River, (See Map 8) The Company agrees to provide commercial solid waste services to the City of Miami commercial solid waste accounts at their current prices The current prico will be determined to be the prices actually be)n.; paid for current services to each sco0unt in place on the date of tho award of the Exclusive Franchise Agreement These prices sha'l remain in effect for the life of the contract suoject only to disposal costs increases and Increase% due to the change in tho Consumer Price Index The Company reserves the right to seek increases only in extraordinary etrcumstances with City permission (such as disaster relief, etc.) and Company will pay a twenty percent (20%) franchise fee on these services. This hill maintain the current franchise fee monies coilected In addition, the Company wlill pay a yearly liconso fee of Nine Hundred Ninety Thousand and 001100 Dollars (S990,000.00) and will provide a total of Four Hundred Ninety -Five Thousand and 001100 Dollars ($495,000.00) worth of service to the City for community cleanups and solid waste service to mun;cipal facilities as are currently provided. The licansa free, the municipal service and the conrnunity Cleanup will not result in any increases to the customer for commercial solid waste service. The Company will purchase in excess of Three Million and 00/100 Dollars ($3,000,000.00) of new equipment and containers to be used in Miami and will enter into an eight (8) year Agreement with a five (5) year option exercisable by mutual agreement. This results in the following; SUMMARY OPTION {3 $990,000 Annual Licrinse Fee $ 7,920,000 $495,000 Free Service to City S 3,960,000 Total 8 Year Agreement Savings and Additional Revenue $11,880,000 1) NO PASS THROUGH TO CUSTOMERS 2) EXCESS OF $3,000,000 IN NEW EQUIPMENT AND CONTAINERS 4 9 9 - '`��n 6 I OPTION C This proposal is for the entire City of Miami and is submitted pursuant Section 6, Page 3, that States "C tx rg$�; ehQ rht �Q�pt�[14i9 all �A9rweme�t witfi �pX hul>t1.�i5�d so A�ma�1 cJMul02'Iaee clv-wlsli." and Seoilon 11. wititied Optional, cited abov9. The Company agrees to provide commercial solid waste services to the City of Miami commercial sol+d waste accounts at their current prices The currant price will be determined to be the prices actually being paid for current services to bath account in place on the date of the award of the Exduslve Franchise Agreement These prices shalt remain in eP'ect for the life of the contract subject only to disposal costs increases and increases duce to the change in the Consurrer Price Index. The Company reserves the right to seek increases only in extraordinary circumstances with City permission (such as disaster relief, etc ) and Company will pay a twenty percent (20%) franchise fee on these services This will maintain the current franchise fee monies collected in addition, the Company will pay a yearly license fee of One Million Eight Hundred Thousand and C01100 Dollars ($1,800,000.00) and will provide a total of Nine Hundred Thousand and 00/100 boilers ($900,000.00) worth of service to tho City for community cleanups and solid waste service to municipal facilities as are currently provided. The license fee, the municipal service and the community cleanup will not result in any increases to the customer for commercial solid waste service. The Company will purchase in excess of Seven Million and 00/100 Dollars (37.000,000,00) of new equipment and containers to be used in Miami and will enter into an eight (8) year Agreement with a rive (5) year option exercisable by mutual agreement. This r"ults In the following: SUiViMARY OPTION C $1,800,000.00 Annual License Fee $14,400,000 $ 900,000 Free Service to City $ 7,200,000 Total 8 Year Agreement Savings and Additional Revenue V1,600,000 1) NO BASS THROUGH TO CUSTOMERS 2) EXCESS OF $7,000.000 IN NEW EQUIPMENT AND CONTAINERS 5 L e It CONCLUSION - The proposals are predicated upon the following actions to be taken by City and the Company: 1 Entering into a mutually agreeable Exclusive Franchise Agreement pursuant to Option A, or 8, cr C, by and between the Company and the City 2. The initiation of the exclusive franchise within ninety (90) days of executing an Exdusive Franchise Agreement for Option A or 6 and within one hundred twenty (120) days of execution of an Exclusive Franchise Agreement pursuant to Option C a The Company will, at the City's request, assist the City with the annexation process including, but not limited to, funding, advertising, or pomotional matters provided the Company and the City must mutually agree on all terms prior to any such asletance. d. Firia'.ty, this proposal contwToatos that temporary 'rolloff service of open -top containers at construction and demolition sites` would be open fear competition to any other franchised void waste collector within the City while open -topped twenty yard containers and compectofs maintained at permanent location would be included in the exclusive commerdal franchise. Option A and B areas have teen chosen by the Company, but, if any City Commissioner wishes to add their district for exclusive collection of commercial accounts, IN Company is ready, willing, and able to provide this service to any additional districts. In heat event, the percentages paid to the City will be adjusted according to the additional proportionate eomrnercial solid waste service to be provided to the City. These three innovative proposal/optlons all accomplish tho stated goals of better mgulation, innovation of earvices to promote the beautification and health and wel-fare of it citizens by identifying the responsible parties far the services of its citizens. These proposaVaptions provide for compaUtion in the temporary constrxtion and demolition collection where the small haulers are providing aervices. In the event Option A or B is 8t CWed, the Company will continue to provide service in the other areas pursuant to the attechaed original proposal. L. As you can see, tt* Company teas provided sLbstantial additional reoocurring annual revenue and savings to the City and its citizens white agreeing to provide the Current Ibveis of �gpice_w th he c i _p rig and has agreed to investing signifi ant monies in egUpnvnt and containers to make sure the City Is appropriately serviced The proposals are all win -wins for the City and allow tha City to compare the savings proposed 9a the currant levels of servicos and those proposed in the FIFO Franchise Agr"inent Please contact Harold Certef, Director, Governmental Affairs, Republic Services, Inc., (964) 583-1630, If you have any questions regarding this proposal or any of its options. r'"1WQ(XLL6VW LW1 mamliA \\���\\ ������\ 0 4-4 EXHIBIT "C" CHART SHOWING THE FINANCIAL BENEFITS OF TI-II" STAFF PROPOSAL AS CQNJPARED TO RITUBLIC PROPOSAL 1. The current finac, I base as proposed by the staff and at, :ed to by the haulers represents a comparable amount of direct revenue to the Republic offer, and in addition, pro%ides a substacial amount of revenue and good aril] for, the City of N16mi indirectly. SAW— vs. Republic A. 20% F/Fee 20% F/Fee B. New Recurring Revenues from 0 Annual account fee • If $50.00 account based on today's business count: $1,100,000. 0 * If $75.00 per account based on today's business account: $1,650,000. Additionally as the business base increases, so will the revenue C. New recurring revenue from license $1,8001000. fee: $87,000. (15 hauler, 4 recycles) D. Free service to the City. $900,000. $900,000. This amount can be determined and is not a pass thm to the customer. �2. Conclusion: a) Staff recommendation of non-exclusive Franchise Agreement: $2,637,000.00 (Open market, customer choice includes $75.00 p/ account fee) b) Republic: $2,700,000.00 MEMORANDUM TO: City of Miami FROM: Adorno & Znder, P.A. RE: City of Miami Solid Waste Franchising DATE: June 8, 1999 SUMMARY The City of Miami (the "City") is contemplating the establishment of an exclusive district franchising program for solid waste services. Ia5SU.E Whether the City has the authority to create an exclusive franchise for the provision of solid waste services? ANSWER Under the City Charter, the City does not have the express authority to grant exclusive franchises. 1. Genera! The Municipal Home Rule Powers Act set forth in Chapter 166, Florida Statutes, grants broad home rule powers to municipalities as provided by article VIII, section 2 of the Florida Constitution and the implementing legislation. Municipalities are granted the authority to conduct municipal goverriment , perform municipal functions, and render municipal services so long as the powers are exercised for municipal purposes. F.S. Sec. 166.021 (Exhibit A) As a result, the City has the power to enact legislation concerning any subject matter upon xvhich the state legislature may act except any subject expressly prohibited by the Constitution, general or special law, county or city charter. F.S. 166.02](3) (Exhibit A) Generally, a municipality has the power to grant a franchise based on the following reasoning: 1. The state has the power to authorize a franchise; 2. A municipality has the power to enact any legislation concerning any matter upon which the state legislature may act; and 00f.)-- r`20 I Va 3. The granting of franchises is not prohibited by the constitution, general or special law, county or city charter. The powers delegated to counts or municipal bodies to grant franchises must be expressly conferred. Sce Scenic Hills C'tiliti, Co. v. Pensacola, 156 So.2d 8714 (Fla. 1st DCA 1963) Therefore, the authority to grant an exclusive or non-exclusive franchise in the City is dependent on the powers expressed in the prop isions of the City of Miami Charter (the "Charter"), 2. E.rclusii-e Franchises Unless there is an amendment to the Charter, Section 396) (Exhibit B) expressly provides that no exclusive franchises shall ever be granted. This express prohibition does not distinguish between the type of franchises (e.g. for public utilities) that cannot be exclusive. In order to effectuate an amendment of the Charter, a referendum must be passed where the City Commission approves of the language and fifteen percent (15%) of the total number of registered voters sign a petition of approval. See Section 6 of Charter (Exhibit D) 3. Right to Compete, Vested Property Rights, and Tortious Interference A non-exclusive franchise gives the franchisee a vested property right in that franchise. See New York Elec. Lines Co. v. Empire City Subh-ay Co., 235 U.S. 179, 193 (1914); Carlson v. Village of Union City, 601 F. Supp. 801, 813 (W.D. Mich. 1985). Accordingly, if a city grants an exclusive lfranchise that effectively prohibits the non-exclusive franchisee from competition, the city may be liable for deprivation of property rights. 4 { j Additionally, if a franchisee is unlawfully awarded an exclusive franchise, the city and the franchisee may be subject to punitive damages for tortious interference of contractual relations with he non-exclusive franchisee. See, e.g., Central Telecom., Inc. v. TOCablevision, Inc., 800 F.2d711, 732 (8th Cir. 1986) (affirming $25 million dollar punitive award against company that was unlawfully granted exclusive franchise from city); see also City of .tfiami v. Bus Benches Co., 174 So. 2d 49 (Fla. 3rd DCA 1965) (noting that a party to a contract vith a municipality is entitled to constitutional protection against impairment of the contract if city unilaterally attempts to modify contract). A. Florida Statute Section 166 (Municipal Powers) B. City of Miami Charter, Section 39 (Franchises) C. City of Miami Charter, Section 3 (City Powers) D. City of Mimi Charter, Section 6 (Referendum) 0-9- 720 :ICIPALITIES I GENERAL PROVISIONS 166.021' ness and vested July 1, 1998. (1) As provided in article Vlll. s. 2(b) of the state constitution, municipalities shall have the „ate the federa! govern mntal, corporate, and proprietary powers to enable them to conduct municipal •:p:ur the etstine government, perform municipal funct. on.:, and render municipal services, and may exercise .'p A*.* any power for municipal pure --,see, except when expressly prohibited by law. (2) "Municipal purpose" means any activity or power which may be exercised by the state or its political subdivisions. (3) The IegLlature recugnizes that pursuant to the grant of power set forth in article VIII, lands may s. 2(b) of the state constitution, the legislative body of each municipality has the power to .►ted tax moneys `m enact legislation concerning any subject matter upon which the state legislature may acts _.:M.025(4)i b �. except: Indebtedness or (a) The subjects of annexation, merger, and exercise of extraterritorial power, which i the manner of require general °r special law pursuant to art. VIII, a. 2(c) of the state constitution; (b) Any subject expressly prohibited by the constitution; ,me all indebted- (e) Any subject expressly preempted to state or county government by the constitution or -cipalities. The by general law; and of the indebted- (d) Any subject preempted to a county pursuant to a county charter adopted under the authority of art. VIII, ss. 1(g), 3, and 6(e) of the state constitution. property owned :me all indebted (4) The provisions of this section shall be so construed as to secure for municipalities the .ution plan. The broad exercise of home rule powers granted by the constitution. It is the f athfr intent of the Legislature to extend to municipalities the exercise of powers for municipal governmental, ame manner as of any corporate- or proprietary Purposes not expressly prohibited by the constitution, general or �pay-ment accordance with special law, or county charter and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powera other than those so expressly prohibited. However, nothing in this act shall be construed to permit any changes in a special law or municipal charier which affect the exercise of extraterritorial powers or which -affect a-n area which includes lands within and without a municipality or any changes in a special law or municipal charter which affect the creation or existence of a municipality, the terms of elected officers and the manner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, the distribution of powers among elected officers, matters prescribed by the charter relating to appointive boards, any change in tine form of government; or any rights of -r: \eriscape. municipal employees, without approval by referendum of the electors as provided in s. rcement agencies: 166.031. Any other limitation of power upon any municipality contained in any municipal ,,i assist .1: to axcarce. e.ro%e :aw charter enacted or adopted prior o July 1, 1M, is hereby nullified and repealed. (5) All existing special acts pertaining exclusively to the power or jurisdiction of a BORROWING particular municipality except as otherwise provided in subsection (4) shall become an ordinance of that municipality on the effective date of this act, subject to modification or repeal as other ordinances. L FIS.kSCE (6) The governing body of a municipality may require that any person within the municipal- ity demonstrate the existence of some arrangement or contract by which such person sill c ienice ifective dates: pro- dispose of solid waste in a manner consistent with the ordinances of the county or ~--mg :eiiers of :air municipality or state or federal law. For any person who will produce special wastes or Information. biomedical waste, as the same may be defined by state or federal lain or county or city Administrative pro- ordinance, the municipality may require satisfactory proof of a contract or similar arrange - A remedies. ment by which specW or biomedical wastes will be collected by a qualified and duty licensed vial reports, appro- collector and disposed of in, accordance with the laws of Florida or the Federal Government. qe�• s� (7) Notwithstanding the prohon, against. extra rornpen�satJob set fortis in a. 215.425, the �nored check body of a munici may provide for an extra coop Wtion a governingY pahtY Y P Program+ including -stments. hump -sun bonus payment program, to reward outstanding "employees Whooe performances . T DOMAIN i exceeds standarda, if the program provides that a bonu a payment, may. oat be included in an main. employee's regular base rate of pay and may not be carried forward in subeequent years. 7 rd § 166.021 MUNICIPAJU-I'IF.'W (8) Entities that are funded wholly or in part by the municipality, at the discretion of the municipality, may be required by the municipality to conduct a performance audit paid for by the municipality, An entity shall not be considered as funded by the municipality by virtue of the fact that such entity utilizes the municipality to collect taxes, assessments, fee8, or other revenue. If an independent special district receives municipal funds pursuant to a contract or interlocal agreement for the purlwlses of funding, in whole or, in part, a discrete program of the district, only that program may he required by the municipality to undergo a performance audit. (9)(a) The Legislature finds and declares that this state faces increasing competition from other states and other countries for the location and retention of private enterprises within its borders. Furthermore, the Legislature finds that there is a need to enhance and expand economic acti%ity in the municipalities of this state by attracting and retaining manufacturing development, business enterprise management, and other activities conducive to economic promotion, in order to provide a stronger, more balanced, and stable economy in the state, to enhance and preserve purchasing power and employment opportunities for the residents of this state, and to improve the welfare and competitive position of the state. The Legislature declares that it is necessary and in the public interest to facilitate the growl.h and creation of business enterprises in the municipalities of the state. (b) The governing body of a municipality may expend public funds to attract and retain business enterprises, and the use of public funds Wward the achievement of such economic development goals constitutes a public purpose. The provisions of this chapter which confer powers and duties on the governing body of a municipality, including any powers not specifically prohibited by law which can be exercised by the gover-rung body of a municipality, shall be liberally construed in order to effectively carry out the purposes of this subsection. (e) For the purposes of this subsection, it constitutes a public pwpose to expend public funds for economic development activities, including, but not limited to, developing or improving local inh-ast ructure, issuing bonds to finance or refinance the cost of capital projects for industrW or manufacturing plants, leasing or conveying real property, and making grants to private enterprises for the expansion of businesses existing in the: community or the attraction of new businesses to the community, (d) Nothing contained in this subsection shall be construed as a limitation on the home rule-' powers granted by the State Constitution for municipalities. Amended by Laa-s 19%. c. 90-332. 4 2, eff. July 3, 1990: Laws 1992, c. 92-90, 4 2 eff. ApH 8, 1992; Laws 1993, c. 93-207, 4 2, eff. May 12, 1993; Lams 1994. c. 94-332, 4 2, et. An. 1, 1996; Laws 1996, c. 96-178, § 1, eff. Jan. 1, 1996; Laws 1998. c. 98-37, 4 1. eff. Apn7 30, 1998. Historical and Statutory Notes Laws 19W. e. 90-, f 4 e8. July :3.- 19W, added subset. (6). Laws 1994 c. 92-90, 4 2, eff. April 8, 1992, added subset. (7). Laws 1993, c. 93-207, 4 ' eff. May 12, 1993, in subset. (6), subathut.ed 'biomedical" for "bioharar- dous". Laws 1994, c. 94-= 4 2, eff. Jan. 1, 1996, added subset. (8). Law* 19K c. 96-17& ¢ 1, eff. Jan. 1, 19K is the third sentence of subsec. (4), inserted "except for the selection of election dates and qualifying penods for raxiidates and for changes in terms of office ne;-xitsted by such changes in election dates". Laws 1998, c. 98-37, 4 1, elf. Apr-7 30, 1998, added subaec. (9). Lave Review and Journal Cnmm-ent.arirt Toward pr4mciples of state rentraint upon the WARNING: Municipal home rule is in danger exercise of municipal power in home rule. George of berg preempted. rieoe & Lieberman 6 Hsyrp D. Vaubel. 24 Stetson L Rev. 417 (19%). Morrison, Jr, 18 Nov* L Ram 1437 (1990 WESTLANV. Electroedr Remmick, ir.. See WEMAW Electronic Research Guide tole lowing the Preface GlR" Denia cedural Ltd. v. 1 43 L.Ed Rezor. permit I Antl•dis. Charter Fire star Gamblir impact f itobile h Penaltit Special s Sue or b. Term of 52. Con Both F Rule Poe do aryth: not prohi, cations, g Everett •. F.Supp. 1 xurual power for ty prohtfit on any 31 act. excep Tampa for Enforcem Sold Sod Munidr cure for f. er for mu are relev. t'horrty. i only u patties' a _ for valid Nye, 608 Local g• ere grant -- fairly imp. grunted, or purposes f. cis. App. denied S83 5& Limit forpow m are not dare detarmine L F f4 I f �: i i' �. f s i }ti 1 f CHARTER 139 See. M City planning and toning board (a) Comprehensitr planning. The commission is empowered to plan for the future development of the city and, as an integral part of the planning process, to take all lawful actions necessary to implement plafls made In furtherance of this authority, the commission may undertake continuing comprehensive plan, ring programs and may adopt comprehensive plans to guide the future development of the city in order to preserve and enhance the present advantages of the city, to overcome present hand- icaps, and to prevent or minimize future prob- lems. Continuing comprehensive planning pro- grams and comprehensive plans that may be adopted may include, but are not to be deemed as limited to: (1) principles and policies to be followed in future development of the city, (2) location, relocation, and character of the various uses of land and water; (3) location, relocation, and character of public and private open spaces for recreation, amenity, and cultural life; (4) modes and means of travel and transporta- tion; (5) location and character of public buildings, services, and facilities; (6) provision of necessary utilities; M conservation, rehabilitation, or replace- ment of housing; (8) density of population; (9) methods and policies for encouragement of cooperation of private persons and groups in the accomplishment of adopted compre- hensive plans. 101 tajang and financial arrangements and long- range capital improvement programs deemed necessary to implement the plan ning program; and (11) land -use control and regulatory measures and other instruments deemed necessary to accomplish the aims and objectives of adopted comprehensive plans. (b) Authority to implement comprehen.eiue plans. The commission is authorized to use al! lawful powers conferred upon the city to implement comprehensive plans that may be adopted and to provide for the status of such adopted plans. Particularly, but not in limitation thereof, the commission is authorized to adopt and enforce. (1) controls on the use of lands and waters; (2) zoning of lands and waters; (3) regulations for the development or subdi- vision of land; (4) building, plumbing, electrical, gas, fire, safety, sanitary, and other codes; and (5) minimum housing codes. (c) Creation of "plementing boards. The com- mission shall by ordinance create such appropri- ate board or boards as it may deem necessary to carry out the functions as set out in subsections (a) and (b) above. The commission may by ordinance provide for the establishment and method of composition of the board or boards; the number of members; the qualifications of members; the staggering of terms to insure board continuity, the method of filling vacancies; the method of removal; the compensa- tion, if any, the participation of alternate mem- bers, if any, in board business; the general rules of organization, proeedu res, and conduct of busi- ness; the giving of notice and necessary public hearings on matters relating to the functions of the board or boards; and other matters deemed necessary by the commission to the proper func- tioning of such board or boards. The commission may by ordinance make provi- sion for the functions, responsibility, advisory or quasijudicial duties, and authority of the board or boards created by the commission. The commis- sion may by ordinance set out the standards and limitations under which such board or boards shall operate; the relationship of the board or boards to each other, to the commission, or to the courts as provided by law; and the method of review of any decisions of such board or boards. (d) Administrative support and appropriations. The commission shall provide such administra- tive arrangements, support, and appropriations CIM55 S9- u { 38 CHARTER AAfD RELATED LAWS as it may deem necessary to enable the board or boards established under this section properly to perform their functions and meet their responsi- bilities and to insure that proper and necensary liaison is maintained between them and with the commis.;;on (e) Task forces or cornmtttees. The commission may by resolution apNint taQk forces or commit- tees to serve as advisory or recommendatory agents to the board or boards established under this section on particular problems relating to the areas of responsibility and authority of the par- ticular board. See.:39. Franchise and public utilities --Or- tI dinance requires four-fif+tha vote of i commission; approval of ordinance i by voters; limitation on duration of grant. (a) Requirements. No right, title, or interest of the city in and to the waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, and other public places and its gas, water, electricity, and other works, shall be `�. sold except by authority of an ordinance passed by a recorded affirmative vote of four fifths of all the members of the commission, and under such other restrictions as may be imposed by law. (b) Approval by uoters. No ordinance granting, renewing or leasing the right to use the streets, alleys, public grounds, or buildings of the City of Miami to any private person, persons, firm or corporation shall become a law or efrective in any way until the same has been approved by a majority of the qualified voters of the City of Miami, voting at an election held therefor and the question of its being granted, renewed or leased shall not be ?ubmitted to such vote except upon deposit with the city clerk of the expense of such submission (to be determined by the commission) by the applicant for such grant, renewal or lease; and no such grant, renewal or lease shall be for a longer period than tbirty years and no such grant, renewal or lease shall be transferable except with the approval of the commission express by or+dinancC and copier of all transfers and mort- gages or other documents affecting the title or use of such grants, renewals or leases shall be filed with the city clerk within ten days after the execution thereof. Case law reference —T'ara section consatut.es tumrtation on borrowing and leasing powers of aty wbich bas been nullified b.v FS 8 16F,021 41 provLuLng for municipal home rile State v City of Ntia7., 373 So ?d 551 Since neitbrr the \iun,ci* Home Rule Powers Act nor the Flonda Constitution require election to approve issuance of revenue bonds wbhich do not pledge ad valorem tales, election Ls not necessary to approve firennng of a project for a munrapal purp(w, and ilk' aty comm4won can approve such lina.nang fd Came prior to the abm-e decision Section quoted in Coast Ctaes Coaches v Miamr Transit Co , 41 So 2d 644. A nonescluaive contract with the city permitting a company to erect bna benches did not constitxts a ftnchla under this section City or Ntlami v Bus Bunches Co , 174 So 2d 49. There La w conflict bet-een th_a secaon and s two 34gg) of this Charter Thia section applies to tra.nchiaes and section 3(gg) to contracts City of Miami r. South 441ami Coach Lines, 59 So 2d 52 City of Miami r Bus aerobes Co, supra Franchiaes on aty property may be approved by aty com- mi.smon without submitting acme to re6rendum, Rohs r. City of :Miami, 406 So. 2d 642 t3 DCA. 1961), interpreting FS. f 166 021(4). (c) Powers confirmed. Nothing herein con- tained shall be construed as limiting or applying to the power of the city, which is hereby expressly conferred, to grant franchiser or to enter into franchise contracts for the construction, mainte- nance, and operation of any general railroad over, along, or upon or across the streets, avenues, alleys, and public places of the city, provided, however, that no franchise or franchise contract for the construction, maintenance, and operation of any general railroad over, along, upon or across the streets, avenues, alleys, and public places of the city shall became effective until the approval thereof by a majority of the qualified electors voting thereon at a general or special election, notice of which shall be published in a newspaper in the city for a period of at least 15 days. d) Rights of city recanted. All grants, renewals, extensions, or amendments of public utility fran- chises, whether so provided by ordinance or not, shall be subject to the right of the city- (1) to repeal the same by ordinance at any time for misuse or nonuss or failure to begin construction within the time pre- scribed, or other failure to comply with the terms preseribsd; CHT.56 S 9 - 7to Ct{ARTER f 40 (2) to require proper and adequate extensions of plant and ser%ice, or the maintenance of the plant and fixtures at the highest prac- ticable standard of efficiency; '3) to establish reasonable standards of ser- vice and qual+tti of products and present unjust discrimination in servnce or rates, and (4) to impose uch other regulations as may be conducive to the safety, welfare, and accom- modation of the public. (e) Extension of public utility. AJI extensions of public utilities within the city limits shall become a part of the aggregate property of the public utility, shall be operated as such, and shall be subject to all the obligations and reserved rights contained in this charter and in any original grant hereafter made. The right to use and main- tain any extension shall terminate with the orig- inal grant. In case of an extension of a public utility operated under a franchise hereafter granted, such right shall be terminable under the same conditions as the original grant. (f) Subject to terms q%charter commi-mwn and electors not limited Every public utility 6-a.nchise hereafter granted shall be subject to all the terms and conditions of this charter. whether or not such terms are specifically mentioned in the fran- chise. Nothing in Lhis charter shall operate to limit in any way, except as specifically stated, the discretion of the commission or of the electors of the city to impose terms and conditions in connec- tion with any franchise grant. (g) CopieslUed and recorded. Within six months after this charter takes effect, every public utility and every owner of a public utility franchise shall file with the city, certified copies of all the fran- chises owned or claimed or under which any such utility :s operated The city shall compile and maintain a public record of all public utility fixtures in the streets and other public places of the ci ty. ) h) Accounts. Accounts shall be kept for each public utility owned or operated by the city, dis- tinct from other city accounts, and in such man- ner as to show the true and complete financial result of such city ownership and operation, in - eluding all assets, liabilities, revenues, and ex- penses. The accounts shall show the actual cost to the city of each public utility owned; the cost of all extens±ons, additions, and improvements; all ex- penses of maintenance; the asnount set aside for sinking fund purposes, and, in the case of city operation, all operating expenses of every descrip- tion. The accounts shall show as nearly as possi- ble the value of any service furnished to or ren- dered by any such public utility by or to ar.y other city or governmental department; they shall also show a proper allowance for depreciation, insur- ance, interest on the investment, and estimates of the amount of taxes that would be chargeable against the property if privately owned. The com- mission shall annually cause to be made and printed for public distribution a report shoking the financial results of such city ownership and-- , operation, which report shall give the information specified in this section and such other informa- tion as the commission may deem expedient. (i) FE ect on previouagrants. Nothing contained in this charter shall be deemed to abrogate or terminate any right or franchise heretofve granted by the city to any public utility, provided that all public utilities now in eratenee shall c=ply with the requirements of this charter and all ordi- nances enacted pursuant thereto. 0) Exclusive franc/'.uea prohibited No exclu- sive franchise or extension or renewal thereof shall ever be granted. Sec. 40. Subdivisions, (a) Plat requcrementa. Any owner of lots or grounds within the city who subdivides same for sale shall cause to be, made an accurate plat of said subdivision describing with certainty all grounds laid out or granted for streets or other public uses. Lots intended for sale; shall be num- bered by progressive numbers or descnbed by the squares in which situated, and the preriase length and width shall be given of each lot sold or intended for sale; such plat shall be subanibed by the owner, acknowledged before an officer autho- rized to take the acknowledgement of deeds, ap- proved by the director of public works, and re- corded in the office of the cleric of circuit court in and for Dade County, Florida. No such plat shall CHM57 L 140 CHARM AND R.ELArED LAWS be approved unless it clearly gives an accurate description of the property showing section cor- ners or quarter -section corners or at least tying the property to one or more sections or quarter - section corners or government monuments. b) Supers cscr of plats The director of public works shall be supervisor of plats of the city and shall pro��ide regulations governing the platting of all lands so as to require all streets and 3'leys to be of proper width, to be coterminous with adjoining streets and alleys, and otherwise to conform to the regulations prescribed Whenever said director shall deem it expedient to plat any portion of temt-ory within the city limits, within which the necessary streets or alleys have not already been accepted by the city, so as to become public streets or alleys, or when any person plats land within the corporate limits or within two miles thereof, the director of public works shall, if such plats are in accordance with the prescribed regulation, endorse his or her written approval thereon. No plat subdividing lands within the corporate limits of the city or within two miles thereof shall be entitled W record in the office of the clerk of the circuit court in and for Dade County, Florida, without such written approval. (e) Streets or alleys not accepted unless laid down on plat. No streets or alleys eicept those laid down on the plats referred W in this section and bearing the approval of the director of public works, as hereinbefore provided for, shall subse- quently in any way be accepted as public streets or alleys by the city, nor shall any public funds be expended in the repair or improvement of streets and alleys subsequently laid out and not on such plat. This restriction shall not apply W a street or alley laid out by the city nor to streets, alleys, or public grounds laid out on a plat by or with the approval of the director of public works. (d) Acceptance and confirmation of street or alley dedicatwn. No streets or alleys hereafter dedicated W public use by the owner of ground in the city shall be deemed a public street or alley, or under the earn and control of the commission, unless the dedication be provided in the plat or by warranty deed or other instrument of grant; un- less the grant be accepted and confirmed by resolution passed for that purpose; and unless the provisions of this charter relating W subdivisions shall have been complied with. Sec. 41. Conduct of a city business; compen- sation, duties, and oaths of officers and employees. (a) Books and records. All books, records, and documents used by any city officer in his (or her] office or pertaining to his for her] duties shall be deemed the property of the city, and the chief officer in charge of such office shall be responsible therefor. Any such officer or person made by this section responsible for the keeping of such books, records, and documents shall, within three days after the end of his or her term of of oe, or within three days after the date of his or her resignation or removal from office, as the cage may be, deliver to the city clerk or W his or her successor in office all such books, records, and documents. Any such officer or person failing to deliver such books, records or documents as required by this section shall be deemed guilty of an offense aga.itu+t the city, and upon conviction thereofahall be fined not more than $500 or imprisoned for a period not exceeding 60 days. (b) Office hours; availability of books and records. The commission is hereby authorized and empow- ered, by appropriate ordinance, W fix the days and hours during which all public offices of the city shall be kept open for business. Ail books and records of every office and department shall be open W the inspection of any citizen at any time during such business hours, subject to the proper rulea and regulations for the efficient conduct of the business of such department or office. (c) Bonds of officers. Except in the case of officers whose bands are specifically provided for by this charter, the commission shall determine, by resolution, whether officers, clerks, or employ- ees shall give bond and, if so, the amount or penalty thereof. All officers required by this char- ter W give bond, and all officers, clerks, and employees of whom bond is required by the com- mission shall before entering upon their respec- tive duties give bond with surety to be approved by the commission, conditioned on " faithful performance of the duties of their respective od CtM58 1.r r } PART I CHARTER AND RELATED LAWS* Subpart A THE CHARTERt Sec. 1. Body polatac and corporate, name, seal, ngbt to contract, sue, and be sued Set. 2. Corporate Limits Sec. 3. Powers See. 4. Form of government See. S. 'ftw initiative. Sec. 6 The referendum Sec 7 Regular acid pnmary elections of commasaioners Sec 8. Form of b411ou, what candidates in priaary election for mayor and commiamoners placed on ballot. Sec 9. Declaration of election; how tie vote deeded. Set. 10. Distinction between general and special municipal election_ Sec. It. The recall. See. 12. Filling vacancies for mayor and cammisaioa Sec. 13 Election when terms of four or morn commissioners expire nmul. taaeously. See. 14. commiation may investigate omcial blassactiam, acts and coe- d uct. Sec. 15 City manager—QuaLGcations; t-erm; salary; sickneua sickness or absenes; removal Se' 16. Same --Powers and duties. Sec 17. Same•—Fsaminetioo of affairs of departments, of5cers or employ. e" Sec. 18 Dep►nmeota established. Sec. 19 Creation of new departments; discontinuance of departments. Sec 19•A. Autbonty to create and diseootinuo departments by ordinance not limited by othar charter pnrviaioaa. Sew 20 Directors of departments. *Editor's cote —Part t of this volume sets forth, for the reference of the aser, the charter and related legislation deemed advuable for inclusion by the city Also included an this part as a lasting of special eats relates to the city. sEditor's eotm—The present charter of the City of Miami. exceptira tha later amendments and additions thereto, wts prepared and proposed by a charter board of 15 ctt lens elected at a charter board election, held January 21. 1921. The charter prepared and proposed by such board was adopted by the electors of the city at an electron htld May 11, 1921, and Laws of Fla., ell. 9024t 19211 validated, legtilited and confirmed the prome +tangs in the election of the charter }bond end the tdoption of the city charter, but did not enact the charter to full. The charter was amended by the legislature in its rrgulat sesstoo m 1923, and the amendment was confirmed by the electorate of the city at an election held July 17, 1923 At the session of the 1e-g�lature in 1925, the entire charter ass reenacted se cocta-xl a Laws of Fla . ch 10947, 1925) The charter as contained in Lake of Fla., ch 10847 19251 has been amended at s-segcent sess:rns of the iegis.ature and by the electorate punuant to tEr provisioes of sect;on 5 03 of the Dade County Charter This version of the charter repres.tats the text as amended by Ord. No 9861 and approved by referendums on September 4. 1984. which amended the charter in sts entirety, and do appravud b7 final judgment in the case of the Ro11e v. City of 4tmmt Cucust Court Case No. 84-01522. Amendments to the charter are indicated by parenthetical history notes following smeoded proviaans. The absence of s history note indicates that the provision remains unchanged Gam the orig-inal. Obvious muispelhng7 have been corrected without notation. For stylistic purposes, a uniform system of headings, catchlines and citations to state statutes has been used. Additions made for clarity are wdwAted by brackets. County Charter reference• —Municipal chartan, 1 5,03. Sta►ts law refereaew—Home rule powers of municipalities generally, F$.1 166,021; charter amendments, F.S. 1 166.031. Supp. No. 2 CI-I'I`.1 CHAMR AN'D RELATED LAWS Sec 21. Department of law. Sec- 22. Department of public service Sec. 22-A_ Department of water and sewers, water and sewer board Sec 22•8 Department o'pubLc welfare Sec 22-C Bond of trustres of Jack.4on Memorial Hoepital Set 23. Department of off-street parlung, ofD-street parking board Sec 24 Department of Public safety yec 25 Superu%.00 m drvuions Af police and fire Sec 26 Suspension and retno�al of chief of police and fire chief Set 27 Finance. department of finance Sec 27•A Urrutat,on as to levy of ad valorem tales for public library and library system Sec. 27•B Levy ofta:es Sec 27•C Tu esaessor Sec. 27-D. Board of equalization Sec. 27•E. Aaaesaor to have power of county assessor, general A"esament roh. Sec 27-F. S4Ming and endorsing general assessment roll; return aad prs- sumptiao of validity Set 27•G Copy of assessment roll arwezed to warrant cwmmaciding collet- aom Sac 27-H. State law as to tales applies. ( (Sex 27•1, Reserved 1 j Sec 27,J. Discounts it tazea paid before mrtam time. 4 Set 27-K Wbtn casts become delinquent; interest rates on delinquent Set 271. WAS. Tu certiQntu; interest rate thereon. Sec 28. Chief procurement officer I Set- 29-A. Contrrcts for paraoaal property, public worts or improvements, 4 aaised development pea*-U. and real property, aafe{usrds. 4 Set 29-B City -owned property sale or lease---eaerally. Sec 29-C. Sams —Watson Laland- Sec 29-D. City-ovt»d waterfront property; leases mntb noopro6t orraniza- i Lions; autchorizaaon to waive competitive bidding and referendum ' requiromaats; terms of lease. Sec 30 Locsl improvements, Set 31. Temporary bonds. Set 32. General bonds. Sec 33 Bond antiopatina noted. ! Sec 34. E:a.+.ttion of bands. Sec 35. Munidpal court Set 36, Civil annios. Sec 37 Pension hinds. Sec 38 City ptiaaiag and zoning board. 1 Sec. 39 Franchise and public utilities —Ordinance regwres four•fifths vote of mintnusion, approval of ordinance by voters; limitation on l durabon of grant. f Sec 40. Subdiruions. j Sec 41 Conduct of a city business, compensation, duties, and oaths of officers and employees Sec 42 Poser to appoint boards or commissions of citizens Sec 43 Continuity. Sec 44. SLUU against tht sty. Set 45 General provisions. Sec 46. Bureau of legsl aid. Set. 47. Credit to prisoners for work, cats in criminal prosecutiotu. CH7'2 LAWS OF FLORIDA. CHAPTER 10847 An act to amend and reenact the Charter of the City of Nliami, in the County of Dade, and to fix the boundaries and provide for the government, powers and privileges of said city and means for exercising the -ame, and to authorize the imposi- tion of penalties for the violation of ordinances; and to ratify certain acts and proceedings of the commission and of the officers of the city. Be It Enacted by the L-egislalure of the State of Florida: Sec, 1. Body polltic and corporate; name; veal; right to contract, rue, and be sued. The inhabitants of the City of Miami, Florida, within the boundaries hereinafter designated, or within such boundaries as may hereafter be es- tablished, shall continue to be a body politic and corporate under the name "The City of Miami," and as such shall have perpetual succession, may use a common seal, may contract and be con- tracted with, and may sue and be sued, plead and be i.mpleaded in all the, courts of this state and in all matters whatever. Caws lam' reftmneo--The city sa a twersmental encty created by the state. It is a public inintutwn designed to promote the common interests of the inhabitants in their orgaaued capacity as a local government, and ita obiects are governmental, not commercial. %ti.anu Water Works Local No. 654 v. City of `.11ama, 157 Fla. 445, 26 So, 2d 194, 10 A.L.R. 967. The aty is a municipal corporation and u not exempt from payutg mtemt on its obligation. FLighway f onatruction CO v. City of Miami, 126 F 2d 777. Sec. 2. Corporate 11mits. The corporate limits of the City of Miami shall include all the territory and inhabitants within the following area, and no other. (For the latest legal description of the city bound- aries, the user is referred to exhibit A of Ord. No. 9861, on file in the office of the city clerk) Editor's note --The temtonal limits of the City of-M.iam.i were 6zed pursuant to Laws of Fla., ch. IS687(1931). Further special acts extending, ea arigmg, or otherwise changing the cmporate limits include Laws of Fla., c& 15821(1931); Laws of Fla., ch. I &WG 1937); laws of Fla., chs. 21393, 213M1941); Laws of Pia., chs. 23408, 23409(1945): Laws of Fla., eh. 26021(1949), Iowa of Fla., eta 57.16M. 43 The bwrd of county commissioners of Dade County kir bar extended the boundaries of the city CPnmrwo Park) by Dade Count), Chtiinance No 63-6. adopted March 5, 1963. County Charter reference --Method of chang�sg city boundaries, b 5 04 Mate taw reference—yiunLapa11tJe1 within Dade County to adopt annexation or cvntracuoh oriinances pursuant to provuio" of county home role charter. FS 1 171 071. Sec. 3. Powers. CHT.3 The City of Miami shall have power: (a) Taxes and assessments: To raise annually by takes and assessments in said city, such sums of money as the commission herein- after provided for shall deem necessary fors the purpose of said city, and in such man- ner as shall be hereinafter provided for, and in accordance with the constitution and laws of the State of Florida and the United States; provided, however, that no = or other evidence of city indebtedness shall be imposed on the bonds of the city. (b) Streets, parks, bridges, sewers, grade cross- ings, speed of vehicles; services and rates of motor vehicle carriers: ib pave, grade, curb, repave, macadamize, remacadamize, lay out, open, dose, vacate, discontinue, widen, and otherwise improve streets, alleys, ave- nues, boulevards, Is.nes, sidewalks, parks, promenades, and other public highways or any part thereof, and to hold Liens therefor as hereinafter provided; to construct and maintain bridges, viaducts, subways, tun- nels, sewers, and drains, and regulate the use of all such highwaya, parks, public grounds, and works; to prevent the obstruc- tion of such sidewalks, streets, and high- ways; to abolish and prevent grade cross- ings over the ealme by railroads; to regulate the operation and speed of all vehicles using the streets, highways, and railroads wi0in the city; to regulate the servict rendered and rates charged by buses, mo- tomars, cabs, and other vehicles for the carrying of passengers and by vehicles for the transfer of baggage. (e) Spears! or local assessments: To impose special or local assessments for local im- provements as hereinafter provided and to enforce payment thereat 99_ o'P0 13 CH.kRTHR A."1D REt.ArED LAWS (d) Contruchng debts and borrowing money: Subject to the provisions of the Constitu• tion of Flonda and of this charter, to con- tract debts, borww money, and make and issue evidences of indebtedness ,e, Ezpe,-lIY,­T. xpend the c.;ne} of the city for all lawful purposes. (f) Acqucsitiori and dLspositcon of property and ser, tces (i) To acquire by purchase, gift, devise, condemnation or otherwise, real or per- sonal property or any estate or interest therein, inside or outside the city, for any of the purposes of the city; and to improve, sell, !ease, mortgage, pledge, or otherwise dispose of such property or any part thereof. (ii) To acquire or dispose of services inside or outside the city, by purchase, gift, or o the rwi se for any p urposes of th e ci ty. (iii) To lease to or contract with private firms or persons for the commercial use or management of any of the city's waterfront property, but only in com- pliance with the other requirements of this charter and on condition that: (A) the terms of the contract allow reasonable public access to the wa- ter .and reasonable public use of the property, and comply with other charter waterfront setback and view -corridor requirements; and (8) the terms of the contract result in a fair return to the city based on two independent appraisals; and tC) the use is authorized under the then ezdsting master plan of the city, iD) the procurement methods pre- ;c-t,,_.d b-, :-rdinances are observed. Any such lease or management agree- ment or proposed extension or modifi- cation of an existing such lease or management agreement which does not comply with each of the above condi- tions shall not be valid unless it has first been approved by a majority of the voters of the city. CHT:4 Nothing herein contained shall in any man- ner affect or apply to any project the firianc- ing of which has been provided by the authorization of bands to be issued by the city. ig) Public property and improterrents. To make and maintain, inside and outside the city, public improvements of all kinds, including municipal and other public buildings, ar- mories, markets, and all buildings and struc- tures necessary or appropriate for the use of the city; to acquire by condemnation or otherwise all lands, riparian and other rights, aM easements necessary for such improvements, and to rent or lease from any person any land or building witliin or without the city or any part thereof for any municipal purpose. (h) Public servim To f umiab any and all local public service. 0) Public utilitim To purchase, hire, con- struct, own, maintain, operate, or lease local public utilities, including street r&d- ways, electric Light, telephone and We- VWh system and works for supplying the city and its inhabitants with pater, yet, gas for illuminating and beating purposes., and electric energy for illuminating, heating, or power purposes. Q) Water supply: To acquire inside or ontaide the state such water, lands, and lands under water as the city may deem oeaee- sary for the purpose of prodding, piping, and conducting an adequate water supply for the city, w lay all necessary mains; to erect and maintain all netesaa.ry dams, pumping stations, and other ports in con- nection therewith; tv ma-ke and enforce reasonable rules and regulations for pro- moting and protecting the purity of the water supply, axed for such purpose to exer- cise full police pourers and sanitary patrol over all lands comprised within the Limits of the watershed tributary to any such aupply wherever such lands may be located in this state; to prevent by injunetfon any pollution or threatened pollution of mxh water supply and .any and all acts likely to CHARTER impair the purity thereof; and for the pur- pose of acquiring lands or material for any such use, to exercise writhin the state all powers ofeminent domain For .any of these purposes, the city may acquire by wndem- nation, purchase. or other-wisr' any estate or interestin such lands subject to what- ever conditions or reservations may be rea- sonable, The said city may sell or supply to persons rending or located outside of the city limits any surplus of water it may have over and above the amount required to supply its own inhabitants W Rant Qf public w14tie& Th estabbsb, Un- poee, and enforce rates and charges for water, gas, electncity, and all other public utilities or other sere -ices or conveniences operated, rendered, or furnished by the city or by any other person. (1) Mephone and telegraph wires: To require the placing of all electric wires and also all telephone and telegraph wires in conduits, underground, and prescribe rules and reg- ulations for the construction and use of said conduits and to enforce compliance therewith, and in case of failure or refusal of the public utilities companies to place such wires underground and comply with the rules and regulations thereof, to con- st. uct such conduits and place the wires underground snd maintain alien against the franchise and property of such compa- nies. (m) Harbor and shipping (acdates: To estab- lish, construct, maintain, and operate, both inside and outside the city, public landings, wharves, docks, and warehouses; t4 dredge or deepen harbors and rivers, or any branch or portion thereof; to install turning basins, build Jetties, and otherwise improve the harbor and shipping facilities of the city. inside and outside the city and inside and outside harbor lines where such improve- ments outside of harbor lines are approved by the United States Goverriment or its proper agencies; to acquire by condemna- tion or otherwise all Is.nds, riparian, and other right and easements [necessary for the purposes aforesaid; to lay and collect) CHT.5 13 reasonable duties or fees on vessels coming through or using said landings, wharves, docks or warehouses; to regulate the man- ner of using other landings, wharves, docks, and warehouse$ within the city, to pre-. scribe and enforce reasonable rules and regulations for the protection and use of said property, to advance to the Govern- ment of the United States, with or without interest, funds to be expended in harbor improvements to Lie made by the govern- ment in or near the city, or directly affect- ing the city within Miami Harbor and the approaches thereto, if such work has been duly authorized by lawat of the United States; and to issue bonds or notes to obtain funds for such advances. (n) Franchi-et: Subject to the provisions of the Constitution of Florida and of this charter. both inclusive, to grant franchises for be UWities. (o) Sewage, offal, aahts, garbage, etc.: To col- lect and dispose of sewage, offal, ash", garbage, carcasaes of dead animals, and other refuse; to acquire, construct, or oper- ate ins amtces grad other plants for the disposal or reduction of such matter or the utilization of any part thereof, and to ac- quire by purchase, condemnation, or other- wise any estate or interest in any water, land, or land under .cater within the city or within any county in the state for such disposal, reduction, utilization, construc- tion, or operation. (p) Abatement of nuisances, etc,: Tb compel or cause the abatement and removal of all nuisances within the city or upon property owned by the city beyond ita limits by the person causing the same or by the owner or occupant of the property where the same may be; in the event the city incurs any cost or experse for such abatement or re- moval, tc claim a Lien against any real property involved; to require all real prop- erty within the city to be kept clean, sari- Lary, and free fiorn dilapidated), deterio- rated, dangerous, or unsanitary buildings or structures, and weeds, undue rub- bish, debris, trash, or unsightly and unsan- Jet' �/��� 13 CHARTER A.ND RELATED LAWS itary matter; W regulate or prevent noisy, unsightly, or offensive business within the city; to regulate or prohibit the keeping of animals or the conduct of any dangerous or unwholesome business activity, and gener- ally to define, prohibit, abate, suppress, or prevent all things detrimental to the health, morals, comfort, safety, convenience, and welfare of the inhabitants of the city. (q', Weights and nwosures To inspe-ct, test, measure, and weigh any commodity or ar- ticle of consumption or une within the city, and to fu standards for such commodities or articles, to establish, regulate, license, and inspect weights, meters, measures and scales; and to make reasonable charges therefor. (e) Fire prevention; dangerous buildings; fire limits: To extinguish and prevent fires and to compel persons to render assistance to the fire department (department of Ere - rescue) in case of need; to establish, regu- late, and control a fire department or divi- sion; to regulate the size, materials, and construction of buildings, fences and other structures in such manner as the public safety and convenience may require; to designate fire limits within which wooden buildings may not be constructed, removed, added to, or enlarged; and W remove or require to be removed any building or struc- ture which may have become dangerous to life or property or which may be erected contrary to law. (s) Public assutance. To provide for the care, support, and maintenance of orphan, de- pendent, delinquent, or sick children; and of sick, aged, insane, or indigent persons. M Libraries: To organize, support, and admin- ister public libraries. u i Detente e cr penal nstitur,6ns. To provide and maintain, inside or out:,ide the city charitable, recreative, curative, corrective, detentive, or penal institutions. M Health: To provide for the preservation of the general health of the inhabitants of the city, to make regulations to secure the same, inspect all foods and foodstuffs, and prevent the introduction and sale in the city of anything intended for human con- sumption which is adulterated, impure, or otherwise dangerous to health; to con- demn, seize, destroy or otherwise dispose of any such thing without liability to its crwrier, to prevent the introduction or spread of contagious or infectious diseases, and W prevent and suppress diseases generally; to provide and regulate hospitals inside or outside the city, and to enforce the removal of persons afflicted with contagious or in- fectious diseases to hospitals provided for them; to provide for the organization of a department or bureau of health; to estab- lish and maintain a quarantine ground inside or outside the city, and such quaran- tine regulations against infectious or con- tagious diseases; to provide and keel records of vital statistics and require persons to report all births and deaths and provide other necessary information. (w) Burial of dead' To acquire real property inside or outside the city, by purchase, gift, devise, condemnation, or otherwise, to be used, kept, and improved as a place for the interment of the dead; to make and enforce all necessary rules and regulations for the protection and use thereof, and generally to regulate the burial and disposition of the dead. W Police power and division of police: To ex- ercise full police powers and establish and maintain a department or division of po- lice. (y) Promotion of general welfare: To do all things necessary or expedient for promot- ing or maintaining the general welfare, comfort, education, morals, peace, govern• ment, health, trade, commerce, or industry of the city or its inhabitants. (z) Enforcement by ordinances, rules, and reg• ulations, penalties; limitation ore penalties' To make and enforce all ordinances, rules, 'Edltor's no" —The User's aetmdm is dire&t to I'm at F L&, cb. VaS, inducted in pt I of this volume as arc 13 d subpG C. OM6 40 IR 4S CHARTER MND RELATED LAWS tors voting on any such measure vote in favor thereof, it shall thereupon become an ordinance of the city. When a measure proposed by initiative petition is passed by the commission, but not in its original form, the measure as passed by the commission shall not take effect uritil after the vote of the electors, if the measure so submitted is approved by a majorit of electors voting thereon, it shall thereupon becurne an ordinance of the city, and the measure as passed by the commission shall be deemed repealed. The following title shall be substantially the form of the ballot: TITLE OF MMEASURE WITH GENERAL STATEMENT OF SUBSTANCE THEREOF FOR THE MEASURE. AGAINST THE MEASURE. (g) Number of measures to be initiated. Any number of proposed measures may be voted upon at the same election in accordance with the pro- visions of this charter. Ser, 6. The referendum. (a) Power of referendum. The electors shall have power at their option to approve or reject at the polls any measure passed by the commission or submitted by the commission to a vote of the electors, such power being known as the "referen- dum". Measures submitted to the commission by initiative petition and passed by the commission without change or passed in an amended form shall be subject to the referendum in the same manner as other measures. (b) Referendum petition. If within 30 days af- ter the final passage of any measure by the commission, a petition signed by 15 percent of the total number of registered voters as shown by the city registration books, is filed with the city clerk requesting that such measure or any part thereof be repealed or be submitted to a vote of the electors, that measure or part shall not, except in the case of an emergency measure, become oper- ative until the steps indicated herein have been taken. Supp. No. 2 (c) Signatures to petition. Signatures of refer- endum petitions need not all be on one paper, but the circulator of every such paper shall make an affidavit that each signature appended thereto is the genuine signature of the person whose name it purports to be. With each signature shall be stated the place of residence of the signer. All such papers shall be filed in the office of the city clerk as one instrument. A referendum petition need not contain the text of the measure or part of which repeal is sought but shall briefly describe the ordinance or part sought to be repealed. (d) Certification of petition. Within 20 days after the filing of the petition, the clerk shall ascertain by examination the number of regis- tered voters whose signatures are appended thereto and whether said number is at least 15 percent of the total number of registered voters as shown by the city registration books. The clerk shall attach to such petition his certificate showing the result of such examination and give notice thereof in writing to the circulator or circulators of the petition. If the number of signatures supporting the petition is shown to be insufficient, the peti- tion may be amended once within 10 days from the date of said certificate by the filing of addi- tional signatures. The clerk shall, within 10 days after such amendment, make examination of the amended petition. (e) Referendum election. If the petition befound sufficient, the commission shall proceed to recon- sider such measure or such section thereof as the petition shall specify. If upon such reconsidera- tion such measure, or such part thereof, be not repealed or appended as demanded in the petition, the commission shall provide for submitting the same, by the method herein provided, to a vote of the electors at the next municipal election occur- ring not less than thirty days after the receipt by the commission of the clerk's certificate, and such measure, or such part thereof, shall thereupon be suspended from going into effect until said elec- tion and shall then be deemed repealed unless approved by a majority of those voting thereon. Or the commission by a four -fifths vote may submit such measure or part thereof with like effect to the electors at a special election to be called by said commission not less than thirty days after the receipt of said clerk's certificate. CHT: 16 - "r40 4 CHARTER (f) Limitations on enforcement of ordinances. No measure shall go into effect until thirty days after its passage unless it be declared in such ordinance to be an emergency measure on the ground of urgent public need for the preservation of peace, health, safety, or property and the urea. sure being passed by a vote of not less than four -fifths of the members of the commission But no measure granting or amending any public utility measure or amending or repealing any measure adopted by the people at the polls or by the commission in compliance with an initiative petition shall be regarded as an emergency rnea. sure. (g) Form of ballot. The ballots used when vot- ing upon such proposed measure shall state the substance of the measure in clear, concise lan- guage, without argument or prejudice, and shall specify whether the measure is being submitted for approval or for repeal. If the measure is being submitted for approval, the ballot shall provide only for a vote "for the measure" or "against the measure". If the measure is being submitted for repeal, the ballot shall provide only for a vote "for repeal" or "against repeal". (h) Emergency measures. Measures passed as emergency measures shall be subject to referen- dum like other measures, except that they shall not be suspended from going into effect while referendums proceedings are pending. An emer- gency measure subsequently repealed shall be deemed sufficient authority for any payment made or expense incurred in accordance with the mea- sure previous to the repeal. (i) Conflict of referred measures. If two or more measures adopted or approved at the same elec- tion conflict with respect to any of their provi- sions, all nonconflicting provisions shall go into effect. The provisions of the measure receiving the highest affirmative vote shall prevail over the conflicting provisions of other measures. (j) Adoption or repeal. If a majority of the electors voting on any referendum vote to adopt or repeal any measure or part thereof, such measure or part shall thereupon be deemed adopted or repealed, as the case may be. Supp. No 3 I Sec. 7. Regular and primary elections of commissioners. A regular municipal election for the election of the mayor and commissioners shall be held on the second Tuesday after the first Monday in Novem- ber in odd -numbered years. A nonpartisan pri- mary election for the nomination of candidates for the mayor and the commission shall be held on the first Tuesday after the first :Monday in No- vember in odd -numbered years. Any person who shall possess the qualifications requisite to an elector at the general state election and shall have resided in the City of Miami for six months next preceding the city election at which he offers to vote, and shall have been registered by the city registration boobs that have beer, prescribed by ordinance, shall be a qualified elector of the city, and all elections held in said city shall be con- ducted and held according to the provisions of the general election laws of the State of Florida, except as otherwise provided for in the charter of the City of Miami, and except that the city com- mission shall be substituted for a board of county commissioners. The name of any elector of the city shall be printed upon the primary ballot as a candidate for nomination to the office of mayor and commissioner upon paying to the City of Miami the sum of one hundred dollars ($100.00) to be deposited with the city clerk as a qualifying fee not less than forty-five days prior to the date of such primary election, and said elector shall submit concurrently therewith a' sworn atatement of his or her name, address, occupation and will- ingness to serve, if elected. All such qualifying fees shall be deposited with the said city clerk no later than 6:00 pm. on the forty-fifth day prior to the election. (Laws of Fla., ch. 15339(1931); Laws of Fla., ch. 19974(1939); Laws of Fla., ch. 21387(1941); Laws of Fla., ch. 22395(1943 ); Laws of Fla., ch. 23408(1945 �; Char. Amend. No. 1, 3.14-72; Char. Amend. No 6, 11-6-73; Res. No. 97-447, § 2, 7-3-97) Sec. A. Form of ballots; what candidates in primary election for mayor and com. missioners placed on ballot. All ballots used in any primary election or general election held under authority of this char• CHT:17 S9— riZu ADNIMS RATION der which they render legal service for the city, are hereby placed under the direct supervision and control of the law department (b) The mayor may engage special counsel for the specific puree of providing advice to the mayor and his office The compensation and fund- ing for such engagement shall be subject to the advice and consent, and approval of the city commission. Any subsequent special counsel va- cancy shall be filled in this manner and subject to the advice and consent, and approval of the city commission. (Code 1967, § 2-15; Code 1980, § 2-41; Ord. No. 11575, § 1, 11-26-97) Sec. 2-112. Charter amendments, method of drafting; approval by city com- mission; submission to elector- ate. (a) The city attorney shall draft, with the as- sistance of any individual the city attorney deems necessary, a Charter amendment within 120 days after the city commission adopts a resolution directing the city attorney to prepare such amend- ment or after the certification of a petition of ten percent of the qualified electors of the City of Miami requesting such amendment. (b) The Charter amendment drafted by the city attorney shall be approved in final form by the city commission in a resolution calling for a special election upon the amendment.. The reso- lution calling for the special election shall include the text of the amendment draft approved by the city commission, and such draft shall be deemed submitted to the electorate by the adoption of said resolution. (c) A special election upon said amendment shall occur not less than 60 nor more than 120 days after the draft is submitted. (Ord. No. 10116, § 1, 6-12-86; Code 1980, § 2-42) Seca. 2-113--2-140. Reserved. Supp. No. 2 1 2.142 DIVISION 4. CITY CLERK* Sec. 2.141. Recordation and indexing of or- dinances. The city clerk shall procure a suitably bound book, in which he shall record, within ten days after their passage, all ordinances adopted by the city commission, and he shall make and keep a proper indez to such ordinance book. (Code 1967, § 2-16; Code 1980, § 2-46) State law reference- ordinancr adoption procedure, FS. f 166.041. Sec. 2-142. Fees for copies of ordinances and other records. (a) For the preparation and issuance of photo- copies of resolutions, ordinances and all other official records of the city prepared and issued through the city clerk's office, the city clerk shall collect the maximum fee as provided in state law. (b) For the preparation and issuance of copies of resolutions, ordinances and all other official records on microfilm, the city clerk shall collect the maximum fee as provided in state law. (c) For the service of duplicating cassette tapes from original tapes used by the city clerk in the voice recording of city commi zion meetings, the city clerk shall collect a fee as provided in state law for such service, provided the person request- ing such service furnishes his or her own cassette; if the city clerk fin -niches the cassette, he shall collect a fee of $8.00. (d) For certifying any document, the city clerk shall collect a fee of $2.00 for each document. (e) Where an extraordinary time constraint is designated by the person requesting copies of records or cassettes, requiring extraordinary ex- penditure of time by the city clerk's office to comply with the time constraint, the city clerk 'Charter references ---Election of city clerk by mmmis- sioa, ¢ 4(e); duty of city clerk with respect to initiative petition&, 15(c); duty of city clerk with respect to referendum petitions, § 6(c); deposits with city clerk by candidates far commissioner, 17. City Cods cross reha nce--City clerk to conduct mu- nicipal elections, 1 16-1 C. D2:15 �- 790 L_ GENERAL PROVISIONS 1 1.9 (14) Any ordinance establishing positions, clas- sifying positions, or benefits or setting sal- aries of city officers and employees or any personnel regulations. (15) Any temporary or special ordinances. (16) Any ordinance calling elections or prescrib- ing the manner of conducting the election in accordance with state law. All such ordinances are recognized as continuing in full force and effect to the same extent as if set out at length in this Code and are on file in the city clerk's office. Sec. I-& Amendments to Code. (a) All ordinances passed subsequent to this Code which amend, repeal or in any way affect this Code may be numbered in accordance with the numbering system of this Code and printed for inclusion in the Code. When subsequent ordi- nances repeal any chapter, article, division, sec- tion or subsection or any portion thereof, such repealed portions may be excluded from the Code by omission from reprinted pages. (b) Amendments to any of the sections of this Code may be made by amending such sections by specific reference to the section number of this Code in substantiaily the following language: "That section _ of the Code of the City of Miami, Florida, is hereby amended to read as follows:...." The new section shall then be set out in full as desired. (c) if a new section not existing prior to the adoption of this Code is to be added, the following language may be used: "That the Code of the City of Miami, Florida, is hereby amended by adding a section to be numbered which section reads as follows:...." The new section may then be set out in full as desired. (d) Every subsection, section, division, article or chapter desired to be repealed must be specif- ically repealed by subsection, section, division, article or chapter number, as the case may be. State law mremoce--Minimum procedure end require- ments for enactment of mUn&ncea, F.S. $ 166.041. Sec. 1.9. Supplementation of Code. (a) By contract or by city personnel, supple- ments to this Code shall be prepared and printed whenever authorized or directed by the city. A supplement to the Code shall include all substan- tive permanent and general parts of ordinances passed by the city commission during the period covered by the supplement and all changes made thereby in the Code and shall also include all amendments to the Charter during the period. The pages of a supplement shall be so numbered that they will fit properly into the Code and will, where necessary, replace pages which have be- come obsolete or partially obsolete, and the new pages shall be so prepared that, when they have been inserted, the Code will be current through the date of the adoption of the latest ordinance included in the supplement. (b) In preparing a supplement to this Code, all portions of the Code which have been repealed shall be excluded from the Code by the omission of the portions from reprinted pages. (c) When preparing a supplement to thia Code, the codifier, meaning the person, agency or orga- nization authorized to prepare the supplement, may make formal, nonsubstantive changes in ordinances and parts of ordinances included in the supplement, insofar as it is necessary to do so to embody them inw a unified code. For example, the codifier may. CD1:5 (1) Organize the ordinance material into ap- propriate subdivisions; (2) Provide appropriate catchlines, headings and titles for sections and other subdivi- sions of the Code printed in the supplement and make changes in catchiines, headings and titles; (3) Assign appropriate numbers to sections and other subdivisions to be inserted in the Code and, where necessary w accommo- date new material, change existing section or other subdivision numbers; (4) Change the words "this ordinance" or words of the same meaning to "this chapter," "this article," "this division," etc., as the case may be, or to "sections through ." The inserted sec- 4 1% So.2d 874, Scenic Hills Utility Co. v. City of Pensacola, (Fla.App. 1 Dist. 1963) 0874 156 So.2d 874 441 No. E-138. District Court of Appeal of Florida, First District. Oct. 10, 1963. Rehearing Dcnicd Nov. 4, 1963. Action by operator of water and sewerage utilities in county for declaratory decree that its franchise was exclusive. The Circuit Court for Escambia Catuay, Woodrow M. Melvin, J., entered a judgment adverse to franchise owner and it Reversed. Page I 1 1 1.. . Powers in General 1 4. STATUTES Q--P 181(: ) 361 ---- 361 VI Constructioa and Operation 361VI(A) General Rules of Construction 36lkl80 Intention of Legislature 36lkl81 In General 361k181(2) Effect and consr uences. [See headnote text below] 4. STATUTES (t-205 361 -- 361 VI Comtruction and Operation 36I VI(A) General Rules of Construction 3611004 Statute as a Whole, and Intrinsic Aids to Construction 361 k2O5 In general. Fla A inflow 5. STATUTES (8= 181(1) 361 - 361VI Construe n and Operation 361V1(A) General Rules of Construction 361k180 Intention of Legislature 361k181 In Oral 361 k l 81(1) In general. Fla. App. 1963 Failure to use word very commonly used to express certain thought is a circumstance to be considered in arriving at legislative intent, but failure to use particular word does not mean that legislature cannot express meaning of that word in other language. 6. COUNTIES G;:-22 104 ---- 10411 Government 1041I(A) Organization and Powers in General 10422 Public improvements. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99 - 720 t 156 So.2d 874. Scenic Hills Utility Co. v. City of Pensacola, (Fla.App. 1 Dist. 1963) Page 2 [See headnote text below] 6. WATERS AND WATER COURSES (&-188(3) 405 ---- 4051X Public Water Supply 4051X(A) Domestic and Municipal Purposes 405k194 Water or Waterworks Companies 405k188 Franchises, Privileges, and Powers 405k188(3) Duration, extension, and termination. F1a.App. 1963 Board of county commissioners of Escambia County had authority to grant exclusive franchisr for operation of water and sewerage utilities in territory within count), and outside limits of any then existing municipality, and once granted, it vested in owner rights which could ox be abrogatrd by expanding of boundaries of pre-existing municipality or by creating a new one. Sp.Acts 1957, c. 57-1313 and subd. 4(k); F.S.A.Const. art. 3, § 20. 7. APPEAL AND ERROR C:-499(1) 30 ---- 30X Record 30X(A) Matters to Be Shown 30k498 Presentation and Reservation of Grounds of Review 30k499 Questions and Objections in General 30k499(1) In general. [See headnote text below) 7. COURTS Ca216 106 ---- 106VI Courts of Appellate Jurisdiction 106V1(B) Courts of Particular States 106k216 Florida. Fla. App. 1963 Argument that statute violates constitutional provision was not properly before District Court of Appeal where there was nothing in record to indicate that it had been presented to or considered by circuit court, and if and when, it was, an appeal would lie only to Supreme Court. F.S.A.Const, an. 5,§5. 0875 Hall, Hartwell & Hall, Tallahassee, and Hopkins, Hahn & Reeves, Pensacola, for appeflaat. F. Churchill Mellen, Pensacola, for appellee. TAYLOR, Associate Judge. On May .5th, 1959, after compliance with the procedural requirements of Chapter 57-1313, Laws of Florida, the Board of County Commissioners of Escambia County granted to Appellant a franchise (purportedly exclusive) to supply water and sewerage scry ices to an area within the cotmry 0876 but not within the limits of any municipahiN FN1) The tx-lundaries of the City of Pensacola have now been extended so as to embrace a pan of the area included in this franchise. Appellant, as plaintiff in the Circuit Court, filed a complaint against the City of Pensacola seeking a declaratory decree that its franchise is exclusive of any right or authority on the part of the City of Pensacola to construct competing water or sewer lines within the area embraced in Appellant's franchise. The City of Pensacola resisted the entry of the decree sought and asserted the right, at its discretion, to construct competing facilities. The Circuit Court entered a decree declaring that Appellant's franchise was not exclusive and did not prevent competition by the City of Pensacola within the disputed area. This appeal followed. The decision of the Circuit Court was bottomed squarely on the determination that Chapter 57-1313, Laws of Florida, did not confer upon the County Commissioners of Escambia County the power to grant an exclusive franchise to Appellant and that, consequently, the attempt to make the ftutchise exclusive was ultra vices the Board of County Commissioners. The Court relied upon the decision of the Supreme Court of Florida in the case of Colen v. Sunhaven Homes, Inc., Fla., 98 So.2d 501. We find that the law of the case is expressed in the Coun's opinion in that case, but are constrained to hold that the Circuit Court misapplied the law as there stated. 111 [21 131 County Commissioners possess only such powers are are conferred upon them by law. With respect to the granting of franchises they derive no powers from the common law and, consequently, they may exercise only such powers are are conferred by statute. Statutes conferring such powers are to be strictly construed against the Copyright (c) West Group 1998 No claim to original U.S. Govt. works 919- ''i4v 7 156 So.2d 874, Scenic Hills Utility Co. v. City of Pensacola, (Fla.App. I Dist. 1963) county, and the power to grant an exclusive franchise exists only when conferred by express terms or necessary implication. 141 15) In the drafting of a statute there is no magic in the presence or absence of a particular word. it is the duty of the Court to examine the enactment as a whole to order to determine its meaning. The failure to use a ward Nen comrnoril) used to express a certain thought is a circumstance to be considered in arri%ing at the legislative intent. But the failure to use a particular word does not ratan that the legislature cannot express the meaning of that word in other language. 111' the intent of the legislature is clear and unmistakable from the language used it is the duty of the Court to give effect to that intent. With these thoug)us in mind we examine the statute Of course, the failure to use the word exclusive in describing the franchise that may be granted under the statute is a circumstance tending to indicate that the legislature did not intend to vest in the county commissioners power to grant exclusive franchises. But as against that we observe the following: The statute requird that notice be published and a public hearing had before a franchise is granted. Section 4(b). Such precautions to protect the public interest would hardly be necessary as an incident to a there permit --which is all tbat a nonexclusive franchise would amount to. The county comimissioner% are authorized 'itJo include in any such franchise a license or easement over, upon and across the streeu, roads, alleys, and other rights -of -ways in said County • ' 0'. Section '877 4(e). This necessarily implies that the franchise authorized by the statute is something more than a mere license to lay lines along public easements. The county commissioners are given power to supervise service and rates. Section 4(f). The public power to regulate utility rates is seldom, if ever, justified in a competitive field. Such power is essential where the utility enjoys a monopoly. No franchise may be transferred to another party without notice, a public hearing, and a determination that the transferee meets the requirements fixed for an initial franchise holder. Section 4(g), Page 3 If the franchise bolder fails to conform to his duties under the franchise and 'properly furnish the service required by said franchise' his franchise may be restricted or revoke, but only after notice and a hearing. Section 4(b). The statute provides that. '0) Any franchises granted pursuant to this Act shall be limited as follows: � e • f 4 • (2) Any person, firm or corporation using, in normal average consumption, more than 100,000 gallons of water per day, shall not be required to deal with said utility, but any such water user shall br. at liberty to secure its water from such source or sources as it might desire. Any franchise for water shall also exempt and except therefrom any public agency producing water for resale at wholesale . ' This paragraph unmistakably indicates a legislative intent that franchises granted under the statute shall be exclusive. Otherwise the provisions that a consumer using more than 100,000 gallons of water a day 'shall oot be requited to deal with said utility' but ' 0 a 'shall be at liberty to secure its water from such source or sources as it Haight desire', would be absolutely meaningless. If only those using in excess of 100,000. gallons a dzy are not required to buy from the holder of the franchise, it necessarily follows that those using smaller amounts must buy from the utility and the franchise of the utility is necessarily exclusive as to all those not expressly exempt. The second sentence of the last quoted paragraph is equally indicative of a legislative intent that a franchise might be made exclusive. Otherwise there would be no reason whatever to require die exemption and exception of 'any public agency producing water for resale ar wholesale.' (Emphasis supplied). Use here of the words 'at wholesale' can serve only to emphasize that the legislative grant of power to the county commissioners included the authority to make franchise authorized by the statute free from competition in retail sales even from public agencies. It will be noted that this language does not exempt a public agency selling at retail. Subsection W of Section 4 (FN2) again clearly Copyright (c) West Group 1998 No claim to original U.S. Govt. works 72v 0 L ft 156 So.2d 874, Scenic Hills Utilitv Co. v. City of Pensacola, (Fla.App. 1 Dist. 1963) Page 4 indicates the legislative intent that the franchises authorized may be made exclusive. Under it an existing utility may secure a non-exclusive franchise without notice or hearing, but in order to secure an exclusive franchise it must comply with the prescribed pnx:c•lurc and meet the other requirements of the act. Admittedly Appellant was not operating a puhlic unlit, when the act was passed. 'What reason could the legislature have in permitting existing utilities to secure exclusive franchise *978 after comph'ing Aiih the pro0sionr of the art, and denying such franchise to others Or, stated a little differently, did the legislature intend to give power to the county commissioners to grant excltLive franc` to one class of applicants and not give thci wer to grant exclusive franchises to another class of applicants? The conclusion appears inescapable that the thinking of the writer of subsection (k) was simply that existing utilities could Lv granted non-exclusive franchises-- mere licenses --without notice or public hearing, but that if they wanted exclusive franchises they must proceed as other applicants to give notice and at a public hearing snake a showing justifying the granting of the franchise sought. [6) For these reasons we hold that the Board of County Commissioners of Fscambia County was authorized by Chapter 57-1313, Laws of Florida, to grant to Appellant an exclusive franchise for the operation of water and sewerage utilities in territory within E.uambia County and outside the limier of any municipality as then existing. one- the franchise was granted it vested in the owner rights that cannot be abrogated or destroyed by the expedient of expanding the boundaries of a prc- existing municipality or creating a new one. (7) Appellee argues in the alternative that Chapter 57-1313 is invalid because it is in violation of Section 20, Article III, of the Constitution of Florida, F.S.A. We do not think that question is properly before us. There is nothing in the record to indicate that it was presented to or considered by the Circuit Court. Certainly it was not decided by that Court. If and when it is, an appeal will lie only to the Supreme Court. (FN3) T'he decree appealed from is reversed, but without prejudice to the right of the Appellee to apply to the Circuit Court for leave to amend its responsive pleadings in such manner as to raise the question of the constitutional validity of Chapter 57.1313, and to the jurisdiction of that Court to grant such application and then pass upon the constitutional questions presented. Reversed. WIGGINTON', J.. concurs. STURGIS, C. J., dissents. STURGIS, Chief Judge (dissenting). I am confronted with an able opinion which, like Khayyam's grape, 'can with Logic absolute the Two -and -Severity jarring Sects confute'; but I am obliged to dissent because (1) 1 do not think the legislative intent is conclusively demonstrated to support the conclusions reached, and (2) I am persuaded that the decision of the Florida Supreme Court in Colen v. Sunhaven Homes, Inc., Fla., 98 So.2d 501 (1957) is controlling precedent in support of the decree appealed. Chapter 57-1313, Laws of Florida, is a local law applicable only to Escambia County. As aptly stated by the majority, county commissioners have no power under the common law to grant franchises and may exercise only such powers as are conferred by statute; further, that statutes conferring such powers are to be strictly construed against the county, and the power to grant an exclusive franchise exists only when conferred by express terms or necessary implication. The concept of the exercise by county governments of powers of the nature here involved is of comparatively recent origin. It finds its roots alongside the trend to the development of urban communities which, as is a matter of common knowledge, generally depend for existence on employment in and commerce afforded by the nearby 0879. municipality but cont_zibute little if anything to the expense of operating the municipal government. And we are aware that these circumstances have produced increasing difficulties and tensions between the county and nrttnicipal governments in many parts of the state, resulting in complicated and unhealthy situations for both. I am quite satisfied that legislative delegations representing such areas are fully cognizant of these conditions, politically and otherwise. It is difficult for me to believe that the legislative delegation Copyright (c) West Group 1998 No claim to original U.S. Govt. works ��ll Jet— 7200 156 So.2d 874. Scenic Hills Utility Co. v. City of Pensacola, (Fla,App. I Dist. 1963) Page S v representing Escambia County, in which the city of more specific to the conclusion reached by the Pensacola is the controlling political area, had any, majority than is the act passed on by the Supreme intention by the act in question to restrict the Court in Colen v. Sunhaven Homes, Inc., supra, but generally exclusive power of the city of Pcn,,acola to in my opinion the principle of non -exclusiveness as grant within the confines of its territory fra,,Khises applied to the water franchise in that case should of the character in suit apply with equal force to the case on review. I reeogni7c that the territory here imol�ed has I would affirm been added to the city since the enacinieni of the act FN1, Appellant had not previously operated a in question, but the fact is that the appellant has not public utility in this area. The materiality of this extended its fraticbise operations to that area I also fact will presently appear. recognize that under the facts of this case it is likely the city could with little expense condemn to inns FN2 '(k) Any person operating a public utility as exclusive use the franchise rights purportedly given herein defined at the time this Act becomes law to appellant under the act. I lean to the view, however, that where, as here, the franchise has Dot may apply within one year hereafter for a been exercised within the municipal area affected, franchise hereunder and the County the better rule of construction would be to erect it as Commissioners, without the rtccessnty of publick extinguished to that extent. hearing, shall grant, without requiring bonds, a non-exclusive franchise to such applicant with That conclusion would not necessarily apply to all respect to the area or areas now being served, types of franchises. Water supply in all of its phases provided however, if any such person shall desire is so vital to the health, fire pro(ection, and general an exclusive franchise then the procedure, welfare of persons living in congested areas that in requirements, conditions, limitations and terms my opinion the immediately responsive and contained in subsections 4(a) to 40) inclusive shall responsible governmental agency --in this instance apply to any such application.' the city —should have full comtrol of it within its territorial limits. FN3. Article V, Section S, Constitution of Florida, Stein v. Darby, Fla., 134 So.2d 232; Dade County The provisions of the act in suit are concededly v. Kelly, Fla.App., 149 So.2d 382. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99— 1�CZ0 EXHIBIT "E" t�4r1ARl'Q —IE INHIBIT "E" Right to Compete, Vested Properly Rights, and Tortious Irrterferetrce A non-exclusive trartchise gives the IMrichisce a vested property right in that franchise. See Mew )'ork Dec Linc.t' Co v hnipir'_, C'itt• Suitt a ('t, , � ; � U.S. 179, 19 ', ( 1914). ([1!'L1'U/1 r. F'rllugc of Union City, 601 F. Supp. 801, 813 (W-1). Mich. 1 )85). Accordingly, if a city grants an exclusive franchise that ef}cctively prohibits the non-exclusive franchisee from competition, the city may be liable for deprivation of property rights. Additionally. if a franchisee is unlawfully awarded an exclusive franchise, the city and the franchisee may he subject to punitive damages for TOi110rrS intcrference of contractual relations with the non-exclusive franchisee.Sce, e g., Ccntral Telecom., hic. v. TO Cablevision, inc., 800 F.2d 711, 732 (8th Cir. i 986)(af miring S25 million dollar punitive award against company that was unlassfully granted exclusive franchise from city); sec also City of'A ami v. Bus Benches Co., 174 So.2d 49 (Fla.3rd DCA 1965)(noting that a part to a contract %pith a municipality is entitled to constitutional protection against impairment of the contract if city unilaterally attempts to modify contract). 35 S.Ct. 72, 235 U.S. 179. New York Electric Lines Co. v, Empire City Subway Co., (U.S,N,Y, rage I 1914) *72 35 S,Ct. 72 235 U.S. 179, 59 L.Ed. 184 NEW YORK ELECTRIC LINES COMPANY, Plff, in Err., v. EMPIRE CITY SUBWAY COMPANY (Limited). No. 63. Argued November 5 and 6, 1914. Decided November 30, 1914. IN ERROR to the Supreme Court of the State of New York in and for the County of New York to review a judgment affirmed by the Appellate Division, First Department, and by the Court of Appeals, denying a writ of mandamus to compel a subway company to lease space in its conduits to an electric company. Affirmed. See same case below in appellate division, 140 App. Div. 934, 125 N. Y. Supp. 1133; in court of appeals, 201 N. Y. 321, ---- L.R.A. (N.S.) 94 N. E. 1056. The facts are stated in the opinion. COURTS Is 394*)--ERROR TO STATE COURT --DECISION OF FEDERAL QUESTION --IMPAIRING CONTRACT OBLIGATIONS. 1. A judgment of a state court giving effect to a municipal ordinance which, it is contended, is an unconstitutional impairment of a previously existing contract with the city, is reviewable by the Federal Supreme Court on writ of error. [Ed. Note. --For other cases, see Courts, Cent. Dig. ss 1049-1077; Dec. Dig. s 394.*] * For other cases see same topic & s NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes COURTS (s 399*)--ERROR TO STATE COURT --SCOPE OF REVIEW --IMPAIRING CONTRACT OBLIGATIONS. 2. On a writ of error to a state court presenting the question of impairment of contract obligations, the Federal Supreme Court will determine for itself whether a contract existed and whether its obligation has been impaired. [Ed. Nate. --For other cases, see Courts, Cent. Dig. ss 1089-1090; Dec. Dig. s 399.*] * For other cases see same topic & s NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes CONSTITUTIONAL LAW (s 134*)--IMPAIRING CONTRACT OBLIGATIONS --CORPORATE FRANCHISES. 3. The acceptance of a permit granted by a municipal corporation under legislative authority to place wires in the city streets creates a contract which cannot thereafter constitutionally be revoked or impaired by municipal resolution or ordinance, urtless such franchise is lost by misuser_or nonuser. [Ed. Note. --For other cases, see Constitutional Law, Cent. Dig. s 344; Dec. Dig. s 134.*] Copyright (c) West Group 1998 No claim to original U.S. Govt. works 09 1 t— 35 S.Ct. 721, 235 U.S. 179, New York Electric Lines Co. v. Empire City Subway Co., (U.S.N.Y. page t 1914) a: { • For other cases see same topic & s NUMBER in Dec, & Am. Digs. 1907 to date, & Rep'r indexes ELECTRICITY (s 4*)--FRANCHISE--REV0KING UNEXF-RCiSED FRANCHISE. 4, 4. The franchise ere;tted by the acceptance of a permit granted by a municipal corlx)ration under the authority of 1\. Y. Laws 1881. chap. 483, to lav electric conductOrs in the public streets, may be revoked for nonexercise, without unconstinaiunall� impairing any contract obligations, where, for a long period of years after the final judicial determination of the validity and controlling authority of the state legislation authorizing a comprehensive `{ scheme of electrical subm ay construction, the grantee made no attempt to secure space in these subways, or to 'J build conduits, or to place its wires under the city streets, treating its rights as susceptible of practically indefinite retention unused. [Ed. Note. --For other cases, see Electricity, Cent. Dig, s 1; Dec. Dig. s 4.*[ * For other cases see same topic & s NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ELECTRICITY °.- 4 145 ---- 145k.? Electric Companies 145k4 Franchises and privileges in general. U.S. 1914 The franchise created by acceptance of a permit given by a city under authority of Laws N.Y.1881, c. 483, laying electric conductors in the public streets, may be revoked for nonexercise, where for many years after judicial decision as to the validity of the state legislation authorizing a comprehensive scheme of subway construction the grantee made no attempt to build conduits or place its wires under the city streets. CONSTITUTIONAL LAW Cd�-134 92 ---- 92VII Obligation of Contracts 92VI1(B) Contracts of States and Municipalities 92k134 Right to use streets. U.S. 1914 Acceptance of permit granted by a city under legislative authority to place wires in a city's streets creates a contract which cannot thereafter constitutionally be revoked by resolution or ordinance unless the franchise is lost by misuser or nonuser. COURTS G=394(9) 106 ---- 106k394(9) U.S. 1914 A judgment of a state court giving effect to an ordinance which it is contended is an unconstitutional impairment of an existing contract with a city is reviewable by the federal Supreme Court on writ of error. COURTS G--=399(l) 106 ---- 106k399(1) U.S. 1914 On writ of error to a state court presenting questions of impairment of a contract, the federal Supreme Court Copyright (c) West Group 1998 No claim to original U.S. Govt. works 35 S.O. 72, 235 U.S. 179, New York Electric Lines Co. v. Empire City Subway Co., (U.S.N.Y. Page 3 1914) r will determine s%hether a contract existed and whether it has been impaired. 173 1235 U.S. 1801 Messrs. Alton B. Parker, 1. Aspinwall Hodge and henry A. Gildersleeve for plaintiff in >. error. [235 U.S. 1821 Messrs. Edmund L. Mooney, Charles T. Russell, and Frederick A. Card for defendant in error. [235 U.S. 185] Mr. Alfred B. Cruikshank for Clifford L. Middleton as amicus curice. Mr. Justice Hughes delivered the opinion of the court: This is a writ of error to review the denial by the state court of an application for a writ of peremptory mandamus directing the Empire City SuhNlay Company (Limited) to lease space in its conduits in the city of New York to the plaintiff in error. In the year 1884, the legislature of the state of New York required that 'all telegraph, telephonic, and electric light wires' in certain cities --New York and Brooklyn --should be placed under the surface of the streets (Laws of 1884, chap. 5341. Under the authority of a statute passed in the next year (Laws of 1885, chap. 499, amended by Laws of 1886, chap. 503), the board of commissioners of electric subways adopted a plan by which the city of New York should enter into a contract with a company to construct the necessary subways, etc., which other companies operating electrical wires should be compelled to use, paying therefor a reasonable rent. Under contracts made accordingly and ratified by the legislature (Laws of 1887, chap. 716). subways, etc., were constructed by the Consolidated Telegraph & Electrical Subway Company. The board first mentioned was succeeded by the board of electrical control (Laws of 1887, chap. 716); and, in 1890, the subways, conduits, and ducts for low tension conductors, which had been thus provided, were transferred to the Empire City Subway Company (Limited), the defendant1235 U.S. 1861 in error. The latter company, by contract with the board and the city, made in 1891, under legislative authority (Laws of 1891, chap. 236, agreed to build, maintain, and operate subways, etc., as specified --it being provided that spaces therein, upon application, should be leased 'to any company or corporation having lawful power to operate telegraph or telephone conductors in any street' in the city of New York. The plaintiff in error, the New York Electric Lines Company, claiming to he entitled to space in these subways, made application therefor on or about June 10, 1910. The request was refused and the present proceeding for a peremptory mandamus was brought. The assertion of right rested upon a permission granted by the city of New York, through its common council, to the plaintiff in error, on April 10, 1883, to lay electrical conductors in the city's streets. This permission., the city, by its board of estimate and apportionment, which had succeeded to the powers of the former common council in the matter, had formally revoked by a resolution adopted on May I i, 1906, reciting that whatever rights the company had secured under the permission in question had long since been forfeited by nonuser. The court of appeals of the state, holding that the board of estimate and apportionment had this power of revocation, and had duly exercised it, affirmed an order refusing the writ of mandamus. 201 N. Y. 321, ---- L.R.A. (N.S.) ----, 94 N. E. 1056. The plaintiff in error insists that the resolution thus sustained was an unconstitutional impairment of the obligation of its contract with the city. We think that it sufficiently appears that this question was raised in the state court, and as the state court gave effect to the repealing resolution the case is properly here. It is therefore the duty of this court to determine for itself whether a contract existed and whether its obligation has been impaired. Douglass v. Kentucky, 168 U. S. 488, 502, 42 L. ed. 553, 557, 18 Sup. Ct. Rep. 199; 1235 U.S. 1871 St. Paul Gaslight Co. v. St. Paul, 181 U. S. 142, 148, 45 L. ed. 788, 791, 21 Sup. Ct. Rep. 575; Grand Trunk Western R. Co. v, South Bend, 227 U. S. 544, 551, 57 L. ed. 633, 638, 44 L.R.A. (N.S.) 405, 33 Sup. Ct. Rep. 303; Atlantic Coast Line R. Co, v. Goldsboro, 232 U. S. 548, 556, 58 L. ed. 721, 725, 34 Sup. Ct. Rep. 364, Louisiana R. & Nay. Co. v. Behrman, [235 U. S. 164, 59 L. ed. ----, 35 Sup. Ct. Rep, 62). Copyright (c) West Group 1998 No claim to original U.S. Govt. works J- 14U 35 S.Ct. 72, 235 U.S. 179, New York Electric tines Co. v. Empire City Subway Co., (U.S.N.Y. 1914) Page 4 The plaintiff in error was incorporated in the year 1882, under a general law of the state of New York (Laws of 1848, chap. 265, as amended by Laws of 1853, chap. 471). Its certificate of incorporation stated, among other things, that it was inc(,rp:)rated for the purpose of 'owning, constructing, using, maintaining, and leasing lines of telegraph wires or other electric conductors for telegraphic and telephonic communication and for electric illumination, to he placed under the paycntents of the streets .. . of the cities of New York and Brooklyn,' and 'for the purpose of owning franchises for laying *74 and operating the said lines of electric conductors.' Chapter 483 of the I: iws of 1881 had authorized any company so incorporated 'to construct and lay lines of electrical conductors underground in any city,' provided that it 'first obtain from the common council' of such city the 'permission to use the streets' for the purposes set forth. The permission in question, which, as already stated, was granted by tf,e common council of the city of New York, on April 10, 1883, was (omitting parts not here material) as follows: 'Resolved, that permission be and hereby is granted to the New York Electric Lines Company, to lay wires or other conductors of electricity, in and through the streets, avenues, and highways of New York city, and to make connections of such wires or conductors underground by means of the necessary vaults, test boxes, and distributing conduits, and thence above ground with points of electric illuminations or of telegraphic or telephone signals in accordance with the provisions of an ordinance ... approved ... December 14, 1878.' It was also resolved that the company should not 1235 U.S. 188] 'transfer or dispose of the franchise hereby granted without the further authority of the common council.' On April 24, 1883, the plaintiff in error presented to the common council, and the latter spread upon its minutes, a formal acceptance of the permission, which, after the recitals, states: 'Now, therefore, the said New York Electric Lines Company by these presents accepts the said franchise as contained in the ordinance and resolutions adopted by the honorable the board of aldermen, April 10, 1883, and agrees to, assumes, and obligates itself in the observance of all the requirements, provisions, restrictions, conditions, and limitations contained in the said lastmentioned ordinance as adopted April 10, 1883, as well also as to the provisions, conditions, and obligations of said general ordinance approved by the mayor December 14th, 1878.' The ordinance of 1878, referred to, regulated the method of laying wires under the streets, and provided that within six months after the grant of permission, grantees should file with the county clerk 'maps, diagrams, and tabular statements indicating the amount and position of the spaces proposed to be occupied by them.' In May, 1883, the plaintiff in error, in asserted compliance with the ordinance, filed a map, diagrams, and statement. It is alleged in the affidavits presented on the application for mandamus that the plaintiff in error secured inventions and patent rights, that it had an office and factory, that it prosecuted experimental work in relation to its project, and expended in this way large sums of money. But, in the actual construction of conduits or laying of wires, nothing was done prior to the legislation of 1885 and 1886, which, as we have seen, provided for a comprehensive plan for the building of subways in which electrical conductors should be placed. Section 3 of the act of 1885 expressly made it obligatory upon any company 'operating or intending to operate electrical[235 U.S. 189] conductors,' and desiring or being required to place its conductors underground, to file with the board of commissioners a 'map or maps, made to scale,' showing the proposed plan of construction of its underground electrical system, and 'to obtain the approval by said board of said plan' before any underground conduits should be constructed. 'The plaintiff in error did not submit a plan to the board as required by the statute. In July, 1986, it applied to the commissioner of public works for a permit to make the necessary excavations in the streets for the purpose of laying conductors, and, on the application being denied, petitioned for a writ of peremptory mandamus to direct the commissioner to grant it. It was insisted in its petition in that proceeding that it had 'never operated or intended to operate electrical conductors,' its intention having always been 'to lease to other persons, natural or corporate, all of its electrical conductors, and not to operate itself any' of them; that the acts of 1885 and 1886 (above mentioned), relating to the construction of subways, did not apply to the plaintiff in Copyright (c) West Group 1998 No claim to original U.S. Govt. works 35 S.Ct. 72, 235 U.S. 179, New York Electric Lines Co, v. Empire City Subway Co., (U.S.N.Y. Page 5 1914) error; and that, if they were applicable, they violated the Federal Constitution, being an impairment of its contract with the city, and operating to deprive the plaintiff in error of its property without due process of law. The state court held that the statutes in question were applicable to the plaintiff in error, and were constitutional, and refused the mandamus. f copie (A rel. New York Electric Lanes Co. v. Squire, 107 N. Y. 593, 1 Am. St. Rep. 893, 14 N. E. 820. This court affirmed the judgmcnt (id. 145 U. S. 175, 36 L. ed. 666, 12 Sup. Ct. Rep. 880), saying (pp. 187, 189): 'In no sense of the term do we think it can be safely averred that the acts of 1885 and 1886 are not applicable to the relator. ... Neither can it be said that the acts of 1885 and 1886 have a retroactive effect, at least, so far as the relator is concemcd, since whatever rights it obtained under the ordinance of 1883, which it accepted [235 U.S. 190] as the basis of the contract it claims to have entered into, were expressly 075 subiect to regulation, in their use, by the highest legislative power in the state, acting for the benefit of all interests affected by those rights, and for the benefit of the public generally, so long as the relator's essential rights were not impaired or invaded. New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 29 L. ed. 516, 6 Sup. Ct. Rep, 252; Stein v. Bienville Water Supply Co. 141 U. S. 67, 35 L. ed. 622, 11 Sup, Ct. Rep. 892.' And conceding, for the purpose of the discussion, but 'without deciding,' that the plaintiff in error had a contract with the city 'for the laying of its wires, and the construction of its underground electrical system,' this court reached the conclusion that its rights had in no way been impaired by the legislation tinder review. This decision was rendered in May, 1892. Meanwhile, pursuant to the statutes above mentioned, a plan of construction had been adopted by the board charged with that duty, subways had been built, and the defendant in error had entered into its contract to maintain and operate those for low tension conductors, as specified, including telegraph and telephone conductors. But for fifteen years after the final decision in the case cited no application was made by the plaintiff in error for space in these subways. The first application for such space was made in June, 1907, and was not granted. Nor, during this long period, was any attempt made by the plaintiff in error either to build conduits or to place wires under the city's streets, save that in December, 1905, it applied to the commissioner of water supply, gas, and electricity for a permit to open the streets for that purpose, and, on its being denied, a proceeding was begun to obtain a peremptory, writ of mandamus. This was refused, and the order to that effect was affirmed by the court of appeals of the state. People ex rel. New York Electric Lines Co. v. Ellison, 188 N. Y. 523, 81 N. E. 447. The pertinent legislation and the subway contracts were reviewed, and 1235 U.S. 1911 the requirement that electrical conductors should be placed in conduits constructed in accordance with the adopted plan, instead of the plaintiff in error being permitted to build its own subways for such conductors, was sustained. In arriving at this result, it was again assumed that the plaintiff in error had a continuing right under the city's permission, but this question was expressly reserved (id. p. 527). A writ of error sued out from this court was dismissed on motion of the plaintiff' in error. 214 U. S. 529, 53 L. ed. 1069, 29 Sup. Ct, Rep. 695. It was about the time when the lastmentioned proceeding was instituted that the city's permission was revoked (May 11, 1906); and the state court, in its opinion in the present case, said that the question 'remaining to be determined' was whether 'the relator, under the resolution of the common council of April, 1883, has the right, as a matter of law, to have its wires inserted in the ducts of the Empire City Subway Company, notwithstanding the revocation of such resolution.' Did a 'bare acceptance' of the permission operate to vest an irrevocable franchise? 201 N. Y. p. 329, ---- L.R.A. (N.S.) 94 N. E. 1056. This question was answered in the negative in the view that such a permission is 'a license merely, revocable at the pleasure of die city, unless it has been accepted and some substantial pan of the work performed,' as contemplated by the permission, 'sufficient to create a right of property and thus form a consideration for the contract.' The plaintiff in error challenges this view, insisting that, by virtue of the city's permission, it is the grantee of Copyright (c) West Group 1998 No claim to original U.S. Govt. works L 35 S.Cl, 72, 235 U,S. 179, New York Electric Lines Co. v. Empire City Subway Co., (U.S.N.Y. Page 6 1914) an irrevocable franchise in the city's streets; that this franchise was derived from the state; that when the consent of the city was given, as provided in the statute, the grant became immediately operative and could not thereafter be revoked or impaired by municipal resolution or ordinance; that the granted right, however named, is property, --and, as such, is inviolable: and that this position is 1235 U S 1921 supported by numerous decisions both of the state court and of this court, Ahich are cited in the margin. (FNI) Thus, in Ghee v. Northern Union Gas Co. 158 N. Y. 510, 513, 53 N E. 0Q, referring, to the legal effect of the consent of the municipal authorities under a statute emlk-ucring the cc+rlxirnu+n to Ln gas conduits in streets, on such consent, the court said: 'it , operates to create a franchise by which is vested in the corporation receiving it a perpetual and indefeasible interest in the land constituting the streets of a municipality. It is true that the franchise comes from the state, but the act •76 of the local authorities, who represent the state by its permission and for that purlxose, constitutes the act upon which the law operates to create the franchise.' And in Louisville v. Cumberland Teleph. & Teleg. Co. 224 U. S. 649, 659, 56 L. ed. 934, 939, 32 Sup Ct. Rep. 572, where, a corporation was authorized to erect poles, etc., over the streets with the consent of the general council of the city, it was held that the charter franchises hocame 'fu!ly operative' when the city's consent %kas obtained. 'Such a street franchise has been called by various names, --an incorporeal hereditament, an interest in land, an casement, a right of way, --but, howsoever designated, it is property.' Id. p. 0.61. Again, in the recent case of Owensboro v. Cumberland Teleph. & Teleg. s Co. 230 U. S. 58, 65, 57 L. ed. 1389, )393, 33 Sup. Ct. Rep. 988, it was said: 'That an (235 U.S. 193J ordinance grarting the right to place and maintain ulxln the streets of a city poles and wires of such a company is the granting of a property right has heen too many times decided by this court to need more than a reference to some of the later cases.' See also Bois& Artesian If,)( & Cold Water Co, v. Boise City, 230 U. S. 84, 91, 57 L. ed. 1400, 1406, 33 Sup. Ct. Rep. 997. These municipal consents are intended to afford the basis of enterprise with reciprocal advantages, and it would be virtually impossible to fulfil the manifest intent of the legislature and to secure the benefits expected to flow from the privileges conferred, if, in the initial states of the enterprise, when the necessary proceedings preliminary to the execution of the proposed work are being taken with due promptness, or when the work is under way, the municipal consent should be subject to revocation at any time by the authorities, --not upon the ground that the contract had not been performed, or that any condition thereof, express or implied, had been broken, but because as yet no contract whatever had been made, and there was nothing but a license, which might be withdrawn at pleasure. Grants like the one under consideration are not nude pacts, but rest upon obligations expressly or impliedly assumed to carry on the undertaking to which they relate. See The Binghamton Bridge (Chenango Bridge Co, v. Binghamton Bridge Co.) 3 Wall. 51, 74, 18 L. ed. 137, 142; Pearsall v. Great Northern R. Co. 161 U. S. 646, 663, 667, 40 L. ed. 838, 844, 845, 16 Sup. Ct. Rep. 705. They are made and received with the understanding that the recipient is protected by a contractual right from the moment the grant is accepted and during the course of performance as contemplated, as well as after that performance. The case of Capital City Light & Fuel Co. v. Tallahassee, 186 U. S. 401, 46 L. ed. 1219, 22 Sup. Ct. Rep. 866, to which the defendant to error refers, is not opposed. There the complainant, upon the ground of an exclusive privilege, sought to enjoin a municipality from operating its own electric light plant; although ten years had elapsed since the compiamant's grant, the complainant had done nothing whatever to establish an electric light business, and under the [235 U.S. 1941 express terms of the statute die exclusive privilege had not attached (id. p. 410). But, while the grant becomes effective when made and accepted in accordance with the statute, and the grantee is thus protected in starting the enterprise, it has always been recognized that, as the franchise is given in order that it may be exercised for the public benefit, the failure to exercise it as contemplated is ground for revocation or withdrawal. In the cases where the right of revocation in the absence of express condition has been denied, it will be found that there has been performance at least to some substantial extent, or that the grantee is duly proceeding to perform. And when it is said that there is vested an indefeasible interest, easement, or contract right, it is plainly meant to refer to a franchise not only granted, but exercised in conformity with the grant. (See cases cited supra.) It is a tacit condition annexed to grants of franchises that they may be lost by misuser or nonuser. Terrell v. Taylor, 9 Cranch, 43, 51, 3 L. ed. 650, 653; Chicago L. Ins. Co. v. Needles, 113 U. S. 574, 580, 28 L. ed. 1084, 1087, 5 Sup. Ct. Rep. 681; Given v, Wright, 117 U. S. 648, 656, 29 L. ed. 1021, 1024, 6 Sup. Ct. Rep. 907. The condition thus °77. implied is, of course, a condition subsequent. The same principle is applicable when a municipal ity.under legislative authority gives the permission which brings the franchise into Copyright (c) West Group 1998 No claim to original U.S. Govt. works 0-9 " - d 1� � 35 S.Cl. 72, 235 U.S. 179, New York Electric Lines Co. v. Empire City Subway Co., (U.S.N.Y. Page 7 1914) ' being; there is necessarily implied the condition of user. The concophon of the permission as giving rise to a right of property in no way involves the notion that the exercise of the franchise may be held in abevance for an ' indefinite time, and that the right may thus he treated as a permanent lien upon the public streets, to be enforced for the advantage of the o�cner at am time, howeeer distant. Although the franchise is property, 'it is subject to defeasance or forfeiture by failure to exercise it (People v. Broadv.,ay R. Co. 126 N. Y. 29, 26 N. E. 961), or by subsequent ahandonmcnt after it has heen exercised tpeopie v. Albany & V. R. Co. 24 N. Y. 261, 82 Am. Dec. 295).' if 'no time is prescrilxd, the 1235 U.S. 195J franchise must he exercised within a reasonable time.' New York v. Bnan, 196 N. Y. 158, 164, 89 N. E. 467. It follows that where die franchise has not been exercised within a reasonable time in accordance with the condition which inheres in the nature of the grant, its revocation upon this ground cannot be regarded as an impairment of contractual obligation. The privileges conferred may be withdrawn by such methods of procedure as are consistent with established legal principles. This rule, frequently recognized in cases where franchises have been abused or misemployed (, Chicago L. ins. Co. v. Needles, 113 U. S. 574, 580, 28 L. ed. 1084, 1087, 5 Sup. Ct. Rep. 681, Farmers' Loan & T. Co. v. Galesburg, 133 U. S. 156, 179, 33 L. ed. 573, 582, 10 Sup, Ct. Rep. 316; New Orleans Waterworks Co. v. Louisiana, 185 U. S. 336, 347, 46 L. ed. 936, 942, 22 Sup. Ct. Rep. 691; Columbus v. Mercantile Trust & D. Co. 218 U. S. 645, 663, 54 L. ed. 1193, 1199, 31 Sup. Ct. Rep. 105; Dill. Mun. Corp. 5th ed. § 1311), must also be applicable where they have txen neglected, that is, have not been used in due tittle. Wheher in such cases, where there has been a municipal permission for use of streets, the state shall proceed directly by quo warranty, or whether it shall authorize the municipality to pass a resolution or ordinance of repeal or revocation, leaving the propriety of its course to bt, determined in an appropriate legal proceeding in which the default of the grantee may be adjudicated, is a question of state law with which we are not concerned. The resolution in such case serves to define the attitude of the public authorities, and to revoke the permission where sufficient ground exists for such revocation. Whether there has been such a misuse or nonexercise of the franchise as to warrant its withdrawal is a matter for judicial consideration. In the present case, the plaintiff in error, insisting upon its continuing right, despite the resolution of revocation, applied for a peremptory writ of mandamus to compel the Subway Company --a quasipublic instrumentality --to furnish the desired space in its conduits. It had been 1235 U.S. 1961 held by the state court that this was an available remedy where a company had 'lawful power' to operate its conductors in the city's streets, and had been denied the space which the Subway Company by its contract with the city had agreed to give. Re Long Acre Electric Light & P. Co. 188 N. Y. 361, 80 N. E. 1101. The question of 'lawful power' of the plaintiff in error was considered and the application refused. It is true that it was stated that there was a license ordy which, by reason of nonperformance, had not ripened into a contract right, but it is equally true that the nonperformance shown was available to defeat that right, assuming it to have been created at the time of the grant, and to make the resolution of revocation --which the state court has held was adopted under state authority -- entirely proper. For a long period of years after the final determination of the validity of the statutes authorizing a comprehensive scheme of subway construction, and after the contract with the Subway Company had been made, the plaintiff in error made no attempt to secure space and to exercise the franchise now claimed. It treated that right as susceptible of practically indefinite retention unused. In the circumstances disclosed, its excuses are unavailing. The right conferred, assuming it to be a contract right, was to be used within a reasonable time or lost. In view of the state of the case as to nonexercise, it cannot be said that its constitutional right has been infringed. Judgment affirmed. FNI Milhau v. Sharp, 27 N. Y. 611, 620, 84 Am. Dec. 314; People v. O'Brien, III N. Y. 1, 38, 2 L.R.A. 255, 7 Ain. St. Rep. 684, 18 N. E. 692; Suburban Rapid Transit Co. v. New York, 128 N. Y. 510, 520, 28 N. E. 525; People ex rel. Woodhaven Gaslight Co. v. Deehan, 153 N. Y. 528, 532, 47 N. E. 787; Ghee v. Northern Union Gas Co. 158 N. Y. 510, 513, 53 N. E. 692; Rochester v. Rochester R. Co. 182 N. Y. 99, Copyright (c) West Group 1998 No claim to original U.S. Govt. works jJ 7cl 35 S.Ct. 72, 235 U.S. 179, New York Electric Lines Co. v. Empire City Subway Co., (U.S.N.Y. Page 8 1914) y 119, 70 L.R.A. 773, 74 N. E. 953; New York v. Bryan, 196 N. Y. 158, 164, 165, 89 N. E. 467, New Orleans Gaslight Co. v. i. nuisiana Light & If P. & Mfg. Co. 115 U. S. 650. 660, 29 L. ed. 516, 520, 6 Sup. Ct. Rep. 252; Nca Orleans \\'atcrtk.;rks Co. v. Rivers, 115 U. S. 674, 680. 681, 29 L. ed. 525, 527, ku 528, 6 Sup. Ct. Rep " . \\'a11a Walla v. WallaWallaWater Co. 17: U. S. 1, 9, 43 L. ed. 341, 345, 19 1. Sup. Ct. Rcp, 77; Uettoi; Urt10it Citizens' Street R. Co. 194 U. S. 368, 394, 46 L. ed. 592, 610, 22 Sup. Ct. Rep. 410; 1 ouis%ille 477. v. CuinikAand Teleph. & Teleg Co. 224 U. S. 6.49, 658, 663, 56 L. ed. 934. 938, 940, 32 Still. Ct. Rcf 572; Grand Trunk Western R. Co. v. South Bend, 227 U. S. 544, 552, 57 L. ed. 633, 639, 44 L.R.A. (N.S.) 405, 33 Sup. Ct Rep. 303; Owensboro v. Cumberland Teleph. & Teleg. Co. 230 U. S. 58, 65, 57 L. cd. 1389, 1393, 33 Sup. Ct. Rep. 988; Boise Anesian Hot & Cold Water Co. v. Boisd Citv, 230 U. S. 84, 90, 91, 57 L. ed. 1400, 1400, 1407, 33 Sup. Ct. Rep. 997; Russell v. Sebastian, 233 U. S. 195, 204, 58 L. ed. 912, 921, 34 Sup. Ct. Rep, 517, Ann. Cas. 1914C, 1282. i 1 Copyright (c) West Group 1998 No claim to original U.S. Govt. works E 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page 1 `. 0801 601 F.Supp. 801 1985-1 Trade Cases P 66,507 Dennis CARLSON. et al., Plaintiff, v. VILLAGE OF UNION CITY, MICHIGAN, et al., Defendants. No. K83-243 CA. United States District Court, W.D. Michigan, Southern Division. Jan. 29, 1985. Cable television franchisee commenced action against village and others after franchise was revoked. On i defendants' motion for summary judgment on all federal claims and to dismiss pendent state claims for lack of jurisdiction, the District Court, Benjamin F. Gibson, J., held that: (1) revocation of franchise was exempt under "state action" do trine from federal antitrust scrutiny; (2) franchisee's First Amendment rights were not violated by the revocation; (3) franchisee was not denied equal protection by the revocation; (4) revocation of the franchise did not constitute a 'taking` in violation of the Fifth Amendment; and (5) revocation of the franchise did not constitute an impairment of contract. i Motions granted. t 1. MUNICIPAL CORPORATIONS G- 120 268 ---- 268IV Proceedings of Council or Other Governing Body 268IV(B) Ordinances and By -Laws in General 268k120 Construction and operation. D.C.Mich. 1985. An ordinance may have (he effect of both a legislative act and a contract between parties. 2. FEDERAL COURTS G°=386 170B ---- 170BVi State Laws as Rules of Decision 4t 170BVI(B) Decisions of State Courts as Authority { 1708086 State constitutions and statutes, validity and construction. D.C.Mich. 1985. { Federal district court will defer to a state court's interpretation of its own Constitution. 3. MONOPOLIES (2;— 12(15.6) 265 # 26511 Trusts and Other Combinations in Restraint of Trade 265k11 Combinations Prohibited { 265k12 In General 265k12(15.5) Stare or Governmental Action 265kl2(15.6) In general. Formerly 265k 12(15.5), 265k 12(l6) D.C.Mich. 1985. Copyright (c) West Group 1999 No claim to original U.S. Govt. works 9- 9- 720 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page 2 When private parties claim benefit of state action exemption, they are required to show active state supervision of challenged restraint. Sherman Anti -Trust Act, § 1, 15 U.S.C.A. § 1. 4. MONOPO1AFS q--- 12( 10) 265 ---- 26511 Trusts and Other Combinations in Restraint of Trade 265k1I Combinations Prohibited '65k12 In General 265kl2(15.5) State or Governmental Action 265kl2(16) Regulated industries; public utilities. D.C.Mich. 1985. Revocation by village trustees of cable television franchise was pursuant to clearly articulated and affirmatively expressed state police to displace competition with regulation and, thus, was exempt under "state action" doctrine from federal antitrust scrutiny, where revocation was reasonable and foreseeable consequence of authority delegated to village by Michigan Consiitution to control use of its highways and public ways, and state did, to some extent, supervise issuance and revocation of cable television franchises by local governments. Sherman Anti -Trust Act, § 1, 15 U.S.C.A. a I; M.C.L.A. Const. Art. 7, § 29. 5. CONSTITUTIONAL LAW C°;,--90.l(9) 92 ---- 92V Personal, Civil and Political Rights 92k90 Freedom of Speech and of the Press 9200.1 Particular Expressions and Limitations 9200.1(9) Telecommunications. D.C.Mich. 1985. Cable television operators are entitled to protection under the First Amendment; however, their First Amendment rights are not unlimited. U.S.C.A. Const.Amend. 1. 6. CONSTITUTIONAL LAW C°---90.1(9) 92 ---- 92V Personal, Civil and Political Rights 92k90 Freedom of Speech and of the Press 9200.1 Particular Expressions and Limitations 92k90.l(9) Telecommunications. Formerly 372k4-49 [See headnote text below] 6. TELECOMMUNiCAT1ONS <:- 449.10(1) 372 --- 372I11 Television and Radio 372k449 Cable Television Systems 372k449.10 Judicial Review or Intervention 372k449.10(1) In general. D.C.Mich. 1985. Although revocation of cable television franchise by village trustees affected franchisee's speech, federal district court would not inquire into purpose of revocation and, instead, would only conclude that franchise was revoked pursuant to terms of original franchise agreement which regulated only nonspeech aspects of franchisee's conduct, where village trustees did not give their reasons for revoking the franchise. U.S.C.A. Const.Amend. 1. Copyright (c) West Group 1999 No claim to original U.S. Govt. works 09- 720 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich, 1985) 7. CONSTITUTIONAL LAW G-90.1(9) 92 ---- 92V Personal, Civil and Political Rights 92k90 hreedrnn of Speech and of the Press 92k91.1 Panicular and I -imitations 92kW. 1(9) Teleckmmmunications. 'age 3 D.C.Mich. 1985. Where control that village trustees attempted to exert over cable television system was content neutral, revocation of franchise would pass First Amendment scrutiny if it furthered substantial governmental interests, and incidental restriction of free expression wkas no greater than was essential to furtherance of those interests. U.S.C.A, Const.Amend. 1. 8. TELECOMMUNICATIONS G=449(2) 372 ---- 372111 Television and Radio 372k449 Cable Television Systems 372k449(2) Rights of way or other interests in private land. Formerly 372049 D.C.Mich. 1985. Village had substantial interest in controlling use of its public ways for cable television system, M.C.L.A. Const. Art. 7, § 29. 9. TELECOMMUNICATIONS a449(i) 372 ---- 372111 Television and Radio 372k449 Cable Television Systems 372k449(1) In general; regulation in general. Formerly 372k449 D.C.Mich. 1985. Village had substantial interest in insuring that one cable television operator who supplied cable television service to village did so in a manner that served the public interest, where cable television industry in village was a natural monopoly. 10. TELECOMMUNICATIONS L"- 449(6.l) 372 ---- 372111 Television and Radio 372k449 Cable Television Systems 372k449(6) Franchises 372k449(6.1) In general. Formerly 372k449(6), 372k449 D.C.Mich. 1985. Cable television franchise agreement was reasonable means for village to control use of public ways and utility poles for cable television system, where agreement set forth specifications for construction and operation of cable television system, established timetable for construction of system following guidelines of Federal Communications Commission, and provided for revocation of franchise if operator violated any terms of agreement and continued to do so 30 days after having been notified in writing of such violation. M.C.L.A. Copyright (c) West Group 1999 No claim to original U.S. Govt. works 9-� t-- _ N. 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page 4 Const. Art. 7, § 29. 11. CONSTITUTIONAL LAW C0-90.1(9) 92 .... 92V Personal, Civil and Political Rights 92k9O Freedom of Speech and of the Press 921(90.1 Particular Expressions and Limitations 92k9O 1(9) Telecommunications. D.C.Mich. 1985. Revocation by �iliage of cable television franchise did not infringe franchisee's First Amendment rights, where village acted pursuant to revocation clause of original franchise agreement which was narrowly tailored and content neutral and only incidentally limited content of franchisee's speech. U.S.C.A. Const.Amend. 1. 12. CIVIL. RIGHTS C=—'i235(1) 78 7811 Federal Remedies 7811(B) Civil Actions 7811(B)2 Proceedings 78k233 Pleading 78k235 Particular Causes of Action 78k<35(1) In general. Formerly 78kl3.12(3) D.C.Mich. 1985. Claim of cable television franchisee asserted under federal statute guaranteeing equal rights under the law, alleging that village revoked franchise to preclude franchisee from exercising free speech rights Ln favor of 'speech' of another cable television operator, was *801 dismissed, in that franchisee did not allege discrimination on account of race. 42 U.S.C.A. § 1981. 13. CONSTITUTIONAL LAW C.=230.3(1) 92 ---- 92XI Equal Protection of Laws 92k230 Licenses and License Taxes 92k230.3 Trade, Business, or Profession 92k?30.3(1) In general. D.C.Mich. 1985. Claim alleging that cable television franchise was revoked in favor of "speech" of another cable television operator was not subject to strict scrutiny test but, instead, was subject to the rational basis test, since franchisee, at time franchise was revoked, had yet to transmit a signal into any residence in village. U.S.C.A. Const.Amends, 1, 14. 14. CONSTITUTIONAL LAW (S=:D213.l(2) 92 92X1 Equal Protection of Laws 92k213.1 Bases for Discrimination Affected in General 92k213.1(2) Rational or reasonable basis; relation to object or compelling interest. D.C.Mich. 1985. Absent any indication that plaintiff belongs to a suspect class or was treated differently because he was i asserting a fundamental right, constitutional inquiry under equal protection clause is whether challenged state Copyright (c) West Group 1999 No claim to original U.S. Govt. works J9" t-/20 k 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) page S action rationally furthers a legitimate state purpose or interest. U.S.C.A. Const.Amend. 14. 15. CONSTITUTIONAL LASS' G=-230.3(l) 92 ---- 92X1 Equal Pmtet ion of 1:iAs 92k230 Licenses and License Taxes 92k230.3 Trade, Business, or Profession 92k230.3(1) In general. D.C. Mich. 1985. Revocation by village of cable television franchise did not deny equal protection to franchisee, who alleged franchise was revoked to preclude him from exercising his free speech rights and to favor the "speech" of another cable television operator, where revocation of franchise rationally furthered village's interest in controlling use of public domain and ensuring that cable system scrycd public interest. U.S.C.A. Const.Amend, 14. 16. EMINENT DOMAIN 1) 148 ---- 148I Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2(() In General; Interference with Property Rights 148k2(1.1) Particular acts and regulations. D.C.Mich. 1985. Revocation of cable television franchise did not constitute a "taking" of property in violation of the Fifth Amendment, where franchise contained explicit revocation clause as well as several clauses that established conditions subsequent, such as establishing a timetable for installation of the cable system. U.S.C.A. Coast -Amends. 5, 14. See publication Words and Phrases for other judicial constructions and definitions. 17. EMINENT DOMAIN C.-86 148 ---- 148I1 Compensation 14811(B) Taking or Injuring Property as Ground for Compensation 148k81 Property and Rights Subject of Compensation 148k86 Franchises. D.C.Mich. 1985. Franchises are considered "property" for purposes of the takings clause of the Fifth Amendment. U.S.C.A. Const.Amend. 5. See publication Words and Phrases for other judicial constructions and definitions. 18. EMINENT DOMAIN 12--2(1.1) 148 ---- 1481 Nature, Extent, and Delegation of Power 148k2 What Constitutes a Taking; Police and Other Powers Distinguished 148k2(1) In General; Interference with Property Rights 148k2(I ,1) Particular acts and regulations. D.C.Mich. 1985. In action involving revocation by village of cable television franchise, federal district court did not have to resolve underlying contract claim in order to rule on franchisee's claim that revocation constituted a "taking" of Copyright (c) West Group 1999 No claim to original U.S. Govt. works L- 601 F.Supp. 8u1, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page 6 property in violation of the Fifth Amendment, since village trustees voted to exercise their revocation rights under franchise agreement, and franchisee was divested by that act of any franchise property rights he may have held. U.S.C.A Const.Arnend.5. 19. CONSTITUTIONALI- AW(&-- 113 92 .--- 92V11 Obligation of Contracts 92V11(A) Powers of States in General 92k113 Constitutional guaranties in general. D.C.Mich. 1985. Contract clause of Federal Constitution was intended to prevent states or municipalities from revoking previously granted contractual rights. U.S.C.A. Const. An. 1, § 10, cl. 1. 20. CONSTITUTIONAL LAW C:-113 92 ---- 92V11 Obligation of Contracts 92V11(A) Powers of States in General 92k113 Constitutional guaranties in general. D.C.Mich. 1985. Contract clause of the Federal Constitution does not prevent a public body from revoking contractual rights on grounds that contract has not been performed or that any condition thereof, express or implied, has been broken. U.S.C.A. Cons[. An. 1, § 10, cl. 1. 21. CONSTITUTIONAL LAW 136 92 ---- 92V11 Obligation of Contracts 92VII(B) Contracts of States and Municipalities 92k136 Licenses for occupations. D.C.Mich. 1985. Revocation by village of cable television franchise did not constitute an impairment of contract in violation of the Federal Constitution, where franchise contained clause which expressly called for revocation if franchisee did not comply with timetable for construction of cable system. U.S.C.A. Const. Art. 1, § 10, cl. 1. 4'803 James D. O'Connell, O'Connell & Wayne, Highland Park, Mich., for plaintiff. Mark W. Garrison, Tuck & Garrison, Albion, Mich., for defendants. *804 OPINION BENJAMIN F. GIBSON, District Judge. 111 In April of 1981, the Village of Union City granted to St. Joseph Valley Cablevision a franchise, giving St. Joseph the right to build, operate, and maintain a cable television system within the village. (FNI) The franchise was non-exclusive and had a term of 15 years. In April of 1983, after notice and a hearing, t,'te trustees of the village revoked the franchise. By that time, plaintiff, the owner of St. Joseph Valley Cablevision, had expended considerable sums to string cable and erect facilities necessary for the transmission of the cable television signal. Under the terms of the franchise, plaintiff had six months to remove his equipment before the equipment would be considered transferred and assigned to the village. Copyright (c) West Group 1999 No claim to original U.S. Govt. works 0U- '`12U 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page 7 Plaintiff alleges that the village revoked the franchise as a result of a conspiracy between Union Cite, the village trustees, and unknown others, to prevent plaintiff from providing cable television service. Defendants, the village and its individual trustees, claim that the franchise was revoked because plaintiff failed to install the system within the timetable prosided in the franchise agreement. Specifically, defendants claim that, after a period of two years, pi;untiff had Net to provide service to any residences within the village, Plaintiff has claimed Violations of the first amendment, the equal protection clause, the takings clause of the fifth amendment, the contracts clause, and section one of the Sherman Act. Pendent to his federal claims, plaintiff has raised several state law claims, most notably a breach of contract claim. Defendants have moved for summary judgment on all federal claims. in the event the Court grants summary judgment on the federal claims, defendants have moved for dismissal of the pendent state claims for lack of jurisdiction. As discussed below, the Court finds merit in defendants' arguments and grants summary judgment and dismissal. i. THE ANTITRUST CLAIM Plaintiff alleges that defendants consulted with potential competitors of St. Joseph Valley Cablevision and conspired to take over the facilities of St. Joseph's. He claims that defendants intended to prevent him from providing cable television service to the franchise territory and to arrange for one of his competitors, or Union City itself, to monopolize the business of providing cable television service in utie Village of Union City and surrounding areas. Plaintiff claims that defendants revoked his franchise for an anti -competitive purpose and with an anticompetitive effect. He characterizes defendants' conduct as an unreasonable restraint of trade, a group boycott, and a concerted refusal to deal. Defendants have moved for dismissal, claiming that they are immune from federal antitrust liability under the "state action" doctrine. The Court finds this argument convincing and accordingly grants summary judgment on the antitrust claims. The state action exemption was first addressed by the Supreme Court in Parker v. Broivn, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 0943). The state of California had adopted a program for the marketing of its raisin crop that restricted production and marketing of raisins. Faced with conflicting state and federal law, the Court concluded that Congress had not intended for the Sherman Act to restrict the actions of the sovereign states. Thus, the Court held that the state marketing program was immune from the force of the federal antitrust laws. 317 U.S. at 350-51, 63 S.Ct. at 313-14. *805 in Cin of Lafa)erre v. Louisiana Poorer & Light Co., 435 U.S. 389, 98 S.Ct, 1123, 55 L.Ed.2d 364 (1978), a plurality of the Court held that the immunity accorded to actions of states is not automatically extended to actions of municipalities. Expressing concern that a "serious economic dislocation" could result if cities were free to place their own parochial interests above the nation's economic goals, 435 U.S. at 412-13, 98 S.O. at 1136.37, the plurality held that actions of municipalities should not receive the same deference accorded state activity. Instead, Parker immunity should only be granted when a municipality engages in conduct "pursuant to state policy to displace competition with regulation or monopoly public service." 435 U.S. at 413, 98 S.Ct. at 1137. Further, to qualify for immunity, the state policy pursuant to which the municipality acts must be one that is "clearly articulated and affirmatively expressed." 435 U.S. at 410, 98 S.Ct. at 1135. The Supreme Court has recently considered the state action immunity doctrine in the context of a municipality's regulation of cable television. In Cormnuniry Conununicatioru Co. v. Ciry of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982), a cable television operator sued the City of Boulder for enacting a three month moratorium on cable television development. The City argued that, because it was acting pursuant to the home rule powers conferred upon it by the state constitution, it was entitled to Parker immunity, (FN2) The Court held that the home rule provision did not satisfy the "clear articulation and affirmative expression" standard and described Colorado's policy as one of "mere neutrality" respecting the municipal actions challenged as Copyright (c) West Group 1999 No claim to original U.S. Govt. works L 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) anticompetitive. Thus, the Court concluded that the Parker immunity doctrine did not apply. Page 8 Defendants argue that the facts of the present case are distinguishable from those of Boulder. Instead of ' asserting home rule powers as the basis for their actions, defendants suggest that article 7, section 29, of the Michigan ConNIMI(1011 provides the "clearly articulated and affirmatively expressed" state policy required. Article 7, section 29, prowides that: No person, p:+rtnership, asso6ation or corfxuation, public or private, operating a public utility shall have the right to the use of the higlmays, streets, alleys or other public places of any county, [ownship, city or village for wires, poles, pipes, tracks, conduits or other utility facilities, without the consent of the duly constituted authority of the county, township, city or village; or to transact local business therein without first obtaining a franchise from the township, city or village. Except as otherwise provided in this constitution the right of all counties, townships, cities and villages to the reasonable control of their highways, streets, alleys and public places is hereb} reserved to such local units of government, As the Sixth Circuit has recently noted, the Supreme Court's Boulder opinion left open two critical questions. j Hybud Equipment Cor<. v. Cite of Aknur, 742 F.2d 9-19 at 959 (6th Or.1984). First, although the Court made clear that home rule powers alone were insufficient to invoke the Parker *806 exemption, it did not describe what degree of specific statutory authorization would be necessary. Second, it did not resolve a question raised by previous cases --whether a municipality's actions must also satisfy a test of "active state supervision" to qualify for immunity. Both of these issues are raised in the present case. A. Clearly articulated and affirmatively expressed s The Supreme Court has only vaguely outlined the contours of its "clearly articulated and affirmatively expressed" standard. In Lafayette, the plurality noted that its holding did not mean that "a political subdivision necessarily must be able to point to a specific, detailed legislative authorization before it properly may assert a Parker defense." Rather, the actions of the municipality will be immune when a court finds from the authority given the municipality to operate in a particular area 'that the legislature contemplated the kind of action complained of." 435 U.S. at 415, 98 S.C1. at 1138. In Boulder, a majority of the Court adopted the analysis of the Lafayette plurality and emphasized that the legislative directive must be more than a merely neutral expression Of state policy respecting the actions challenged as anticompetitive. 455 U.S. at 48-50, 55, 102 S.Ct. at 839-40, 842. t ! The Sixth Circuit has, to Borne extent, focused the inquiry under the "clearly articulated" standard. In its application of the doctrines enumerated in Lafayerte and Boulder, the Sixth Circuit has held that a municipality is acting pursuant to a "clearly articulated and affirmatively expressed" state policy if its actions are a "reasonable jand foreseeable exercise of delegated powers within the scope of an agency's authori[V." twbud Equipment Corp. v. City ol'Akron, 742 F.2d 949 at 960 (6rh Cir.1984). Thus, in this case, the Court must decide whether Union City's revocation of plaintiff's cable television franchise resulted from a "reasonable and foreseeable exercise" of the powers delegated to Union City by article 7, section 29, of the Michigan Constitution. f 2) The first issue to be resolved is whether cable television is a "public utility" within the meaning of section 29. The Michigan Court of Appeals has specifically held that it is. Aferidian Township v, Robens, 114 Mich.App. 803, 319 N.W.2d 678, amended, Mich.App., 324 N.W.2d 339 (1982). This Court will defer to the state court's interpretation of its own constitution. See Community Communications Co. v. City of Boulder, 455 U.S. 40, 52-53 nn. 15 & 16, 102 S.Ct. 835, 841-42 nn. 15 & 16, 70 L.Ed.2d 810 (1982); Euster v. Eagle Downs Racing Assn., 677 F.2d 992, 996 n. 6 (3d Cir.), cent. denied, 459 U.S. 1022, 103 S.Ct. 388, 74 L.Ed.2d 519 (1982). Given that cable television is a public utility governed by section 29, the next question to be resolved is j' whether that section provides a "cleat articulation and affirmative expression" of state policy regarding the acts of which plaintiff complains. An understanding of the history and purpose of article 7, section 29, is necessary to Copyright (c) West Group 1999 No claim to origutal U.S. Govt. works 601 F.Supp. 901, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) the resolution of that issue. Page 9 Article 7, section 29, of the Michigan Constitution (FN3) was intended to provide local governments with the power to reasonably regulate the use by public utilities of highways, streets, alleys, and other public places. The committee that prolk)sed section 29 explained to the delegates at the 1908 constitutional convention that: (tlhis is a new section, and its purpoxc is to prevent the use of streets, alleys, highways, and public places without the ccut�rrtt of the local authorities first had and obtained i'he word "reasonable" was inserted to place a limitation upon the authority cities, villages and townships may exercise over the streets, alleys, highways, and public places within their corporate limits. And it was pointed •807 out in the debates that without the word "reasonable," or a similar qualification, the section would practically deprive the State itself of authority over its highways and public places. See People v. McGraw, 184 Mich. 233, 237, 150 N.W. 836 (1915). The history of section 29 and the Michigan case law interpreting it suggest that the delegates to the convention did not contemplate that section 29 gave local governments the power to grant monopoly powers to public utilities. In a 1928 opinion, the % ichican Attorney General responded to the question whether a township had the power to grant an exclusive franchise for the use of the township's highways for the transmission and distribution of electric power. 1929-30 Op.Att'y Gen. p. 62 (Aug. 20, 1928). The Attorney General considered the constitutional provision in light of ylichig,an case law and concluded that section 29 did not provide a municipality with the power to grant an exclusive franchise. He noted that Act No. 106 of the Public Acts of 1909, MICH.COMP.LAWS ANN. §§ 460.551-.559 (1967) (current version), reserved for the state considerable I responsibility for the regulation of the electric utilities. Thus, the power granted to municipalities was limited to the "reasonable" regulation of local streets and highways; an exclusive franchise, the Attorney General opined, was not "reasonable." See MICH.COMP.LAWS ANN. § 460.553 (1967) ("nothing herein contained shall be construed to impair any right possessed by any village or township to the reasonable cortrol of its streets, alleys and public places in all matters of mere local concern ") (emphasis supplied). (FN4) Even if section 29 was not adopted in contemplation of grants of monopoly power, the very fact that section 29 requires a utility to obtain a franchise from a municipality before transacting local business suggests that some anticompetitive restraints were contemplated. See Century Federal v. City of Palo Alto, 579 F.Supp. 1553, 1557 (N.D.Calif 1984) ("the word 'franchise' connotes a certain degree of exclusivity"). Cf. Hopkirzville Cable TV, Inc. v. Penn vrovai Cablevision, Inc., 562 F.Supp. 543, 546 (W.D.Ky.1982) (concluding that a similar local franchise provision of the Kentucky constitution gave municipalities the power to grant monopoh• power). Moreover, it would appear that article 7, section 29, gives local governments the authority, for reasons of safety and aesthetics, to restrict the number of utility poles erected, the number of wires strung, and the mariner in which those wires are strung. The pleadings and affidavits of this case suggest that safety concerns were partially responsible for the dispute between plaintiff and defendants. The affidavit of James Spencer, the Village Superintendent, states that, in his opinion, at least fifty percent of the cabling done by plaintiff was in violation of applicable codes and regulations. Further, he avers that there have been several instances in which persons driving trucks or other large vehicles have struck cables strung by plaintiff. Nothing in the record contradicts the evidence that one of the purposes of the franchise agreement was to set safety standards to govern plaintiff's operation. (FN5) •808 The Court concludes that the power granted to municipalities through article 7, section 29, satisfies the requirements of the "clearly articulated and affirmatively expressed" standard. Although it does not appear that those who ratified section 29 contemplated grants of monopoly power, it does appear that they contemplated regulation that would have an anticompetitive effect. See City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 413, 98 S.Ct. 1123, 1137, 55 L.Ed.2d 364 (1978) (actions of municipality will be immune if they are taken "pursuant to a state policy to displace competition with regulation or monopoly public service") (emphasis supplied). Copyright (c) West Group 1999 No claim to original U.S. Govt. works f'v y 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page 10 The act of which plaintiff complains is defendants' revocation of his franchise. A revocation such as that which occurred in this case is the reasonable and foreseeable consequence of the authority delegated to Union City by article 7, section 29, of the Michigan Constitution. That provision grants to Union City the right to control the use of its highways and public Wass. It gkcs the sillagc the right to grant, and implicitly gives the right to revoke, franchises for use of the public ways, subject to the limitation that such actions must be reasonable. See People i. McGraw, 184 ".rich. 233, 150 NAV. 836 (1915). Union City has acted pursuant to this grant of pooker and, therefore, the "clearly articulated and affirmatively expressed" standard of Boulder and Lofal'eive is sansticd. B. Active government supervision (31 When private panics claim the benefit of the state action exemption, they are required to show active state supervision of the challenged restraint. For example, in California Retail Liquor Association v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.O. 937, 63 L.Ed.2d 233 (1980), the Court held that price restraints established by wine wholesalers pursuant to a state statute were not exempt from antitrust scrutiny. Although the state statute authorized the activity, the Court held that active state government supervision of the regulatory scheme was required in order for the program to fall under the state action exemption. 445 U.S. at 104-06, 100 S.Ct. at 942-44. In Boulder, the Supreme Court left open the question whether the active government supervision requirement applies when local governments, rather than private parties, seek the protection of the state action doctrine. The Sixth Circuit considered this question in Hrbud Equipment Corp. v. OrY of Akron, 742 F.2d 949 (6th Cir.1984), a case involving a state agency. The court concluded that the issue of state supervision should be considered as part of the general inquiry into whether the agency's actions are to be considered actions of the state. Id. at 964. Although, in Michigan, cable television is not subject to supervision by a state agency, (FN6) this Court finds significant that the state does extensively regulate other public utilities. See, e.g., MICH.COMP.LAWS ANN. §§ 460.1-.848 (1967 a Supp. 1983) (powers granted to the Michigan Public Services Commission). The Court assumes that, because the legislature has provided for oversight of the activities of public *809 utilities in general, it will similarly provide for oversight of the cable television industry if it determines that further supervision is required. Moreover, the state legislature provided for some supervision by narrowly tailoring its grant of authority to the municipalities. Article 7, section 29, only authorizes local governments to "reasonably" control the use of highways and public ways. Thus, the state courts, in some sense, act as rile ultimate "supervisors" of the I activities of the municipalities. If the conduct of the municipality is trot reasonably related to a legitimate local concern, a state court could find the municipality to be acting outside the scope of authority conferred by article 7, section 29. See People v. McGraw, 184 Mich. 233, 150 N.W. 836 (1915); 1929.30 Op.Att'y Gen. p. 62 (Aug. 20, 1928). (41 Thus, the Court finds that the State of Michigan does, to some extent, supervise the issuance and I revocation of cable television franchises by local governments. To the extent the supervision factor is to be considered in addition to the: "clearly aniculated" standard, it merely reaffirms the Court's conclusion that Union City's revocation of plaintiff's franchise was pursuant to a "clearly aniculated and affitmatively expressed" state policy to displace competition with regulation. R. THE FIRST AMENDMENT CLAIM Plaintiff claims that, as a cable television operator, he is entitled to first amendment protection. He contends that, by passing an ordinance revoking his franchise, defendants intended to and did in fact preclude him from disseminating news, information, entenainment, and ideas. He also claims that defendants revoked his franchise expressly in order to provide the opportunity for a different cable television operator to "speak." to the village residents. Copyright (c) West Group 1999 No claim to original U.S. Govt. works 1 s' " 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) rage 11 15) There is no doubt that cable television operators are entitled to protection under the first amendment. Omega Satellite Products Co. v. City of hulianapolis, 694 F.2d 119, 127 (7th Cir.1982); Community Communications Co. v. City «( Boulder, W*1 f _2d 1370. 1376 tlOth Cir.1981), cert. denied, 456 U.S. 1001. 102 S.Ct. 2287, 73 L.Fd.2d 12(6 (1982) (hctctnafter cited as Roulder 11 ); Home Bo.t Office, Inc. v. F.C.C., 567 F.2d 9 (D C.C:r.), cert. denied, 434 U.S. 8,19, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). Their first amendment rights, however, are not unlintitcd. Defendants con-nd that their revocation of plaintiff's franchise was not an attempt to regulate the content of plaintiff's speech and, for that reason, did not infringe plaintiff's first amendment rights. Plaintiff argues that, by revoking his franchise, defendants have indeed regulated the content of his speech --to the extent of completely stifling it. (61 The Coup has concluded that, although the revocation of plaintiff's franchise affected plaintiff's speech, its primary purpose was to regulate non-sNech elements of plaintiff's conduct. The ordinance granting plaintiff the franchise dealt primarily with conditions regarding the installation of wires and construction of facilities for the cable system. The closest that the franchise agreement got to regulating the content of plaintiff's cable signal was in section 12, which required plaintiff to provide the minimum channels required by the F.C.C. (FN'7) Because plaintiff had not yet begun to operate the cable systern when his franchise was revoked, this arguably content - related provision could not ha%e been the basis for that revocation. Thus, *810 judging the ordinances granting and revoking plaintiff's franchise on their faces, the Court concludes that both were attempts to regulate non - speech conduct, not to reguiate the content of plaintiff's speech. Plaintiff has claimed that, irrespective of what the franchise agreement says, defendants revoked his franchise with a purpose of stifling the content of his broadcast signal and favoring the content that would be provided by another cable operator. Although there is no evidence before the Court regarding defendants' purposes in revoking plaintiff's franchise, even if plaintiff could present such evidence, it would not be relevant. When the village trustees revoked plaintiff's franchise, they did not give their reasons. The Supreme Court has noted, in the first amendment contest, that inquiries into the purpose of legislative bodies is a hazardous undertaking. United States v. O'Brien, 391 U.S. 367, 383, 88 S.Ct. 1673. 1682, 20 L.Ed.2d 672 (1968). What may have been the purpose of one village trustee in voting for revocation may be entirely different than the intent that motivated another. Thus, this Court will go no further than to conclude that plaintiff's franchise was revoked pursuant to the terms of the original franchise agreement, which regulated only non -speech aspects of defendant's conduct. Compare Home Box Office, supra at 48 (purpose of FCC regulation was content -neutral) with Berkshire Cablevision v. Burke, 5.11 F.Supp. 976 (D.R.1.1983) (public access regulations affect operators' editorial discretion and, therefore, are not content -neutral). (7] Because the control that Union Cio has attempted to exert over plaintiff's cable television system is content -neutral, the test for this Court to apply to decide whether there has been a first amendment violation is that set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Defendants' revocation of plaintiff's framchise will pass first amendment scrutiny if: 1) it furthers substantial governmental interests; and 2) the incidental restriction of free expression is no greater than is essential to the furtherance of those interests. Id. at 377, 88 S.Ct. at 1679; see also Home Box Office, supra at 48. 181 The weightiest governmental interest in this case is Union City's interest in controlling plaintiff's use of the village streets and village -owned utility poles for the laying and stringing of cable. Many courts have recognized that municipalities have substantial interests in controlling disruptive use of the public domain by cable television operations. Boulder 11, supra at 1377; Ornega Satellite Products Co. v. City of Indianapolis, 694 F.2d 119, 127 (7th Cir.1982); Century Federal, Inc. v. City of Palo Alto, 579 F.Supp. 1553, 1564-65 (N.D.Calif.1984); Berkshire Cablevision v. Burke, 571 F.Supp. 976, 985 (D.R.1.1983). Compare Community Communications Co. v. City of Boulder, 630 F.2d 704, 712 (IOth Cir.1980) (Markey, C.J., dissenting) (because cable operator contracted with utility to deliver signal, city had no substantial interest in preventing disruption of the public domain), rev'd on other grounds, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 910 (1982), Greater Fremont, Inc. v. City of Fremont, 302 F.Supp. 652, 662 (N.D.Ohio 1968) (franchise agreement was not a Copyright (c) West Group 1999 No claim to original U.S. Govt. works vil 1­i�.eiJ 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page 12 legitimate exercise of police power where cable operator was nut attempting to erect its own distribution system and was, therefore, not disrupting the public domain). In this case, the village's interest in controlling use by plaintiff of its public ways is expressly countenanced I,., article 7, section 29, of the Michigan Constitution. 191 Because it appears that the cable television industry in the Village of Union City is a natural monopoly, (FNS) the villa] also *811 has an interest in ensuring that the one cable operator whu supplies cable service to the village does so in a mariner that scnes the public interest. In Red Lion Broadcasting Co, v. F.C.C., 395 U.S. 367, 89 S.Ct. 17Q4, 23 1. l d 'd 371 (1969), the Supreme Court justified regulation of the broadcasting industry on the grounds that there is a "physical scarcity" of radii frequencies and, therefore, a physical limitation on the number of people who can "speak" through the media of television and radio. Under those circumstances. the Court held, governmental regulation in the public interest that has an incidental effect of limiting the first amendment exercise of the broadcasters is permissible. (FN9) A number of courts have, to some extent, extended this theory to circumstances where cconornic, rather than physical, scarcity has limited the number of cable television "speakots" in a given area. (FNIO) In Boulder 11, the City of Boulder argued that "cable broadcasting is a monopolistic industry because it is not ( economically viable for more than one cable company to operate in any given geographic area." The Court concluded that, "when faced with a request for a license front a cable operator, government ... must be permitted to deal with the effects of the scarcity that may attend the use of the license it is about to issue. That is, government must have sonic authority in such a context to see to it that optimurn use is made of the cable medium in the public interest." I& at 1379. See also Berkshire Cablevision v. Burke, 571 F.Supp. 976, 986-87 } (D.R.I.1983). i Although some courts have questioned whether economic scarcity alone may Justify governmental intervention that limits first amendment exercise, see Nome Bar Office, supra at 46, that question need not be resolved in this case. Here, as discussed above, the weightiest governmental interest is in preventing disruption of the public domain. The need to regulate in the face of economic scarcity serves merely to buttress the village's primary interest. Given that Union City has a substantial interest in regulating the activities of plaintiff's cable operation, the Court must next consider whether the "incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). In this case, the means that the village chose to restrict plaintiff's activities was the franchise agreement. That agreement set forth specifications for construction and operation of plaintiff's cable television system and, apparently following the guidelines of the F.C.C., see 47 C.F.R. § 76.31 & note followu-tg (1983), established a timetable for construction of the system. (FN11) It provided for revocation if the company violated any terms of the agreement and continued to do so thirty days after having been notified in writing of such violation. (FN 12) *812 [101 The franchise agreement was a reasonable means for the village to control plaintiff's use of the public ways and the village's utility poles. See Berkshire Cablevision v. Burke, 571 F.Supp. 976, 985 (D.R.1.1983). The agreement was narrowly tailored to support the interests of the village without unduly interfering with plaintiff's first amendment rights. As discussed above, no portion of the franchise agreement arguably relevant to this lawsuit attempted to control the content of plaintiff's speech. See Id. at 986 (courts must carefully scrutinize regulations controlling the cable industry to ensure that operators are not being regulated because public officials disapprove of their views). (111 It appears from the pleadings in this case that defendants revoked plaintiff's franchise because plaintiff did not comply with the timetable for construction. It is not important, however, for this Court to establish exactly why the franchise was revoked. The original franchise agreement, including the revocation clause, was narrowly tailored and only incidentally limited the content of plaintiff's speech. As such, it did not violate plaintiff's first amendment rights. When the village revoked plaintiff's franchise, it acted pursuant to the revocation clause of the original franchise. Thus, although plaintiffs are not precluded from seeking a remedy in contract for wrongful Copyright (c) West Group 1999 No claim to original U.S. Govt. works e�teJw 7 �rV 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page 13 revocation, their first amendment rights have not br n infringed. Accordingly, summary judgment is granted on plaintiff's first amendment claim. Ill. THF. FQUAl. PROTECTION AND SECTION 1981 CLAIMS Plaintiff claims that dcfcndant< rc\okcd his franchise in order to preclude him from exercising his free speech rights, in favor of the -speech" of another cable television operator. Plaintiff argues that this conduct violates his rights under 42 U,S C ; 1981 and the equal protection clause of the fourteenth amendment. [121 Plaintiff has not alleged that defendants discriminated against him on account of race. For that reason, his claim under 42 U.S.C. ti 1981 must be dismissed. See Glover v. Toner, 700 F.2d 556 (9th Cir.1981), aff d on other grounds, 467 U.S. 914, 104 S.Ct. 2820, 81 1..Ed.2d 758 (1984); La vlrigan v. CirY of liar -wick, 628 F.2d 736 (1st Cir.19S0). 1131 By alleging that defendants revoked his franchise in order to preclude him from exercising his free speech rights, plaintiff appears to be suggesting that the Court should apply the strict scrutiny test to his equal protection claim. The Coun has already concluded that plaintiff's first amendment rights were not infringed by defendants' revocation of his franchise. Moreover, the Court fails to understand how defendants could have treated plaintiff differently because of the 'speech" element of his cable broadcast when, at the time they revoked his franchise, he had yet to transmit a signal into any residence in Union City. The Court concludes that defendants' treatment of plaintiff did not result from his assertion of a fundamental right and therefore concludes that the strict scrutiny test does not apply. See Brown v. Aleromuier, 718 F.2d 1417, 1423 (6th Cir.1983) (strict senitiny test did not apply when court found there was no first amendment violation). [141 Absent any indication that plaintiff belonged to a suspect class or that he was treated differently because he was asserting a fundamental right, the constitutional inquiry under the equal protection clause is whether the challenged state action rationally $813 furthers a legitimate state purpose or interest. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 55, 93 S.Ct. 1278. 1308, 36 L.Ed ' S (1973); Brown, supra at 1423; Parks v. Watson, 716 F.2d 646, 654 (9th Cir.1983). [151 As discussed above in the context of plaintiff's first amendment claim, .,;c revocation of his franchise rationally furthered Union City's interests in controlling the use of the public domain and ensuring that the cable system in Union City served the public interest. Accordingly, summary judgment is granted on the equal protection and section 1981 claims. IV. THE TAKINGS CLAIM 1161 Plaintiff has claimed that the franchise granted him by defendants constituted a property right and that its revocation violated the takings clause of the fifth amendment as applied to state action by the fourteenth amendment. The Court holds that, although plaintiff's franchise was a property right, the right was circumscribed by conditions set forth in the franchise agreement. Thus, defendants' revocation did not amount to a "taking" of property, but was simply an exercise of a limitation inherent in the property grant. 117] Although franchises are considered property for purposes of the takings clause, New York Electric Lines Co. v. Empire City Subwa-, Co., 235 U.S. 179. 193-94, 35 S.Ct. 72, 76, 59 L.Ed. 184 (1914); Lansing Township v. City of Lansing, 356 Mich. 338, 374, 97 N.W.2d 128 (1959), this is not a case where a municipality granted an irrevocable franchise or a franchise for a term of years with no conditions for revocation. See Benton ILarbor v. Michigan Fuel & Light Co., 250 Mich. 614, 619.20, 231 N.W. 52 (1930) (holding that a corporation had vested property rights in a franchise that was granted for a term of thirty years and renewable for a like term). Instead, plaintiff's franchise contains an explicit revocation clause as well as several clauses that establish conditions subsequent, such as the provision establishing a timetable for installation of the cable system. Defendants do not dispute that the franchise gave plaintiff some vested property rights, but they argue that Copyright (c) West Group 1999 No claim to original U.S. Govt. works 99- "1Zty 4 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page 14 those property rights are no broader than plaintiff's contractual rights. Thus, if they revoked the franchise pursuant to the terms of the franchise agreement, the\. claim there has been no taking. See generalh, City of Paragould v. Arkansas Utilitic, Co., 70 F.2d 530, 533 (8th Cir.1934) (gran(s of special franchises are strictly construed in favor of pu1111c rights, and "[o)nly that which is granted in clear and explicit terms passes by a grant of property, franchise, or privilege in which the go\ernment or the public has an interest"), cert. denied, 293 U.S. 586, 55 S.Ct, 101, 79 L.Ed. 682 (1934), Caselaw supports defendants' charactcri.ation of plaintiff's limited property rights. In New fork Electric Lines Co. v. f_'mpue Citv Sublva'v Co., 235 U.S. 179, 193-94, 35 S.Ct. 72, 76-77, 59 L.Fd. 184 (1914), the Supreme Court held that the City of New York, did not 'take" a utility company's property when it revoked a franchise pursuant to an implied condition that the company must use the ftanchise within a reasonable period of time. The Court noted that "when it is said that there is vested an indefeasible interest, easement, or contract right, it is plainl) meant to refer to a franchise not only granted but exercised in conformity with the grant.... it is a tacit condition annexed to grants of franchises that they may be lost by mis-user or non -user." Id. at 195, 35 S.Ct. at 77. The facts of the case before this Court are evcn stronger than those presented in New York Electric Lines; defendants here have revoked plaintiff's franchise pursuant to an erpress revocation clause in the original franchise. The Court concludes that plaintiff's vested property rights can be no broader than his contractual rights. Under the terms of the franchise nereement, defendants could revoke the franchise for violation by the plaintiff of any of the terms of that agreement. (FN 13) -814 (FN 13) Plaintiff accepted the contractual limitations of the franchise when he entered into the agreement. He cannot now expand those rights by simply raising a federal constitutional claim. 118] Plaintiff could argue, however, that this Court should not resolve the takings claim until this or another court has determined whether defendants' revocation complied with the terms of the franchise agreement. The Court dismisses that argument for two reasons, one based on precedent, the other on policy. In Atlantic & Pacific Railroad Co. v. bfingus, 165 U.S. 413. 17 S.Ct. 348, 41 L.Ed. 770 (1897), the Supreme Court considered the effect of revocation by the United States Congress of a land grant to the Atlantic & Pacific Railroad Company. The company was incorporated by an act of Congress authorizing it to construct a railroad from Springfield, Missouri, to the Pacific Ocean. The act granted to the railroad sections of land adjacent to the right-of-way. As in the present case, the act contained a provision setting forth a timetable for construction: the company was to lay not less than fifry miles of track per year and was to complete the 2,267 miles of track by 1878. Also as alleged in the present case, the railroad failed to meet the timetable for construction. By 1878, the company had completed only ! 25 miles. As a result, Congress passed an act in 1886 forfeiting and restoring to the public domain all land adjacent to uncompleted portions of the main line of the railroad. The railroad company maintained that Congress could not simply pass an act forfeiting the grant. Instead, it argued, Congress must instigate a legal proceeding to judicially determine 'whether there had been a breach of a condition on the pan of the grantee, and the legal effect of such breach, and also whether there has not been a breach on the part of the United States which would estop them from claiming a forfeiture." Id. at 431, 17 S.Ct. at 352. The Court held that the act of Congress revoking the grant was effective, noting that when a public body has made a grant, the grant may be revoked by either a judicial proceeding or a legislative act. Id. at 431, 17 S.Ct. at 352. Although plaintiff would have the right to challenge in a judicial proceeding the propriety of the revocation under die terms of the original grant, the effect of the revoking act was immediate --plaintiff was divested of title to the land. Applying the analysis of Atlantic & Pacific Railroad to the current case, the Court concludes that it need not Copyright (c) West Group 1999 No claim to original U.S. Govt. works 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich, 1985) Page 15 resolve the underlying contract claim in order to rule on the takings claim. The defendant village trustees, by legislative act, voted to exercise their revocation rights under the franchise agreement. For the purpose of this Court's analysis under the takings clause of the federal constitution, plaintiff was divested by that act of any franchise property rights he may have held. Further, the Court cannot ignore the implications of a decision in plaintiff's favor. If this Court held that it must first decide the contract clam before resolving the federal takings claim, every time a governmental entity asserted a contractual right to revoke or forfeit, that entity would be dragged into federal court on a federal "takings" thcory. Logic suggests that, so long as defendants' revocation purported to be pursuant to the terms of the original franchise grant, there, can be no "taking" of property. if plaintio breached the franchise agreement, defendants had a right to revoke, and plaintiff was not deprived of any contractual right. If defendants breached the agreement, then plaintiff will receive his remedy under contract law. If he receives specific performance, in this case the right to hook his cable system up to the individual homes in she village, then he will not be deprived of property for purix)ses of *815. the fifth amendment. If he receives monetary relief, then he will not be able to argue, under the fifth amendment, that he was deprived of property without compensation. in any case, there simply is no viable takings claim. Accordingly, defendants' motion for summary judgment on the takings claim is granted. V. THE IMPAiRMENT OF CONTRACT CLAIM Based on a similar analysis, the Court has concluded that plaintiff has not stated a claim for relief under article I, section 10, of the federal constitution, forbidding acts by public bodies that have the effect of impairing contractual rights of private parties. [191 [201 1211 The contract clause of article 1, section 10, was intended to prevent states or municipalities from revoking previously granted contractual rights. See Southern Bell Telephone & Telegraph Co. v. City of Meridan, 154 F.Supp. 736 (S.D.Miss.1957). 1, does not, however, prevent a public body from revoking contractual rights on the grounds that "the contract [has) not been performed, or that any condition thereof, express or implied, [has] been broken." New York Electric Lines Co. v. Empire Ciry Subh+a"v Co., 235 U.S. 179, 194, 35 S.Ct. 72, 76, 59 L.Ed. 194 (1914). In New York Electric Lines, the Court held that plaintiffs contractual rights were not impaired when plaintiff failed to comply with an implied condition that it exercise its franchise rights within a reasonable period of time. Certainly the same analysis applies in a case such as that before die Court, where plaintiffs franchise contained a clause which erpresslY called for revocation if plaintiff did not comply with the timetable for construction of the cable system. As in the case of the due process claim, once it is determined that the municipality had the right to revoke plaintiffs franchise, the revocation cannot be considered an impairment of contract. Whether the revocation was a proper exercise of the terms of the franchise is a question of state, not federal, law. V1. THE SECTION 1983 CLAIM As discussed above, the Court has concluded that plaintiff's constitutional claims lack merit. Accordingly, plaintiffs claim for relief under 42 U.S.C. § 1983 for violation of his constitutional rights must be dismissed. VIi. THE PENDENT STATE CLAIMS The Court has granted summary judgment on all federal claims raised by plaintiff. Accordingly, the Court does not have pendent jurisdiction over the remaining state law claims, and those claims are dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct, 1130, 1139, 16 L.Ed.2d 218 (1965). JUDGMENT Copyright (c) West Group 1999 No claim to original U.S. Govt. works - ''i�ILY L a 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page I6 In accordance with the Opinion dated January 1985, IT IS HEREBY ORDERED that the Court grants defendants' motion for summary judgment on Counts I through V of plaintiff's complaint. The remaining counts are dismissed for lack of subject matter jurisdiction. IT IS SO ORDf_RFI) FNI. Defendants have claimed that, because plaintiff never signed the franchise agreement, there is no contract. For the purpose of this motion, the Court has assumed, in the plaintiff's favor, that such a contract existed. The franchise was granted and revoked by means of village ordinances. An ordinance may have both the effect of a legislative act and a contract between parties. See Flint and Fentonville Plank -Road Co. v. Woodhull, 25 Mich. 99, 101-02 (1872). FN2. Article 20, section 6 of the Colorado Constitution provides that: The people of each city or town of this state, having a population of two thousand inhabitants ... are hereby vested with, and they shall always have, power to make, amend, add to or replace the charier of said city or town, which shall be its organic law and extend to all its local and municipal matters. Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith. It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters.... The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except insofar as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters. See Communiry Communications Co. v. Ciry of Boulder, 455 U.S. 40, 43 n. 1, 102 S.Ct, 835, 836 n. 1, 70 L.Ed,2d 810 (1982). 0815 FN3. Article 7, section 29, of the current constitution was derived from article 8, section 28, of the 1908 constitution. The history detailed here is that of the original version of the provision in the 1908 constitution. FN4. It appears that, because of the small population of the village of Union City and because of the nature of the service, the cable television market in the village may well be a natural monopoly. See Lamb Enterprises, Inc. v. Toledo Blade Co., 461 F.2d 506, 511-15 (6th Cir.), cert. denied, 409 (1.5. 1001, 93 S.Ct. 325, 34 L.Ed.2d 262 (1972); White v. Ann Arbor, 406 Mich. 554, 575-77, 281 N.W.2d 283 (1979) (Moody, J., concurring); 19',3-74 Op.Att'y Gen. No. 4808 p. 130, 134 n. 2 (April 25, 1974). Thus, even if article 7, section 29, only authorizes the grant of non-exclusive franchises, it is "reasonable and foreseeable' that only one such franchise would be granted for each type of public utility. FNS. The Court notes that the franchise agreement between Union City, and St. Joseph's Cablevision goes further than merely establishing safety specifications for the stringing of cable. For example, it sets forth the rates to be charged customers, channels to be carried, and specifications for the quality of signal to be provided. It also requires plaintiff to pay an annual franchise fee and to provide broadcasting equipment for use by the village. These provisions are not directly related to the village's control of its highways and public ways. Given that article '7, section 29, permits a village to restrict the number of franchises granted, it appears to the Court that these collateral provisions reflect proper considerations in the village's determination of to whom those limited franchises should be granted. See Meridian Township v. Roberts, 114 Mich.App. 803, 319 Copyright (c) West Group 1999 No claim to original U,S. Govt. works 601 F.Supp. 801, Carlson v. Village of Union City, Mich., (W.D.Mich. 1985) Page 17 N.W.2d 678, amended Mich.App., 324 N.W.2d 339 (1982) (which appears to interpret article 7, section 29, as giving municipalities the power to enter into such franchise agreements). FN6. The Michigan Public Services Commission has determined that it does not have jurisdiction over the cable television industry. City t> Jackson t,. Michigan Bell Telephone Co., 63 PUR3d 384 (Mich. Public Service Comm'n, 1960); see lQiire v. Ann Arbor, 406 Mich. 554, 564 n. 2, 281 N.W.2d 283 (1979); Perlongo v. Iron Ricer T>', 122 Mich App. 433. 436, 332 NAV.2d 502 (1983); see generallY kCif Broadcasting of Michigan, Inc. r. ,Michigan Public Service Comm'n, 113 Mich.App. 79, 85-86, 317 N.W.2d 295 (1982) (the Michigan Public Service Commission has no broad grants of power; rather, its jurisdiction is grounded on specific statutory grants of authority;. FN7. Section 12 of the franchise agreement provides that: A. The Company shall comply with all rules and regulations of the F.C.C. with respect to the reception, carriage, and distribution of signals. B. Minimum channel complement shall include all V.H.F. channels significantly viewed, public, community, and education channels as required by the F.C.C. C. The Company shall transmit and deliver over Village channels the signals designated therefore by the Village council at such times as the Village Council shall determine. FN8. Both parties have conceded that the cable television industry in Union City has the characteristics of a natural monopoly. Defendant has indicated that, 'although plaintiff was granted a non-exclusive franchise, the size of the municipality (the Village of Union City consists of between 600 and 700 residences) effectively discourages any other cable companies from attempting to compete with a franchise holder." Defendant's Brief at 10. Plaintiff agreed with this statement. Plaintiff's Brief at 21. FN9. Defendants do not argue that the facts of this case support a theory of physical scarcity. Although the capacity of the village's utility poles to safely support television cables may at some point be limited, no one has suggested that the poles could support only one such cable. •815 FN10. In a number of the reported decisions, the courts have limited their reliance on a theory of 'economic scarcity" expressly because it was not clear whether, on the facts of that particular case, cable television was indeed functioning as a monopoly. In this case, that fact is not in dispute. FN11. Parts A and B of section lei of the franchise agreement provide that: A. The Company shall extend the installation of cables, amplifiers, and related equipment throughout the Village as rapidly as is practicable. B. Within one (1) year from the date of certification from the F.C.C., the Company shall be capable of providing "Basic Service" on a regular basis to at least twenty-five percent (25%) of the Village residences, within 18 months of the date of certification to 100% of the Village residences.... FN 12. Section 3 of the franchise agreement provides that: A. If the Company should violate any of the terms, conditions or provisions of this Ordinance, or if the Company should fail to comply with any reasonable provisions of any ordinance of the Village or F.C.C. regulations, and should the Company continue to violate the same for a period of thirty (30) days after the Company shall have been notified in writing by the Village to desist from such violation, the Company may, at the Village's option, be deemed to have forfeited and annulled all the rights and privileges of this franchise grant. Copyright (c) West Group 1999 No claim to original U.S. Govt. works I 601 F.Supp, 801, Carlson v. Village of Union City, Mich., (W.n.Mich. 1985) Page 18 B. Any franchise granted hereunder shall be subject to all applicable provisions of Village ordinances, any amendments thereto. C. Any franchise granted hereunder shall be subject to all applicable state and federal laws, including rules and regulations established by the F.C.C. FN13. See supra note 12. 174 So.2d 49, City of Miami v. Bus Benches Co., (Fla.App. 3 Dist. 1965) page 1 049 174 So.2d 49 CITY OF MIAMI, Florida, a municipal corporation created and existing under the la�� s of the State of Florida, et al.. Appellants, V. BUS BENCHES CO.. a Florida corporation, Appellee. No. 64-744. District Court of Appeal of Florida, Third District. April 6, 1965. Rehearing Denied May 4, 1965. Action by company seeking injunction to restrain municipal officials from interfering with its contract with city to install bus benches within city and advertise thereon. The Circuit Court, Dade County, Lucien C. Proby, Jr., J., entered judgment for plaintiff and defendants appealed. The District Court of Appeal held that where pursuant to ordinance and appropriate resolution company obtained city's agreement permitting company to install benches within corporate limits of city and to advertise thereon for period of five years, city was not authorized by resolution to prohibit use of bus benches in certain residential areas or order their removal therefrom. Affirmed. 1. APPEAL AND ERROR (E -934(1) 30 ---- 30XV1 Review 30XVI(G) Presumptions 30k934 Judgment 30034(1) In general. Fla.App., 1965 Final decree of lower court arrived in reviewing court with presumption of correctness. 2. APPEAL AND ERROR 901 30 ---- 30XVI Review 30XVI(G) Presumptions 30k901 Burden of showing error. Fla.App., 1965 It was incumbent upon appellant to demonstrate error in decree of lower court. " 3. MUNICIPAL CORPORATIONS (:3�=253 268 ---- 268VII Contracts in General 268k253 Performance or bleach. Fla.App., 1965 Municipality is bound to recognize its contracts the same as an individual. 4. CONSTITUTIONAL LAW Ca121(2) 92 ---- 92VII Obligation of Contracts 92VI1(B) Contracts of States and Municipalities 92k121 Contracts of state or municipality with individuals in general 92k121(2) Municipality. Fla.App., 1965 Copyright (c) West Group 1998 No claim to original U.S, Govt. works 09" ' 200 174 So.2d 49, City of Miami v. Bus Benches Co., (FIa.App. 3 Dist. 1965) Wage 2 Party to contract with municipality is entitled to constitutional protection against impairment of it if municipality attempts to unilaterally change its obligations under valid agreement. 5. MUN:ICIPAL CORPORATIONS (S�--253 268 ---- 268V'1I Contracl� in General 268k253 Perfornnrice or breach. Fla. App. , 1965 Where pursuant to ordinance and appropriate resolution company obtained city's agreement permitting company to install benches within corporate limits of city and to advertise thereon for period of five years, city was not authorized by resolution to prohibit use of bus benches in certain residential areas and order their removal therefrom. *50 John R. Barrett, City Atty„ and Jack R. Rice, Jr., Asst. City Atty., for appellants. Okell & Okell, Miami, for appellee. Before BARKDULL, C. J., and TILLMAN PEARSON and SWANN, JJ. PER CUR' By this appeal, the court is called upon to review the correctness of a final decree rendered by a chancellor in a controversy between the appellants (who were the defendants in the trial court) and the appellee (who was the piaintiffj. Pursuant to ordinance and appropriate resolution, the appellee held an agreement permitting it to install benches within the corporate limits of the City of Miami, permitting advertising thereon for a period of 5 years. During the term the municipality, through its appropriate officials, attempted to interfere with the terms of the agreement by prohibiting the use of the bus benches in certain residential areas and ordering their removal therefrom. The instant action was commenced in the trial court by the appellee, seeking an injunction to restrain this action on the pan of the municipal officials. The chancellor, in entering his final decree, found the contract between the parties binding, enjoined the City from enforcing resolutions which would impair the contract, but held that the appellee was subject to the provision of a subsequently enacted Metropolitan Dade County Ordinance. In and by the terms of the final decree, the chancellor, in part, made the following findings of fact and conclusions of law: *** • * i 'The pleadings allege and the testimony shows that, on November 14, 1961, the 'City' entered into a contract with 'Company' for the right to install bus benches under permit at designated but stops for the convenience of the traveling public throughout die City of Miami, Florida, Plaintiff's Exhibit l/1. This contract was approved by city resolution November 14, 1961. The preamble to contract recites, 'Bus service is a public utility and is charged with a public interest and duty accordingly, for the convenience and accommodation of the public, bus benches at bus stops fulfill a collateral public transportation need;'. It further recites that there is an increased need of such benches and that 'Company' has *51 increased its financial investment by providing more benches at the request of the 'City' and teat 'the company has manufactured and installed numerous public service bus benches at the request of the city for the benefit of the traveling public.' It then recites that all parties agree 'that the contract now existing for bus bench service between the parties be terminated by acceleration, and in contemplation of the additional reasons set forth herein, namely that the company should be able to amortize its increased financial investment, stands ready to enter into the City's pedestrian bench Copyright (c) West Group 1998 No claim to original U.S. Govt. works { 99- 720 L 4 174 So.2d 49, City of Miami v. Bus Benches Co., (Fla.App. 3 Dist. 1965) Page 3 program, and will provide bus bench revenue to the city regardless of the future ownership and operation of transit systems now servicing the city.' # # t 'It is to be noted here that the contract is not exclusive but gives a continuing right or guarantee that the company will he able to recei%e permits so as to be enabled to amortize its increased financial investment. An examination of the Cite Bus Bench Ordinance shows that the provisions there for any person obtaining a bus bench permit are the saute as for the company. * * * 'Summing up the contract, it can b. seen that it is not a franchise, is not exclusive, and it allows and provides for the permitting of bus benches under the exact same terms and conditions as any person may do under the City Bus Bench Ordinance. # # # ##r 'Thereafter, by Resolution No. 34175, the City, on December 5, 1962, prohibited advertising on bus benches in residential zones, permitting advertising only in commercial zones at designated bus stops; required removal of benches containing advertising matter thereon in R-I and R-2 zones; required all benches containing advertising matter to be removed from public property and from rights of way abutting public property within thirty (30) days from the effective date of this Resolution; required bus benches containing advertising matter in an R-3 zone to be removed within. six (6) months frorn the date of the Resolution; and required bus benches in R4 and R-5 zones to be removed within one (1) year from the effective date of this Resolution. 'The Court finds that this was art attempt by the City, by Resolution, to amend both the zoning ordinances and the Bus Bench Ordinance of the City. It is elementary that an ordinance cannot be amended by a Resolution, and it is apparent on the face that the Resolution fails by virtue thereof. 'After the passage of Resolution No. 34175 id., the City sought to enforce the provisions of the Resolution and to force the removal of bus blenches of 'Company' from the above zones, * * * upon passage of Resolution No. 34175, 'City' sent a certified copy to 'Company' with an accompanying letter saying: 'You will note that this resolution --set current policy as to the regulation and control of certain bus benches. This new Resolution therefore, contained all the provisions which modify the contract now e.risting between your company and the City of Miami, and will act as your guideline for all future installations and removals.' This was plainly an attempt on the pan of the 'City' to modify the terms of the existing contract, to which 'Company' did not consent. ! 'The Plaintiff sought a declaratory decree as to the validity of its contract with the 'City' and contended that the adoption of Resolution No. 34175 was an invasion of its rights under the existing contract and was void because *52 it attempted by Resolution to amend existing ordinances. It further contended that 'Company', relying on the contract, had expended large sums of money to increase its bench program and the enforcement of the Resolution would cause it great damage and loss. ' i he 'City' contended that the contract was void ab initio and that nothing that happened afterwards could breathe new life into it, relying on the decision in the case of CLARENCE SMITH v. BUS STOPS OF GREATER MIAMI, INC., 89 So.2d 221, Supreme Court of Florida, 1956, and further contended that the contract was a franchise and that, under Section 74 of the City Charter, required an approved vote by a majority of the qualified voters of the city. Copyright (c) West Group 1998 No claim to original U.S. Govt. works ,r 174 So.2d 49, City of Miami v. Bus Benches Co., (F1a.App. 3 Dist. 1965) Page 4 'It is the finding of the Court that Section 3(hh) of the City Charter id. was sufficient and proper authority for the 'City' to enter into such a Bus Bench Contract. The contention that Section 3(hh) and Section, 74 of the City Charter conflict was decided in the negative by the Cupreme Court of Florida in CIT1' OF MIAMI vs. SOUTH MIAMI COACH LINES (1952 Fla.) 59 So.2d 52, when, in specifically referring to these two sections of the City of Miami Charter, it says: 'We belicye they do occupy and function in different spheres --Certain it is appellee might have appiied under the provisions of Section 73 and 74, supra, for a franchise --It would have constituted a contract between the franchise holder and the city. Appellee did not solicit a franchise under the provisions of Sections 73 and 74, supra, but did seek and secure a license under Section 3(hh)--which may be altered, suspended or revoked by the commission only upon good cause shown (after due notice and an opportunity to be heard.' (Italics supplied.) 'This is with the Plaintiff did in making the contract with the city. It got a permit or a license, and not a franchise and so Section 74 does not apply, but section 3(hh) of the City Charter does apply. * * * # # * 'Now, with reference to the point that the contract is governed by SMITH vs. [Bus Stops of Greater Miami] CITY OF MIAMI (Fla.1956) 89 So.2d 221. 'First of all, it should be pointed out that the Court apparently did not specifically consider Section 3(hh) of the City Charter. Secondly, the point in case makes 'that in the absence of express legislative authority, a city has no power to grant a private individual a privilege to use any portion of its streets or sidewalks for a special private purpose,' is correct as far as it goes, but, in the instant case, the permits are for benches which, in addition to the advertising thereon, provide a public service for the people of the municipality, to -wit: benches for them to sit on while awaiting busses.' [ 1 ] [21 (31 [41 The final decree arrived in this court with a presumption of correctness. See: Meadows Southern Construction Co. v. Pezzanti, Fla.App.1959, 108 So.2d 499; Lynch v. Coppola, Fla.App.1961. 129 So.2d 183; Groover v. Simonhoff, Fla.App.1963, 157 So.2d 541. It was incumbent upon the appellant to demonstrate error. See: Videon v. Hodge, Fla.1954, 72 So.2d 396; Frell v. Frell, Fla.App.1963, 154 So.2d 706 ; Groover v. Simonhoff, supra. A municipality is bound to recognize its contracts, urte same as an individual [see: Williams v. City of Jacksonville, 118 Fla. 671, 160 So. 15, 98 A.L.R. 513; 23 FlaJur., Municipal Corporations, 1891 and one, party to a contract with a municipality, is entitled to the constitutional protection against impairment of it if the municipality attempts to *53. unilaterally change its obligations under a valid agreement. See: Anders v. Nicholson, I I I Fla. 849, 150 So. 639; City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513 [5] Measuring the contract in question against the principles enunciated above and the resolution of the City striking from its force and effect all of the residential areas, it is apparent that the chancellor's actions were correct and should be affirmed. Affirmed. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99- 7AV V 0A L 800 F.2d 711, Central Telecommunications, Inc. v. TCI Cablevision, Inc., (C,A.8 (Mo.) 1986) Page 1 *711 800 F.2d 711 1986-2 Trade Cases 67,247 CENTRAL TELECOMMLINICATIONS. INC., Appellee, V. TO CABLEVISION. INC., Community Telecommunications, Inc. and Telecommunications. Inc.. Appellants. No. 85-1805. United States Court of Appeals, Eighth Circuit. Submitted March 10, 1986. Decided Aug. 26, 1986. Rehearing and Rehearing En Banc Denied Oct. 16, 1986. Unsuccessful applicant for city's exclusive cahie television franchise brought suit against incumbent franchisee asserting antitrust claims and pendent state lak4 claim for tortious interference with business expectancy. The United States District Court for the Western District of Missouri, Scott O. Wright, Chief Judge, 610 F.Supp. 891, entered judgment on jury verdict for applicant and incumbent appealed. The Court of Appeals, Heaney, Circuit Judge, held that: (1) city could properly offer de facto exclusive franchise in order to create competition for its cable television market; (2) jury instruction describing extent of Noerr-Pennington doctrine was proper; (3) finding that incumbent's coercive tactics went beyond mere lobbying was sufficiently supported by evidence; (4) incumbent had monopoly power; (5) applicant made sufficient preparations to enter cable television business to recover antitrust injuries to business; and (6) applicant could recover under Missouri's tortious interference law. Affirmed. 1. MONOPOLIES cS:- 12(6) 265 26511 Trusts and Other Combinations in Restraint of Trade 265kI I Combinations Prohibited 265k12 In General 265kl2(6) Entertainment in general; sports; radio. C.A.8 (Mo.) 1986. Even if cable television company had First Amendment right to remain in city's cable television market with or without franchise from city, company was not insulated from antitrust liability to competitor who failed in bid to obtain exclusive franchise, where company did not seek to simply remain in market but rather sought to continue its monopoly. U.S.C.A. Const.Amend. 1. 2. MONOPOLIES (&-12(6) 265 ---- 26511 Trusts and Other Combinations in Restraint of Trade 265kI I Combinations Prohibited 265k 12 In General 265k12(6) Entertainment in general; sports; radio. C.A.8 (Mo.) 1986. "Natural monopoly" characteristics of city cable television market justified city in offering de facto exclusive franchise in order to create competition for cable television market and thus unsuccessful bidder for franchise had protectable interest under federal antitrust law, Sherman AntiTrust Act, Secs. 1. 2, 15 U.S.C.A. Secs. 1, 2. 3. MONOPOLIES Cs,=12(16.5) 265 ---- Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9 9 - �r 4 V 800 F.2d 711, Central Telecommunications, Inc. v. TCI Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 2 26511 Trusts and Other Combinations in Restraint of Trade 265kI I Combinations Prohibited 265k12 In (Icneral 265k 12(15 5) Stave or Governmental ,Action 265k12(It, 5) Efforts to influencem go+crnental action; litigation. C.A.8 (Mo') 19R6. Jury instruction, that Nocrr-Pennington doctrine protects all "genuine" lobbying efforts but does not protect 'threats, intimidation, nxrcion, or other unlawful acts" which were "not genuine efforts to influence public officials," was proper in action against cable television company seeking to retain its exclusive city franchise. 4. MONOPOLIES G — 28(7.5) 265 ---- 26511 Trusts and Other Combinations in Restraint of Trade 265k28 Actions for Damages by Combinations or Monopolies 265k28(7.4) 'Height and Sufficiency of Evidence 265k28(7.5) In general Formerly 265k28(7.4) C.A.8 (Mo ) 1986. Finding that incumtxnt holder of cable television holder of cable television franchise had exceeded balance of legitimate lobbying activity in seeking renewal of its franchise, and thus was not protected by Noerr-Pennington doctrine, was sufficiently supported by evidence of incumbent's heavy handed and coercive tactics against city officials. 5. FEDERAL CIVIL PROCEDURE (S�= 1970.1 170A 170AXV Trial 170AXV(A) In General 170AkI970 Counsel's Conduct and Arguments 170Akl970.1 In general. Formerly 170Ak1970 C.A.8 (Mo.) 1986. Court's allowance of 90 minutes per side for closing arguments was not abuse of discretion in antitrust action concluded after 31 days of trial. 6. MONOPOLIES C-12(6) 265 ---- 26511 Trusts and Other Combinations in Restraint of Trade 265kII Combinations Prohibited 265k12 In General 265kl2(6) Entertainment in general; sports; radio. C.A.8 (Mo.) 1986. Incumbent holder of exclusive city cable television franchise possessed monopoly power, despite fact market was regulated, where it had the power to raise price of "premium" channels without approval of city and used its entrenched position and various unethical or illegal practices to exclude competition in bidding for new exclusive contract. 7. MONOPOLIES «28(7.5) 265 ---- 265I1 Trusts and Other Combinations in Restraint of Trade 265k28 Actions for Damages by Combinations or Monopolies 265k28(7.4) Weight and Sufficiency of Evidence Copyright (c) West Group 1998 No claim to original U.S. Govt. works 09" (20 ' 800 F.2d 711, Central Telecommunications, Inc. v. TCI Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 3 265k28(7.5) In general. Formerly 265k28(7.4) C.A.8 (Mo.) 1986. Finding of conspiracy bci�%een incumbent holder of city's exclusive cable television franchise and city officials, in a\% arding rcnev. al contract to incumbent was sufficiently supported by evidence that incumbent coerced and pr0sure:i cite officials into anticompetitive position. 8. MONOPOLIES Co-- 12t 1.6) 265 ---- 26511 Trusts and Other Combinations in Restraint of Trade 265kI I Conrhinations Prohibited { 265k12 In General { 265k12(l.6) Intent, nwuve, or purpose. t C.A.8 (Mo.) 1986. Bidder for city's exclusive cable television franchise made sufficient preparations to enter cable television business to recover for injury to "business", under Sec. 4 of Clayton Act, where bidder had secured financing commitments in excess of 2 million dollars, had submitted detailed feasible plans for cable system in city, and had secured vote of city council for operating franchise. Clayton Act, Sec. 4, 15 U.S.C.A. Sec. 15. I 9. TORTS C;- 10(3) 379 ---- 379k10 Interference with Employment or Occupation, or Injury to Business 379k10(3) Particular types of interference in general. C.A.8 (Mo.) 1986. Debtor for city's exclusive cable television franchise sufficiently proved it suffered damage to protectable interest, under Missouri's law of tortious interference with business expectancy, where damage award was based t on best evidence available and estimate of loss was reasonable. 10. MONOPOLIES <�;-28(9) 265 ---- 26511 Trusts and Other Combinations in Restraint of Trade 265k28 Actions for Damages by Combinations or Monopolies 265k28(9) Damages and amount of recovery. C.A.8 (Mo.) 1986. Award of 10.8 million dollars to precluded bidder for city's exclusive cable television franchise was sufficiently supported by precluded bidder's uncontradicted evidence of fair -market value of franchise. 11. DAMAGES (2�94 115 ---- 115V Exemplary Damages I I5k94 Amount of exemplary damages. C.A.8 (Mo.) 1986. Award of S25 million dollars in punitive damages on tortious interference claim of precluded bidder for city's exclusive cable television franchise was sufficiently supported by substantial evidence of incumbent cable company's intentional tortious conduct in preventing award of franchise to bidder. i *712 Stuart W. Gold, New York City, for appellants. i R. Lawrence Ward, Kansas City, Mo., for appellee. Before HEANEY and FAGG, Circuit Judges, and WOODS, (FN*) District Judge. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99 - 720 1._ 800 F.2d 711, Central Telecommunications, inc. Y. TCi Cablevision, inc- (C.A.8 (Mo.) 1986) Page d HEANEY, Circuit Judge. This antitrust -monopolization case arises out of competition between TCi, Cablevision, inc. (and two related corporations, collectively TCI) and Central Telecommunications, Inc, (Central), for a defacto (FNI) exclusive cable telesision franchise in Jefferson City, Missouri (the City). 1. FACTS. TCI managed the City's cable television system for the Athena Cablevision Corporation from 1973 to 1978. In 1978, it acquired the assets of Athena in the City and was then awarded a three-year exclusive cable television franchise. Three months before TCI's franchise was scheduled to expire, the City initiated a "Request for Proposals" (RFP), or bidding process, to solicit bids to determine the recipient of the next franchise. Two companies --Central and Teltran--submitted bids for the franchise. (FN2) TCI refused to participate, arguing that it had a first amendment right to continue to provide cable television services in the City, and that the City thus had no right to award an exclusive franchise to another company. The City contended that its cable television market was a 'natural monopoly" and that it could not create competition for its cable TV market without offering an exclusive franchise. TCI then began a carnpaign, accompanied by numerous unethical and illegal acts, to *713 coerce the City to grant it the exclusive franchise. Nonetheless; after a preliminary vote in January of 1982 in favor of Central, the City Council voted in April, 1982, to grant the exclusive franchise to Central. Central was obligated under this franchise to provide substantially expanded services to subscribers at a cost less than they had been paying. The mayor immediately vetoed this ordinance and the City Council was unable to override it. An ordinance was promptly submitted which proposed renewal of TCI's franchise. The Council deadlocked at a five -to -Five vote and the mayor then cast the tie -breaking vote in favor of TCI. The TCI proposal provided fewer viewing channels and inferior picture quality at a higher monthly rate than did the Central proposal. Central then brought this action against TCI, alleging that TCI had unlawfully interfered with the RFP process to deny Central the franchise and to retain an exclusive franchise for itself. After thirty-one days of trial, the court granted Centrai's motion for a directed verdict on TCFs counterclaims, and submitted the case to the jury on three theories: 1) that TCI had unlawfully conspired with the mayor and other City officials to retain its exclusive franchise in violation of Section One of the Sherman Antitrust Act; 2) that TCI had undertaken illegal anti -competitive actions to retain its monopoly of the Jefferson City cable TV market in violation of Section Two of the Sherman Antitrust Act; and 3) that TCI had tortiously interfered with Central's business expectancy in violation of the laws of the State of Missouri. The jury ruled in favor of Central on all three claims and awarded $10,800,000 in actual damages on its antitrust and state law claims and $25,000,000 in punitive damages on the state law claim. The court trebled the S10,800,000 award, and entered judgment for $32,400,000 on the antitrust a claims and, in the alternative, $35,800,000 on the state law claim. TCI appeals, raising seven issues, each of which we deal with in turn. -i II. DISCUSSION. A. Firs[ Amendment Challenge to Exclusive Franchising Scheme. [1] TCFs first contention is that it has a first amendment right to remain in the City's cable television market with or without a franchise from the City, and that, therefore, Central could not have been damaged when it lost the exclusive franchise. We reject this argument. Before reaching the merits of this argument, we note that there is a significant factual problem with it. The district court found: Defendants enjoyed every opportunity to produce evidence and make arguments to persuade the jury that they were at all times in favor of head -to -head competition in the market place. * * * [However] the jury [was not] swayed by any of these arguments [and] factual findings implicit in [its] verdict confirm that TCI's Copyright (c) West Group 1998 No claim to original U.S. Govt. works eJ e� 720 800 F.2d 711, Central Telecommunications, Inc. v. TCI C"ablevision, Inc., (C.A.8 (Mo.) 1986) Page 5 endorsement of head -to -head competition lacked sincerity. * * * There was substantial evidence that defendants were engaged in a calculated scheme to prevent plaintiff from entering the Jefferson City market and to maintain a de fact:? exclusive franchise for themselves. * * * The jury's conclusion that defendants * * * were responsiNe for plaintiff's exclusion from the Jefferson City market * * * completely undermines any attempt to pass the blame on to the city by way of an amorphous "First Amendment defense.' Central Telecommunications, Inc. v. TCi Cablevision, Inc., 610 F.Supp. 891, 903 (W.D.N1o.1985). Because we find substantial evidence in the over 7,000-page record in support of this conclusion by trial judge and jury, we think that TCFs first amendment defense fails on its facts because it did not seek to simply remain in the market but to continue its 1110n0p01) (FN3) *714 Assuming arguendo that TCI uas willing to compete head -to -head with any competitor, we find TCI's first amendment defense to txc a ithout legal merit. The district court held: [Tlhe grant of a single cable franchise is permissible only if the physical and economic conditions of the relevant market gise rise to a 'natural monopoly" situation. The theory is that, where physical and economic factors render a market incapable of accommodating more than one cable television system, the local governing body is in the hest position to determine which proposed system offers the best service to the public for the lowest cost. Since only one competitor can survive in the market, it makes sense to allow the local government to choose the best (FN4) applicant. Central Telecommunications, 610 F.Supp. at 899-900 (footnotes omitted), citing Tele -Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1338 (D.C.Cir.1985); Omega Satellite Products Co. v. City of Indianapolis, 694 F.'_d 119, 127 (7th Cir.1982); and Community Communications, Inc. v. City of Boulder, 660 F.2d 1370, 1378-80 (.10th Cir.1981), cent. dismissed, 456 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982). The Supreme Court has not directly addressed this issue. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), it rejected an argument that the natural monopoly characteristics of the newspaper market gave rise to a duty to provide public access to the press. However, it has approved "far more intrusive regulation of broadcasters than of other media [such as newspapers] * * * because of the inescapable physical limitations on the number of voices that can simultaneously be carried over the electromagnetic spectrum.' Quincy Cable T.V., Inc. v. F.C.C., 768 F.2d 1434, 14-48 (D.C.Cir.1985), citing, e.g., FCC v League of Women Voters of California, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984). Thus, the question is whether cable television should be analyzed under the standards applicable to newspapers or those applicable to broadcasters. TCI contends that cable television is entitled to "coextensive protection" with the press media. In its recent decision in Los Angeles v. Preferred Communications, Inc., --- U.S. - 106 S.Ct, 2034, 90 L.Ed.2d 490 11996), the Court suggested that the cable medium may be distinguishable from die newspaper medium and that more government regulation of the cable medium may be permissible because cable requires use of public ways and installation of cable systems may disrupt public order. There, a cable television company sued the City of Los Angeles and its cable franchising department, alleging that the City violated its first amendment rights by refusing to grant it a cable television franchise or to allow it access to cable facilities on the ground that it had failed to participate in an auction for a de facto exclusive franchise in die area. The district coup dismissed the complaint for failure to state a claim. The United States Court of Appeals for the Ninth Circuit then reversed and remanded for further findings on whether the City's exclusive franchising scheme violated the first amendment where there was economic and physical capacity for more than one franchise.. It stressed that the City's only defense was that allowing more than one cable operator would overly burden and disrupt public property and order. The Supreme Court affirmed, "on a narrower ground than the one taken by [the Ninth Circuit]," 106 S.Ct, at 2036, and refused, without development of a more detailed factual record, to set fortis the legal standard for assessing first amendment challenges to cable -franchising schemes. The Court simply held that, given that the Los Angeles cable market was not a natural monopoly and that the only alleged justification for limiting the Copyright (c) West Group 1998 No claim to original U.S. Govt. works On Q) 9 7 4 U L SW F.2d 711, Central 1'clecommunications, inc. v. TCi Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 6 number •715 of cable operators in the Los Angeles area entailed the use and disruption of public property and order, a remand was necessary for determination of whether the petitioner's first amendment rights outweighed tie disruptions alleged b} the City. Justice Blackmun, with whom Justices 'siarshall and O'Conrter joined, .oncurring, emphasized: i join the Court's opinion on the understanding, that it leaves open the question of the proper standard for judging First Amendment challenges to a nrtinicipalit%''s restriction of access to eagle facilities. Different comnttinica(rons media arc treated differently for First Amcndnient purix-).cs. Compare, e.g., Miami Herald Publishing Co. v. Torniilo, 418 U.S. 2,11, 94 S Ct. 2931, 41 L.Ed.2d 730 (1974), with FCC v. League of Women Voters, 408 U.S. 30.4, 381, 104 S.Ct. 3106, 3118, 82 L.Ed 2d 278 (1984). In assessing First Amendment claims concerning cable access, the Court must determine whether the characteristics of cable television make it sufficiently analogous to another medium to warrant application of an already existing standard or whether those characteristics require a new analysis. As this case arises out of a motion to dismiss, we lack factual information about the nature of cable television. Recognizing these considerations, ante, at 2037, the Court d(ks not attempt to chcwse or justify any particular standard. it simply concludes that, in challenging Los Angeles' policy of exclusivity in cable franchising, respondent alleges a cognizable First Amendment claim. 106 S.Ct. at 2038-39, The Tenth and Seventh Circuits have held that, on the facts before them, cable television is more analogous to broadcasting than to newspapers, and that a "natural monopoly" situation may justify an exclusive franchising scheme. in Community Communications v. City of Boulder, 660 F.2d 1370 (10th Cir.1981), Community Communications Corporation (CCC) had been operating an exclusive cable television system in certain neighborhoods of Boulder, Colorado, for many years. After several other companies expressed interest in operating cable TV franchises in other areas of the City, the City imposed a moratorium on CCC's expansion- in order to provide other companies the opportunity to make bids to service the remaining parts of Boulder before CCC became so entrenched that new entry would be impracticable. CCC alleged that the moratorium violated the first amendment. The City contended that cable television is a natural monopoly and that if it was unable to grant de facto exclusive franchises for various neighborhoods, CCC would remain the only cable television operation in Boulder and its citizens would be denied access to diversity and state-of-the-art programing. The Court of Appeals reversed the district court's order enjoining the City from enforcing the ordinance, and ordered that all parties be frozen in their current circumstances until trial on the merits. The Court applied a balancing analysis, weighing the first amendment concerns against the asserted justifications for the exclusive franchise scheme and held that "natural monopoly is a constitutionally permissible justification for some degree of regulation of cable operators." 660 F.2d at 1379. The Court emphasized that the extent of regulation permissible is narrowly limited by, among other possible factors, differences in (1) the degree of natural monopoly or "scarcity` characterizing the medium, (2) the pace and potential for technological change, or (3) the uses and possible uses of the medium such as two-way cable communications or even interconnection, (which) might make kinds of regulations constitutionally permissible in one medium that would be forbidden in another. But we caution: the power to regulate is not one whit broader than the need that evokes it. (Footnote omitted.) Id. The next year, the United States Court of Appeals for the Seventh Circuit also found that where a relevant cable television market is a natural monopoly, an •716 exclusive franchise may be permissible consistent with the first amendment. In Omega Satellite Products v. City of Indianapolis, 694 F.2d 119 (7th Cir.1982), the City of Indianapolis awarded two de facto exclusive cable television franchises for certain sections of the City. A third cable operator also serviced certain apartment complexes in the City. Because it operated simply by installing satellite dishes at the complexes, and thus did not use any public way, it was not subject to the City's franchising ordinance. This company then sought a franchise so it could interconnect apartment complexes without the need Copyright (c) West Group 1998 No claim to original U.S. Govt. works '" wqA iZU ii 800 F.2d 711, Central Telecommunications, Inc. v. TO Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 7 to install new satellite dishes at each complex. After the City failed to act on its application, the company connected two complexes with a cable through a drainage culvert. The City ordered the compan}to remove the cable and the comparny refused and sought an injunction, on Sherman Act and First Amendment grounds, forbidding the Cite frost removing the cable or enforcing its franchising scheme. The district court denied the request for an injunction and the Court of Appeals affirmed, holding that on the First Amendment challenge, "If Chapter 8 112 is miler the First :amendment (a question we emphatically do not decide) it is so because it lacks adequate standards and procedures, not because a city may not limit the entry of cable television companies." Id. at 129. It distinguished cable television front newspapers on the ground cable requires use of public ways and because television enjoys "universal access to the home * * * and [there is) a resulting felt need to protect children." Id. at 127-28. Accordingly, it stated that although natural monopoly is not a justification for exclusive franchising for newspapers, "The apparent natural monopoly characteristics of cable television provide * * * ar, argument for regulation of entry.' Id. at 127-28. See also Tele-Communications of Key West v. United States, 757 F.2d 1330 (U.C.Cir.1985) (Holding that if cable company could show that there were no practical reasons why Rvo cable operators could not serve Air Force base, Air Force's exclusive franchising scheme would violate (he first amendment.) But cf. Preferred Communications v. City of Los Angeles, 754 F.2d 1396, 1404-05 (9th Cir.1985), aff'd and remanded on other rounds, --- U.S. ----, 106 S.O. 2034, 90 L.Ed.2d 480 (1986) (Although the Court did not reach the argument that natural monopoly justifies government regulation of cable television because it assumed that competition for cable services is economically feasible in the Los Angeles area, it implied that "natural monopoly" is not a justification for exclusive franchising.) i We recognize that there are profound first amendment implications inherent in the regulation of cable operators. Changes in technology such as were presented in the Omega case may require a different approach to exclusive franchising schemes. We are also aware of the difficulties inherent in the regulation of cable television programming. See, e.g., Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (invalidating FCC's "must carry" cable television regulations on first amendment grounds). Cf. FCC v, Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 691 (1979) (invalidating as beyond F.C.C.'s jurisdiction rules requiring cable operators to make channels available for local access). Thus, we make clear, as did the Supreme Court in Preferred Communications, that we are unwilling to decide any question which is not squarely before us and on which there has not been a full development of the record. We are not faced here with a challenge to the details of Jefferson City's franchise regulations, (FN5) and we, of course, *717 consider the "natural monopoly" question only in terms of the competing technologies offered by TCI and Central. TCI's brief states the First Amendment issue to be: 'Did plaintiff, which was seeking an exclusive cable television franchise that would deny others equal access to speak through the cable medium, have a protectable interest under federal antitrust or state ton law when it was not awarded the exclusive franchise'?" [21 We hold that Central did have a protectable interest because it proved, to the satisfaction of the jury and the trial judge, that the "natural monopoly" characteristics of the Jefferson City cable market justified the City in offering a de facto exclusive franchise in order to create competition for its cable television market. There is substantial suppon in the record for these factual findings. (FN6) TCI gained its monopoly through an earlier grant of a de facto exclusive franchise. Unless the City opened up competition for the market, TCI would have remained entrenched in its monopoly position. TCI refused to provide other than an outmoded limited channel system whereas Central proposed a state-of-the-art system with far more channels at a lower cost, and, accordingly, more variety of programming for the public. It is difficult for us to see how, on this record, TCI's position enhances First Amendment values. It is true that TCI has a First Amendment interest in remaining as a cable television "speaker," but Central has a similar interest. Because the evidence shows that given the technology offered by the competing companies, there was economic capacity for only one speaker, it seems clear that Central's proposal went further in advancing the First Amendment interests of the viewing public in the greatest variety of programming obtainable. In sum, we reject TCI's First Amendment challenge for two reasons. First, the evidence reveals that TCI was not sincere in advocating competition in the market but simply sought to retain a monopoly originally gained through the grant of a de facto exclusive franchise. Second, the evidence reveals that the City's cable television market is currently a natural monopoly which, under present technology, offers room for only one operator at a Copyright (c) West Group 1998 No claim to original U.S. Govt, works L 800 F.2d 711, Central Telecommunications, Inc. v. TCI Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 8 time. Thus, we hold that the City could properly offer a de facto exclusive franchise in order to create competition for its cable television market. B. Noerr Pentin�t� Defense. TCI contends that all but two of its allegedly anticompetitive actions, the threats of its corporate vice president to the City's con<ultant and a similar threat to a competitor, are protected activity within the purview of the Noerr-Pennln�!J'n doctrine. This doctrine, derived from the cases of Eastern R.R. Presidents Conference v. Noerr Motor Freight: Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961); United Mine Workers of America v. Pennim-,ton, 381 U.S. 657, 85 S.Ct. 1585. 14 L.Ed.2d 626 0965); and California Motor Transport Co. v. Truckim: Unlinuted, 404 U.S. 508, 92 S.C1. 609, 30 L.Ed.2d 642 (1972). exempts from antitrust liability (FN7) aetiyities -718 which are specifically, designed to procure favorable governmental action, even when the underlying mou%ation and effect of the activities is anti -competitive. See centrally, 7 Von Kalinowski, Antitrust Laws and Trade Regulation. Sec. 46.04 (1982). In early 1980, the City considered holding out its cable franchise to competitive bidding. Shortly thereafter, TCi met with the manor and attempted to persuade him to renew its franchise without a competitive bid process, so as to avoid a "frontal attack" by competitors. in December, 1980, the City issued its RFP, inviting any company, including TCi, to bid. Thereafter, the City hired Elmer Smalling as a cable television consultant to evaluate the various bids. TC1, upon learning that the City had hired Smalling, publicly attacked his qualifications in a defamatory manner. On several occasions, from January of 1981 to the summer of 1981, Paul Alden, TCi's vice president and national director of franchising, telephoned Roben Brooks, chief operating officer of Teltran, a company which submitted a bid for the City's franchise, and threatened him that unless Teltran withdrew from the bidding process, TCi would make trouble for Teltran in Columbia, Missouri, where it operated a cable television franchise. Teltran subsequently dropped out of the bidding process on the ground there was a "distasteful environment" in Jefferson City. In February, 1981, Alden and Harold Farrow, TCI's attorney, met with City officials and attempted to pressure them to abandon the RFP process and negotiate exclusively with TCI. In March of 1981, Alden called the mayor and threatened to turn the system off unless TCI's franchise was renewed. That same month, TCI filed a lawsuit against the City challenging the RFP process. During the litigation, TCI served on officials of the bank from which Central sought financing a subpoena seeking a very wide range of potentially confidential records. Central alleges that this was designed to destroy its financing. In June of 1981, Alden approached Smalling and expressed TCI's displeasure with Smalling's participation in the RFP process. Alden threatened Smalling with statements like: "We know inhere you live, where your office is and who you owe money to. We are having your house watched and we are going to use this information to destroy you. You made a big mistake messing with T.C.I. We are the largest cable company around(.) We are going to see that you are ruined professionally." PX 83. Smalling understood these statements to be a threat to the lives of himself and his family. At this same time, Warner -Amex (another large cable company) was a client of Smalling's. Alden contacted Warner -Amex about Smalling. Following the threats, Smalling lost Warner - Amex as a client. Smalling told City Attorneys Christopher Graham and Thomas Utterback about Alden's threats. PX 83. On July 6, 1981, Utterback wrote the mayor and suggested that the RFP process be abandoned because some of the parties were interfering with the competitive bid process. PX 84. Utterback also expressed these concerns in a memorandum to the City Council in which he described TCI as a "relentless corporate bully." DX 17, T. 128. In the fall of 1981, TCI met with Utterback and agreed to negotiate privately for renewal of its franchise, although this secret agreement and the subsequent private negotiations violated the RFP, which specified that all negotiations would be open, (FN8) as well as Missouri's "sunshine law." Mo.Rev.Stat. Secs. 610.010-.030. After the City Council voted on January 25, 1982, to provisionally grant the franchise to Central, TCI refused to Copyright (c) West Group 1998 No claim to original U.S. Govt. works of- S9— 720A L 800 F.2d 711, Central Telecommunications, inc. v. TCi Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 9 pay and withheld the prior year's franchise fees which were due and owing to the City in an amount exceeding 560,000. it had no basis for this withholding 0719 other than an attempt to subvert the RFP process. Throughout this pet iod, TCi contitttted to publicly announce that it .vould cut off service if it was not awarded the franchise, and it announced that it would not sell 'one hole" of its system to ,khocver received the new franchise and tint it v%ould "rather hase (its systeitl rot on the IXAc" than sell it to a competitor at any cost. Further, TCi's system manager in Jefferson City told elderl} residents of a senior citizens' home that TCi would cut off service if denied a franchise, and the residents would be without television for two years pending construction of a new system because the concrete walls of their residence would not allow reception of over -the - air stations. Additionally, TCI accompanied its franchise battle with misstatements of fact. For example, in one City Council meeting, Alden misrepresented to the council that TCi was the largest distributor of satellite dishes in the county, with an "exclusise" in Missouri, both "facts" he later admitted were untrue. TCi implied that only it could protect the City's cable system front destructive competition from satellite dishes. The district court also stated that an impiicatk of this statement was that TCI would flcxxi the City with satellite dishes unless it received the franchise. 610 F.Supp. at 895. By April 5, 1982, the City reached an agreement to w,4ard the franchise to Central. At that point, the mayor, who had recused himself from the cable television issue for over a year due to an alleged conflict of interest, ! announced that he was reentering the cable television controversy, and he privately advised council members that he would veto any ordinance awarding a cable television franchise to Central. TCi and certain City officials, including the mayor, then met privately to negotiate a franchise for TCI. As pars of the agreement, the mayor agreed to veto any award of a franchise to Central. On April 20, 1982, the City Council passed the ordinance awarding a franchise to Central. The vote was six in favor and four against. The mayor vetoed the ordinance. The council then deadlocked five -to -five on awarding a franchise to TCI and the mayor cast the deciding vote in favor of that company. (FN9) The next day, TCI t dismissed its lawsuit against the Ciry and paid the withheld franchise fees. i t TCI's initial argument is that even though its agent, Alden, may have made coercive threats to Smalling and Teltran, which are not protected under Noerr-Pennington, these threats did no harm to Central 0720 and thus cannot serve as a basis for imposing liability. We disagree. The jury was given a proximate cause instruction and informed that it could only base liability on acts which were not genuine efforts to influence City officials. Giving Central the benefit of all reasonable inferences to be drawn from the record, the jury may have concluded that t TCI's heavy-handed tactics frightened the mayor and some members of the City Council into awarding the j� franchise to TCI. Additionally, TCI contends that even if Alden's threats harmed Central, rite verdict must be set aside because we have no way of knowing whether the jury relied on these threats or on protected conduct in assessing liability against it. We reject this argument for several reasons: 4 First, the parries agreed to subunit the case to the jury on a general verdict instruction and form, and there is evidence on the record as a whole to support the verdict. Ybarra v. Burlington Northern, Inc., 689 F.2d 147, 150 (8th C'ir.1982); Bio-Rid Laboratories, Inc. v. Nicolet instrument Corp., 739 F.2d 604, 607 (Fed.Cir.1984). cert. denied, 469 U.S. 1038, 105 S.Ct, 516, 83 L.Ed.2d 405 (1985) ('In the absence of special interrogatories we presume the existence of factual findings and legal conclusions necessary to support the verdict reached by the jury."). Second, TCI was under no obligation to continue to provide service to the residents of Jefferson City after its franchise expired, and it certainly had the right to inform City officials, its customers and the public at large of its intent not to do so. Likewise, TCI was under no obligation, except as required by the franchise agreement, to sell its cable television system to its successor, and it had a clear right to inform City officials, its customers and the Copyright (c) West Group 1998 No claim to original U.S. Govt. works S9- '`�20 800 F.2d 711, Central Telecommunications, Inc. v. TCI Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 10 public at large that it would not do so. Cf. United States v. Otter Tail Power Co., 331 F.Supp. 54, 61 (D.Minn.1971), aft'd 410 U.S. 366, 368, 93 S.Ct. 1022, 1025, 35 L.Ed.2d 359 (1973); Aspen highlands Skiing Corp. v, Aspen Skiing Co., 738 F.2d 1509 (10(h Cir.1984), aff'd on_other grounds, 472 U.S. 585, 105 S.Ct. 2847, 86 L.Ed._d 467 0985): Hecht � Pro-Foothali, Inc., 570 F.2d 982, 992 (D.C.Cir.1977), cert. denied 436 U.S. 956. 93 S.Ct. 3069, 57 L.Ed.2d 1121 (1978), COMPARISON OF CENTRAL TELECOMMUNICATIONS, INC., PROPOSAL WITH REQUIREMENTS OF FRANCHISE ORDINANCES NO. 9777 and NO.9778 --------------------------------------- ------------------------------------- (Awarding franchise to TCI) CENTRAL TELECOMMUNICATIONS, INC. ORDINANCE ITEM PROPOSAL No. 9777 & No. 9778 -------------------------------------------------------------------------- ADDRESSABLE Prodded to All Subscribers Provided only to Subscribers CONVERTERS Taking Expanded Service EQUIPMENT Head end Equipment Installed None FOR INTERACTIVE SERVICES SYSTEM Single Residential Cable Present System Expanded From DESIGN (42 Channels Downstream 12 Channels to 21 Channels Capacity, 4 Channels Downstream Capacity Within Upstream Capacity) 12 months Single Institutional Network No Institutional Cable Cable 2 Satellite Earth Stations 1 Stateliite Earth Station SERVICES Imported TV Stations--13 Imported TV Stations --I I AND PROGRAMING Pay TV Services-4 Pay TV Services--2 FM Radio Service--23 Stations FM Radio Service 'in Excess of" 15 Stations INITIAL. RATES Basic TV Service: Basic TV Service: Tier I (21 Channels)-46.00/Month Tier 1 (12 Channels) S6.55/Month Tier lI (38 Channels)-- Tier 11 (21 Channels) S8.00/Month S8.55/Month Pay TV Service: Pay TV Service: Home Box Office S7.95/Month Home Box Office $9.95/Month Showtime $8.45/Month Showtime S9.95/Month Cinemax $9.45/Month - Movie Channel $7.95/Month Had TCI made a simple clear request that the jury be so instructed, it would have been error to refuse the request. But it appears from the record as a whole that TCI was not satisfied with this approach. It rather wanted and requested a broader instruction that would have immunized other conduct which the jury could well have Copyright (c) West Group 1998 No claim to original U.S. Govt. works 9 - "r 4 800 F.2d 711, Central Telecommunications, inc. v. TCi Cablevision, Inc., (C.A.8 (Mo.) 1986) Page I found unlawful. (FNIO) The district court refused to give TCI's overly broad, long and •721 confusing NoerT- Pennington instructions, preferring more concise and understandable instructions and allowing TCi to argue at length before the jury that all of its activities were genuine lobbying efforts protected under Noerr and the threat to turn off service was lawful because TCI could not continue to provide service without a franchise. Under these circumstances, it is difficult to fault the district court Judge for instructing the jury as it did and in permitting TCi to argue that it was simply exercising its first amendment rights when it engaged in the course of conduct that it did. (3) Third, the trial court's jury instructions adequately informed the jury of the *722 Noerr-Pennington doctrine and that it could find that TCf's activities were protected activities within the parameters of this doctrine. Instruction Number 15 inforted the jury that it could "not consider TCi's 1981 lawsuit against Jefferson City to have been unlawful conduct even if it was designed to eliminate competition." Instruction Number 14 informed the jury: In deciding whether defendants engaged in any unlawful conduct in this case, you are instructed that you may not consider defendant's legitimate lobbying efforts with the Jefferson City officials. The defendants are entitled under the law to use eenuine efforts to influence public officials but if in fact defendant's lobbying activities included threats, intimidation, coercion or other unlawful acts, then you may find that such activities were not genuine efforts to influence public officials and you may consider those acts to have been unlawful conduct. TCI contends that instruction Number 14 allowed the jury to base its verdict on activities which were lawful under Noerr-Penrtington. We reject this argument because we find that the instruction's statement that Noerr- Pennington protects all 'genuine" lobbying efforts but does not protect "threats, intimidation, coercion, or other unlawful acts' which were "not genuine efforts to influence public officials" was proper under the case law, the facts of this case, and in light of the instructions submitted by the parties. In Noerr, the Court stated that when a "campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor * * * the application of cfhe Sherman Act would be justified." Noerr, 365 U.S. at 144, 81 S.Ct. at 533. (FN11) In Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 however, the Court cautioned: Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act. The jury should have been so instructed. Id. at 670, 85 S.Ct. at 1593. In California lviotor Transport, 404 U.S. 508, 92 S.Ct, 609, 30 L.Ed.2d 642 the Court first applied the so- called "sham exception" to the Noerr-Pennington doctrine. There, the defendants maintained a trust fund which they used to oppose all license applications by their competitors with or without probable cause and regardless of the merits of the applications. The Court affirmed the Ninth Circuit's reversal of a district court order dismissing plaintiffs' antitrust action on Noerr-Pennington *723 grounds because it found that the defendant's activities may not have been genuine efforts to influence the government but instead may have been simply a "combination of entrepreneurs to harass and deter their competitors from having 'free and unlimited access' to ti`te agencies and courts, to defeat that right by massive, concerted, and purposeful activities." 404 U.S. at 515, 92 S.Ct. at 614. in Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 539 (1973), the Court described California Motor Transport holding that the principle of Noerr may also apply to the use of administrative or judicial processes where the purpose Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99- ''74V 800 F.2d 711, Central Telecommunications, Inc. v. TCI Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 12 to suppress competition is evidenced by repetitive lawsuits carrying the hallmark of insubstantial claims and j thus is within the "mere sham" exception announced in Noerr. Id. at 380, 93 S.Ct. at 1031. This Court has on numcnnts occasions explored the meaning of the Noerr-Pennington doctrine and its "sham" exception. For cample, in Mark Aero, Inc. v. Trans World Airlines, Inc., 580 F.2d 288, 296-98 (8th Cir.19781, we summarized the farts and holdinFts in _oerr, Pennion and California 'Motor Transport and then examined the meaning of the 'sham" exception: [TJhe essential element of the sham exception, whether employed in an adjudicative or nonadjudicative setting [is] an absence of a genuine effort to influence government but, rather, an intent to injure a competitor directly. The fundamental question presented in each case involving the "sham" exception, whether argued in a nonadjudicative or an adjudicative setting, is the question of intent. * * * As always in deciding questions of intent, the court considers all of the surrounding circumstances and assigns to each circumstance an appropriate weight, dependent upon the function and significance of each. Thus in California Motor the Court considered the "manner of exercise of the right of association and petition," the defendants' other activities against competitors, and the adamant stand taken in defendants' opposition to other applications, all to ascertain whether there was a true intent to injure competitors directly rather than to influence governmental action. The distillation of all of the applicable factors in each rase governs the decision as to true intent, whether it is to directly injure competitors rather than to influence governmental action. In California Motor a consideration of all of the factors lead the Court to conclude that the allegations came within the sham exception in the Noerr case, "as adapted to the adjudicatory process" in that the defendants' purpose was to deny a competitor "free and meaningful access to the agencies and coups." (FN12) We also quoted with approval from an antitrust commentator that "[clonstruing the sham exception as enunciated in Noerr to include all activity not genuinely designed to influence the government is more consonant with the Court's central ruling." 580 F.2d at 296, citing D. Fischel, Antitrust Liability for Attempts to Influence Government Action: The Basis and Limits of the Noerr-Pennington Doctrine, 45 U.Chi.L.Rev. 80, 105 (1977). In Westborough Mall v. City of Cape Girardeau, 693 F.2d 733 (8dt Cir.1982), cert. denied, 46I U.S. 945, 103 S.Ct. 2122, 77 L.Ed.'_d 1303 (1983), we again elaborated on the "sham" exception to the *724 Noerr- Pennington doctrine. There we held: [T1he defendants may not be protected by Noerr because their legitimate lobbying efforts may have been accompanied by illegal or fraudulent actions. See Sacramento Coca-Cola Bottling Co. v. Chauffeurs, Teamsters & Helpers Local 150, 440 F.2d 1096, 1099 (9th Cir.), cen. denied, 404 U.S. 826, 92 S.Ct. 57, 30 L.Ed.2d 54 (1971); Wads Exploration & Producing Co. v. Aluminum Co. of America, 438 F.2d 1286, 1296-1298 (5th Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972). The Noerr- Pennington doctrine was not "intended to protect those who employ illegal means to influence their representatives in government." Sacramento Coca-Cola Bottling Co. v. Chauffeurs, Teamsters & Helpers Local 150, supra, 440 F.2d at 1099. See generally 7 Von Kahnowski, Antitrust Laws and Trade Regulation, supra, Sec. 46.04[31 at 46-55. In Gorman Towers, Inc, v. Bogosiaysky, [626 F.2d 607 (8th Cir.1980) l supra, we recognized that actions beyond "traditional political activity" may not be protected by the NoerT exemption. ld., 626 F.2d at 615. Because the plaintiffs have presented facts that support an inference of unlawful conduct --city officials may have been induced by the May -Drury defendants by means other than legitimate lobbying to illegally revert plaintiffs' C-4 zoning --the Noerr doctrine may not be relied upon to support the district court's grant of summary judgment. See Federal Prescription Service, Inc. v. E Pharmaceutical Ass'n, 663 F.2d 253, 266 (D.C.Cir.1981), cert. denied, 455 U.S. 928, 102 S.Ct. 1293, 71 Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99 - 720 • 800 F.2d 711, Central Telecommunications, inc. v. TCi Cablevision, inc.. (C.A.8 (Mo.) 1986) page 13 L.Ed.2d 472 (1982). (FN13) 693 F.2d at 746. In the Sacramento decision cited in �'estborou_,h Mall, the United States Court of Appeals for the Ninth Circuit stated: _ -- jilt does not seem to this Court that the doctrines of Noerr and Pennington were intended to protect those who employ illegal means to influence their representatives in government. These doctrines were enunciated to see that the antitrust laws did not impede the free flow of communication between the people and the government. But there can be little reason to extend the special immunity of Noerr and Pennin ton to a type of "communication' which includes threats and other coercive measures. There is no room for such tactics in a 1 democratic system. in the case before us it was alleged that the defendant unions influenced the State Fair officials by means of threats, intimidation and other coercive measures. The doctrines of Noerr and Pennington are not, therefore, applicable. 440 F.2d at 1099 j See also In Re iBP Confidential Business Documents Litigation, 755 F.2d 1300, 1313 (8th Cir.1985) "Nt oerr- Pennington doctrine cannot be extended to "activities which, although 'ostensibly directed toward governmental action,' are actually nothing more than an attempt to harm another" or to "false communications" or to tortious, violent. defamatory or other illegal acts [citations omitted].). i # We think that the trial court's jury instruction adequately informed the jury of the Noerr-Pennington doctrine and the sham exception. (FN14) The instruction does not *725 have the problem that the instruction which was disapproved in Pennin ton had. It does not state that legal petitioning activities can be illegal if accompanied by anti -competitive intent. Instead, it describes the essence of the "sham" exception --were defendant's petitioning I activities genuine attempts to influence government action, or were they designed to directly interfere with the y business relationships of a competitor? 141 Final!y, our review of the record reveals full support for the jury's and trial judge's conclusion that TCI overstepped the boundaries of Noerr-Pennington protection. Much of TCI's campaign was not directed at informing public officials or the public of TCI's position. Instead, TCI sought to distort the process by refusing to i participate in the RFP process, by threatening the C'ity's consultant and one of its competitors, by withholding the past due franchise fee, by attempting to interfere with Central's financing, and by coercing the City into holding private negotiations in violation of the RFP terms and Missouri's sumshine laws. Indeed, TCPs argument would effectively repeal the sunshine laws and administrative laws prohibiting ex pane contacts. TCFs argument that Noerr-Petinington allows them to engage in excessive and intimidating conduct proved too much for the trial judge and jury, and it proves too much for us. (FN 15) C. State Action Defense. TCI contends that Central could not have a cause of action under the antitrust laws because the City is immune under the state action, doctrine. Central contends that this argument is without merit because there is no clearly and affirmatively expressed policy of the Missouri legislature directing the City to displace competition, and TCI's agreement with the City is not in furtherance of any such policy. Central also argues that, in any event, TCI did not raise its "state action" argument in its answer, motion to dismiss, motion for summary judgment, pretrial filings, or its statement of issues in this Court. It points out that, in fact, TCI took precisely the opposite position below, stating in its j.n.o.v. motion that die City's actions were not "state action." Although we doubt that TCI's "state action' argument has merit, we decline to reach it because "defenses not raised or litigated in the trial court cannot be urged for the first time on appeal." Gardner v. Meyers, 491 F.2d 1184, 1190 (8th Cir.1974). Copyright (c) West Group 1998 No claim to original U.S. Govt. works 09 "! U L 800 F.2d 711, Central Telecommunications, Inc. v. TCI Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 14 D. Evidentiary Rulings. [5] TCI raises numerous objections to the trial court's evidentiary rulings and contends that the trial court gave improper and confusing instructions to the jury. After 0726 a thorough review of the record, the jury instructions as a whole, and the trial court's lengthy explanation of its evidentiary rulings and jury instructions, we find that litany of TCFs objections were not properly preserved for appeal and, in any event, that the trial court did not abuse its discretion in its evidentiary rulings, that the jury instructions adequately stated the law, and that the court's allo%%ance of ninety rninutes per side for closing arguments was not an abuse of discretion. E. Monopoly Power in a Regulated \tarkct. [6] TCl contends that, as a matter of law, it could not have possessed monopoly power because Jefferson City regulated price and entry in the cable television business. We reject this argument. Monopoly power is the power to control prices or exclude competitors. United States v. Grinnell Corp., 384 U.S. 563, 571, 86 S.Ct. 1698, 1704, 16 L.Ed.2d 778 (1966). Here, TCl had the power to raise the price of "premium" channels without the approval of the City. Most significantly, TCI used its entrenched position and the various unethical or illegal practices outlined in our Nocrr-Pennington discussion to exclude competition. TCI miscites our decision in National Reporting Co. v. Alderson Reporting Co., 763 F.2d 1020 (8th Cir.1985), as establishing that a company cannot possess monopoly power in a regulated market. There, the United States Tax Court contracted on a yearly basis for court -reporting services. The court allowed contractors who performed satisfactorily to renew their contract at the previous year's rate. If, however, the contractor wanted to raise his price, the court put the contract out for bid. When National Reporting Company, which had the current contract, requested a price increase, the court let the contract out for bid. Alderson Reporting Company submitted a bid more than 300 percent lower than National's bid, and received the contract. National then brought an antitrust action against Alderson, alleging that Alderson submitted a predatory below -cost bid with the intent to drive competitors out of the market and create a monopoly. We reversed a district court judgment in favor of National, and held that Alderson could not possess monopoly power because it did not have the power to control prices or exclude competition. National's theory was that Alderson submitted a predatory bid and then would increase prices the next year. However, we pointed out that as soon as Alderson raised its price, the contract would be put out for bid and that "[clompetition is alive and well in the relevant market." Id. at 1023. That factual situation is completely inapposite to our case. Unlike TCI, Alderson had not threatened competitors into not submitting bids, and it took no other action to destroy the competitive bidding process. The mere fact that the Jefferson City cable market is regulated cannot hide the fact that TCI had monopoly power in the market, and it used that power and other methods other than superior ability to exclude competition. As the United States Supreme Court stated in Otter Tail Po,.ver Co. v. United States, 410 U.S. 366, 372, 93 S.Ct. 1022, 1027, 35 L.Ed.2d 359 (1973), "Activities which come under the jurisdiction of a regulatory agency nevertheless may be subject to scrutiny under the antitrust laws." F. Sufficiency of the Evidence on the Conspiracy Count. [7] TCI contends that we must overturn the jury's verdict on Section One of the Sherman Act because there is insufficient evidence of a conspiracy or combination. Central contends that TCI is merely repeating an argument rejected by the iury, and it argues that if there is any evidence supporting the jury's finding of a conspiracy, the finding must be upheld. Citing Weiss v. York Hospital, 745 F.2d 786, 814 (3d Cir.1984), cert. denied, 470 U.S. 1060, 105 S.Ct. 1777, 84 L Ed.2d 836 (1995). TCI contends that it was selected because this was the "best" business decision for the City, even though Central offered a state.- $727 of -the -art system with a greater number of channels and better picture quality at a lower price. TCI stresses that there would have been an interruption in service if Central had been chosen, and that the mayor and other City officials were merely responding to this eventuality. "An inference of conspiracy is not warranted where the conduct is at least as consistent with legitimate business decisions "' M as with [anti -competitive joint action]." Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 884 (8th Cir.1978). Copyright (c) West Group 1998 No claim to original U.S. Govt. works 800 F.2d 711, Central Telecommunications, inc. v. TCi Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 15 Central contends that TCi's argument "emphasizes the innocuous and ignores the ominous." Corey v. Look, 641 F.2d 32, 35 Ost Cir.1981) (holding that concerted action by city officials and a parking lot operator designed to subvert normal commercial bidding and occlude the plaintiff violated Section One of the Sherman Act). Central contends that the record reseals abundant evidence that various City officials were coerced and pressured into an anti -compctitisc position. We find this a difficult question. Nonetheless, after reviewing the lengthy record in detail, we bclic\c that overturning the jury's conspiracy verdict would require us to review the evidence de novo and to accord little respect for the verdict of what the trial judge termed was "an extremely attentive jury." Central Telecommunications, 610 F.Supp. at 894. G. Damages. 1. Fact of DaniqLc, TCi contends that under Duff v. Kansas City Star Co., 299 F.2d 320 (81h Cir.1962), an unestablished business cannot recover for injury to "business" under section 4 of the Clayton Act. There, we stated that a plaintiff may not recover antitrust "damages by reason of loss of anticipated profits in an anticipated business." Id. at 323. However, this statement must be read in light of the facts in Duff. Duff had operated a small weekly newspaper in Kansas City, !Missouri. After eight years of non -publication due to a newsprint shortage during World War II, he unsuccessfully sought ro reenter the newspaper business. He claimed that his inability to start up a newspaper again was due to an attempt by defendant to monopolize the market. The district court dismissed his antitrust action on the ground he had no "business or property" which could have been injured. This Court affirmed, finding: "After eight years of non -publication appellant possessed neither business nor property, including goodwill, which could have been damaged[.]" Id. at 325. Stressing that Duff had not made any large capital expenditures, did not own a copyrighted name for a newspaper which had a value, and did not have subscription, advertising, or financing commitments, the Court stated that Duff "was in no different position than any stranger who might arrive in Kansas City with (lie desire or wish to enter the newspaper publishing field and who claimed that because of appellees' monopoly he was prevented from doing so." id. at 323. Although neither the Supreme Court or this Court has had occasion to expound on the meaning of Duff, at least seven of the Circuit Courts of Appeal, (FN16) as well as numerous district courts, (FN17) and the Supreme Court by implication (FN18) have ruled that an *728 unestablished business can recover future lost profits under the federal antitrust laws if a sufficiently advanced state of preparation for entering a market has been achieved. For example, the same year that Duff was decided, the United States Court of Appeals for the Fifth Circuit rejected a contention that Duff established that a business in the planning stage may never recover anticipated profits under the federal antitrust laws: Defendant's argument necessarily presupposes that when Congress authorized treble damage suits it meant to distinguish bcrween the rights of persons who are put out of business and the rights of persons who are kept out of business by a conspiracy. It is unreasonable to suppose that such a distinction was intended by j Congress. The purpose of the anti-trust laws is to promote competition and to prevent its restraint. This purpose is no less thwarted when a person who intends and is prepared to embark in trade is stopped at the I outset, than it is when a going business is brought to a standstill. It is as unlawful to prevent a person from engaging in business as it is to drive him out of business. Thornsen v. Union Castle Mail S.S. Co., 2 Cir., 1908, 166 F. 251, 253. The restriction which defendants would place upon the meaning of the word "business" is unwarranted in the context of its Clayton Act usage. We see no conflict in the holding of the Duff case with the decision reached here. First, the Duff case presents facts entirely different from those under consideration here. Indeed, the trial court likened the plaintiff in Duff to a stranger who might enter Kansas City "with the desire or wish" to enter the newspaper publishing field, which is to say that the "desire or wish" is all the stranger had. No property was involved. In effect, the court held that there was no established business (good will) to which the name or trademark Copyright (c) West Group 1998 No claim to original U.S. Govt. works L.. 1b 800 F.2d 711, Central Telecommunications, Inc. v. TCI Cablevision, Inc., (C.A.8 (Mo.) 1986) there involved attached. Page 16 [By contrast, the plaintiff here[ was guilty of no lethargy or speculative assertion of a mere wish, desire or intention to engage in business. in July he bound himself by the terms of a contract, which the evidence indicates would have been in performance in December. The alleged conspiracy stopped him cold in November. It is our opinion that Young was "injured in his business or property". Noah Texas producers Association v. Young, 308 F.2d 235, 243 (5th Cir.1962), cert. denied, 372 U.S. 929, i 83 S.Ct. 874, 9 L.Ed.2d 733 (1963). t j A respected commentator has aptly summarized the now -established majority view: s The plaintiff will be deemed to have an existing "business" if he has an intention to do so and has made a sufficient degree of preparation toward entering the market or industry. The four elements that the courts have considered in determining the degree of intention and preparedness are: 1 i (1) the plaintiff's background and experience in his prospective business; I 1 (2) affirmative action on the plaintiff's part to engage in the proposed business; (3) his ability to finance the business and to purchase the necessary equipment and facilities to engage therein; and (4) His consummation of contracts. 10 Von Kalinowski, Antitrust Laws and Trade Regulation, Sec. 115.02[31[i] (1986) (footnotes omitted). See also e.g., Parks, 716 F.2d at 660. •729 We agree with the conclusion of the United States Court of Appeals for the Fifth Circuit in North Texas Producers Association that guff is consistent with this majority view, but simply holds that Duff had not shown sufficient business or property interests to recover for injury to "business or property" under section 4 of the Clayton Act. 181 The district court tracked this view by instructing the jury that "[ilt is necessary that plaintiff cause you to believe from the evidence an intention and preparedness to enter the cable television market in order to recover for its toss in this case." TC1 does not challenee this instruction on appeal. Our review of the record supports the jury's conclusion that Central had made sufficient preparations to enter the cable television business to recover for injury to "business" under section 4 of the Clayton Act. Central had experience and expertise in the cable field, had raised over 5300,000 in capital with commitments of an additional 5200,000 in capital, had secured financing commitments in excess of SL5 million, had submitted detailed feasible plans for its cable system in Jefferson City and had secured the vote of the Ciry Council for an operating franchise. [9) TC1 also contends that the tortious interference verdict Hurst be reversed because under Missouri's tortious interference law, an unestablished business cannot recover anticipated profits unless plaintiff proves past income and expenses as the basis for computing them. Citing Coonis v. Rogers, 429 S.W.2d 709, 713-14 (Mo.1968). However, our review of Missouri law reveals that this argument is too extreme. A more detailed, accurate and recent description of Missouri law was provided in Budget Rent-A-Car v. B & G Rent-A-Car, 619 S.W.2d 8321 836-37 (Mo.App. 1981), where the court wrote: [Tjhe loss of profits, whether past or future, claimed to arise out of exclusion from a market is customarily not susceptible of detailed or direct proof, and * * * unless proof of an inferential character is permitted, the result Copyright (c) West Group 1998 No claim to original U.S. Govt. works 1 ` hr Fes+ V • 800 F.2d 711. Central Telecommunications, Inc. v. TCl Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 17 would be to immunize a defendant from the consequences of his wrongful acts. That principle has been frequently enunciated by the Supreme Court of the United States in the context of actions to recover damages resulting from yiolih,,ns ,,I the Federal antitrust laws. * * * The principle is equally applicable where the claim of lost profits arias from a violation of fiduciary obligations or breach of contract. * * * "The assessment of damages by a trial court sitting without ajury will not be set aside unless manifestly erroneous; and may he upheld if it falls \yithin the range of cstin}ates gtyen by expert witnesses." [There has been anJ evolution awaF from the demand for proof of certainty in damages in actions of this nature in * * * Mksouri. * * * Anticipated profits were generally not recoverable. Coonis v. Rogers, 429 S.W.2d 709, 714 (Mo.1968), but note the further quote, ' 'They [anticipated profits] may be recovered only when they are made reasonably certain of proof of actual facts, with present data for a rational estimate of their amount; and, when this is made to appear, they may be recoverable.' ' * * * 'JTJhe law is also well settled that damages may be reco,,yered for loss of profits due to the breach of a contract if the evidence is sufficiently certain and definite to warrant the jury in estimating their extent." * * * "it has been said, however, that the amount of estimated loss of earnings (and the same would apply to loss of prospective profits) should, in the event of uncertainty, at least be supported by the best evidence available." * * * * * * 'Where computation of damages is made uncertain by the nature of the breach of contract, '[t]he most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created.' * * * [.]' [Citations omitted.] Similarly, in Coach House of Ward Park -way v. Ward Parkway Shops, 471 S.W.2d 464, 472-73 (Mo.1971), the Court stated: *730 Defendant relies on a line of cases exemplified by Coortis v. Rogers, Mo., 429 S.W.2d 709, and Anderson v. Abernathy, 1,1o., 339 S.W.2d 817, for the general proposition of law to the effect that recovery of anticipated profits of a commercial business are too remote, speculative to warrant recovery except where they are made reasonably certain by proof of actual facts with present data for a rational estimate of their amount. This is and has been the rule in Missouri. However, in Hargis v. Sample, Mo., 306 S.W.2d 564, 569, also cited by defendant, this court in speaking of the certainty with which loss of profits must be shown said: "True, in some cases ail that can be required is to produce all the relevant facts tending to show the extent of damage and one is not to be excused for a breach of contract resulting in damages simply because those damages may not be established with exact certainty. Wright v. Ickenroth, Mo.App., 215 S.W.2d 43, 45. It has been said, however, that the amount of estimated loss of earnings (and the same would apply to loss of prospective profits) should, in the event of uncertainty, at least be supported by the best evidence available. Moss v. Mindlin's, Inc.,, Mo., 301 S.W.2d 761, 773." We believe this case comes within [this] rule * * * where if the breach exists, the experience of mankind is convincing that a pecuniary loss has occurred while at the same time the exact amount of damage is not susceptible of being ascertained with certainty. The Court in Coach House then held that damages for lost profits could be recovered, on remand, on the basis of the testimony of an expert witness on the estimated loss of business due to the violation at issue. We think this is the type of case where the damage award was based on the best evidence available, and where the estimate of loss is reasonable and thus is not too speculative under Missouri law. In sum, we hold that Central has sufficiently proved that it suffered damage to a protectable interest under the federal antitrust law and the State of Missouri's law on tortious 'interference with a business expectancy. 2. Measure of Damages. Copyright (c) West Group 1998 No claim to original U.S. Govt. works 101-1 Sit - wj4V L 0 800 P.2d 711, Central Telecommunications, Inc. v. TCI Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 18 TCI contends that Central's damage theory was 'irrational` and overcompensatory because it allegedly failed to deduct all the "start-up" costs of the business. Central's theory was that it should receive the fair market value of the lost franchise, and this value was ascertainable through use of an "industry rule of thumb ---ten times cash flow in Central's prolNised third year of operations. Central cites controlling authority that the fair market value of a business has long been a recognised measure of damages for a precluded plaintiff in antitrust cases, see, e.g. Amott v. American Od Co., 609 17.2d 873, 887 (8th Cir.1979), cert. denied 446 LI.S. 919, 100 S.Ct. 1852, 64 L.Ed.2d 272 (1980)' Albrecht v. Herald, 452 F.2d 124 (8th Cir.1971). See alsa Affiliated Capital Corp. V. City of Houston, 511) F.Supp. 991, 1011 (S.1) Tex.1981), rev'd on other gmun�Js, 735 F.2d 1555 (5th Cir.1984). Central also cites to Malley -Duff & Associates, Inc. v. Crown Life Ins. Co., 734 F.2d 133, 148 (3d Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 56-1, 83 L Fd 'd 505 (1984) where the Court ap prosed the use of an industry rule of thumb --a multiplier times vested renewal income --to determine fair market value. Central introduced a detailed damages study and extensive supporting testimony. The jury arrived at an actual damage amount of S10.8 trillion. Central points out that TCI itself suggested that the fair market value of the Jefferson Cite cable franchise was between S7.7 and S15 million. Although the damage award is large, we have concluded that we are obligated under controlling authority and the facts of the case to affirm. First of all, the Supreme Court has repcalediy made clear that once the fact of damage is established, the amount of damages requires a lesser degree of proof. See, e.g., 1. Truett Patine Co. v. Chrysler Motors Corp., 451 U.S. 557, 565-67, 101 S.Ct. 1923, 1929, 68 L.Ed.2d 442 (1981) ("Our willingness to accept a degree of uncertainty in these cases *731 rests in part on the difficultti of ascertaining business damages as compared, for example, to damages resulting from a personal injury. * * The vagaries of the marketplace usually deny us sure knowledge of what plaintiff's situation would have N--en in the absence of the defendant's antitrust violation.") For example, in Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123-24, 89 S.Ct, 1562, 1576-77, 23 L.Ed.2d 129 (1969), the Court held that antitrust damages could be awarded on the basis of plaintiff's estimates of sales it could have made absent the violation: [D]amage issues in these cases are rarely susceptible of the kind of concrete, detailed proof of injury which is available in other contexts. The Court has repeatedly held that in the absence of more precise proof, the fact - finder may "conclude as a matter of just and reasonable inference from the proof of defendants' wrongful acts and their tendency to injure plaintiffs' business, and from the evidence of the decline in prices, profits and values, not shown to be attributable to other causes, that defendants' wrongful acts had caused damage to the plaintiffs." A respected commentator has summarized the law on the measure of antitrust damages as follows: The amount of damages may be established by evidence of facts from which some calculation may be logically and legally inferred. If the inference upon which the award is based is reasonable, the plaintiff may recover a sum in damages even if it is merely an approximation. 10 Von Kalinowski Sec. 115.0212] (1986) (footnotes omitted). Similarly, the United States Court of Appeals for the Seventh Circuit has recently reiterated, in a decision affirmed by the Supreme Court: "Because a plaintiff can seldom prove the exact amount of antitrust damages, he may sustain his burden with circumstantial evidence and estimates of damage based on reasonable assumptions." Spray -Rite Service Corp. v. Monsanto Co., 684 F.2d 1-26, 1242 (7di Cir.1982), aff'd in pan, rev'd in part on other grounder 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). The law of the State of Missouri is similar with respect to damages for tonious interference with business expectancy. See, e.g., Budget Rent-A- Car, 619 S.W.2d at 836-37. [101 Central presented an estimate of damages based on reasonable industry assumptions, and the jury was entitled to infer from the evidence actual damages in an amount of $10.8 million. Our review of the award fails to reveal any error, (FN19) and we could reduce the award only by acting as the de novo fact -finder. This we may not do. Copyright (c) West Group 1998 No claim to original U,S. Govt. works 0 9 — i 1;; V 16 800 F.2d 711, Central Telecommunications, inc. v. TCi Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 19 Perhaps most significantly, Central's damage study and its expert's testimony was admitted without objection. TCi failed to introduce evidence on damages, and did not argue damages in its final argument before the jury. It is apparent that TC1 made a co nwious decision to "go for brake," claiming that Central could simply not receive any damages at all because TO "as not liable, The jury rejected this argument and was forced to base its damage award on the eyidcnce before it. TO firs( objected to the damages award and its method of calculation in its post - trial motion. This was too late Accordingly, the actual damages award of 510.8 million on the antitrust (before mandatory treblinc) and tortious interference claims is affirmed. *732. 11 1) The jury also awarded S25 million in punitive damages on the tortious interference claim. TCi does not challenge this award on appeal other than contending that if the actual damages award is reversed, the punitive damages award must also be reversed. Accordingly, although the punitive damages award is large, the award was based on a jury instruction on punitive damages which was not objected to at trial or on appeal and which, in any event, accurately sets forth the law of the State of Missouri. The record reveals substantial evidence of intentional tortious conduct on which the punitive damages award was based. Accordingly, we affirm the jury's award. Affirmed. FN* The Honorable HENRY %FOODS, United States District Judge for the Eastern District of Arkansas, sitting by designation. FN1. Although the franchises at issue in this case were nominally termed "nonexclusive," they were, in practical operation, exclusive.. Accordingly, we generally term the de facto exclusive franchises simply "exclusive." FN2. TCI ultimately also submitted an application, but the City determined that the application could not be considered because it failed to comply with the RFP. FN3. Under the Supreme Coun's decision in Associated Press v. United States, 326 U.S. 1, 19-20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945), a member of the communications industry who conspires or engages in predatory conduct for the purpose of eliminating its competitors is fully liable under the antitrust laws. FN4. We note that there is no question here of content regulation in determining who would be the "best" applicant. FNS. Inherent in the City's authority to choose the "best" cable operator for the City is the issue of how the City may reach this conclusion. In this connection, we note that the RFP terms are directed toward providing the widest array of programing at the lowest cost and do not seek to prohibit the communication of any message. Thus, the RFP deals primarily with rates, quality and geographic breadth of service and ,states: The City is establishing few requirements as it desires that all applicants have maximum freedom to develop their own innovative proposals. * * * The City is interested in receiving proposals for a system with the capacity of delivering at least 50 channels to subscribers and with * * * tecimical standards which exceed current FCC requirements. ° * * The City is not interested in proposed capacity which will not be used or which will necessitate unreasonably high subscritx-r rates. The City is interested in a flexible system which can best accommodate the present and future needs of institutional users without unduly burdening the average subscriber. i FN6. See, e.g., plaintiff's exhibit (PX) 400 (Touche Ross study); 19 T. 86 (Testimony of John Clair Smith, summarizing Touche Ross study: 'The basic conclusion is that * * * a direct house -to -house competition between two cable companies would not be financially feasible in Jefferson City, that the market would not support sustained house -to -house competition.") FN7. The district court stated that "[altthough the Noerr- Pennington defense is most often asserted against antitrust claims, it is equally applicable to many types of claims which seek[ j to assign liability on the basis of Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99— r/�V L 800 F.2d 711, Central Telecommunications, inc. v. TCi Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 20 the defendant's exercise of its first amendment rights." Central Telecommunications, 610 F.Supp. at 896 n. 7 . Although the United States Supreme Court has not directly confronted this issue, this Court has indicated that it agrees with the principle stated. See, c.g„ In Re iBP Confidential Business Documents Litigation, 755 F.2d Iltx), 13121 08th Cir.1985;. We reiterate our agrernient with this position --which is not challenged on appeal --at Icast w ith respcc( to the tortious interference claim at issue. FN8. The RFP promlcs that "to insure that all negotiations will be open, no applicant shall contact any City Councilman or the Manor outside the Council Chambers." PX 84A at 20(a). FN9. The differences between Central's and TCI's prolx)sals are outlined in PX 285. The Central proposal was superior in numerous respects. A few of the more significant advantages are summarized in the following chart: TABULAR OR GRAPHIC MATERIAL SET AT THiS POINT IS NOT DISPLAYABLE FN 10. TCI proposed the following Noerr-Pennington instructions: NOERR-PENNINGTON--GENERAL i j The Constitution ensures the right of all persons and corporations, whether acting individually or in concert, to petition government for political action, recognizing that persons in the exercise of these constitutional rights naturally will petition government for political action that is favorable to their particular interests and unfavorable to the interests of others. The Supreme Court has declared that this right to petition government for political action is paramount, and that the concerted effort of various parties genuinely to influence public officials does not in any way violate the law regardless of intent or purpose. Joint efforts truly intended to influence public officials to take official action do not violate antitrust laws even though the efforts are intended to eliminate competition. Similarly, the Constitution protects a person's right of access to the courts for resolution of disputed issues. The antitrust laws are not violated when a person files a suit, even if he hopes and intends that the judge or jury will enter verdicts which will injure his competitors. In short, activity which is intended to influence or cause official governmental action --whether by an individual such as a mayor, by a legislative body such as a City Council, or by judges and juries --does not violate the law, regardless of the intentions of the persons engaging in such activity. NOERR-PENNINGTON--APPLICATION TO THIS CASE To the extent that you find that defendants engaged in legitimate efforts to influence governmental action or to seek redress for its grievances through the courts, you are directed that you cannot find the defendants liable for any of the claims asserted by plaintiff based upon such activity. For example, if you were to find that all of defendants' actions about which plaintiff complains fit into this category of legitimate attempts to influence official action or to vindicate rights through the courts, Uien you could not find defendants liable for any of the offenses charged. That is, if your should conclude from a review *732. of the evidence that defendants did nothing more in this case than take actions for the purpose of persuading the City to award them a cable television franchise on some basis, then you may not find that defendants committed any of the offenses charged, even if you believe chat the purpose or necessary effect of such actions was to exclude plaintiff from obtaining a franchise. On the other hand, if you were to find that none of defendants' actions fit into that category, then you would simply assess those actions under the standards we have already discussed and without regard to this instruction. Finally, if you find that some of defendants' actions were legitimate attempts to influence governmental action but that some were not, then when you decide whether the evidence establishes that defendants committed any of the charged offenses, you must exclude from your consideration those actions which you find did in fact fall into that category, for they may not form the basis --in whole or in Copyright (c) West Group 1998 No claim to original U.S. Govt. works "i4v " 800 F.2d 711, Central Telecommunications, Inc, v. TC1 Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 21 pan --for any liability. NOERR-PENNINCYTON--EXCEPTIONS However, the activity we are discussing must consist of genuine efforts to influence governmental action or to vindicate rights through the courts, Protection does not extend to purported petitioning that is a mere sham to cover what a,:rually is nothing more than an attempt to interfere directly with the business of a competitor. That is, protection does not extend to activities that are merely a pretext for inflicting on plaintiff an injury not caused by any government action. Thus, you must consider whether defendants' activities were not really an attempt to influence an official to tlke official action,, but instead were an attempt to interfere directly with the business of plaintiff. When deciding this question, you must consider the intent of defendants in taking such actions. If you find that their intent was to obtain some governmental action, no matter what the action was, then these activities were genuine. The success of defendants' efforts is evidence of their genuineness. In the context of defendants' lau suit against the City, about which you have heard some evidence, you must decide whether defendants filed the suit with the hope: of obtaining a judicial ruling in their favor, or whether the suit was only intended to directly injure plaintiff in sorne manner. The extent to which a lawsuit involves legitimately disputed issues is circumstantial evidence of the genuineness of the suit. The knowledge that defense of the litigation might impose burdensome costs upon the City would not be sufficient to establish that defendants brought tlrc suit in bad faith, in an attempt to injure plaintiff. Finally, the Constitution does not protect attempts to influence governmental action by methods which are i illegal in and of themselves; for example, by bribery of government officials. Such actions are not legitimate attempts to petition the government. •732_ In Burn, you must decide whether all or some of defendants' activities were legitimate and genuine efforts to obtain a franchise from the City. All such efforts must be excluded from your consideration of this case because they cannot --as a matter of law --form the basis of liability for any of the offenses charged. FNI1. The Noerr Court noted, however, that the defendants' activities --even though they included misrepresentations and unethical conduct --were not covered by the Sherman Act at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws. 365 U.S. at 140-42, 81 S.Ct. at 531-32. The unethical conduct referred to involved the defendants' use of the so-called "third -party technique" --a misrepresentation through which the railroad defendants' attempts to gain passage of laws favorable to railroads and unfavorable to the plaintiff trucking companies were made to appear as originating from independent parties. However, even though the use of this third -party technique involved misrepresentation as to ulre source of the petitioning, the position advanced by the defendants -- essentially that trucks were harmful to the state's highways and interfered with motorists' rights --was a legitimate one, "conducted along lines normally accepted in our political system," id. at 145. 81 S.Ct. at 533, even though anticompetitive. The case before us is distinguishable in that the jury could properly have found, based on the facts and the court's instructions, that TCCs activities, more than being simply anti -competitive, were not genuine lobbying activities at all but instead were heavy-handed attempts to directly interfere with the business relationships of a competitor, to disturb the political process and to coerce the City into extending TCI's monopoly position, even though Central offered a superior cable system at lower cost. !vouch of TCI's "lobbying" made no attempt to provide the City with information on which to base a reasonable choice but, instead, sought to subvert the franchising process. FN12. The plaintiff in Mark Aero was an air taxi operator who wanted to reopen the Kansas City Municipal Airport for commercial flights. Two of the plaintiff's competitors opposed the reopening by conducting a publicity campaign and by exerting pressure on public officials. No illegal activities were alleged, as in the case before us, although Mark Aero did allege that the defendants 'induced others to make false and misleading statements" and used 'economic coercion" on City officials. We hold that the defendants' activities were protected by Noerr-Pennington because "none of the defendants' alleged wrongful acts constitute more Copyright (c) West Group 1998 No claim to original U.S. Govt. works 009— 0V 800 F.2d 711, Central Telecommunications, inc. v. TCi Cablevision, inc., (C.A.8 (Mo.) 1986) Page 22 than joint efforts to influence the City officials' decision in the airport controversy.' 580 F.2d at 296. FN13. TCI alleges that the defendants in Westborough Slill attempted to bribe public officials. However, our reading of that case reveals that it did not invoke the sham exception on grounds of bribery but on the ground that the plaintitts might be able to prove an illegal conspiracy between defendants and the City which included illegal pri\ate negotiations such as those at issue in the case before us. FN14. TCi ako alleges that the trial court's conspirac,. instruction "essentially negated" the Noerr-Pennington defense. We reject this arguntent. First of all, TCI did not specifically raise this objection below, and thus we could order a new trial on this basis only if the alleged error is "plain error." In any event, we find TCFs oblique argument to be completely without merit. We find nothing in the conspiracy instruction which negates the N(-err Pennington instruction. The jury was informed that 'each * * * instruction is equally binding ulx n you." Conspiracy Instruction Number l 1 read along with Instructions Number 21 and Number 14 (Noerr Pe,min-0-oll ) fully informed the jury that before any antitrust liability could be imposed, it had to find that TCi "know ingly entered into a combination or conspiracy" and that in determining liability, it could not consider TCi's "legitimate lobbying efforts.' FN15. Central raises several other reasons why TCI's conduct was not protected under Noerr-Pennington. Although some of these arguments may have merit, we need not reach them here. Central argues that the Noerr-Pennington d<x.trine is inapplicable here because this case involves a municipality acting in an essentially commercial rather than in an executive, legislative or adjudicatory capacity. See, e.g., Sacramento, 440 F.2d at 1099; Hecht v. Pro -Football, Inc., 444 F.2d 931, 941-42 (D.C.Cir.1971), cent. denied, 444 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972); George R. Whitten, Jr. v. Paddock Pool i Builders, inc., 424 F.2d 25, 33 (1st Cir.), cert. denied, 400 U.S. 850, 91 S.Ct, 54, 27 L.Ed.2d 88 (1970). i Central also argues that TCi's conduct cannot be described as merely "political" in nature because the ultimate act it sought from the City, the award of a cable television franchise, is not protected "state action' because there is no clearly and affirmatively expressed policy in Missouri authorizing cities to displace competition in the cable television industry. See, e.g., Community Communications Co, v. City of Boulder, 455 U.S. 40, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982). Finally, Central argues that the Noerr- Pennington doctrine is inapplicable because the jury found that there was an illegal conspiracy between TCI and certain City officials, including Utterback and the mayor. See, e.g., Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1566-67 (5th Cir.1984), cert. denied, --- U.S. ----, 106 S.Ct. 788, 88 L.Ed.2d 766 (1986); Duke & Co. v. 1 Foerster, 521 F.2d 1277, 1281-82 (3d Cir.1975). *732 FN16. Parks Watson, 716 F.2d 646, 659-60 (9th Cir.1983); Grip -Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466, 475 (7th Cir.1982), cent. denied, 461 U.S. 958, 103 S.Ct. 2430, 77 L.Ed.2d 1317 (1983); Huron Valley Hospital inc. v. City of Pontiac, 666 F.2d 1029, 1033 (6th Cir.1981); Hayes v. Solomon, 597 F.2d 958, 973 (5th Cir.1978), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); Hecht v. Pro -Football, Inc., 570 F.2d 982, 987-88 (D.C.Cir.1977), cent. denied, 436 U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978); Triangle Conduit & Cable Co. v. National Electric, 152 F.2d 398, 400 (3d Cir.1945); Pennsylvania Sugar Ref. Co. v. American Sugar Ref. Co., 166 F. 254 (2d Cir.1908). FN17. See, e.g., Bowl America, Inc. v. Fair Lanes, Inc., 299 F.Supp. 1080, 1095 (D.Md.1969); Denver Petroleum Corp. v. Shell Oil Co., 306 F.Supp. 289, 307 (D.Colo.1969). FN18. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U,S. 100, 126-28, 89 S.Ct. 1562, 1578-79, 23 L.Ed. 1562 (1969) (On the related question of whether the plaintiff, as a condition of maintaining a treble -damage action, must prove that he made a demand for the excluded product or service, the Court stated: "The issue is whether, once the embargo was lifted, Zenith wanted to enter, had the capacity to do so, and was prevented from entering by its inability to secure a patent license and by other operations of the English patent pool. Section 4 of the Clayton Act required that Zenith show an injury to its 'business or property by reason of anything forbidden in the antitrust laws.' if Zenith's failure to enter the English market was attributable to its lack of desire, its limited production capabilities, or to other factors independent of HRI's unlawful Copyright (c) West Group 1998 No claim to original U.S. Govt. works sq- 71DA 800 F.2d 711, Central Telecommunications, Inc. v. TO Cablevision, Inc., (C.A.8 (Mo.) 1986) Page 23 conduct, Zenith would not have met its burden under Sec. 4," (Footnote omitted.) FN19. TCI contends, in an argument not raised thel'ore the jury, that Central's damage estimate failed to adequately account for Central's start-up costs. Ilo% e\er, our re\icw of the damages study reveals that start- up costs of $1.6 million «ere accounted for. if TO believed this Figure understated start-up costs, it should have introduced evidence on this. Given that TCI failed to raise this argument txfore the jury, and that there is no evidence to suggest that Central's estimate is unreasonable, we assume that 51.6 million in estimated start-up costs is rcasonahlc. TCI also suggests in passing that Central's damages theory erroneously uses its third year of operations as the 1 base for determining fair market value. However, TC'1 failed to object to this method at trial. Moreover, the third year coincided with the date of trial, and thus had a reasonable basis. i 1 1 i i t l t. Copyright (c) West Group 1998 No claim to original U.S. Govt. works ��� 72) Document Page 1 of 1 4 PART II THE CODE' Chapter 18 FINANCE' ARTICLE Ill. PURCHASING AND CONTRACTS GENERALLY° Sec. 18-78. Contracting, methods and procedures. Sec. 18-78. Contracting methods and hr-ocertures. (a) All purchases of goods, including but not limited to supplies, materials, equipment, printed materials and purchases of services, including but not limited to personal, professional, management and technical services neededTTy,e city, but not including legal services, shaLGe exclu ively mad_Q_in the manner set foa in this article. Any agreement for purchase entered into in any manner inconsistent with the procedures stated in this article by any person shall not bind the city. The provisions of this article relating to public notice and competitive methods and procedures shall constitute the rules and regulations called for by sections 3(f), 28 and 29•A of the Charter (b) Definitions. For the purposes of this article Ill, the following terms shall have the meanings ascribed to them in this section. Contractual party means a person or entity that enters into a contract with the city or supplies goods or services, directly or indirectly, to the city. Invitation for bids means all documents, whether attached or incorporated by reference, utilized for soliciting bids or proposals. Most advantageous means a judgmental assessment of what is in the best interests of the city and denotes a condition which will result in a maximum benefit being conferred upon the city. Practicable means that which may be accomplished or put into practical application. Public notice unless otherwise specified herein, public notice of a public hearing shall mean publication of notice of the time, place and purpose of such hearing in a newspaper of general circulation in the city at least seven days prior to the hearing. Request for proposals means all documents, whether attached or incorporated by reference, utilized for soliciting proposals. Responsible bidder or offeror means a person who has the capability in all respects to perform fully the contract requirements and the integrity and reliability which will assure good -faith performance. Responsive bidder means a person who has submitted a bid which conforms in all material respects to the invitation for bids. (Ord. No. 9572, § 1, 2-10-83; Code 1980, § 18-52; Ord. No. 11688, § 1, 7-21-98) Sec. 18-79. Competitive sealed bidding. (a) Conditions for use. Pursuant to the Charter section 29-A(a), competitive sealed bidding shall be used for the award of ail contracts over $4,500.00 where it is both practicable and advantageous for the city to specify all detailed plans, specifications, standards, terms and conditions so that adequate competition will result and award may be made to the lowest responsible and responsive bidder principally on the basis of price. However, if the city manager makes a written finding, supported by reasons, to the city commission, that competitive sealed bidding methods are not practicable or advantageous, the requirement of competitive sealed bidding may be waived. Such finding must first be ratified by an affirmative vote of two-thirds of the commission after a properly advertised public hearing. (b) Invitations for bids. An invitation for bids shall be issued and include, but not be limited to: http://www.municode.comlCGI-BrNlom_isapi.dll?depth=3&hitsperheading=on&infobase=1093 9/ 10/99'ecord= JJ� a9Q L Document PART II THE CODE` Chapter 18 FINANCE* ARTICLE ill. PURCHASING AND CONTRACTS GENERALLY' cc. 18-79. Competitive sealed bidding_ Page 1 of 2 0 ) Instructions and infOrmation to bidders concerning the bid submission requirements, includinL the unic ind date sct fnr receipt of bids, the address of the office to � hich bids are to be delivered, the max inikill) time for bid acceptance by the city, the right of the cite manager to reject all oftcrs or bids, and an\' ether special information, (2) The purchase description, qualification factors, delivery or performance schedule, and such inspection and acceptance requirements as are not included in the purchase description; (3) The contract terms and conditions, including warranty and bonding or other security requirements, as applicable, (4) The date, time and place at which any prebid conference may be held and whether attendance at such conferences is a condition for bidding, and (5) The place where any documents incorporated by reference may be obtained. (c) Bidders lists Bidders lists may be compiled to provide the city with the names of businesses which may be interested in competing for vanous types of city contracts Unless otherwise provided, inclusion or exclusion of the name of a business does not indicate whether that business is responsible in respect to a particular procurement or otherwise capable of successfully performing a particular city contract. (d) Public notice. Notice inviting bids shall be published at least once in a newspaper of general circulation in the city a reasonable time prior to bid opening, but in any event at least 15 calendar days shall intervene between the last date of publication and the final date for submitting bids. Such notice shall state the general description of the goods or services to be purchased, the place where a copy of the invitation for bids may be obtained, and the time and place for opening of bids In addition, the chief procurement officer may solicit bids from all responsible prospective suppliers listed on a current bidders list by sending such bidders copies of the notice to acquaint them with the proposed purchase. (e) Prebid conferences. Prebid conferences may be conducted to explain the requirements of the proposed procurement and shall be announced to all prospective bidders known to have received an invitation for bids. Conferences should be held long enough after the invitations for bids have been issued to allow offerors to become familiar with the proposed procurement, but sufficiently before bid submission to allow consideration of the conference results in preparing their bids. Nothing stated at a prebid conference shall change the invitation for bids unless a change is made by written amendment. A summary of the conference shall be supplied to all those prospective bidders known to have received an invitation for bids. If a transcript is made, it shall be a public record. (f) Bid opening. All bids shall be submitted sealed to the city clerk and shall be opened publicly by the city clerk or designee in the presence of one or more witnesses at the time and place stated in the public notice and in the invitation for bids. The amount of each bid and such other relevant information as may be deemed desirable, together with the name of each bidder, shall be recorded, the record and each bid shall be open to public inspection. (g) Bid acceptance and evaluation. Bids shall be evaluated based on the requirements set forth in the invitation for bids, which may include criteria to determine acceptability such as inspection, quality, workmanship, delivery and suitability for a particular purpose. Those criteria that will affect the bid price and be considered in evaluation for award, such as discounts, transportation costs, and total or life cycle costs shall be measured objectively. No criteria may be used in bid evaluation which were not set forth in the invitation for bids. The results of the evaluation and tabulation of bid prices shall be transmitted by the chief procurement officer to the city manager. (h) Award. The city manager may reject all bids or may submit recommendations as to the award to the city commission, which may reject all bids Any contracts awarded shall be awarded with reasonable promptness by written notice to the lowest responsible and responsive bidder; provided, however, that when the lowest responsible and responsive bidder is a nonlocal vendor, the city commission may offer to a responsible and responsive bidder whose primary office is located in the city, commencing with the lowest responsible and responsive local bidder, the opportunity of accepting the contract at the low bid amount, provided that the original bid from the local vendor does not exceed 110 percent of the low bid. The decision of the city commission shall be final. All contracts shall be approved as to form and correctness by the city attorney, and a copy shall be filed with the city clerk. (Ord. No. 9572, § 1, 2-10-83; Ord. No. 11087, § 2, 9-27-93; Code 1980, § 18-52.1) Charter reference(s)—Procurement procedures for personal property, public works or improvements, unified development projects, and real property, § 29-A. City Code cross referonce--Competitive sealed bidding for sales of real property, § 18-177. http://www.municode.com/CGI-BIN/om_isapi,dlI?depth=3&hitsperheading=on&infobase =I0939/10/99•ecord= 09_ "l'2V I F Document � Page ? of 2 Case law reference(s)—Code 1967, § 16-21, a predecessor of current § 18-79, referred to contracts involving personal property and services and to purchases of personalty, but had no connection whatsoever with contracts for or the sale or purchase of real property. Cleary v. Dade County, 160 Fla. 892, 37 So. 2d 248. i i ' f E j i i 1 i i a i I j http://www.municode.com/CGI-BIN/om_isapi.dll?depth=3&hitsperheading=on&infobase=10939/ 10/99-ecord= a 9 7,� Q Document Page 1 of 1 PART II THE CODE' _ Chapter 18 FINANCE' ARTICLE Ill. PURCHASING ANDCONTRACTSGENERALLY' Sec. 18-79. Competit_iye sealed bidding_ An agreement b%' the cit', 0 transfer Jackson Memorial 1lospital to Dade County, Florida, to be operated by the transterce, \kas not within the intent ofthat section, N. Former section held not applicable to lease of building containing restaurant for period of five years. Mahoney et al. v. Givens et al., 64 So, 2d 926. Sec. 18-80. Competitive negotiations. (a) Conditions for use. (1) Competitive negotiations shall be used in those circumstances in which it is both practicable and advantageous for the city to consider a range of competing plans, specifications, standards, terms and conditions so that adequate competition will result and award be made not principally on the basis of price, but to the offeror whose proposal contains the most advantageous combination of price, quality or other features. (2) Competitive negotiations shall be used in the procurement of personal and professional services except a. Professional services as defined under Code section 18-81. b. Personal and professional services where the fee for such services to be performed is less than $50,000.00 C. Legal and accounting services. (3) The city manager or the city manager's designee shall make recommendations to the city commission regarding the procurement of personal and professional services not exempted in subsection (a)(2), above, and in excess of $50,000.00 and present evidence that he has interviewed at least three individuals or firms possessing the ability to perform such services and that he has obtained information from said individuals or firms relating to experience, qualifications and the proposed cost or fee for said services (4) The city manager shall make recommendations to the city commission regarding the procurement of accounting services and present evidence that he has interviewed at least three individuals or firms possessing the ability to perform s!tch services and that he has obtained information from said individuals or firms relating to experience, qualifications, and the proposed cost or fee for said services. (b) Award. After reviewing the city manager's recommendation, the city commission may award the contract to the individual or firm recornmended by the city manager or the city commission may reject such recommendation and, if appropriate, instruct the city manager to conduct additional interviews and make further recommendations. The decision of the city commission shall be final. All contracts shall be approved as to form and correctness by the city attorney, and a copy shall be filed with the city clerk. (Ord. No. 9572., § 1, 2-10-83:Ord. No. 10231, § 1, 3-13-87. Code 1980, § 18-52.2) Sec. 18-81. Professional services. (a) Conditions for use. Competitive methods and procedures prescribed in this section shall be used for those services within the scope of the practice of architecture, professional engineering, landscape architecture or of a registered land surveyor or mapper in connection with their professional employment or practice. Procurement of technical and management services, unless otherwise provided in articles Ill and V of this chapter, shall be conducted in accordance with the provisions set forth in section 18-80. http://www.municode,comlCGI-BINIom_isapi.dll?depth=3 &hitsperheading=on&infobase=10939/ 10/99•eco rd= �9— "d��l L Document PART If THE CODE' Chaai3ter 18 FINANCE' ARTICLE III. PURCHASING AND CONTRACTS GENERALLY' Sec. 18-83 Contracts for public works or improvements. Page I of 1 Sec. 18-83. Contracts for public n«rks or improvements. Pursuant to Charter section 23ib), all contracts for public works or improvements in excess of $10,000 00 shall be awarded on the basis of sealed compet)tive bids, as provided herein, unless the city manager makes a written finding, supported by reasons, that a valid emergency exists or that there is only one reasonable source of supply. Such finding must be ratified by an affirmative vote of 2/3 of the city commission after a properly advertised public hearing. All contracts for public works or improvements for less than $10,000.00 shall be awarded on the basis of competitive negotiations. (Ord. No. 9572, § 1, 2-10-83, Code 1980, & 18-52 5) Charter reference(s)--Purchasing, § 28(b) Sec. 18-84. Emergency purchases. (a) In case of emergency, it is not advantageous or practicable for the city to use competitive bidding methods Therefore, the city manager may direct the chief procurement officer to purchase directly those goods or services whose immediate procurement is essential to the life, health, welfare, safety or convenience of the city Such emergency purchases shall nevertheless be made with such competition as may be practicable under the circumstances In seeking a waiver of competitive bidding methods, the head of the using department or office shall submit to the chief procurement officer and the city manager in writing a full explanation, of the circumstances of the emergency and the reasons for selection of a particular firm, along with a list of others which may have been solicited, with a confirming requisition attached thereto. The city manager may then waive competitive bidding requirements after making a written finding, supported by reasons, that an emergency exists. Such finding must be ratified by an affirmative 2/3 vote of the city commission. (b) Notwithstanding anything to the contrary contained in this Code, the city manager may direct the chief procurement officer to purchase directly those goods and/or services required by the Urban Search and kescue Task Force when activate to perform its obligations under the existing provisions of the memorandum of understanding with the state and/or the Federal Emergency Management Agency (FEMA). Such emergency purchases shall nevertheless be made with such competition as may be practicable under the circumstances. If necessary, the city manager may waive competitive bidding methods for such emergency purchases, after making a written finding, supported by documentation that the Urban Search and Rescue Task Force has been officially activated. Such finding and waiver must be ratified by an affirmative 2/3 vote of the city commission. (Ord. No. 9572, § 1, 2-10-83, Code 1980, § 18-52.6, Ord. No. 11657, § 2, 5-26-98) Sec.18-85. Cancellations. The city shall have the right to cancel all invitations for bids, requests for proposals, or other solicitations before bid opening, proposal submission, or receipt of quotations and to reject all bids, proposals or offers after receipt. All invitations for bids, requests for proposals, or other solicitations shall contain a reservation of the foregoing rights. In the event of such cancellation or rejection, the chief procurement officer shall promptly notify all affected bidders or offerors and make available to them a copy of the written explanation for such cancellation or rejection, which shall be a public record. (Ord. No. 9572, § 1, 2-10-83, Code 1980, § 18-52.7) Sec. 18-86. Sole -source contracts. (a) Conditions for use Since it is not practicable for the city to use competitive bidding methods to secure goods or services if there is any one reasonable source of supply, sole -source awards may be made as an exception to the other methods prescribed in this section under the following circumstances: (1) Where the compatibility of equipment, accessories, or replacement parts permits one reasonable source of supply; (2) Where the goods or services available from a single source are needed for trial use or testing; and PIP http://www.municode.comlCGI-B 1Nlom_isapi.dll?depth=3&hitsperheading=on&infobase=1093 9/ 10/99�e:.ord= 9 f) - 7f9v 0 Document matt 1 11 i HE CDUE" Chapter 18 FINANCE` ARTICLE Ill. PURCHASING AND CONTRACTS GENERALLY - Sec. 18-86. Sole-,ource contracts. Page 1 of 1 (3) Where the unique and specialized expertise of one sourcc ofservices is unlikely to be obtained from any other source. (b) Determination and approval. The determination that an award shall be made on a sole -source basis shall be made by the chief procurement officer to the city manager. Such determination shall be made in writing and provide complete justification as to why no other sources of goods or services could be obtained to meet the city's requirements The determination shall also certify that the terms and conditions of the award have been negotiated so as to obtain the most favorable terms and conditions, including price, as may be offered to other customers or clients by the proposed contractor. The city manager may waive competitive bidding after he makes a written finding, supported by reasons, that only one reasonable source of supply exists Such finding must be ratified by an affirmatve two-thirds vote of the city commission after a properly advertised public hearing. (c) Public notice and disclosure. Notice that the city intends to award a sole -source contract shall be published at least once in a newspaper of general circulation in the city prior to contract award, but in any event at least 15 calendar days shall intervene between the last date of publication and the date of award. Such notices shall state the intention to award a sole -source contract, the nature of goods or services to be acquired, the name of the proposed contractor, and the name and telephone number of a cognizant city official who may be contacted by other potential sources who feel they might be able to satisfy the city's requirements. A record of such notices and responses thereto shall be maintained in the contract file along with the written determination required above, and a compilation of all sole source awards shall be submitted by the city manager to the city commission on a quarterly basis to include: (1) The name of the sole -source contractor, (2) The nature of the goods or services prccured, (3) The reasons no other source could satisfy city requirements; (4) The amount and type of contract. and (5) The identification number for each contract file. (Ord. No. 9572, § 1, 2-10-83; Code 1980, § 18-52 8) Sec. 18-87. Unified development projects. (a) Definitions. For the purposes of this article ill, the following terms shall have the following meanings: Unifted development project shall mean a project in which an interest in real property is owned or is to be acquired by the city, which is to be used for the development of improvements, and as to which the city commission determines that for the development of said improvements it is most advantageous to the city that the city procure from a private person, as defined in the Code of the city, one or more of the following integrated packages: (1) Planning and design, construction, and leasing; or (2) Planning and design, leasing, and management; or (3) Planning and design, construction, and management; or http://www.municode.conilCGI-BINlom_isapi.dll?depth=3&hitsperheading=on&infobase=10939/ 10/99-ecord= 0�� 0 Document Page 1 of 1 CHARTER AND CODE City of MIAMI FLORIDA Codified through Ord. No. 11797, enacted May 11, 1999 PART II THE CODE' ChaptEr 18 -FINANCE' ARTICLE III. PURCHASING AND CONTRACTS GENERALLY' i Sec. 18_-88. Types of contracts. ? Sec. 18-88. TN.1res of contracts. (a) Subject to the limitations of this section, any type of contract which will promote the best interests of the city may be used, except that the use of a cost-plus contract is prohibited (1) Fixed price contracts. Fixed -price contracts shall ordinarily be used for those purchases of goods and services or sales and leases where the terms, conditions, specifications and other factors of the contract can be specified with a high degree of certainty and where use of a fixed -price contract will result in substantial competition between bidders or offerors willing to compete for the contract. Incentives based on, various performance factors and escalation clauses or other economic adjustments may be included as appropriate to serve the best interests of the city in achieving the most economical contract performance. (2) Cost -reimbursement contracts. Cost -reimbursement contracts shall ordinarily be used for those purchases of goods and services or sales and leases where the terms, conditions, specifications and other factors of the contract cannot be specified with a high degree of certainty or the use of fixed -price contracts is not likely to result in substantial competition between bidders or offerors willing to compete for the contract. Incentives based on various performance factors and escalation clauses or other economic adjustments may be included as appropriate to serve the best interests of the city in achieving the most economical contract performance. (3) Blanket orders. The chief procurement officer or individual purchasing agents may issue purchase orders for indeterminate amounts of repair parts, supplies and services to the account of any department or office, but only when based upon a definite contract or price agreement which shall be negotiated in the same manner as if the item to be purchased thereunder were to be individually purchased or contracted for under the provisions of articles Ill and V of this chapter. Such orders shall state a specific monetary limit which may not be exceeded except on written approval by the chief procurement officer. { (4) Multiyear contracts. a. Unless otherwise provided by law, a contract for supplies or services, sales, or leases may be entered into for any period of time deemed to be in the best interests of the city, provided that the term of the contract and conditions for renewal or extension, if any, are included in the invitation for bids or request for proposals, and provided that funds are available for the first fiscal period at the time of contract award. Payment and performance obligations for succeeding fiscal periods shall be subject to the availability and appropriation of funds therefor and shall be so stipulated in the contract. b. Prior to the utilization of a multiyear contract, it shall be determined in writing by the using department or office and by the chief procurement officer that the estimated requirements over the period of the contract are reasonably firm and continuing; and that such a contract will serve the best interests of the city by promoting more effective competition or otherwise promoting economies to the city. (b) Accounting suitability. Except with respect to firm fixed -price contracts with no provisions for incentives, escalation or any other adjustments, no type of contract shall be used unless it has been determined in writing by individual purchasing agent or the chief procurement officer that: (1) The accounting system of the contractual party will permit timely development of all necessary cost data in the form required by the specific type of contract contemplated; and (2) The accounting system of the contractual party is adequate to allocate costs in accordance with generally accepted accounting principles. (c) All contracts shall be approved by the city attorney as to form and correctness prior to being executed on behalf of the city. (Ord. No. 9572, § 1, 2.10-83; Code 1980, § 18-53) Sec. 18-89. Qualifications and duties of contractual parties. The city shall attempt to secure the most qualified contractual parties in its dealings with the private sector in accordance with the provisions of this article. 00 http://www.municode.conVCGI-BfN/om_isapi.dll?depth=3&hitsperheading=on&infobase=l 0939/ 10/ss9��9,ecord= 0 "' 7rw 0 k Document Page 1 of 2 GHAKItK AND GUUt GitY of MIAMI, rwniuM_y 11, lr�7. PART 11 THE CODE` Chapter 18 FINANCE" ARTICLE Ill. PURCHASING AND CONTRACTS GENERALLY'. Sec. 18.99. Resolution of Protested solicitations and awards. Sec. 18-99. Resolution of protested solicitations and ai�ards. (a) R,ght to protest Any actual or prospective proposer who perceives itself aggrieved in connection with the solicitation cr award of a contract or any prospective bidder who intends to contest bid specifications or a responsive and responsible bidder whose bid is lower than that of the recommended vendor may protest to the chief procurement officer. A notice of protest shall be submitted in writing to and received by the chief procurement officer within two days after invitation to bid is received or after the reading of the bid tabulation by the city clerk or after receipt of the notice of the city's decision or intended decision. A formal written protest must be submitted to and received by the chief procurement officer within five days after the date the notice of protest was filed No time will be added to the above limits for service by mail. In computing any period of time prescribed or allowed by this section, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or legal holiday Intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation of the time for filing The formal written protest shall state with particularity the facts and law upon which the protest is based (b) Authority to resolve protests. The chief procurement officer shall have the authority, subject to the approval of the city manager and the city attorney, to settle and resolve any formal written protest. In cases involving more than $4,500 00, the decisions of the chief procurement officer must be submitted for approval or disapproval thereof to the city commission after a favorable recommendation by the city attorney and the city manager. The chief procurement officer shall obtain, the requisite approvals and communicate said decision to the protesting party, or alternatively if the amount involved is greater than $4.500.00, shall submit said decision to the city commission within 30 days after he/she receives the protest. (c) Compliance with time requirements. Failure of a party to timely file either the notice of protest or the formal written protest with the chief procurement officer within the time provided in subsection (a), above, shall constitute a forfeiture of such party's right to file a protest pursuant to this section. (d) Stay of procurements during protests. Upon receipt of a notice of protest which has been timely filed under subsection (a) above, the city shall not proceed further with the solicitation or with the award of the contract until the protest is resolved by the chief procurement officer or the city commission as provided in subsection (b) above, unless the city manager makes a written determination that the solicitation process or the contract award must be continued without delay in order to avoid an immediate and serious danger to the public health, safety or welfare. (e) Costs. All costs accruing from a protest shall be assumed by the protestor. (f) Bond. The formal written protest must be accompanied by a bond payable to the city in an amount equal to one percent of the amount of the bid or contract or $5,000.00, whichever is less, which bond shall guarantee the payment of all costs which may be adjudged against the protestor in any administrative or court proceeding. In lieu of a bond, the chief procurement officer may accept a cashier's check or money order in the amount of the bond If a protest is upheld by the chief procurement officer and/or the city commission, as applicable, the bond shall be refunded to the protestor less any costs assessed under subsection (e) above. If the protest is denied the bond shall be forfeited to the city in lieu of payment of costs that might be assessed for the administrative proceedings as prescribed by subsection (e) above. (Ord. No. 9572, § 1, 2-10-83, Ord. No. 11072, § 1, 7-8-93, Code 1980, § 18-56.1) Sec. 18-100. Resolution of contract disputes, (a) Authority to resolve contract disputes. The city manager, after obtaining the approval of the city attorney, shall have the authority to resolve controversies between the contractual party and the city which arise under, or by virtue of, a contract between them, provided that, in cases involving an amount greater than $4,500.00, the city commission must approve the city manager's decision. Such authority extends, without limitation, to controversies based upon breach of contract, mistake, misrepresentation or lack of complete performance, and shall be invoked by a contractual party by submission of a protest to the city manager. (b) Contract dispute decisions. If a dispute is not resolved by mutual consent, the city manager shall promptly render a written report stating the reasons for the action taken by the commission or the city manager which shall be final and conclusive. A copy of the decision shall be immediately provided to the protesting party, along with a notice of such party's right to seek judicial relief, provided that the protesting party shall not be entitled to such judicial relief without first having followed the procedure set forth in this section. (Ord. No. 9572, § 1, 2-10-83; Code 1980, § 18-56.2) Sec. 18-101. Remedies prior to award. http://",w.municode.comlCGI-BINIom_isapi.dll?depth=3&hitsperheading=on&infobase =10939110199-ecord= 0,_ �10a I— Document Page 2 of 2 If prior to contract award it is determined that a solicitation or proposed award is in violation of law, then the solicitation or proposed award shall be cancelled by the city commission or revised to comply with the law. (Ord. No. 9572, § 1, 2-10-83; Code 1980, § 18-56.3) i http://www.municode.com/CGI-BTN/om_isapi.dll?depth=3&hitsperheading=on&infobase=10939/10r/99-ecord= r% j , _ V EXHIBIT "G" Me 't //J/./•``l'� City of VTiami, Florida 1 1!_Requestfor Oual' cations (RFQ) 9i N. Commercial 'Wast e Hauling Services RFQ No. 98-99-090 Date Issued: August 6, 1999 Bate Responses Due: Frida-,.,August 27, 1999 by 3:00 P.�i. 1. BACKGROUND The City of i4liarni (hereinaf'<:r referred to as "City"} is seeking to qualify private commercial haulers (herein referred to as "haulers," "contractors." or ''applicants"). to eater into long term non-exclusive cite -:tide Franchise Agreements to provide :vaste collection and disposal services to its commercial establishments and multi -family residences Mth four (4) or more units, totaling approximately 21,000 accounts in 34 square miles, Cit`--,Aide. The RFQ includes garbage, trash, specialized roll -off and recycling services, and the removal of hazardous materials and biologicallbiomzdical waste. The Franchise Agreement (hereinafter referred to as "Agreement") shall enable qualified_ haulers to provide these services on a non-exciusi�-usirytivide franchise basis for the term specified in the Agreement. 2. SCOPE / SERVICES It is the intent of the City to secure qualified haulers to execute the Agreement, to be effective October 1. 1999. for the purpose of providing commercial waste hauling services, including roll -off and recveiing services, throughout the City. This non-exclusive city-wiS�C_;I�IIlent_ between qualified haulers and the City shall remain in effect for five (� years, and no other firms will be allowed to pro�_r e t ese services w7tTrn e corporate limits of the City anti! the expiration of the Agreement. See :lrac ent :�:-- — -- - -- 3. MI ENIUINI REQUIRFINIENTS FOR QUALIFICATION In order to qualif}-, haulers shall agree to adhere to all requirements as set forth in the Agreement as it rnav exist in its final form. Additionally, prospective haulers shall meet all of the following minimum qualification requirements and provide any and all required documentation pursuant to the s._ne. { THERE SHALL BE NO EXCEPTIONS. i The following requirements shall be met by a hauler in order to be deemed "qualified" to provide said k services. The Applicant: 09-- 7�°0 Litt O/Miamj Florid, Cvmnrercaal Wasre Hauling sem-1ces RFO ,vo 9S•9�•440 a) Shall agree to a!1 terms. conditions. and provisions of the final Franchise Agreement, and agree to execute the same upon being deemed qualified. b) Shall agree to adhere, at the time of application and at all times during_ the period covered by the Agreement, to all applicable Cedes and Ordinances of the Cite of Miami c) Shall not o«e. or be in ar-ears for any sum to the City, unless e\pressk approved by the City prior to the submission due date. d► Shall possess eauipn:e ,, capable of providing safe and efficient ser"ice, and ha%e sufficient personnel w perfonll tw same. e) If an individual. or in the case of a fim. corporation, pannership, association or organization. any persons) ha%ing anv financial. controlling. or managing interest therein, should be of good moral character. f) Shall maintain proper insurance co -,erase and furnish a public tiability policy in the minimum amount of S 1.000,000. including ,vorkr.rs compensation. along %with automobile liability insurance coverins- the ha--ler's operations for a combined single limit coverage of S 1,000..000 per occurrence for bodily in;urn and progeny dumL�e liability. ihe�City shall be listed as an Additional Instied for liability prior :o execution of theAgreement. g) Shall complete in full and return the attached Attestation of Qualifications (Attachment B), and provide all its required information and documentation, vyhich shall. in part, be utilized by the Cite to determine qualifications. , h) Shall agree to furnish a payment bond executed by a surety company duly authorized to do business in the State of Florida, 4vhich shall be counter -signed by an agent for the company, resident in the State of Florida, to the Director of Solid Waste no later than five (5) business days ghee approval by the Cite• Commission and prior to execution of the Agreement by the City. FAILURE TO MEET ANY OF THE ABOVE MINIMU`I QUALIFICATION REQUIRE�+IENTS SE.kLL DISQUALIFY' AN APPLICANT FROM PROVIDING COMMERCIAL WASTE HAULING SERVICES WITHIN THE CITY OF NIIAMI. 4. SUBMISSION REQUIREMENTS The following documents are to be submitted as part of the response to this RFQ: a) Copy of hauler's cus-,ent Occupational License. b) Copy of hauler's current insurance certificate. c) Attestation of Qualifications form completed in full. d) Submission of all documentation as required in the Attestation of Qualifications form. FAILURE TO SUBMIT ANY OF THE ABOVE DOCUMENTS SHALL DISQUALIFY AN APPLICANT HEREUNDER. 5. SUBMISSION LOCATION AND DUE DATE Interested applicants shall submit, via mail or hand -delivery, all required documentation and information in response to this RFQ to determine qualifications. All information must be received in a sealed envelope I package by Mr. Clarance Patterson, Director of Solid Waste, no later than 1_. Friday, .-uzust 3;, 1499 at 3:00 p.m. This Packa2e envelope must clearl4 be identified on its outside 4 b, th��\in�l reference: RFq No. 93.99-090 Commercial Waste Hauhn Sertiiczs. Date responses received after 3:00 p.m. on the due date shall not be accepted and will, be returned unopened. Responscs shall be addressed to: r Mr. Clarance Patterson, Director Department of Solid NN'aste 1290 N.W. 20" Street t E Miami, Florida 33142 z Mr. Patterson can be contacted at telephone number (305) 575-5133. i Should you have anv questions regarding this RFQ process, please contact Pamela Bums; CPPB at (a03) 416-1905 before the submission due date. 6. EVALUATION PROCESS Ati'D AWARD Upon receipt of responses, the Director of the Department of Solid Waste shall evaluate all documentation submitted to determine if a hauler is "qualified", to provide commercial waste hauling sen ices within the City pursuant to the terms and conditions of the Franchise Agreement. Upon written notification by the Director of the Solid Waste Department that a hauler has been deemed qualified and upon receipt of the final Franchise Agreement, the qualified hauler shall have no more than five (5) I business days, unless otherwise notified by the Director of Solid Waste, to sien t,5e Fraac:use Agreement for final execution by the City. i The City reserves the right to enter into an Agreement with any hauler who is qualified to provide commercial waste hauling ser,-ices city-wide. i 7. APPEAL PROCESS The failure to qualify. an applicant by the Director of Solid Waste may be appealed to the City Manager or the City I''Vlanager's designee. The notice of appeal shall be filed, in writing via certified U.S. mail, with the Director of Solid Waste no later than fourteen (14) calendar days after the receipt of the certified letter advising applicant of such failure to qualify. The director shall fix the date and time for hearing the appeal. Said hearing shall be held not less than fourteen {l) calendar days after receipt of the notice of appeal. The City Nlanager or the City Manager's designee shall either affirm the decision of the director, or direct the director to issue the franchise, subject to the conditions contained in paragraph 9. 3 99— 7 6VA S. APPROVAL -Y C, - Y CO` MISSION AND LivIER"ENCY FINA CIAL OVERSIGHT BOARD The execution of and Agreement b� the Cite and any hauler in connection «ith this RFQ shall be subject to approval by the \iiam' City Com-njss'on by resolution and approval by the Emergency Financial O�ersicht Board. 9. INSUPL-0CE REQUIREMENTS An applicant seeking to quality to participate in an Aareement as specified herein shall maintain a puhlic liabilit% police in the minimum amount of SI.000.000 written in the applicant's name. The applic;int shall can an automobile liability insurance policy covering the applicant's operations µith a combined single limit of 51.000,000 per occurrence for bodily injury and property damage liability. Insurance certifizate shall also include «or�ers compensation coverage. All qualified hailers r:yust reflect on it; insurance cenifcate the Cite as an Additional Insured before execution of tl:e Franchise Aareement. The insurance certificate shall be submitted to the Director of Solid Waste no later than five (5) business days after approval by the City Commission and prior to execution of the Agreement by the Cite. 10. PAYMENT BLIND REQUIREMENTS The successful hauler(s) shall furnish a payment bond executed by a surety company duly authorized to do business in the State of Florida. %,-nich shall be counter -signed by an agent for the company, resident in the State of Florida. The amount of the bond shall be equal to the hauler's previous 12 month regulator, permit fee paid to the Ciro or a minimum of S 15,000.00, whichever is greater, as security for any fee's due to the City under this Agreement, The surety shall have a rating classification of "B-" and a financial category of Class IV as evaluated in the current Best's Key Rating Guide, Property Liability. In lieu of a payrnent bond, the successful hauler may submit an irrevocable letter of credit, cash, certified check, treasurer's or cashier's check issued by a responsible bank or tnut company paYabie to the Cite of Miami. This payment bond shall be submitted to the Director of Solid Waste no later than five (S) business days after approval by the City Commission and prior to execution of the Agreement by the City. 11. OPTIONAL As part of this Request for Qualifications, the City is providing, the oprion for any Applicant to submit concepts or ideas that are innovative in nature to provide for more efficient solid waste services. These innovative concepts to be considered shall provide methods to accomplish the City's goals of better City regulation, to promote greater competition, innovative or novel services and services to promote the beautification of the City and the health and welfa-re of its citizens. This section shall not create any obligation on the City to enter into any Agreement based on the innovative idea(s), nor include the idea(s) in the final Agreement. However, this information may, at the City's sole option, be incorporated in the final Agreement. f - 99, dQ i M t a Florid i Commerciil Waste Hjuhno 5zn•ices .IVQ .r'v. 9S.99.090 S ATTACHMENTS ti A. COPY OF DRAFT FR.,kNCHISE AGREEMENT ` r B. COPS' OF ATTESTATION OF QUALIFICATIONS FORM $ R EXHIBIT "H" SELECTED PROVISIONS OF MINUTES OF T14E CITY OF MIAMI COMMISSION MEI TMEI TANG OF THE 8TH DAY OF .TUNE. 1999 \o I undct.tand but most of the commercial areas are bordered by residential j r Chamntan Plummer ; 1 11 ri it llt.;t i, the :.t.e i t i t �t"nn�a,nrt Ciirt i ; SunJi�b Sleep bate on Sunday mornings I 1 Chairman Plummer s NIr Patterson Mr Patterson t 4 4 I jua �xlt to point out something to you You make reference to residential areas and mangy s people think you are taking about single famih homes Since your district has all of the plunt�, as Nou mentioned earlier, all of the high-rise condos in your area, and those are some the areas %%e t get complaints from. where the pickup is made too early. ! Chairman Plummer I Str, I am reterrinu to residential Whether it is high-rise, low rise, single family or whatever i Comnw;sloner Gorl t Al Ogle tttnc, t%e u>e to pick up apartment buildings �Oere they had the trash cans in the back LrttOrIL111a1eK, %khen we changed that and they went into the larger bins, now they have to be up ,ro.nt hcC..:lw c they don't ha,.e room in the back. those are in the middle of residential areas Chairman Plummer Mr Sanchez Commi,sioner Sanchez Hear+nu i,o motions. I am uoing to present a motion A motion to go ahead with the City's recommendation of citywide franchising Let the competitions begin. The consumers are the ones that are _oinu to benefit out of it Chairman Plummer 10 L. There is a inotion is oninii<;ionei Regalado o 1 .�iif �ec��nJ that al,-, it (lie maker of the motion «ill add an analysis of_iust for the sake of kno��In►, ��hat �kould a franchising per district will bring to the Cite Commissioner Sanchez I am not uoinc, to add that to the motion Commissioner Regalado It's Just an analysis It is not a full fledged RFP Chairman Plunimer Is ihere a to the motion' Commissioner Gort I %% ill second it For discussion Chairman Plummer There is a motion seconded now for discussion and I will allow the Asst. City Attorney to make the nest comment -\sst City `k1anaeer Martinez- tt e can do an anal\ sis After we come with the RFQ to do as Mr. Sanchez' motion states But .•.e \kOlIld need to kno%% from you what type of rates we would charge under a franchise by +istrict �� hat npe of entry fee would eke charge for a franchise by district So we can compare apples to apples �`ke can say under the RFQ that %we are proceeding, you'll make so much oll and so forth Under the analysis, how much will we charge these companies to get a district one. district co can and so on I can give you a number But it can be guesswork You know people ^i\e dre ,i 1111. %%:1', f It ho\k much �alidit\ \kould that ha%e �%ith me coming up with numbers '',at don't !1,1%C x1% nteanini_ Conmissioner Gort My understanding now is that if this is awarded, they would sign a longer contract with the client and therefore. that should bring the prices down. 99-- "1f© recommendation ofthe city administration, it was seconded, ar, addendum was tried to add %ka, not accrptabie to the r--aker of the motion tiow does evertibod%, understand where we are' So the intent ot'ihe nrc*ton that +gas not accepted was what 6 To kn+>» hat the difference in terms of service and income for the City between the two alternau� �•, f Conuat�a��n�t Tczle i 1 support that but I don't support, but it seems to me that the only way to know that is with an RFP it is so like playing poker with beans and playing poker with money. I mean you get a � different outc0111e I mean you are not going to know what i Chairman Plummer f Sir I %%ill alloy% him to speak I allowed you to speak I i ant just trymu to understand Chairman Plummer Is e\cr%hod\ ;inished Let's So one more time for clarity's sake The motion made by Mr Sanchez to accept the recommendations of the city administration. it was seconded by Mr. Gort, Mr Revalado tried to do an amendment. but was not accepted by the make of the motion. That is it and that is k%hat is be►ne voted on Commissioner Teele :ask the Clerk Clerk Initial!\, Commissioner Regalado made an amendment that wasn't accepted by. Chairman Plummer 99- "12v EXHIBIT "I" i CASK LAW RE REBID OF KQ WITH UNCLEAR SPI�CIFICATION a `\ 530 So.2d 325, Caber Systems, Inc. v. Department of General Services, (Fla.App. I Dist. 1988) Page 1 0325 530 So.2d 325 { CABER SYSTEMS, INC., Appellant, V. DEPARTMENT OF GENERAL SE: RVICES, Apple Computers, Inc., and International Business Machines, Appellees. No. 87-909. 530 So.2d 325, 13 Fla. L. Week. 1658 4 District Court of Appeal of Florida, First District. July 13, 1988. Rehearing Denied Aug. 26, 1998. i Appeal was taken from order of state Department of General Services dismissing bidder's two bid protests. The District Court of Appeal, Zehmer, J., held that: (1) Department did not exceed its statutory authority by rejecting all bid protests after bidder filed its two protests; (2) Department was justified in rejecting all bids; and (3) Department's failure to strictly comply with statutory procedures in considering two protests did not require reversal and remand. Affirmed. Booth, J., concurred in part and dissented in part with written opinion. 360 STATES 360111 Property, Contracts, and Liabilities 1. STATES k 98 360k98 l k. Proposals or bids for contracts. State Department of General Services did not exceed its statutory authority by rejecting all bids on micro- computer contract after one bidder had filed protest of awards and subsequent protest of decision to reject all bids; although Department could not continue bidding process leading toward award of contract to any bidder until bidder's protests had been resolved, it was not precluded from immediately rejecting all bids and initiating new invitation to bid upon discovery of valid grounds for doing so. West's F.S.A. Sec. 120.53(5)(c). 360 STATES 360II1 Property, Contracts, and Liabilities 2. STATES k 98 3601<98 k. Proposals or bids fot contracts. State Department of General Services acted neither arbitrarily nor capriciously in rejecting all bids on micro- computer contract based on determination that invitation to bid had been ambiguous and substantially flawed. West's F.S.A. Sec. 120.53. 360 STATES 3601I1 Property, Contracts, and Liabilities Copyright (c) West Group 1998 No claim to original U.S. Govt. works 530 So.2d 325, Caber Systems, Inc. v. Department of General Services, (Fla.App. 1 Dist. 1988) Page 2 3. STATES k 98 t 360k98 k, Proposals or bids for contracts. Failure by state Department of General Services to strictly follow statutory procedures with respect to bidder's protests --rather than strictly follow ing procedures, Department negotiated with bidder and tried to persuade bidder to withdraw its protests tiefore referring them for hearing --did not require reversal and remand for further proceedings: bidder e�cntually received full and fair hearing of its protest of Department's rejection of all bids, and Department had valid pounds for rejection. West's F.S.A. Sec. 120.53(5). Richard J. Dewitt, Jr. and John R. Hart of Squire, Sanders & Dempsey, Miami, and Philip L. O'Neill of Keck, Mahin & Cate, Washington, D.C., for appellant. Susan B. Kirkland and Sandra E. Allen, Office of General Counsel, Tallahassee, for appellee Dept. of General Services. Richard A. Lotspeich of Landers, Parsons & Uhlfelder, Tallahassee, and Thomas M. Beason of Moyle, Flanigan, Katz, Fitzgerald & Sheehan, Tallahassee, for appellee Apple Computers, Inc. ZEHMER, Judge. We review by appeal a final order of the Department of General Services (Department or DGS) dismissing two bid protests filed by Caber Systems, Inc. That order adopted the hearing officer's recommended order proposing approval of the Department's rejection of all bids for the 1987 State micro -computer term purchasing contracts and extending the previous year's contracts. The Department is subject to sharp criticism for failing to follow the time limits prescribed in section 120.53(5), Florida Statutes (1985), but we find no reversible error in the appealed order and affirm. i 1 On December 15, 1986, Caber protested some of the awards the Department proposed to make pursuant to its si invitations to bid on the micro -computer contract. After several meetings to discuss settlement of the protest, { DGS determined that the imitation to bid was ambiguous and substantially flawed and, on January 21, 1987, gave notice of its intent to reject all bids. Caber immediately protested DGS's rejection of all bids. After another settlement meeting with Caber, both of Caber's protests were referred to a hearing officer on February 27, 1987. 1 The protests went to hearing on March 13, 16, and 17, 1987, and, pursuant to the parties' request, proposed recommended orders were filed on or before April 13. The hearing officer entered his 25-page recommended order on May 13, 1987. Caber presents two legal issues on appeal. The first questions whether the Department of General Services exceeded its statutory authority under section 120.53(5)(c), Florida Statutes (1985), by summarily rejecting all bids after Caber had filed its protest of the awards (first protest) and had later filed a protest of the decision to ! reject all bids (second protest). 0327 The second issue is whether the reasons underlying the Department's decision to reject all bids were arbitrary and capricious, and not supported by competent, substantial evidence. The hearing officer's order, adopted by the Department's final order, found the following facts: "1. The Department of General Services (DGS), through its Division of Purchasing (Division), is the State agency responsible for establishing term contracts under which the DGS requires state agencies to purchase the commodities on such contracts and under which a county, municipality or other local public agency may purchase. State agencies, political subdivisions and local agencies purchasing under the State contract are exempt from competitive bid requirements for such purchases. "2. The DGS surveys the State's purchases of commodities and, if the volume of purchases of various commodities warrants, develops and bids term contacts [sic] for such commodities. The purpose of the term Copyright (c) West Group 1998 No claim to original U.S. Govt. works 00:�- 720 I 530 So.2d 32.5, Caber Systems, Inc. %. Department of General Services, (FlaApp. 1 Dist. 1988) Page 3 contracts is to obtain for the State the price advantages of large quantity purchases, to standardize the terms, conditions and technical specifications for commodities purchased by the State and to eliminate State agencies having to publish numerous individual invitatiorns to bid. The Division's objective should be to write specifications \%hich allow for the widest participation of interested vendors and to obtain the greatest competition on pricing. "3. In recent years, the DGS has established annual terns contracts to make micro -computers available to state agencies, Ix,litical subdivisions, and the state university system. The first annual term contract for micro- computers was established in 1979 or 1980. The bid specifications for the micro -computer contract have remained essentially the same since inception. Based on history, it can be estimated that contract users will expend approximately 538,000,000 in 1987." The hearing officer next found that "on August 29, 1986, DGS issued Imitation to Bid 545-250-040-B, Micro- computers (ITB) for purposes of establishing the 1987 term contract" and that the ITB classifies micro -computers in seven categories which are further broken down into some 55 subcategories based on specific makes and models of computers. The hearing officer's findings of fact then continued: 'S. The Special Conditions of the ITB include a requirement for submission of price tables as part of a bid: To be considered responsive, bidder must submit properly completed Tables A, B, C and D.... A complete set of Tables A, B, C and D must be submitted for each sub -category bid. TABLE A--MICRO-COMPUTER HARDWARE COMPONENTS: 1 All hardware bid, whether mandatory or optional, must be entered in Table A. The sub -category, district and vendor must be indicated in space provided. jTable A must reflect only items applicable to the sub -category. A separate Table A must be submitted for each rub -category bid. i TABLE B--MICRO-COMPUTER OPTIONS/ACCESSORIES All options, upgrades, and accessories must be entered in Table B. Accessories must identify microcomputer model(s) to which they are applicable. If there are no options, upgrades or accessories, so indicate with N/A. I TABLE C--SYSTEM SOFTWARE: All system software, such as the operating system, editors, loaders, generalized utilities, etc., must be entered on Table C--System Software. Unit price of additional copies of documentation, if any, must be listed. A separate Table C must be submitted for each sub -category bid. TABLE D--EVALUATION CONFIGURATION: Seven basic configurations will be considered in making awards. The configurations are designated Category I through 7 and are shown in Table DI through D7. Care should be taken in completion of Table D { since incorrect information could result in disqualification. In case of errors in Table "D", prices in •328 Tables A, C, shall prevail. State reserves the right to correct arithmetic errors in Table "D". To qualify for award, any system must, as a minimum, satisfy the evaluation configuration specified in Table D. Copyright (c) West Group 1998 No claim to original U.S. Govt, works 99- 720 P It 530 So.2d 325, Caber Systems, Inc. v. Department of General Services, (Fla,App. l Dist. 1988) Page 4 Manufacturer Name and Model: Enter sub category (listed in Table I of specifications) being bid plus the name and model of the system. If there is no charge for a coniponent, so indicate with N'C. Components and prices listed by vendors in Table D must agree with components and prices listed in "fables A and C. Use separate Table D for each sub -category. "The Special Conditions also state: 'Any contract resulting from this bid will be awarded by sub -category to the low bidder.' '6, Historically, awards were made by make and model, using a format substantially like the current ITB format for the invitation to bid. Within each sutxategory, DGS evaluated the various makes and models by price. Significantly, this was done even if the sub -category description was not 'Other Low Qualifying Bids' and did not include words like 'all models' or 'series.' If there were more than one bid on a particular model, the award would be to the lowest bidder. If only one bid was received on a particular model, the award would be made to that bidder. In order to be considered responsive, a bidder had only to submit one responsive Table D per subcategory. Once it was determined that the bidder had submitted a responsive Table D, the individual models listed on Table A would be evaluated and considered for award. As a result, the contract currently in place has approximately 200 to 250 microcomputers; the ITB last year listed only 48 subcategories. "7. The past practice of DGS was to award accessories to each vendor who was awarded a model, thereby creating competition for acquistion of accessories within the contract. For example, if three different models were awarded to three different bidders in one subcategory in the 1986 contract, each bidder would also be awarded the accessories listed on its Table A. tin 1985, Table A incorporated both Table A and Table B of the ITB in issue in this case.) A state agency would purchase accessories from the vendor with the lowest price. Historically, state agencies have been required to purchase accessories awarded under the contract. The same scenario was true for the software. The bidders who were awarded a model in the 1986 contract would be awarded the software they had listed on Table B (Table C in the ITB in issue in this case), and state agencies who are required to purchase from the contract could choose the lowest prices. "8. The ITB in issue in this case was sent to 258 vendors, of whom 67 responded. "Some, mostly the manufacturers, including Apple and IBM, responded to the bid in accordance with past practice. They did not interpret the ITB to require a separate Table D for each model bid, just a separate Table D for each subcategory. They also structured their bids with the understanding that all models on Table A would be considered for award and that there would be more than one award per subcategory (even if the subcategory description was not 'Other Low Qualified Bid' or the new ' 100% IBM Compatible Clone' and did not include words like "all models' or 'series.') "Other bidders, mostly dealers, including Caber and Mini Computer, who were not as familiar with the history of the microcomputer bidding process, interpreted the ITB to require a separate Table D for each bid, not just for each subcategory. Mini Computer strictly interpreted the ITB to provide for only one award per subcategory. Caber's interpretation was that multiple awards were contemplated by the ITB only in the subcategories described 'Other Low Qualified Bid' or ' 100% IBM Compatible Clone' and in other subcategories whose descriptions included the words 'all models' or "series." "As for accessories and software, Caber and Mini Computer did not read the ITB to provide for any award of accessories on *329 Table B or software on Table C. They thought Tables B and C were for informational purposes only and that there would be no requirement for users of the resulting contract to buy accessories or software from the contract. (FN1) There was no evidence tending to show whether the other bidders thought Copyright (c) West Group 1998 No claim to original U.S. Govt. works L t 530 S0.2d 325, Caber Systems, Inc. %. Department of General Services, (Fla.App. I Dist, 1988) Page 5 there would be an award of accessories or software or how they would be awarded. '9. The re�lk)nws to the ITB were opened on October 9, 1986. As was DGS' custom, the Table D prices only were tabulated Among other things, the tabulations shorted that Caber's Table D prices in subcategories 2A and 513 uere lower than Apple's or any other bidder's. "10. DGS then began the process of evaluating the bids and snaking awards. Based on the historical response, DGS allotted there weeks for evaluation and award. But due to the unusual number of bidders and bids, the process took ten "11. After the tahulation but before the posting of awards, Caber informed some fellow Apple dealers that Caber uas the low bidder in subcategories 2A and 513 and would be getting the 1987 state term contract. The word spread among the Apple dealers and customers in Florida, and some concerned Apple dealers and customers contacted Apple, askir-ig if it was true that Caber was going to have the 1987 contract. To clarify the question, among other things, Apple scheduled a meeting with the DGS in early November, 1986. Apple was assured that DGS intended to evaluate the bids by make and model and make awards to the lowest bidder of each make and model, as usual, including all models bid under subcategories 2A and 5B. "12. On Decenitxr 15, 1986, DGS posted awards. On receipt of the posting, Caber noticed that DGS had designated its previously tabulated Table D price in Subcategory 2A as the 'Professional System,' added three prices to Apple's previously tabulated 2A price --designated 'Starter System,' '3.5 Starter System' and 'Color Classroom System' --and awarded all four under 2A. Similarly, DGS had designated Caber's and Apple's previously tabulated Table D prices in Subcategory 5B as the 'Starter System,' added a Caber price designated 'CPU,' added an Apple price designated 'Color System,' and awarded the 'Starter System' and 'CPU' to Caber and the 'Color System' to Apple. Caber arranged to further investigate the awards. "15. In late December, 1986, Caber protested the three awards to Apple in Subcategory 2A, three awards to IBM in Subcategory 3A, one award to Apple in Subcategory 3D, one award to Microage in Subcategory 3L, seven awards to Microage in Subcategory 3M, two awards to IBM in Subcategory 4C, the award to Apple in Subcategory 5B, six awards to Microage in Subcategory 7A, and one award to IBM in Subcategory 7B. "16. Caber's definition of 'model' seemed to also be at variance with the way DGS had interpreted that term. DGS viewed a model as the model number by which the manufacturer identified a part or a particular configuration,. Caber viewed Lhe type of computer as the model and any variation from the basic computer as an assemblage for marketing purposes even though the manufacturer may identify the assemblages by different model numbers. For example, in Subcategory 2A, Apple Ile, DGS viewed the Starter Svstem, the 3.5 Starter System, and the Color Classroom System as models within the subcategory. Caber viewed Apple Ile as the model, meaning there was only one modei in Subcategory 2A. In Subcategory 3A, IBM PC Series, DGS viewed the subcategory to be divided into series consisting of PC, XT, XT 286, and 3270 PC and the series to be further divided into models. Caber viewed the PC, XT, XT-286 as models rather than series. "17. Each of the three additional models awarded to Apple in Subcategory 2A--tire Starter System, 3.5 Starter System and Color Classrcom System --are single diskette drive systems, whereas Subcategory 2A specifies a two diskette drive system. Each of the three additional 'models' awarded to Apple in Subcategory 2A meet •330 the specifications of Subcategory 1C, Other Low Qualified Bid. But it was DGS' intent for those models of the Apple Ile to be bid under Subcategory 2A, Apple Ile, as historically had been done, not under Subcategory IC, Other Low Qualified Bid. tr* 19. Under the interpretation of the award of Table A items offered by Caber at the hearing, and of the award of Table B and C items offered post -hearing, Table A. B and C items would not be evaluated, but would be awarded along with the award for the lowest Table D price. Using Subcategory 2A as an example, this would, Copyright (c) West Group 1998 No claim to original U.S. Govt. works JJ- 720 530 So.2d 325, Caber Systems, Inc. v. Department of General Services, (Fla.App. I Dist. 1988) Page 6 as a practical matter, result in the award of Starter System, 3.5 Starter System and the Color Classroom System to Caber, along with the Professional System in its Table D, because Caber could put those system models together from its Table A. R and C items. But the price of those additional system models put together from Caber's Tables A. B and C would be higher than the prices Apple bid for there in its Table A. Since only about 10% of the State's Apple lie purchases in 198,E �kcrc Professional Systems, the price differences are significant. Taking the Color Classroom Svsteni alone, approxintatcly 001, of the State's 10,0(Nl Apple tie purchases in 1986 were Color Classro-om Systems. At a pticc difference of approximately $150 per sale, it would cost the State approximately S9lkJXt ) nxorc to huv these same systems from Caber in 1987. Similarly, Caber's Starter System would cost contract users $965 compared to Apple's bid of S827, and Caber's 3.5 Starter System would cost contract users 51050 compared to Apple's hid of $878. This, too, would not be. in the best interest of the State. "20. Also, under the interpretation of the award of Table B accessories offered by Caber lost -heating, although a wider variety of accessories would be available than under the strictest interpretation of one award per subcategory, winner take all, accessories would be available from somewhat fewer vendors. This reduces the incentive of bidders to price Table B accessories competitively and increases the likelihood that higher prices will be paid by contract users. Since accessories are now approximately 40`7� of the State's purchases, it is in the best interests of the State to structure the bid to foster price competition for accessories if accessories are not to be separately evaluated. "21. Subcategory 513 is the Apple Ilc. The December 15. 1986, posting recommended awards to Caber for the Apple llc CPU and the Apple llc Starter System. The posting recommended an award to Apple for the Apple Ile Color System. Apple submitted a Table D for category 5B which met the minimum evaluation configuration. The Apple llc Color System is a model within the Apple llc series, as 'model' is defined by Apple, as manufacturer, and by DGS, although this definition is not spelled out in the ITB. Caber defines the Apple Ilc as the microcomputer model. Apple bid the Apple lic Color System which includes the more popular color monitor rather than the monochrome monitor bid by Caber. r r r "24. The DGS did not include the words 'no substitutes' in the ITB. (See Rule 13A-1.002(16), Florida Administrative Code (1986).) Meanwhile, the ITB does include General Condition 6: MANUFACTURERS' NAME AND APPROVED EQUIVALENTS: Any Manufacturers' names, trade names, brand names, information and or catalog numbers listed in a specification are for information and not intended to limit competition. The bidder may offer any brand for which he is an authorized representative, which meets or exceeds the specifications for any item(s)... if bids are based on equivalent products, indicate on the bid form the manufacturer's name and number. Bidder shall submit with his bid, cuts, sketches, and descriptive literature and/or complete specifications. Reference to literature submitted with a previous bid will not satisfy this provision. The State of Florida reserves the right to determine acceptance of item(s) as an approved equivalent. Bids which do not comply with these requirements are subject to rejection. Bids *331 lacking any written indication of intent to bid an alternate brand will be received and considered in complete compliance with specifications as listed on the bid form. The Division of Purchasing is to be notified of any proposed changes in (a) materials used, (b) manufacturing process, or (c) construction. However, changes shall not N binding upon the State unless evidenced by a Change Notice issued and signed by the Director, Division of Purchasing, I "But the general condition apix:ars on a form cover sheet while this ITB is for a multiple award. A reasonable interpretation of this ITB, taken as a whole, is that subcategories described by specific manufacturers and models call for a bid of the specific manufacturer's products and that so-called 'tktird party components' can be bid only in subcategories described as 'Other Low Qualified Bid' or ']00°f IBM Compatible Clone.' Otherwise, it would be very difficult, if not impossible, to compare and evaluate bids in the various subcategories. But the ITB is ambiguous on the use of 'third party components.' "25. Although IBM listed third party components on its Table Bs (optional hardware) in its bid, Apple and the Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99-- 7WO 530 So.2d 325, Caber Systems, Inc. v. Department of General Services, (Fla.App. I Dist. 1988) Page 7 DGS interpreted the ITI3 to restrict the use of 'third party components' to subcategories described as 'Other Low Qualified Bid' or '1001, IBM Compatible Clone.' As a result of this interpretation, Apple did not include BASIC in its hid in SON ategory 3D. DGS posted the award of the Apple Macintosh to Apple, as low bidder, instead of Caber, as second low bidder. But actually, under the DGS interpretation, Apple's bid using 'third party' BASIC was unrespKinsive, and the specifications %kere written so as to preclude Apple, the manufacturer, from bidding its own Apple Macintosh. Such a result would not be in the State's best interest. k k k "32. The facts show that the 1713 was seriously flawed in several respects. First, it neither reflects the DGS intent and historical practice to award by make and model under all subcategories nor clearly and unambiguously reflects any other intent, such as either the intent Caber or the intent Mini Computer inferred from the ITB. Second, it neither provides for evaluation of Table B accessories or Table C software nor clearly provides that awards of Table B accessories or Table C software will be made. Third, the ITB is ambiguous on the use of 'third party components.' And fourth, if 'third party components' are not allowed in most subcategories, Subcategory 3D is written so as to preclude Apple from bidding on its own Apple Macintosh. (FN2) "33. As a result of these flaws, Caber, which, like all of the bidders, had invested substantial time, money and energy responding to what it thought the iTB said, understandably reacted with some degree of indignation and suspicion to some of :he awards DGS posted using its interpretation of the ITB. "34, Meanwhile, DGS' personnel, who also had invested substantial time, money and energy in the ITB process (especially the 10 week evaluation process) on behalf of the Stare, understandably reacted with some degree of annoyance, disappointment and dejection when Caber's December, 1986, protest made it inescapably apparent that the ITB had serious flaws that promised to make life very difficult for the DGS, and particularly for those involved in the ITB process. P P P "36. General Condition 9 of the ITB provides: AWARDS: As the best interest of the State may require, the right is reserved to make award(s) by individual item, group of items, all or none, or a combination thereof, on a geographical district basis and/or on a statewide basis with one or more suppliers to reject any and all bids or waive any minor irregularity or technicality in bids received. When it is determined there is competition to the lowest responsible bidder, evaluation of other bids is not required. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. All awards made as a result *332 of this bid shall conform to applicable Florida Statutes. "37. On balance, the evidence convincingly proved that it is in the State's best interests to reject the bids in subcategories 2A, 3D, 4C and 513, correct the flaws in the ITB and re -bid those subcategories, possibly with additional subcategories. "38. The evidence was less convincing on the question whether it is in the State's best interest to reject the bids in the other 52 subcategories. But there was proof: One of the things when we began this part of the evaluation that became clear to us was the fact that the bidders responded in two distinct different ways. We had a group of bidders that responded with a literal interpretation of our evaluation and award statement that said we were going to award by the lowest price per subcategory. And we had probably a larger group of people that had historically participated in the bid that responded by make and model, which is how we evaluated the bid and how we have historically awarded the bid. P P i Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99- i4u ti 530 So.2d 325, Caber Systems, Inc. v. Department of General Services, (Fla.App. I Dist. 1988) Page 8 I think the other thing that has come to light in our meetings is simply the fact that if I as a bidder conditioned by bid knowing that historically you've awarded by make and model, and you have my bid and you've evaluated it and you've found me responsive, but ail of a sudden now we find that we can't award it that way, or, c�en Horse, ue say we hasc to award it the way Caber intends, I would say that's unfair to me. You're evaluating my bid differently than that my intent and understanding uas v.hen I submitted it. On the other hand, if indeed, as Mini Computer did, I looked at it and I took a literal interpretation, and j the State has cvalu:,tcd it by make and model, that's not fair to him. k So what i would say is that unfortunately we have spent a lot of time administratively, manpower, and so have the vendors. But it's an insolvable situation that can best be remedied by rejection of the bids, correcting the language, correcting the sl-wcifi� , ions, and going forward with a new bid, turning it around and getting a new contract into place." I Testimony of George Banks, TR. 345 and 374-375. '39. Besides the question of fairness to all the bidders, there is the question of fairness to the State. It is possible, though not proved by the evidence, that the confusion in the 1TB worked to reduce price competition by make and model because some bidders either thought only one award would be made per subcategory (as Mini Computer did) or thought that all makes and models in a bid response in a subcategory would be awarded on the basis of the prices in the Tabie D only (as Caber did), allowing the bidder to 'low -ball' Table D and 'high -ball' other components on Tables A, B and C (including accessories.) "40. Under all the circumstances which the evidence shows surround this ITB, it cannot be said that a decision to reject all bids is without any rational basis, is arbitrary or is capricious." (R. 364-376). The hearing officer's conclusions of law adopted in the Department's final order included the following: "I. Section 287.001, Florida Statutes (1985), provides: 287.001 Legislative intent. --The Legislature recognizes that fair and open competition is a basic tenet of public procurement; that such competition reduces the appearance and opportunity for favoritism and inspires public confidence that contracts are awarded equitably and economically; and that documentation of the acts taken and effective monitoring mechanisms are important means of curbing any improprieties and establishing public confidence in the process by which contractual services are procured. It is essential to the effective and ethical procurement of contractual services that there be a system of uniform procedures to be utilized by state agencies in managing and procuring contractual services; that detailed justification 0333 of agency decisions in the procurement of contractual services be maintained; and that adherence by the agency and the consultant to specific ethical considerations be required. "2. Section 120.53(5), Florida Statutes (1985), prescribing procedures for bidding , provides in pertinent part: (e) Upon receipt of a notice of protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare. (Emphasis added.)" But neither the statute nor the court decisions prohibited the DGS from rejecting all bids or required the DGS to postpone a decision to reject all bids until after Caber's protest of the December 15, 1986, posting of awards was resolved by final agency action. In Cianbro Corp. v. Jacksonville Transp. Auth., 473 So.2d 209 (Fla. 1st Copyright (c) West Group 1998 No claim to original U.S. Govt. works � B9- iZu 530 So.2d 325, Caber Systems, Inc. v. Depanment of General Services, (Fla.App. 1 Dist. 1988) Page 9 DCA 1985), the court stayed the award of a contract during the pendency of bidders protests. (FN3) In Solar Energy Control, Inc. v. Dept. of Health and Rehabilitative Services, 377 So.2d 746 (Fla. 1st DCA 1979), the court stayed the re -bidding of a contract during the pendency of a bidder's protest of the agency's rejection of all responses to the initial inyituion to bid. In this case, DGS' procedures have resulted to one administrative proceeding to resolve efficiently llo(h Cahcr's protest of the Decemler 15, 1986, posting of awards and its protest of the January 21, 1Q87, rejection of all bids. No further bidding or award of contracts will tat:e place wail after the resolution of this proceeding. Cater cannot use Section 120.53(5)(c) or the court decisions either as a means of delaying the resolutwn of its protests by requiring their consideration in two separate, consecutive administrative prckeedings or as a sword to cut off DGS' ability to consider whether to reject all bids. "3. Section 120.53(5)(d), Florida Statutes (1985), also provides in pertinent part: (d) The agency, on its own initiative or upon the request of a protestor, shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and legal holidays, of receipt of a formal written protest. e t r 2. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holida. ,, of receipt of the formal written protest and if there is a disputed issue of material fact, the agency shall refer the protest to the division for proceedings under s. 120.57(1).' In this case, DGS did not refer Caber's protest of the December 15, 1986, posting until February 27, 1987, when it referred to the Division of Administrative Hearings both drat protest and Caber's protest of the January 21, 1987, rejection of all bids. The delay in referring the first protest technically violated the procedures set out in Section 120.53(5)(d). But the error did not prejudice Caber. Referral of the first protest to the Division of Administrative Hearings legally would not have prevented DGS from later rejecting all bids. See Conclusion 2, immediately above. "4. The evidence was clear that DGS gave Caber 'an opportunity to resolve (both of Caber's protests] by mutual agreement.' Settlement meetings were held on January 5 and again on February 12, 1987. The evidence did not prove that either DGS or Caber negotiated in bad faith but only that ta`te parties were unable to agree to a resolution of either of the protests and that there were hard feelings on both sides. See Findings 33 and 34, above. "5. Rule 13A-1.002, Florida Administrative Code (1986), provides that an agency shall reserve the right to reject any and all bids and shall so indicate in its invitation to bid. "General Condition 9 of the ITB, DGS expressly reserved the right 'as the best interest of the state may require' to award e334 by individual items or groups of items or to reject any and all bids or waive any minor irregularity or technicality. "6. Notwithstanding Rule 13A-1.002 and General Condition 9, the courts have held that an agency's authority to reject all bids is not unbridled. An agency's rejection of all bids may not be arbitrary or capricious. But, otherwise, an agency has wide discretion to reject all bids. See Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (F1a.1982); Capeletti Bros., Inc. v. Dept. of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Couch Constr. Co., Inc., v. Dept. of Transp., 361 So.2d 172 (Fla. 1st DCA 1978); Woods [Wood] Hopkins Contracting Co. v. Roger J. Au & Sons, Inc., 354 So.2d 446 (Fla. Ist DCA 1978). 7. A formal administrative proceeding under Section 120.57(1), Florida Statutes (Supp.1986), arising out of the protest of an agency decision to reject all bids is de novo hi the sense that the issue whether the agency decision to reject all bids has a rational basis or is arbitary and capricious is decided upon evidence of facts and circumstances at the time of the final hearing. See Couch Const. Co., Inc. v. Dept. of Transp., supra, at Copyright (c) West Group 1998 No claim to original U.S. Govt, works J9- 0" 2Q ;i a 530 So.2d 325, Caber Systems, Inc, v. Department of General Services, (F1a.App. I Dist. 1989) Page 10 175-176. "10. As found, the DGS decision to reject all bids in this case has a rational basis. it is not arbitrary or capricious. It is apparent, for example, that DGS intended to award by make and model but the invitation to bid did not reflect its intent c!early. Some bidders prepared their bids based upon the historical methcxl of award, and others follo%ked more litera! readings of the imitation io bid. Thus, the specifications did not adequately apprise the bidders of the incih(xl of award that would be used. Contracts procured through competitive bidding 'should be predicated ulxin adequate specifications which afford some reasonable basis for a comparison of bids, in order that bids, when received, might Le inily competitive in characer by having them applied to the same things.' Wester v. Beloic, 1103 Fla. 9761 138 So. 721, 724 (F1a.1931). "The facts in this case are similar to the facts in Aurora Pump v, Goulds Pumps, Inc., 424 So.2d 70 (Fla, 1st DCA 1982). In Aurora the Jacksonville Flectric Authority (JEA) had issued an invitation to bid for centrifugal pumps. The invitation to bid did not address procedures which would be used in negotiating price adjustments to the bids; however, the price adjustments were governed by unwritten procedures based on the customary practices of JEA. Goulds Pumps, relying on his interpretation of the invitation to bid, submitted his proposal after the submission of a preliminan evaluation by the engineers to JEA; however, according to past practices, JEA did not accept price adjustments after the submission of the preliminary evaluation. The other bidders were aware of the unwritten deadline for submission of cost adjustments. In an appeal arising out of a circuit court judgment enjoining the JEA from entering into a contract with Aurora Pump, the court appreciated the dilemma caused by the inconsistencies between the past practices and the bid solicitation document. [Tjhe question is, in the first instance, whether the bidding documents were sufficiently specific to assure fair competition to all the bidders. i t Regardless of whether all the other companies, including Aurora, understood that no modifications would be t made after the evaluation was submitted, the other companies' operating their negotiations from a vantage obtained through prior dealings with JEA, worked to create the appearance of favoritism and impropriety. Further, had JEA accepted Goulds' eleventh -hour cost deduction, where the other companies believed last minute modifications were precluded by the instructions, Goulds would have received an unfair economic advantage. Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505 (Fla.1982). Aurora argues that if Goulds was confused, it could have requested in writing an interpretation of the instructions; yet, Aurora's argument misses the point. •335 Because of its lack of knowledge of the unwritten rules,' and due to its reasonable interpretation of the instructions, Goulds did not know it was 'confused.' Whether the deadline for submitting modifications was a date, or an event, as Aurora alleges, is irrelevant in this case where the instructions did not specify one or the other, and all involved apparently were unaware of the imbroglio, "Id. at 74, 75. The court affirmed the injunction against JEA from entering into any contract and directed JEA to rebid if it desired to proceed with the work. In so holding, the court stated: [Tjhose who we hope to encourage are the public agencies and authorities to responsibly prepare and disseminate clear and precise bidding instructions so the public may be protected against collusive contracts; to secure fair competition upon equal terms to all bidders; and to remove temptation for favoritism and fraud i at the public expense. Wester v. Belote. The lower court correctly concluded, under these circumstances, that JEA exercised its discretion in an arbitrary and capricious manner. William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So.2d 550 (Fla. 2d DCA 1960)." Copyright (c) West Group 1998 No claim to original U.S. Govt. works S 9 "" 7 02d 530 So.2d 325, Caber Systems, Inc. v. Department of General Services, (Fla.App. 1 Dist. 1988) Page I l id. at 75. 'In this case, to award by make and model treats the bidders who submitted bids according to one of the more literal readings of the iTB unfairly. On the other hand, to award by one of the stricter readings of the ITB is unfair to those bidders uho suhmitted bids based on DGS' past practices. Therefore, on the authority of the Aurora decision, not only %% he DGS decision to reject all bids neither arbitrary nor capricious, it may have been arbitrary and capricious : r DGS not to have rejected all bids. '11. The decision in the Final Order, Dou>'las Printing Co., Inds, Dc _of Agriculture and Consumer Services, 5 F.A L.R. 2225-A (Dept A. and C.S.1983), while somewhat confusing, might seem on first reading to conclude that all bids cannot tk rejected after the bids are opened and considered. But on closer reading, the decision is distinguishable from the facts of this case. The decision notes: In the instant case, there was no showing of any reason for rejection of all bids other than that the Director felt art inadequate number of bids had been received.' id. at 2227-A. There was no reason to wait until after bid openii,g to reject all bids on that ground. To the contrar}', in this case the DGS did not knew the grounds for rejection of all bids until after the December 15, 1986, posting,.' (R. 376.383) The hearing officer's Findings of fact are supported by competent, substantial evidence of record, and we find no reversible e, ror in his conclusions of law as adopted by the Department's final order. 0336 [1][2] We find no merit in Caber's first point, that DGS exceeded its authority under section 120.53 by rejecting all bids after Caber had filed its protests. The pertinent language in section 120.53(5)(c) provides that 'the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action.' We construe this language, as does the Department, to mean that the Department could not continue the bidding process leading toward the award of any contract to other bidders until a bidder's protest had been resolved, but not that the Department was also precluded from immediately re ectin t all bids and initiating a new ITB upon discover}, of valid grounds for doing so. Therefore, when Caber's first j protest revealed serious flaws in the ITB which ultimately required the Department to reject all bids (for reasons t we hold were neither arbitrary nor capricious), the pendency of that protest did not deprive the Department of i authority to act upon this deficiency in rejecting the bids. There is no limitation in the statutory language restricting the Department's power to immediately reject all bids and start the bid process anew with a valid ITB, rather than locking up the entire process pending hearing on the protest so that nothing could proceed. Once DGS had decided to reject all bids for the reason specified, to first await the outcome of a hearing on Caber's first protest before taking action would be a complete waste of time and taxpayers' money. Of course, once the ldecision to reject all bids was announced, C'alrer was entitled to protest it, 3s it did, and have the validity of the Department's decision submitted to a hearing under section 120.57. See Couch Construction Co. v. Department t of Transportation, 361 So.2d 172 (Fla. 1st DCA 1978). After the Department's decision to reject had been heard by a hearing officer pursuant to Caber's second protest and determined to be valid under the applicable law, the Department's final order rejecting all bids became fully effective, thus freeing the bidding process to immediately begin anew, absent a stay of that final order. The hearinC officer's recommended order correctly ruled that rule 13A-1.002(9), Florida Administrative Code, and implementing contract provisions allowing it to reject all bids, do not permit the Department to arbitrarily bypass all statutory procedures for resolution of bid protests; for the Department's decision must be founded upon a rational basis and not be arbitrary. See, e.g., Cianbro Corporation v. Jacksonville Transportation Authority, [two cases reported consecutively] 473 So.2d 206 and 209 (Fla. 1st DCA 1985); Solar Energy Control, inc, v. State, Department of Health and Rehabilitative Services, 377 So.2d 746, 747-748 (Fla.lst DCA 1980); Couch Construction v. Department of Transportation, 361 So.2d 172, 175 (Fla. 1st DCA 1978). In the earliest of these cases, Couch Construction Co., supra, the Department of Transportation had rejected Couch's bid because it did not send a representative to the pre -bid conference as required by the bid documents, Copyright (c) West Group 1998 No claim to original U.S. Govt. works 09- 720 L % 530 So.2d 325, Cater Systems, Inc. v. Department of General Services, (Fia.App. 1 Dist. 1988) Page 12 notwithstanding that DOT had discontinued all mandatory pre -bid conferences. Aftcr recognizing the bidder's right to a 120.57 hearing on its protest, the court held that DOT's rejection of all bids to avoid litigation by Couch and other contractors (lid nut satisfy the requirements of chapter 120, explaining.: We afiinn that the Departmcn[ has wide discretion to reject all bids and to call for view bids for public contracts. JCimnons omined.) In making such a determination, the Department cannot act arbitrarily. The Administrative hrOCCilllre ,'VI. requires that the Department's decision be by a final order that takes account of countersailing cvideiwe and argumen(.... The recommended order of the DOAN hearing officer ... and the Department's final order adopting it April 25, 1978, are inadequate by Chapter 120 standards.... in December the Department thought to avoid controversy and delay by rejecting all bids. Appeasement and expediency are rare!), fruitful as government policies, and they were not in this case; the Department obviously and erroneously assumed that the bids could be *337 rejected without accountability under Chapter 120. So, acting without affording Couch at least an immediate Section 120.57(2) hearing, and consequently without an order expounding the agency's exercise of discretion in the light of events as then understood by tic agency, the Department created an opportunity for subsequent events to reveal the folly of rejecting all bids to avoid controversy and litigation. t The rejection of all bids, however, on the grounds of failure of the low bidder to attend that conference was not re-evaluated in light of the same circumstances. The final order conspicuously fails to evaluate the Department's December rejection of bids in light of the facts shown at the Section 120.57 hearing. 361 So.2d at 175-76. The court, however, stopped "short of holding that the Department may not now ' rationally reject all December bids" and remanded to DOT for entry of a new final order "which explains and fdefends its decision." (361 So.2d at 176.) In Solar Energy, Control, supra, after a timely protest was filed, the agency rejected all bids without affording t a section 120.57 hearing on the protests. This court held: Respondent basically claimed the right, under duly promulgated rules and its own purchasing and policy procedures, to reject any and all bids. Respondent urges that this court ought not to sanction proceedings which would impinge upon the broad discretion vested in an administrative agency in carrying out its functions with respect to the awarding of 1 public contracts.... Our review of the petition, the attachments, and the response, in the light of the arguments made and authorities cited, leads us to the conclusion that the petition set forth a set of facts which are sufficient, in our view, to require that petitioner be afforded a hearing, under Section 120.57, on its claim to be awarded d-ie contract pursuant to its bid, and to further warrant an order of this court affording the rather drastic remedy of halting all further rebidding procedures pending the outcome of that hearing. These measures are particularly appropriate in this case because, in addition to petitioner's claims that the rejection j of its bid and call for new bidding was arbitrary and _g_apricious_there are additional allegations that the decision by the responsible officer of respondent, to reject bids and order rebidding, was infected with personal considerations of such a nature as to raise serious Questions concemine the integrity of the entire bidding precess. t 377 So.2d at 747-48 (emphasis added) In Cianbro Com., supra, the .;acksonvilie Transportation Authority sought to avoid the section 120.53 mandatory stay following a bid protest by invoking the statutory exception for "immediate danger to the public health, safety, or welfare." !TA referred to a provision in the bid solicitation document reciting that all bids would be rejected unless the contract was awarded within 120 days of bid opening as one of the reasons Copyright (c) West Group 1998 No claim to original U.S. Govt. works 819 7 20 0 L 530 So.2d 325, Caber Systems, inc. v. Department of General Services, (Fla.App. I Dist. 1988) Page 13 supporting the alleged immediate danger to health, safety and welfare. Rejecting the legal sufficiency of this reason to support JTA's position, this court said: JTA argues that is this self-imIx-1sed deadline is not met, the contracts would have to be rebid with the accompanying cost and delay. We have serious reservations as to the propriety of this provision, initially, we question whether by setting a deadline of 120 days for award of contracts, 1TA can avoid a contract award protest and sirnply rebid the project. This "escape clause" tnay not be utilized to circumvent the procedures set forth in Section 120.53, governing bid protests if that were the case, the agency could simply avoid a bid or contract protest by setting in arbitrary date on Ihich all bids not awarded would be deemed rejected. in Solar Energy Control, inc. v. State of Florida, Departntent of Health and Rehabilitative Services, 377 So.2d 746 (Fla. Ist DCA 1979), we intimated that an agency could not *338 use its supposed N\;cr to "reject any and all bids" as a device to avoid bid protest proceedings and cut off a bidder's right to an administrative remedy. Regardless of the propriety of the 120 day clause in the instant case, we find that it does not demonstrates a fact or circumstance which would threaten the public health, safety or welfare. 473 So.2d at 214. These cases do not, as Caber argues, require reversal of the appealed order. Each of them is consistent with the proposition that an agency is not permitted by law to avoid the bid protest procedure by rejecting all bids for arbitrary or c:icious reasons. None of them holds that an agency cannot, under section 120.53, reject all bids for a valid reason before a protest of an award to another bidder has beer, heard in a section 120.57 hearing. 131 We next address whether the order should be reversed for the Department's failure to strictly comply with the time requirements specified in section 120.53(5). Those requirements, quoted above from the hearing officer's conclusions of law, (FNI) were obviously not complied with by the Department in respect either to Caber's first or second protest. Rather than strictly following the statutory procedure, the Department negotiated with Caber and tried for two months to persuade Caber to withdraw its protests before referring them for hearing. Reasonable but strict compliance with the statutory time requirements is essential to an effective bidding process. The Department's failure to timely forward both protests for hearing unduly delayed the proceedings, the very result which the Legislature sought to prevent when it provided for the speedy referral and hearing of protests. The Department clearly violated section 120.53(5). But we conclude, for die reasons hereafter stated, that this error does not require reversal in this instance. Section 120.68(8) provides for reversal and remand only if the court finds that "either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure." This section has been characterized as the Administrative Procedure Act's version of the harmless error rule. E.g., Department of Business Regulation v. Hyman, 417 So.2d 671, 673 (Fla.1982); Peoples Bank of Indian River County v. State, Department of Banking and Finance, 395 So.2d 521, 524 (Fla.1981). The critical elements of the rule are, therefore, whether the error is material, and if so, whether it has impaired the fairness of the proceeding or the correctness of the action. Section 120.68(8) further provides that an agency's failure to comply with section 120.53 "shall be presumed to be a material error in procedure.* Hence, the first element has been established by statutory presumption. However, this presumption is not conclusive on the court and may be overcome in certain circumstances. See Cortese v. School Board of Palm Beach County, 425 So.2d 554, 556.57 (Fla. 4th DCA 1982), pqt. for rev. denied, 436 So.2d 98 (Fla.1983). Failure to comply with time standards imposed by chapter 120 has been held not to require remand if shown not to impair the fairness of the proceeding or correctness of the agency's action. See Department of Business Regulation v. Hyman, 417 So.2d 671, 673; Western Acceptance Co. v. State. Department of Revenue, 472 So.2d 497, 501 n. 2 (Fla. 1st DCA 1985), rev. denied1486 So.2d 598 (Fla.1986). We conclude that reversal and remand for further proceedings based on the Department's failure to comply with the time requirements of section 120.53(5) will serve no useful purpose in this case. Caber eventually received a full and fair hearing of its protest of the Department's rejection of all bids. The hearing officer determined *339 that the Depanment had valid grounds for rejecting bids as the result of Caber's initial bid Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99-- r1� L:,. t 530 So.2d 325, Caher Systems, Inc, V. Department of General Services, (Fla.App. I Dist. 1988) Page 14 protest. The Department's finding of an ambiguity in the ITB leading Cater to give it one construction while the Department and certain other bidders gave it a conflicting construction based on historical practice, is supported by competent, substantial evidence. Caber's protest revealed that some bidders, who knew of the Department's historical method for making awards, bid on that hash, despite the ITB's actual wording. Caber was not informed of these matters outside the hid do unients and relied instead on its interpretation of the ITB terms. The basic concepts of conipciiti%c bidding were violated b} the Department's practice of written and unwritten specifications and rules pertaining to the ITB. Sec Aurora Purnp, Division of General Signal Corp., v. Goulds Pumps, Inc„ 42! So.2d 10 tl-la. 1st t)G4 198't. The ITEi was fatally flawed and obviously must be rebid. In answer to Caber's second point, the Department's rejection of all bids for this inherent ambiguity was founded on a rational basis and cannot he characterized as arbitrary and cdpricious. We affirm the final order on this issue. This decision should not N, taken as suggesting that an agency can violate such time constraints with impunity or be excused from compliance therewith in every case; certainly, there will be cases in which the facts will require rc%ersal. But an agency failing to meet these time requirements may be held accountable in mandamus for any substantial delay beyond the specified statutory period. Department of Business Regulation v, Hyman, 417 So.2d 671, 673. AFFIRMED. WIGGINTON, J., concurs. BOOTH, J., concurs in part and dissents in part with written opinion. BOOTH, Judge, concurring in part and dissenting in part. I agree with the majority that the Department "is subject to sharp criticism." Something more is needed, however, in view of the agency's asserted right to avoid the statutory procedures for resolution of bidding controversies. I cannot agree that the agency has the option of either following the statute (stay and prompt hearing of bid protest) or of rejecting all bids, rendering the bid protest moot. Section 120.53(5)(c), Florida Statutes, provides: (c) Upon receipt of a notice of protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the 1)rotest is resolved by final agency action, .... (emphasis added) The statute makes specific exceptions for emergency situations (FNI) but does not provide that the rejection of all bids, after the filing of a protest, will operate to "bypass" the statutory requirements. The Department's noncompliance with the statute has apparently succeeded in this case by mooting the protest and allowing the extension of previously held contracts rather than award to appellants of the contracts sought. Appellant, despite its meritorious bid protest and compliance with statutory procedures, has gained nothing for its time and expense. Since the grounds asserted in appellant's protest were the basis for the Department's rejection of all bids, and in view of the Department's failing to follow procedures, appellant should be awarded fees and costs. (FN2) *340 The Department's failure to timely forward either of appellant's protests for hearing, as required by law, delayed the proceedings irretrievably. This is exactly the result the Legislature sought to prevent when it provided for speedy referTal and hearing of protests. I disagree with the majority that appellant should have sought mandamus or other extraordinary judicial remedy. Given that the court would issue a show cause order allowing time to file a response, this avenue would not necessarily save significant time. More fundamentally, it is asking too much of a litigant to anticipate, at the time an agency first exceeds a statutory time limit, that the delay will continue long enough to make a mandamus petition worthwhile. An agency's intention..,, are not always apparent until clarified by hindsight. Requiring immediate recourse to a higher authority or later forfeiture of Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99` 720 530 So.2d 325, Caber Systems, Inc. v. Department of General Services, (Fla.App. I Dist. 1988) Page 15 statutory rights is neither practical nor wise where the parties are still seriously negotiating, and by the time an impasse is reached, the damage may be done. The best solution is to require strict adherence to statutory procedures and time limits for bid dispute resolution. The Department was not entitled to ignore the statute and spend two months trying to persuade appellant to withdraw its protest. resersal and remand for further proceedings will serve no useful purpose in this case. The term contract at issue has expired, (FN3) and there is nothing left to award. Further, there is competent c%!Jcncc supporting the hearing, officer's determination that the Department did have grounds for rejecting all bids. Appcllam's protests revealed the grounds now relied on by the Department to justify rejection of all bids. Although 1 must concur in the affirmance of the Department's rejection of all bids, I dissent from the majority's holding that the power to reject all bids can be used as it was in this case. The plain language of Section 120.53 is that the filing of a bid protest stops the solicitation and award process. This is an automatic stay that remains in effect until the dispute is resolved. The exception for emergency is stated, but no other. Bid rejection is part of lire bidding procsess and cannot be used to override the statutory procedures. (FN4) The Department's position, adopted by the majority, will, I believe, effectively eliminate the bid protest resolution procedures of Chapter 120. Without the restraints of Section 120.53, the power to reject all bids is limited only by the requirement that it not be exercised in an arbitrary or capricious maruter. Virtually any flaw in the bidding procedure can justify bid rejection under that standard. Ironically, the defect which the agency "discovers' is a basis for rejection may be the very defect that formed the basis of the protest. The protestant, despite the merit of the protest and a low bid, loses without any recourse, since the agency can avoid dealing with the protest by rejecting all bids. Once bids are opened and then rejected, a favored bidder(s) is given a chance to resubmit a low bid, and the original low bidder loses its advantage as well as the time and preparation costs for that bid. (FN5) The power to reject all bids, and the threat of the use of that power, are potent weapons that can be misused to eliminate the fair, open competitive bidding procedures. I am concerned that bid rejection was improperly used here without concern for the rights of the protestant, rights which should have been protected by the mandatory stay. I am also concerned that these procedures will set an unfortunate precedent for the future and encourage the *341. flaunting of statutory safeguards imposed for the public's good. (FN1) Notwithstanding the clear testimony of Caber's president, Richard Evans, that this was how Caber interpreted the ITB at the time, Caber disingenuously argued in its proposed recommended order for a contrary 'subcategory winner take all criterion of award.' " " (FN2) The ITB also does not define options, upgrades, or accessories. Bidders were confused whether to use Table A or B when listing some of the various components that were also to be listed in Table D. Table A called for all hardware whether mandator-y or optional, and Table B called for all options, upgrades, and accessories. Some bidders felt that some of the components listed on Table D were considered accessories so 1 they listed the components in Table B rather than Table A. Although the ITB required that the prices in Table D be verified by the price lists in Tables A and C, DGS also used Table B to verify prices listed in Table D because of the apparent confusion of the bidders. 31he specifications, however, said that DGS would not use I Table B for this purpose.' i 1 " (FN3) Incident to that decision., the court considered the transportation authority's argument that proceeding with the award process was necessary to avoid additional cost and delay if all bids automatically were rejected upon the expiration of 120 days after the opening of the bids, as provided in the bid specifications. 473 So.2d at 213-214. In dicta, the court stated: 'We have serious reservations as to the propriety of this provision. Initially, we question whether by setting a deadline of 120 days for award of contracts, JTA can avoid a contract award protest and simply rebid the project.' 473 So.2d at 214, But in this case, DGS does not base its rejection of all bids on an arbitrary time deadline." FN1. The hearing officer's order made no mention of section 120.53(5)(e), which provides: Copyright (c) West Group 1998 No claim to original U.S. Govt. works 99- 7f2V A® wooMolph, . ,/iiii k ■tt� �ess - AW The Infoff"adon Management ComPanY 5715 NW 158 Street Miami Lakes, FL 33014 305.698-9770 NEXT CASE DATA CONVEKSIUN C,LN i M KODAK EVALUATION OF STAFF PROPOSAL Re: Imperial Sanitation Services, Inc. Innovative Proposal Pursuant to Section 11 of RFQ FEE COMPARISON Projected Proposed Non -Exclusive Franchise Imperial Exclusive (Opt C) Difference Franchise Fee Receipts 20% of Gross Receipts 20% of Gross Receipts 0 Permit Per Account Fee $50 per contract account Irtelrnied in Licnse-Fee X 21,000 accounts = City may at its discretion still charge this amount f1,050,0001 0 $50 per account X 12,000 accounts 600,000 600,000 Temporary Rolloff/Container $50 per container every Excluded from proposal Fee 90 days X average of 12 per year therefore allows competition X 125 containers (8 companies) = in area and fee to be paid 139,000 139,000 0 Annual Renewal Fee $5,000 per franchisee/per Included in License Fee year X 19 applicants = City may still charge for non-exclusiv r� olloff 95,000 95,000 0 Specialized Waste Handling $1,000 per hauler/per year Excluded from proposal X 3 applicants = therefore City may collect 3,000 3,000 0 License Fee Nonexistent in franchise regulations New reoccurring revenue 1,800,000 1,800,000 In -Kind Services Proportionately shared by all $900,000 in kind services franchisees/City facilities & proposed cleanups -estimated city facilities (cleanups will vary based on need) = 3#7141 347,141 900,000 552,859 Total 1,634,1 4+ 2,147.141 1,184,141 3,537,000 2,352,859 Difference (Non -Exclusive Frchs - Prpsd Imperial Exclusive) _(543 9891 2,352,859 more from Imperial IMPS ItIAAL'S EXCLUSIVE PROPOSAL C RESULTS IN ADDITIONAL REOCCURRING REVENUE PER YEAR OF 2,352,859 EVALUATION F. I FF PROPOSAL Re: Imperial Sanitation Services, Inc. Innovative Proposal Pursuant to Section 11 of RFQ FEE COMPARISON Projected Proposed Non -Exclusive Franchise Imperial Exclusive (Opt C) Difference Franchise Fee Receipts 20% of Gross Receipts 20% of Gross Receipts 0 Permit Per Account Fee $50 per contract accountine X 21,000 accounts = City may at its discretion still charge this amount 0 $50 per account X 12,000 accounts 600,000 600.000 Temporary Rolloff/Container $50 per container every Excluded from proposal Fee 90 days X average of 12 per year therefore allows competition X 125 containers (8 companies) = in area and fee to be paid 139,000 139,000 0 Annual Renewal Fee $5,000 per franchiseel'per Included in License Fee year X 19 applicants = Cily may still charge for non-exclusive rolloff 95,000 95.000 0 Specialized Waste Handling $1,000 per hauler/per year Excluded from proposal X 3 applicants = therefore City may collect 3,000 3,000 0 License Fee Nonexistent in franchise regulations New reoccurring revenue 1,800,000 1,800,000 In -Kind Services Proportionately shared by all $900,000 in kind services franchisees/City facilities & proposed cleanups -estimated city facilities (cleanups will vary based on need) = 347,141 -3#:7,141 900.000 552,859 Total Difference (Non -Exclusive Frchs - Prpsd Imperial Exclusive) 1,,�, ry A I TT 1,184,141 3.537.000 2,352,859 (&43:G84 ) 2,352,859 more from Im erial IMPERIAL'S EXCLUSIVE PROPOSAL C RESULTS IN ADDITIONAL REOCCURRING REVENUE PER YEAR OF 352 859 2 f _ 720 L ,,,V REPIC�BLIC ��SERVICES, INC. IMPERIAL SANITATION SERVICES, INC. INNOVATIVE PROPOSAL FOR MORE EFFICIENT SOLID WASTE SERVICES Pursuant to Section 11 of the RFQ No. 98-99-090 EXECUTIVE SUMMARY record In b8 - or.. wafter r1- CRY Clack 99- 720 City of Miami, Florida Request for Qualifications (RFQ) Commercial waste hauling Services REQ No. 98-99-090 11. OPTIONAL As part of this Request for Qualifications, the City is providing the option for any Applicant to submit concepts or ideas that are innovative in nature to provide for more efficient solid waste services. These innovative concepts to be considered shall provide methods to accomplish the City's goals of better City regulation, to promote greater competition, innovative or novel services and services to promote the beautification of the City and the health and welfare of its citizens. This section shall not create any obligation on. the City to enter into any Agreement based on the innovative idea(s), nor include the idea(s) in the final Agreement. However, this information may, at the City's sole option, be incorporated in the final Agreement. ;�- 720 L: Innovative Proposal -A Exclusive Franchise by District South of 636 Solid Waste New Income to the City • License Fee $ 990,000 annually Savings to Residents • Free Services to the City $ 495,000 annually TOTAL Eight -Year Agreement $ 71920,000 $ 3,9609000 $ 11988%000 No rate increase to cover a pass through of license fee or city services for the life of the contract. 93- 720 of Miami '-nmission Districts �- - )Istria 1 - COmm!SSIOner Wifredo (Willy) Gort j )W 2 -Vice-Chairman ).L. Plummer, Jr. 1 _ )IstriC. a - Commissioner Joe M. Sancheo )isv-iet•4-Commissioner TcmasRecalado j )is ria 5 - Commissioner Arthur E. Ti ee!e, Jr. ionorable Mayor Joe Caroilo - Citywide : • �' �'�y d �i�t Y.'-a .�J�a�'°Cc-�N.:�r�I�"c-.�._�„�"*�~4x�`�`�� 4Sft•]'�c.��fi"��?'a,,.r.ie-iYn+w,r`w1� I I i l V —i.' ._-(-a� �I i— �4 i r I �'"^ .. ,rs+�co •�..• r^�i--' L OPolice Station Fare Stations and Fadlitits Nee Service Center ' �. � �� : •off ` / ` t, Innovative Proposal - B Exclusive Franchise by District North of the Miami Diver Solid Waste New Income to the C- t�y $ 7,920,000 • License fee $ 990,000 annually Savings to Residents $ 3,960,000 • Free Services to the City $ 495,000 annually TOTAL $ 112880,000 Fight -Year Agreement No rate increase to cover a pass through of license fee or city services for the life of the contract. B9- 720 of Miami fission Districts L - 1 Wlfreoo �Wi11) Dort �:•' _ Commissioner Y ,- sict omm, 7 jIistric Vice-Chai man J.L. °lummer,lc• ` y 1 � �>> ii• { )istriC 3 - Commissioner !ee M. Sanchez :__ W , �•.: iado :7, d- Commissioner TomasReFa r r )irriC S Commissioner Arthur Teele,Jr• fonora6le ti;ayor {oe Carollo- Citv'Vlide'` ,Y_ ��` ) � I __ �. 'I` s----;; f !..L_ � .i��'•1-s..^ :.i %�lw.. t .I;, t i = � I '� 1 i'_.�_� •��"_"'��. ,'� u� � �'��r-.� I•�-�j{lI � , -� 'J _ i-�yJ--c--'--'� Y .cam 1�M L 1 ' .» _-.• ' � _- I ^^-'� �� v� � �.��• , � � -• „j ` �,+` :a..-cam;?fit :+=-' --t.. ++;�...t�--^","_"-"E�..-�'L�! = r •--� � ' ' ••Y-."'-. ^"( � y.�' , , '•t, c T _._...�.r- .ram _�_-, _._.-._ �, p' `�. ,� .' I� ; -_ � l � </, Ems^ �V_ ' �' //{U s'-•,t-+1. f �'""--C''-"' I i I �_ -- :.i r ..�:�. �.-.ancrs r ,� _ •'.• J y �,�,.. 0x� POli-_Station--��•J -�--�� ••'y.�• -I {f Fire Stations and r-rci:;Zirs Net Service Center �/_ =� •-- - s p Innovative Proposal - C Exclusive Franchise Citywide Solid waste New Income to theme $ 14,400,000 • License Fee $1,800,000 annually Savings to Residents $ 71200,000 • Free Services to the City $900,000 annually TOTAL $ 21,600,000 Eight -Year Agreement No rate increase to cover a pass through of license fee or city services for the life of the contract, ®.I 1 S9- 720 L giain ,`aster . ission Districts t -Commissioner Wifredo (Wilt) Gort -Vice-Chairman J.L. Plummer, Jr. F - ? - Commissioner Joe rv1. Sanchez = - i _ + i z Commissioner Tomas Reca'ado - Commissioner Arthur E. Teele, Jr. e Mayor Joe Carollo - Citywide _W `��✓ :., t µl:l. t - j i_ _l K�.h t�i C I -1r-- 1 ' 1 .T 1- - - -px I Policestadon -+ , I : , + •�, cam-- — � �' f' Fire Stations and Facilities f gi ;, i r Net Service Center - m9p Opl- I'D ri L City of Miami, Florida Requestfor Qualifications (RFQ) Commercial Waste Hauling Services RFQ No. 98-99-090 11. OPTIONAL As part of this Request for Qualifications, the City is providing the option for any Applicant to submit concepts or ideas that are innovative in nature to provide for more efficient solid waste services. These innovative concepts to be considered shall provide methods to accomplish the City's goals of better City regulation, to promote greater competition, innovative or novel services and services to promote the beautification of the City and the health and ,velfare of its citizens. This section shall not create any obligation on the Cite to enter into any Agreement based on the innovative idea(s), nor include the idea(s) in the final Agreement. However, this information may, at the City's sole option, be incorporated in the final Agreement. 1. "More efficient solid waste services" One company - one district - one truck 2. "Better City regulation" Public/Private partnership for joint regulation One company - one district - one city audit 3. "Promote greater competition" Open roll off Between exclusive district and open district 4. "Innovative and novel services" All ... Only innovative proposal submitted 5. "Beautification of the City" Community clean ups New trucks New dumpsters 6. "Health and welfare of the citizens" Responsibility for collection Less trucks on the road Less traffic congestion Summary of Proposal From $7,000,000 to S14,000,000 of New Revenue License Fee From $4,000,000 to $7,000,000 of Free Services Community Clean Ups Solid Waste Services to Municipal Facilities From $3,000,000 to $7,000,000 of New Equipment New Trucks New Dumpsters No price increase - LIFE 4F THE AGREEMENT For the Above Services and New Annual Reoccurring Revenue B9- 720 Yahoo - Miibug Wciss Announces CI ... on Against Rchuhhc Smviccs, inc. http://biz.yalioo.comniwi990923;n1,_milbeig_l.html ^VZOFINA E 1? Home= Yahoo! - Help BV� ,�Ni3SS W1R13 ,a a ey, Mtwl ea Al Vol Get faxes anywhere... titer your email addressE�� [ A�►si1>ess I LiS_ I )r;:ci I I3�..Ilt�lustr� I II_V I /\}' I SsC:I' I ft�c�t_miLQ -I I RRNcws i I3izWirG i ] Thursday September 23, 4:22 pill Eastern'i'ime ^---� Conipany Press Release • RelAted Quotes Milberg Weiss Announces Class Action &2Q 101/2 +0 Against Republic Services, Inc. d�layeci 20 mins -disclaimer NEW YORK--(BUSINESS VVl1ZF),--Sept. 16, 1999--The following was Get Quotes released today by Milberg Weiss Bershad Hynes cC Lcrach LLP: Notice is hereby given that a class action lawsuit was filed on September 16, 1999, in the United States District Court for the Southern District of Florida, on behalf of all persons and entities who purchased the common stock of Republic Services, Inc. (NYSE:R - lip ; "Republic" or the "Company"), between .January 25, 1999 and August 28, 1999, inclusive (the "Class Period"). If you wish to discuss this action or have any questions concerning this notice or your rights or interests with respect to these matters, please contact, at Milberg Weiss Bershad llynes & Lerach ("Milberg Weiss"), Steven G. Schulman, Samuel H. Rudman or Michael A. Swick at One Pennsylvania Plaza, 49th Floor, New York, New York 10119-0165, by telephone 1-800-320-5081 or via e-mail: cndfraudnrwbbiny,com or visit our website at www.milberu.com. The complaint charges Republic and its chief executive officer with violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 as well as Rule 1 Ob-5 promulgated thereunder. The complaint alleges that Republic issued materially false and misleading statements regarding assets the Company recently acquired from another waste hauler. As a result of these materially false and misleading statements, plaintiff alleges that the price of Republic common stock was artificially inflated during the Class Period. Finally, the complaint alleges that, prior to the Company's announcement concerning its true financial condition, the Company profited from the artificial inflation in its stock price by selling over $1.2 billion of common stock in a public offering, and raised $500 million in an note offering. Plaintiff seeks to recover damages on behalf of class members and is represented by the law fain of Milberg Weiss, among others. Milberg Weiss maintains offices in New York City, San Diego, Los Angeles, San Francisco and Boca Raton and is active in major litigations pending in federal and state courts throughout the United States. Milberg Weiss has taken a leading role in numerous important actions on behalf of defrauded investors, and is responsible for a number of outstanding recoveries which, in the aggregate, total approximately $2 billion. For more inforniation about Milberg Weiss, please visit our vvebsitc at www.milberg.com. If you are a member of the class described above you may, not later than sixty days from September 16, 1999, move the Court to serve as lead plaintiff of the class, if you so choose. In order to serve as lead plaintiff, however, you must meet certain legal requirements. Cap:tact: 1 of 2 ;sty:>rrisi>~� inl:il ira,� ,,r.,isR:c. record ]ri connection 3vitlht item n 5:5 on I. 4fllaiter 1^ry:,,rrm4n City Clerk 09/28/1999 10:16 AM `9 - 720 } Yahoo - Milberg Weiss Announces Cl... on Against Republic Services, lne, http://biz.yahoo.com/bw/990923/ny_nlill)crg_ l.hhnl Milberg Weise Bershad Hynes ti Lerach LLP Shareholder Relations Dept. i E-Mail: nndirducisrbhln�_.c9m { 1-800-320S081. p�! i More Quotes and News: IZcpublic Seiviccs Inc (NYSE:RSG -ncw�) Related Neivs Categories: etivii_oiuite>��?1 Search News Copyright Cc 1999 Business \Viic. All rights, reserved. All the ne\Vs teleascs provided by Bu.Lless Wire are, copyrighted. 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Iti .oi xrtr.aA.- I.a . 1 f (ar . I..ru� (upuh• F .r lcr n f r .. rr ., r. . I . •r� Al iF Jn - - n I. ......M1. / . rl.. .�1 ,.[ 4 I ,.1 •I r •r :I.ar. �n,. ... .+uy 1 an n, In V.Ir• Lw th. rn • A..vnly ..11. vtw Seattle � 1 t. v r,r •r pu Al.r r I � _ F I •I _ A. . �.t.rr A•fur .. t ■ ra�rnn .A^ - r..r_. o. � 11 ,r ,. 1 � ..Vuhi r .. i �� .any•"" f m.il- a' tr.a'+fx.'rr't✓' » pan �.f � F.p•• •<� .,.n .r .e. °!Y - 1 { - I Yahoo! FI'aanc-r,- ItSt., http://quote.yahoo.collt/q?s=RS(i&d=t Home -Yahoo! - He1p r Gel Quotes Detailed s� mbol lockup k 4. �x bCi7-0i h�XJ 1� • M Yahoo VieNi Gustomlz2 °SI n Torifollns lnarta c crcat 9��'ttsc}._4lc�ch� Por:tfq�;ci - Ir,�l}i }phs��C��_l-n_t_oliQ -Quil I P— - .iaxa My Get Yaliool Vi;: 3.91"' intro APIZ, no annual fee. and instant credit Click to lradc or open an account. - nth9�a�tt Disc ai )tc1 Views: Basic - Oay,}'l.'atch - Pert'ornutnce - l.'undamentals - 1011.1i_IM - [('rcatc_New- Vice-] Tile Scp 28 10:07an1 i•T - 11.S. 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Quote data provided by Reuters Limited 1 of 2 09/28/1999 10:13 AM 99- 720 V I S&P 500 1,324.02 V STOCK IND -24.25 i DOWN ...EX ................................................. NASDAQ 2,712.69 14914.1� ;; OCK 1t�D_IEX .`...._.__.......... ............................. -46.21 -i76.04 BONDS 6.05% i U.S. 3Q YcAR +.08% , DOW ,. HERALD ................... 13814 BLOOMBERG -2.56 _0-4 ,rZEX TUESDAY,AUGUST 31. _ r BRO www.heraid.com t t ' �t; stock drops 33percent ...Repubfic Services to ass ��nin s �a� By JAMES McNAiR Herald 9usmes_c'.yrile- . It was 2 i Republic Ser% )ces. ttte e�-b.ae: company headed H. W�avne Huizenga. as news o an earrings shortfall took a nearly S1 billion bite out of the co^par,v's market ` value. i Shares of the For; Lauderdale company, the nation-s fou;zh-big- #'� Best trash hauler, plunged S 37i,: n, to a record iow close of S 11. i 2t:. a t one -dad_ drop of percent. The { stock traded for as iow as S 10.68 during the day. The run on the stock began a: cr P.epublic Services CEO James E. Connor revised the compar. s earnings estimate for 1999. Ana- ;N,sts, who project corporate earn- ings with guidance from company executives, had expected Republic to return S 1.25 a share, the aver- age estimate of analysts polled b., First Call in Boston. Republics revised prediction,: S 1.1 i to S 1.: 9 a share. O'Connor blamed the loner -- than -expected time it is taking :o enhance qualit, and performar,;:e standards of acquired compar.irs. particularly those bought from Waste Management last Septem- ber for S 500 million. "Whiie these acquisitions have been accretive to earnings. some are not performing at levels con- sistent with our existing business and. in certain instances, the time needed to gain, complete integra- tion means the impact on our carvings growth will not be real- ized as quickly as we had initially expected." O'Connor said. Republic also said that, althougli its S600 million debt ofierine during the second quarter reduced its exposure to rising interest rates. the cost of that debt is currently more expensive than horrowir,c under the company's floating-rate credit line. That. too. crimped Republic's earnings growth for the year. Waste Management itself said its profits would be lower than expected in the second half of 1999. Both companies had counted on acquisitions boosting earnings. "Companies have come up with rosy forecasts to help justify the prices they're paying for assets," said Nle!%ilie Code. an analyst with Sanders Moms Nlunda', in Houston. "Then what happens is ,he\ can't make [the forecasts;.' Charies Johnson a: Bla%iock Partners. a New York research and securities firm, said solid waste companies are not realizing cost savings as quickly as expected from acquisitions. "Right now, the industr} has a black eye," Johnson said. Trading of Republic Services shares was halted for more than an hour after the New York Stock Exchange's opening bell Monday. When is resumed. the stork opened a: S 1 :.81' µ•ell beiou 1:5 Fr idav :--lose o.` S I e.50. Republic Se7�ices was cast o Rerub'., called Autotiation. in July 1998 in an initial public offering :hat priced the shares at S'4. In .4pri1. when .kutoNation sold its remain- ing two-thirds ci the stock to the public. the price was S 16.S I' -. Bloomberg ;4'ex;c _oritribuled to this report. . e-mail: imcnairra herald.com r NAME Oct. 98 Nov. 98 Dec. 98 Jan. 99 Feb. 99 Mar-99 Apr-99 May-99 Jun-99 Jul-99 Aug. 99 Sept. 99 Totals % of Collection by Company AMERICAN WASTE 80.00 160.00 0 240.00 0.0% ATLAS A 220.00 220.00 0.0% BROWARD-DADESAN 60000 600.D0 849.60 849.60 849.60 849.60 * 4,598.40 0.1% BROWING FERRIS IND 122,830.58 125,403.61 117,647.25 123,451.91 117.454.20 128,067.33 124,331,54 124,018.60 118,059.26 124.336.55 110,163.79 116,750.14 1,452,514.76 33.5% CAPT. TRASH, !NC 488,10 23.20 430.30 565.90 545.70 447.70 456.50 490.10 590.30 676,95 706.65 785,90 6,207.30 0.11 % CLEAN-TEC WASTE 6,47593 309.07 6.785.00 0.2% COASTAL CARTING 0,00 5,972.78 5.972.78 0.1°% ENVIRONMENTAL WASTE O DO 107,843.88 53,103.54 57,566.19 52,191.56 119,155.92 78,134.94 76.307.32 65,016.57 71,915.39 62,413.91 745,649.22 17.2% GENERAL HAULING 4,80300 6,355.93 3.667.65 2,019.35 14,613.11 5,608.00 15,267.26 15,908.33 7.821.36 11,646.04 8,727 39 8A 17.12 104,554.54 2 4% IMPERIAL SANITATION 6,203 67 7,633.54 49,278.13 119,879.86 60.048.37 181,182.56 67,580.29 61,393.28 61,470.23 614,669.93 14.2°% JAA INDUSTRIAL WASTE A 2,352.80 526.40 1,537.84 4,417.04 0.1% LAZARO WASTE 90.486.78 46,854.08 ® 137,340 86 3.2% LOPEFRA CORP. A 5,256.00 3.394.00 4,080.00 2,080.00 3,790.00 2,300,00 2,272.00 23,172.00 0.5°% MAC PAC 0.00 1,020.40 1,320.20 2,049.00 1,439.40 1,592.00 2,041.00 1,917.14 1,381.60 12,760.74 0.3% ONYX FLORIDA LLC A 582.60 1,924.92 3,794.79 6,302.31 0.1°% PH WASTE 1,065.50 604.93 525.83 965.83 2,076.00 1,807.00 361.00 1,720.00 1,852.00 1,365.00 1,350.00 13,693.09 0.3% ROLL -AWAY SYSTEM 1,370.00 1,070.00 1,600.00 1,514.00 18 5,554.00 0.1% S&S NATIONAL WASTE A 6.880.00 9,140.00 16,020.00 0.4% SIMCO RECYCLING 0.00 1.903.69 1,903.69 0.0% UNITED ENVIRONMENT 759.00 1,558.31 1,100.69 1,859.09 1,159.11 2,401.46 1,665.78 2,279.33 4,451.37 2,546.87 19,781.01 0.5% VIRTEC ENV SERVICE A 428.02 480.52 577.88 412.49 1,898-91 0.0°% WASTECO A 612.02 1,457.08 1,450.38 1,448.01 1,530.90 6,498.39 0.1% WASTE MGMT OF DADE 104,987.30 65,254.38 82,082.41 0.00 120,486.35 188,122.89 189,687.91 229,133.10 151.743.22 1,151,497.56 26.5°% 4.342,251.53 100% EIFI exempt account 18.000.00 18,000.00 36,000.00 Audit Collections 21,173.40 0.00 0.00 0.00 0.00 188,508.00 26,743.00 236,424 40 TOTAL COLLECTIONS 361,243.26 391,467.40 311,305.80 186,932.78 431,435.67 523,960.43 327,705.05 418,542.62 430,168.13 512,428.27 294,833.10 424,653.42 4,614,675.93 A New company Merged with Waste Management of Dade County ® Merged with Imperial Sanitation * SOLD S2 No longer has account in City of Miami AS OF 9/21199 S- 2157 ATTORNEY-C1-IEN!'PRjl7LEGED C(1,17,11LjrVl(:•t TJUjV ANn #VORN PRODUCT 'ho: Daile Waste I lat,lers C'� until From: Peter J. Yanowilc11, I:sq. S%lbiect: Potenttad I Olb!atiun Date: Augurt 14, 1998 M. EMor.�tvnUM ••••�••••••M••••♦••••••••I••••��•t�H••N�N1���1lI�N���.•••N••••�.•4♦NrNH•••.N •••N••N•H •u�••Y♦ 1. STATEMENT OF ENACTS The Dade Waste [Iaulers Council, Inc., hetr..aftcr (DWIIC) is a non-profit corporation duly registered in the State of I lorida and having its corporate offices in [fade County, Florida. The DWI{C membership is compounded of 1 5 active members who are privately heft solid waste and recycling businesses having annual gross income, averaged over the past three calendar years, not exceeding ten million dollars. The DWHC talso consists of ten associate mernbers consisting of solid waste industry related business, i.e. tool mantil-acttirers, container manttiacturers, disposal fneility operator, etc. Only DWI IC active membt.rs ate entitled to vote on DWIIC matters and to elect the Board of Directors. The DWHC Board clurt:ntly consists ot'three members ull of whom share equal authority. I'here are no officers. The DWI:[C' by-laws do 'lot allow publicly held companies, i.c. All Service Renise Co., Inc., (a subsidiary of Republic Industries, Inc.) BFI. Waste Management, 11.S.A. Waste, Eastern i Environmental Services, to become members ol' the DWIIC. The ubjectives ot,the GWHC: are to I promote the collcrlive interests of its membership anti tilt solid waste i►tdusu'p as a whole, nut inconsistent with its, tton-profit corporate charter anti section 501 (e) (3) ctCtht internal revenue code (charitable orgartization). 72'0 The area of business operations for bWI IC mcnibers is centered on the areas of Miami- Dade, 6rownrd and Palm 11cach (: ountics, with ct primarl, 4t)ttCCIIltitt1011 (if c'ustoniers in Miamm-bade and Broward Counties. In these business ;iteas the principal brie of DWi it-' clientele is focused on eommcrcial and rnultipic family (5 units or more) ►)rivatc• accounts On the average, long-term contracts (5 years or more with amoniaitic: renewal provisions) are executed between the customer and the individual waste hauler. Some DWHC members are also under contract with local govemillent authorities, i.e. Miami -Dade County for collection of solid waste or construction and demolition debris (C&D) at Miami -Davie County Uovertuncnt facilities such its the airport, seaport and government buildings. Pic consensus objectives of the DWHC membership is to maintain it free and open market Glace, thus enabling them to compete openly subject only to applicable Federal and State environmental regulations applicable to the industry. These environmental regulations are not all issue at the present time. Miarni-Dade. Broward and Palm Beach Counties, as well as, incorporated municipalities therein, have enacted County anti Municipal regulations that provide for the licensing on an exclusive, or non-exclusive basis, of private waste and recycling companies desiring to conduct business within their Govenunctrt's geographic boundaries and using the public right of way for the collection and disposal of waste and recycling materials from the customer. in addition, said County and Municipal governments impose a license permit or tranchise fee, to be paid by the licenccd waste hauler on a percentage of total monthly receipts billed and collected from the hatiler's customer. This percentage or total receipt is paid by the hauler to the governmental authority retroactively on a monthly basis and annt►al audits are conducted to confirm the accurate payment Page 'l of 16 of said fee. This fee mny br pa_,.—d on directly to the customer or ahsorb,. a by the private hauler as n cost of doing business and ll. I tic standard and tees cling contract language used for the solid industry and 6%, the DWI W ntcinbvi ,; prig idt-, Wr the customer to pay for government permit fccs, as 11v%Y be irnposed from time to time or any inct- ase thereto. Notwithstnnding, the offensive nature of'.aid liceitse or permit fee, i.e. imagine a City of Miami licensing fee for attorneys bused on total nloilthll' gross fcea billed and collected on clients, the DW11C. membership has accepted these additional licensing or pel111it lees as a condition for operating their businesses in the County and municipal jurisdictions. -i1wi is also due to the fact that the fccs have remained relatively low (&°ro to f S"-o) and the Customers havc not raised complaints on the increase. It has also been Lhe experience of D\Vl K: members that their publicly held waste competitors have nlso passed said fee op to their cllStutners and the fear that said competitors would absorb said fee with the resulting under -cutting al' prices, has not yet materialized in the market place. The business licenses issued by the County and municipal authorities are only ,good for a period of one calendar year (twelve; months) beginning October S to September 30 of each year. There are do guarantees of their renewal should the governmental authorities decide to do its own waste or recycling collection for multi -family and commercial accounts or if the County or municipal government decide to limit the number (lf penttitt:d licensed haulers or to grant exclusive single or multiple franchises for solid waste and recycling within its geographic N)undvies. Whether to limit or grant exclusivity in licensing or franchising depends on the charter and Code provisions for each individual government authority. The City of Mimni is a municipal corporation duly chartered in the Slate of Florida. At a Page J of 16 t J-- 14dU L Special municipal elections held on September 4. 1997, the voters of the City of Miami approved I Charter Arneatdment no. 1 providing; that commencing on November. 1997, there shall be a non- voting executive mayor and livr_ 5 B ( ) cortunissiontrs ctectctil litres fide (5) districts. The nets City Executive Mnyor was given power and duties ,vhieh include: vetu authorit% aver any legislative measure npproved by the City Cornmi�tion. The City Cuntmission can override tite Mayor's veto by a four -fifths vote of the Cornmissi«tt lNcaent at the ncxt reRttlarly scheduled or special meeting jafter the Mayor's veto occurs. 'lltc Mayor roust exercise his veto power tvithin 10 days after i adoption by the City Commission of the tcgislative measure that the Mayor intends to veto. The City of Miami solid waste retyuftitions and ordinances concerning solid waste are i embodied in Chapter 22 "attrbttge anc! 'I'r'01" Of the City Code, Section 22-13 governs uld regulates the collecting of solid waste in the Cfly. Pursuant to this section the niernbers of the Council and f other solid waste companies are ,authorized to Collect commercial and multi-fa►rtily (a building i consisting of five or more residential units). As a condition to engage in the business of collecting and disposing of garbage, trash or solid waste, in the city of mlarni, solid waste companies are required to obtain a regulatory permit from the City and to pay a regulatory permit fee to the City of twenty (20%) on the total gross monthly receipts collected during the previous month by the company. Effective October 1, 1994, all City-pertttitled Commercial waste haulers are required to pay to the City a regulatory penttit fee based on gross ntunthly receipts (Section 22-56 (a) (b); City Ordinances no. 10040 and i 1184). Initially, for 1994, this regulatory permit fee was 8% and was increased to 12% in 1995 and later to 15% effective (.)tauter 1, 1996. 'fhe 1996 regulatory permit fee remained at 15% since 1996 until March 25, 1998, when it was increased by emergency Page 4 of 16 �9- 720 ordirance at the March 24, 1998 (ordinance number pending) to 20% and became effct;tive March 24, 1998. This is the highest license or permit fire in date asked by a County or Municipal authority in Miami -Lade, Hro%vard, or Paler Reach Counties. On March 24, 1998 nlao at the same City Commissioner mecting that increased the permit regulatory fee to 201'0', City Conimissioncr Arthur Teele, biought tip for public discussion the idea of awarding exclusive or limited frunchiws io the City of ivliami. (City of hti.usii Transcript of March 24, 1998 Cvimnissioner niectimg at pages R and 9). Specifically. Commissioner Teele requested, an emergency ordinance; that t-'ou)d tnu-W-er dic existing nun -exclusive regulatory permit system to a "mie franchise" (0i ten or twenlY years %with it lnination 1lc ul $ 50,000. Comtrttssioner Teele furtlier stated on the record that "he had talked to five waste hiulinb companies and three of there "did not have any problem paying up a quatter or it million dollars ($250,000) each as in initiation fee." Commissioner Teele did not niention the names of the companies lie spoke with, or whether they were existing City-petmitted haulers or rtckv companies, i lie request for an ordinance was not considered by the City Commissioner un that date. In May, 1995, the DWHC received 'information, subsequently confirmed in public comments made by City Commissioner -Torres Regalado that All Service Refuse Co. Inc.. a waste subsidiary of Wayne Huizenga's Republic industries. had made an oral proposal to pay $3 million dollars to the City of Miami to obtain Sul exclusive franchise or license to pick up solid waste and recycling materials in the City of Miami. No Formal or written proposal has been put forward by All Service representatives to date. The existing business vulunie of All Service Refuse Co., Inc., on commercial and niulti-family accounts within the city of kliami is minimal. "thus, it would seem that the payment of $3 million would be si wise business decision to acquirr the exclusive right to Page S of 16 collect anti dispose of all commerciai. recycling, and multi -family accounts in the City of tvtinrni beginning October I, 1999, and thus resnfting in the: rn+n renc4va) of the DWI IC existing City of i Mitvni licences, and it s, of custt+rncr arcs+unt ; by Svj,trtnhk r .U. 1998 98 The members of -the DWI1C' have c%larrsscd l; W- c iiilallvial . onct- rt over adoption by tite j City of Mian-vi of said Iegielative propns311 and c N-clusiN c licensing deal sr,,ught by A{1 Service Refuse } Co., Inc., and establishing thereby an excIty ivc or Iimited nurnhcr of fraricltiscs in the City of Miami. 'l'ltc DWI IC has contmissioncd this legal, research in preparation for potential court action to stop the appruvcd irnplenicntation attd crtactinetlt of'such lcgislation and what they believe to be the Anti-Tnvv anti Restraint of Tradc tactics by All Set,. We 1teEitse Ct+ . inc., ;tad the City of Miami restricting the ntatttber ol"qualiRed solid 4L•zste haulers permitted to the City. The DWI IC members have requested that the Icgal clenicnis giving rise to their potential cause of actiwt be researched and ti analyzed within the body of existing federal and Stall,:, alai -trust statutory provisions, as well as. restraint of trade, unfair trade practice and Constitutional I _i II. ISSUES FOR LEGAL REVIEW A. MUNICIPAL CHARTER AND CODE PROVISIONS ISSUE: Whether the City of Miami ntay, consistent with its municipal charter and code, its well as state law. award an exclusive tiailclike liar the collection and disposal of solid waste in residential and commercial areas ill the City without first, submitting the exclusive franchise award to tile municipal elrciors for their approval at a rel'erendturt held for that purpose? Page 6of16 1-1 9- I� vV CONCLUSION: No. 'The minmi City Commissiuner nlny riot unilaterally amend the municipal charter but may only propose an amendrnent >4hlch must be subrnittcd to the municipal elector for their tvpproval tit a tuterendum held tier that purpose. The present Miami City Charter Nvas adoptcd by the city commission on January 21, 1921, and npproved by the municipal cicctors in a rcfctendum held ern► May 17, 1 ` 21. Section 3 of the city charter provides: The City shall have power to: Section 3 (h) "Public service: To furnish any and all public service" Section 3 (i) "Public tttilitics: To purchase. hire, construct, own, maintain, operate or lease public utilities, including street railways, electric, light, telephone and telegraph systems and workers for supplying the city and its inhabitants with water, ic:e, gas for illuminating and heating purposes, and electric energy for illuminating. heating or poi�cr purpose;... Section 3 (n) "F ranchiw: Subject to the Provisions of the Constitution of Florida disc of this charter, hoth inclusive, to grant franchises for i public utilities." Section 3 (o) -Sewage. offal, ashes. garbage, etc: To collect and dispose of' sewage, offal, ashes, gmbage, carcasses or dead animals, I and other refuse_.." i {i 1 - Section 39 0) franchise and public tuilitivs...E;xclusive franchise prohibited "No exclusive franchise or extension or rcne%%al thereof s shall ever be grunted. Subsection (1) of s. 166.031, 1..S., provides the method for amending municipal charters. According to that subsection, thr governing body Of the itiilt1Jcipality, by ordinance. or the electors of the municipality, by petition signed by 10 percent (it' Ole ref!istered electors, may pmpos; an anicndment to any stmion or all of tlic municipal charter with the exception of that part getting out the municipal boundaries. Page 7 of 16 � �' ��20 41f. The municipal governing body is directctl to place the proposed amendment on the ballot at the ncNI general election or at .a spccial election calicd for that purposc. `iecticnt 100 011 (7) province that. if the proExlscd III Tic ndmcnt tcccivc; tl?r 1)vorahic crap of a IIIajoIIty of - the municipal electors vvttng in 01C. rk 1k.tcndttm, the governing llody shall incurporate that a►ttcndmertt into the clt,utet and file a copy of the revised charter with rite Dcpru-trtleIII of ISt.ltc, at which tune the revised charter shall heconie eflecti%e. Section 160 011 (1) provide;; that a municipality rutty amend it : charter as described above, even if' the charter itself provides ulhcrwise. Accordingly, the Miami City Commission may trot unilaterally amend the municipal charier to award in excli.Lsive Franchise For cont►ucrcial and multi -family sulid .%ante c:olleution and disposal but may only propose an amendment contained in a duly enacted ordinance which mast be submitted to the municipal electors for their approval at a referendum held for that purpose. Attorney General Opinion Nos. 075-176 acid 079-80. In regards to competitive bids acid request for proposals for solid waste collection and disposal: Section 29-A(b) of the City C:hartcr (Contracts for public work or l improvements) provides that -any public works or improvement contract for more than ten thotisnnd dollars ($10,000.00) shall be awarded to the lowest responsible bidder after public notice and using; and using such competitive sealed bidding, methods or may be presented by ordinance ... Notwiclistanding the forcboing, the city manager may waive competitive sealed bidding; tttethucls by making; a written finding that a valid emergency exists or that there is only one ( I ) reasonable source of'supply, which Iindine, must be ratitled by a two-thirds vote of the cctmntission alter a properly advertised public hearing .All inviTations (or, bids, requests fur proposak or other notification shall cumain a reservation of [lie. right by the City to reject all offers." Accordingly, the Miami City Commission ttlay approve a competitive scaled bid process in lieu of a single exclusive franchise arrangement. h should he cautioned that by going to a Page 8 or 16 9-� 1'20 competitive bid solicitation, the City may avoid the exclusive franchise referendum requirement by awarding a limited number of regulator}, permit lic:cnscs (two or store) without calling them "tTanchise.q- Since the provision of Section 29-A(b) am already included in the C.'it} Charter, competitive bids solicitation do not require an wiienclmcnt to Elie Charter by referendum. The City administratiotf and commission would simply follow Elie rCip.iirctnrnts fut the competitive hid solicitation ttnd ordinances or requested amending chapter 22 of the ("'ode (Garbage and other solid waste) and awarding the contract to the lowest responsible bidder (or bidders). Alternatively, the City could follOW a "Request for Proposal- method and nett a competitive bid process. However, a request for proposal process. instead of a competitive sealed bidding method, would require a written finding by the City manager that a valid emergency exists, i.e. the garbage was not heing picked up, and that only one (1) reasonable source of supply existed, this is unlikely given the large number of* current city permitted licensees. Furthermore, the waiver of competitive bid methods must be ratified by an , trtllative vote of two-thirds of the commission after a properly advertised public hearing. Two-thirds oftt five member c onimicsion consists of 4 votes. B. COMMERCE CLAUSE VIOLATiION ISSUE: Whether a town's waste management vystc:tn shut grants to a single hauler an exclusive license to provide nourecyclabic garbage collection and disposal Services within such town's disuict to the exclusion ol'all private garbage haulers from Ehc conunercial garbage collection market, violates the Commerce Clause of the United Page 9 of 16 States Constitution which, by its language, limits the states' ability to regulate interstate commerce absent congressional autiiorimion? CONCLUSION: No A city/town enn nssunic cxchv,i. c rcspujjstt)i lily for the collection arld disposal of local garhape, and can also hire private contractors to provide municipal service-, to rcsidcncc.-. In neither case doc5 't City/town disciirnitinte against, or impose any burden can interstate coinnierce 'I'lie local interests that are served by consolidating garbage service in the hands of* the town --safety, sanitation, reliable garbage service, cheaper service to residents -would in any event outweigh any arguable burdens placed on interstate commerce. U'SA, Recychlig- 111V_. v Babylon, 66 F.3d 1272 (2nd Cir. 1995). Pursuant to (tic Supreme Caurt*s instructions on the mutter in Reeves. Inc. v. Stake, 447 U.S. 429,436-39 (1980), two separate inquiries must be made to determine whether a state or municipal activity violates the dormant Commerce Clause, as follows: (1) Whether the state's activity constitutes a "regulation" of commerce, as opposed to -part icipation"(where the state is buying or selling goods as any private economic actor might, and which, by definition, falls outside the scope of activity governed by the dormant Commerce Clause), ll'the state activity constitutes -reglulatinn" of interstate commerce, then (2) Whether the activity revulates evenhandedly %%ith only -incidental" effects on interstate conunerce, or discriminates against interstate cornmerce. The party challenging the validity of state statute or municipal ordinance bears the burden of showing that it discriminates against, or places some burden oil, interstate Commerce. Page 10 or 16 99 i4u L_ in ZJ, ,, L%cvc in¢ ,ttc, x "I1L1uLtzf_t3,i1?XLon, 60 F 3d 1272 (/nd Cir. 1995), lite Court of Appeals found thni the. Town of Babylon properly exercised its governmental powers by refusing to renew the rund denying liccriscs to all ga.bagc hautets and instead luring only one. Because no private actor may engngc in the chrallc-ngcd activity, it determined that the Town was acting as a market regulator rather than n market participant. The Court cif Appeals determined further that the activity did not discriminate against interstate conimetc:e because the Town did not favor in -Slate garbage haulers over out -of state competitors, nor slid it handic.tp other in -state and out-of-state businesses frorn competing against a group of local proprietors. Instead, the plan treated all garbage haulers alike. 'tire Town, its particular, having attended its Down Code to implement its plan, conducted an open bidding process to find to single garbage hauler fur its district who submitted the lowest -priced bid. Qf. CA -A -CM -Wile. Inc, y,,LSiy�.]lS2L�.IA1�S 9S2I1, 51 1 U.S. 383 (1993) (holding that a flow control ordinance violates the Commerce Clause beciluse it was a financing mcasure which by itself was considered revenue generation which is not considered a local interest that can justify discrimination against interstate commerce). Accordingly, if the City chooses to grant to an independent hauler an exclusive license to provide garbage and collection services in the exercise of its goventment,al powers, it puny ilu so free froth the limitations of the: Commerce Clause. C. VIOLATION O1: FEDERAL ANTI-TRUST LAWS ISSUE: Does a municipality's decision to take control of the local %+rite collection market violate the federal antitrust laws'? CONCLUSION: No. A municipality is entitled to immunity under the various federal antitrust laws so long as it acts pursuant to a "clearly articudatcd and affirmatively expressed" Page I I of 16 1 S9- f�20 L state policy to digpince competition with regulation or monopoly public service. This "state action doctrine " exempts the municipality's anticompetitive activities from antitrust Liability (W. The Sherman Antitru,t Act), j_tjw1i Qf (le V. WK.11 EAU Wig, 471 U.S. 24 (1995). y 1. Liability of Municipality A municipality has broad authority to regulate and is entitled to state action immunity from federal antitrust laws. However, before a municipality may claim the protection of the state action exemption, it must demonstrate that it is engaging in the challengcd a city pursuant to a "clearly articulated" state policy. 13tc challenged municipal activity need only be a "foreseeable result" of the statutes establishing the state policy to displace competition. of Eau Clkrz, 471 U.S. 34 (1985). The Eleventh Circuit employs a three-part test it) determine "helher the "clear articulation" test is satisfied: (1) that it is a political subdivision of the state; (2) that. through statutes, the state generally authorizes the political subdivision to perform the challenged action; rind, (3) that, through i } statutes, the state has clearly articulated a state policy authorizing amicompetitive conduct. lest Elsciri n- v. The. Villaya-ufAliami 5 ores, 1908 U.S. Dist. LEXIS 8473 (1998). f In support ofstate action immunity, a municipality may rely ilhon I'lorida Statutes § 180.06 i , (5) (1997). authorizing it to provide for the collection and disposal of gurbage: as well as Florida Statutes § 1 SO_ 13 (2) (1997), authorizing it to "establish just mid equitabic rates or charges to be paid to the municipality for the use of faj utility by each person, firm or corporation whose premises are served thereby". These are what authorized the Village of Miami Shores ill asalttett Et:ciric Co. Page 12 of 16 to provide waste collection set -vices and also what have been held to constitute a "clearly articulated and affirmatively expressed" state policy to displace competition in the area of waste collection. 1998 U.S. Dist. I.RXIS 8473 (1998); =s alzQ S�it�_st�Cul4ttubi;a�S2nitti uut oULl��v_ertisinc_ Ins., 499 U.S, 365 (1990) (wherr. the Supreme Court considered South Carolina statutes that authorized a municipality to regulate the size, location and spacing; (if billboards which adopted a "broader" concept of authorlty,and rejected the nrgumettt that the municipality's regulation was not authorized iflt was not, as the state stature rcyuired, adopted for a legislatively authorized purpose). The City of Miami has broad Authority to p,-ovide waste Collection services pursuant to "Clearly articulated and affirmatively expressed" state policy. As a municipality, it is entitled to immunity under the antitrust laws. 2. Liability of Private Party The Sherman Act is intended to regulate private practices and not to prohibit a state from imposing a restraint as an act of government. When a private party engages in certain anticompetitive activity in interstate commerce, or which allce(s interstate: commerce, such activity will not be exempt from the Sherman Act because such private party may be presumed to be: acting primarily on his or its own behalf (as optx)sed to municipalities which are considered on arm of the State). Ss 10VA .Qf Eiultie �,. City of Eatt Qai , 471 LI S. 3.3 (1985). Cantor v. Ddwjt-L-JIaULLCo., 428 U.S. 579 (1976): Si�ldf�trb v. Vir�;iui�tS_taf�.�su. 421 L- S 773 (f 975). Even when private parties are involved in the conduct, antitrust immunity will exist where the following test is met: First, the challenged restraint must be One "clearly articulated and affirmatively expressed" as state policy (as previously stated herein); second. the policy must be Page 13 of 16 t S 9 - 1`20 actively supervised by the State iteclf. The threshold inquiry in determining whether an anticompetitive Activity is state action cif the type the Sherman Act was not meant to proscribe Is whether the activity is required by the Stntc ncting as sovereign. Therefore, in order to seek protection under the state action exemption, a private early must allege (flat its activity was compelled by direction of the state. We havc not been presetltcd with facts to determine whether o private panty has, in fact, acted on his or its behalf. ltowVe%er. given the discussion above, a private company would be able to avail liability for participating in an immunized waste collection system which is permissible wider State law. (1) 7brtious Interference with a Business relationship In addition to federal claims which may be alleged against a defendant for anticompetitive conduct, one may allege a claim for tortious interference with a business relationship against a private party. In order to prove a tortious interference claim, a plaintiffinust demonstrate: (1) the existence of a business (or contractual) relationship under which the plaintiff had legal rights, (2) an intentional aced unjustified interference with the relationship, and, (3) damage to the plaintiff as a result of the tortious interference with that relationship. Willitupsitric �;s2�c�� ionevwell� inc , 772 F. Supp, 1225 (N.U.FIa. 1991). Nevertheless. a private company will again likely escape liability, where its conduct is not considered "intentional and unjustified," but rather proscribed by legitimate concerns and policies that are prescribed by state Inw, such as those discussed above in Sections B and C.1. (ii) Civil Conspiracy In addition, an action for civil conspiracy is Actionable when a plaintiff' can show some peculiar power of coercion possessed by the alleged conspirators by virtue; of their Combination, Page 14 of 16 1 9— rl Cam, Q i which power an individual would not possess; andhor can be defined as two or mare persons or i entities, having a common purpose, seeking to accomplish the underlying tort of interference or I conducting anticompetitive activity, whichever the case may be. , [may Club Q 4j�iC3 Y. Qj , 1992 U.S. Di3t. IiLXIS 3152 (1992). Accordingly, a claini against the individual haulers for conspiracy may he a potentinl nvcnuc of relief. Ilowever, we do not have sutfiicient facts to substantiate that t«o or more individuals have come together to accomplish the challenged activity I in this case. D. RESTRAINTS OF TRAI)E OR COMMERCE UNDER STATE LAW The Florida Antitrust Act, Chapter 5422), hlorida Statutes, is patterned aflcr the federal antitrust laws and pursuant to 542.32 Treat weight mast be givcti to the interpretations of the federal i ( courts relating to comparable- federal antitrust statutes. Florida Statutes § 5,12.18. which is patterned i after Section I of the Sherman Antitrust Act, provides that " (elvery contract, combination, or ( conspiracy in restraint of trade or commerce in this state is unlawful." This section has as its purpose "to Complement the body of federal law prohibiting restraints of trade or commerce in order to foster effective competition." Under Section 542.18, a plaintiff must allege: a) a conspiracy existed among the defendants in which they carte to a meeting of the minds. b) to undertake an illegal, tcnti- competitive act; c) the conduct had the effect ol" injuring competition in the market place; d) or wtreasonably restraining trade or commerce; and 0 1)l1intiff suflcred some economic injury caused by the illegal acts of the defendants. Kcv ('i►rh.tl Ss :tat �irszu, 1992 U.S. Dist. LEXIS 3152 (1992). A plaitntiff must allege. in addition, either a per sc violation or anti -competitive effects of defendants' Actions on the market. 5;.rt1 v v� ,1q�j, 629 So. ?d 252, 257 (Flu. 3d D.C.A. Page 15 of 16 i i f I i j 1943). A per se violation mast alto contain three elements: (1) a specifically defined market; (2) an allegation that defendants posseeeed the ability to nffr.ct price or Uutput; and (3) an allegation [hilt plaintiff's exclusion from the market aid nfTrct or wro intended to affect the price or supply of goods 4 i in that market. Id. It is not enough to allege injury alone, but rather harm to competition in general. Isl• Because every activity or conduct cxcrnpt frotrt the provisions of federal antitrust law is also exempt from Florida antitrust law under § 542.20, Fla. Stat., the City of Miami is entitled to inuntmity tend will not be held liable for any anticompetitive activity which is pursuant to a "clearly t i articulated" state policy. € INDEX :i B ITEM 1. CITY OF MIAMI CHARTER i { 2. FIRE RESCUE ASSESSMENT, CHAPTER 19.5 I 3. GARBAGE AND OTHER SOLID WASTE, CHAPTER 22 4. ORDINANCE NO. 10440, MAY 19. 1988 5. ORDINANCE NO 11184, OCTOBER 27, 1994 6. ORDINANCE NO. 11444, FEBRUARY 20, 1997 ' i a 7. CITY COMMISSION RESOLUTION NO. 97-447, JULY 3, 1997 8. ORDINANCE NO. 11564, OCTOBER 28, 1997 9. CITY OF MIAMI TRANSCRIPT OF MARCH 24, 1998 COMMISSIONER MEETING 10. FEDERAL ANTITRUST STATUTES 11. FLORIDA STATUTES, CHAPTER 166 - MUNICIPALITIES 12. FLORIDA STATUTES, CHAPTER 540 - COMMERCIAL DISCRIMINATION 13. FLORIDA STATUTES, CHAPTER 542 - COMBINATIONS RESTRICTING TRADE OR COMMERCE { S 14. OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA, OPINION NO. 075-176, i JUNE 17, 1975 i 15. OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA, OPINION NO. 079-80, 1979 Op. Atty. Gen. Fla. 204 16. OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA, OPINION NO. AGO 97-57, 1997 Fla. AG LEXIS 33 17. OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA, OPINION NO.080-49, 1980 Op. Atty, Gen. Fla 127 S 18. OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA, OPINION NO. 90-17, 1990 Op. Atty. Gen. Fla. 43 19. i WELLINGTON ROLLE v. CITY OF MIAMI, 408 So. 2d 642 (Fla. 3d D.C.A. 1981) 20. USA RECYCLING, INC., ET AL. v. TOWN OF BABYLON, 66 F.3d 1272 (2d Cir. 1995) sq - $20 TAB ITEM 21. BENNET ELECTRIC COMPANY v. THE VILLAGE OF MIAMI SHORES, 1998 U.S. Dist. LEXIS 8473 (1998) 22. C & A CARBONE, INC v. TOWN OF CLARKSTOWN NY, 511 U.S. 383 (1994) 23. TOWN OF HAL LIE v. CITY OF EAU CLAIRE, 471 U.S. 34 (1985) 24. SEBRING UTILITIES COMMISSION v. HOME SAVINGS ASSOC. OF FL., 508 So. 2d 26 (Fla 2d D.0 A. 1987) 25. GOLDFARB v. VIRGINIA STATE BAR, 421 U.S. 773 (i975) 26. CANTOR v. DETROIT EDISON CO., 428 U.S. 579 (1976) 27. WILLIAMS ELECTRIC CO., INC. v. HONEYWELL, INC., 772 F. Supp. 1225 (N.D. Fla. 1991) 28. CITY OF COLUMBIA v. OMNI OUTDOOR ADVERTISING, INC., 499 U.S. 365 (1991) 29. GREENBERG v. MOUNT SINAI MEDICAL CENTER, 629 So.2d 252 (Fla. 3d D.C.A. 1993) 30. KEY CLUB ASSOCIATES v. BIRON, 1992 U.S. Dist. LEXIS 3152 31. PINE RIDGE RECYCLING, INC. v. BUTTS COUNTY, GA, 864 F. Supp. 1338 (M.D. Ga. 1994) 32. BROOKS v. WATCHTOWER BIBLE AND TRACT, 706 So.2d 85 (Fla. 4"' D.C.A. 1998) 33. DAVIS v. WASHINGTON CTY., 670 So.2d 136 ((Fla. I" D.C.A. 1996) 34. CITY OF MOUNT DORA v. JJ's MOBILE HOMES, INC., 579 So.2d 219 (Fla. 5" D.C.A. 1991) 35. COHEE v. CRESTRIDGE UTILITIES CORP., 324 So.2d 155 ((Fla. 2d D.C.A. 1975) 36. FISHER v. CITY OF BERKL.EY, 475 U.S. 260 (1986) 37. PANAMA CITY v. SEVEN SEAS RESTAURANT, 180 So.2d 190 (Fla. 1" D.C.A. 1965) 38. UNITED STATES v. AMERICAN BUILDING MAINTENANCE IND., 422 U.S. 271 (1975) S49- 120 39. FALLS CHASE SPECIAL TAXING v. CITY OF TALLAHASSEE, 788 F 2d 711 (11"' Cir 1986) 40. GREENSBORO LUMBER CO. v. GEORGIA POWER CO., 643 F. Supp 1345 (N D. Ga, 1986) 41. UNITED STATES v. SOUTHERN MOTOR CARRIERS RATE CONFERENCE, y 672 F.2d 469 (5"' Cir 1982) i D Subpart A THE CHARTERt Sec. 1. Body politic and corporate; name; seal; right to contract, sue, and be sued. Sec. 2. Corporate limits. Sec. 3. Powers. Sec. 4. Form of government. Sec. 5. The initiative. Sec 6. The referendum. Sec. 7. Regular and primary elections of commissioners. Sec S. Form of ballots; what candidates in primary election for mayor and commissioners placed on ballot. Sec 9. Declaration of election; how tie vote decided. Sec 10. Distinction between general and special municipal election. Sec. 11. The recall. Sec. 12. Filling vacancies for mayor and commission. Sec. 13. Eieo-ion when terms of four or more commissioners expire simul• taneously. Sec. 14. Commission may investigate official transactions, acts and con- duct. Sec. 15. City manager --Qualifications; Lerm; salary; sickness; sickness or absence; removal. Sec. 16. Same —Powers and duties. Sec 17. Same ---Examination of affairs of departments, officers or employ- ees. Sec. 18. Departments established. Sec. 19. Creation of new departments; discontinuance of departments. Sec. 19-A. Authority to create and discontinue departments by ordinance not limited by other charter provisions. Sec. 20. Directors of departments. *Editor's note —Part I of this volume sets forth, for the reference of the user, the charter and related legislation deemed advisable for inclusion by the city. Also included in this part is a listing of special acts relating to the city. tMtor's note --The present charter of the City of Miami, excepting the later amendments and additions thereto, was prepared and proposed by a charter board of 15 citizen elected at a charter board election, held January 21, 1921. The charter prepared and proposed by such board was adopted by the electors of the city at an election held May 17, 1921; and Laws of Fla., ch. 90240921) validated, legalized and confirmed the proceedings in the election of the charter board and the adoption of the city charter, but did not enact the chart--r in full. The charter was amended by the legislature in its regular session in 1923, and the amendment was confirmed by the electorate of the city at an election held July 17, 1923. At the session of the legislature in 1925, the entire charter was reenacted as contained in Laws of Fla., ch. 1094711925). The charter m contained in Laos of Fla., ch. 10847(1925) has been amended at subsequent sessions of the legislature, and by the electorate pursuant to the provisions of section 5.03 of the Dade County Charter. This version of the charter represents the text as amended by Ord. No. 9861 and approved by referendum on September 4, 198.1, which arnended the charter in its entirety, and as approved by final judgment in the case of the Rolle v. City of .Miami Circuit Court Case No 94.07522. Amendments to the charter are indicated by parenthetical history notes following amended provisions. The absence of a history note indicates that the provision remains unchanged from the original. Obvious misspellings have been corrected without notation. For stylistic purposes, a uniform system of headings, catchlines and citations to state statutes has been used. Additions made for clarity are indicated by brackets. County Charter reference Municipal charters, § 5.03. State law references—Ilome rule powers of municipalities generally, F.S. § 166.021; charter amendments, F.S. § 166.031. Supp. No. 2 CHT:1 0(� �~ Irf. Supp. No. 2 CHARTER AND RELATED LAWS Sec. 21. Department of law. Sec. 22. Department of public service. Sec. 22-A. Department of water and sewers; water and sewer board. Sec. 22.13. Department of public welfare. Sec:. 22-C. Board of trustees of Jackson :Memorial Hospital. Sec. 23. Department of off-street parking; off-street parking board. Sec. 24. Department of public safety. Sec. 25. Supervision in divisions of police and fire. Sec. 26. Suspension and removal of chief of police and fire chief. Sec. 27. Finance, department of finance. Sec. 27-A. Limitation as to levy of ad valorem taxes for public library and library system. Sec. 27-B. Lkvy of taxes. Sec. 27-C. Tax assessor. Sec. 27-D. Board of equalization. Sec. 27-E. Assessor to have power of county assessor; general assessment roll. Sec. 27-F. Signing and endorsing general assessment roll; return and pre- sumption of validity. Sec. 27-G. Copy of assessment roll annexed W warrant commanding collec- tion. Sec. 27-11. State law as to taxes applies. ISec. 27-I. Reserved.) Sec. 274 Discounts if taxes paid before certain time. Sec 27-K When taxes become delinquent; interest rates on delinquent taxes. Sec. 27-L. Tax certificates; interest rate thereon. Sec. 28. Chief procurement officer. Sec 29-A. Contracts for personal property, public works or improvements, unified development projects, and real property, safeguards. Sec. 29-B. City -owned property saie or lease --Generally. Sec. 29-C. Same -Watson Island. Sec. 29-D. City -owned waterfront property; leases with nonprofit organiza- tions; authorization to waive competitive bidding and referendum requirements; terms of lease. Sec. 30. Local improvements. Sec. 31, Temporary bonds. Sec 32. General bonds. Sec. 33. Bond anticipation notes. Sec. 34. Execution of bonds. Sec 35. Municipal court. Sec. 36. Civil service. Sec. 37. Pension funds. Sec. 38. City planning and zoning board. Sec. 39. Franchise and public utilities --Ordinance requires four -fifths vote of commission; approval of ordinance by voters; Limitation on duration of grant. Sec. 40. Subdivisions. Sec. 41. Conduct of a city business; compensation, duties, and oaths of officers and employees. Sec. 42. Power to appoint boards or commissions of citizens. Sec. 43. Continuity. Sec. 44. Suits against the city. Sec. 45. General provisions. Sec. 46. Bureau of legal aid. Sec. 47 Credit to prisoners for work; costs in criminal prosecutions. CFM2 99- 1;400 L.. CHARTER LAWS OF FLORIDA, CHAPTER 10847 An act to amend and reenact the Charter of the City of Miami, in the County of Dade, and to fix the boundaries and provide for the government, powers and privileges of said city and means for exercising the same; and to authorize the imposi- tion of penalties for the violation of ordinances; and to ratify certain, acts and proceedings of the commission and of the officers of the city. Be It Enacted by the Legislature of the State of Florida: s - Sec. 1. Body politic and corporate; name; seal; right to contract, sue, and be sued. The inhabitants of the City of Miami, Florida, within the boundaries hereinafter designated, or within such boundaries as may hereafter be es- tablished, shall continue to be a body politic and corporate under the name "The City of Miami," and as such shall have perpetual succession, may use a common seal, may contract and be con- tracted with, and may sue and be sued, plead and be impleaded in all the courts of this state and in all matters whatever. Case law refer -nee —The city is a governmental entity created by the state. It Ls a public institution designed to promote the common interests of the inhabitants in their organized capacity as a local government, and its objects are governmental, not commercial. Miami Water Works Local No, 654 v. City of Miiam , 1.57 Fla. 445, 26 So 2d 194, 165 A.L.R- 967. The city is a municipal mrporatiori and is not exempt from paying interest on its obligations. Highway Construction Co. v. City of Miami, 126 F.2d 77T Sec. 2. Corporate limits, The corporate limits of the City of Miami shall include all the territory and inhabitants within the following area, and no other: For the latest legal description of the city bound- aries, the user is referred to exhibit A of Ord. No, 9861, on file in the office of the city clerk.) Editor's note --The terntorial limits of the City of Miami were tiled pursuant to Laws of Fla., ch. 15687(1931). Further special acts extending, enlarging, or otherwise changing the corporate limits include Laws of Fla., ch, 15821(1931); Laws of Fla., ch, 16685t 1937), Laws of Fla., chs. 21393, 21396(1941); Laws of Fla., chs. 23405, 23409(1945); Laws of Fla., ch. 26021(1949); Laws of Fla., ch. 57-1583. CHT:3 43 The board of county commissioners of Dade County further extended the boundaries of the city (Primrose Park) by Dade County Ordinance No. 63-6, adopted March 5, 1963. County Charter reference --Method of changing city boundaries, ¢ 5.04. State law reference --Municipalities within Dade County to adopt annexation or contraction ordinances pursuant to provisions of county home rule charter, F.S. § 171.071. Sec. 3. Powers. The City of Miami shall have power. (a) Taxes and assessments: To raise annually by taxes and assessments in said city, such sums of money as the commission herein- after prodded for shall deem necessary for the purpose of said city, and in such man- ner as shall be hereinafter provided for, and in accordance with the constitution and laws of the State of Florida and the United States; provided, however, that no tax or other evidence of city indebtedness shall be imposed on the bonds of the city. (b) Streets, parks, bridges, sewers, grade cross- ings, speed, of vehicles; services and rates of motor vehicle carriers: To pave, grade, curb, repave, macadamize, remacadamize, lay out, open, close, vacate, discontinue, widen, and otherwise improve streets, alleys, ave- nues, boulevards, lanes, sidewalks, parks, promenades, and other public highways or any part thereof, and to hold liens therefor as hereinafter provided; to construct and maintain bridges, viaducts, subways, tun- nels, sewers, and drains, and regulate the use of all such highways, parks, public grounds, and works; to prevent the obstruc- tion of such sidewalks, streets, and high- ways; to abolish and prevent grade cross- ings over the same by railroads; to regulate the operation and speed of all vehicles using the streets, highways, and railroads within the city; to regulate the service rendered and rates charged by buses, mo- torcars, cabs, and other vehicles for the carrying of passengers and by vehicles for the transfer of baggage. (c) Special or local assessments: To impose special or local assessments for local im- provements as hereinafter provided and to enforce payment thereof. 113 CHARTER AND RELATED LAWS (d) Contracting debts and borrowing money: Subject to the provisions of the Constitu- tion of Florida and of this charter, to con- tract debts, borrow money, and make and issue evidences of indebtedness. (e) Expenditures: To expend the money of the city for all lawful purposes. (f) Acquisition and disposition of property and services: (i) To acquire by purchase, gift, devise, . condemnation or otherwise, real or per- sonal property or any estate or interest therein, inside or outside the city. for any of the purposes of the city; and to improve, sell, lease, mortgage, pledge, or otherwise dispose of such property or any part thereof. (ii) To acquire or dispose of services inside or outside the city, by purchase, gift, or otherwise for any purposes of the city. (i;i) To lease to or contract with private firms or persons for the commercial use or management of any of the city's waterfront property, but only in com- pliance with the other requirements of this charter and on condition that: (A) the terms of the contract allow reasonable public access to the wa- ter and reasonable public use of the property, and comply with other charter waterfront setback and view -corridor requirements; and (B) the terms of the contract result in a fair return to the city based on two independent appraisals -,'.And (C) the use is authorized under the then existing master plan of the city, (D) the procurement methods pre- scribed by ordinances are observed. Any such lease or management agree- ment or proposed extension or modifi- cation of an existing such lease or management agreement which does not comply with each of the above condi- tions shall not be valid unless it has first been approved by a majority of the voters of the city. CHI%4 Nothing herein contained shall in any man- ner afi'ect or apply to any project the financ- ing of which has been provided by the authorization of bonds to be issued by the city. (g) Public property and improvements: To make and maintain, inside and outside the city, public improvements of all kinds, including municipal and other public buildings, ar- mories, markets, and all buildings and struc- tures necessary or appropriate for the use of the city; to acquire by condemnation or otherwise all lands, riparian and other rights, and easements necessary for such improvements; and to rent or lease from any person any land or building within or without the city or any part thereof for any municipal purpose. (h) Public service: To furnish any and all local public service. M Public utilities: To purchase, hire, con- struct, own, maintain, operate, or lease local public utilities, including street rail- ways, electric light, telephone and tele- graph systems and works for supplying the city and its inhabitants with water, ice, gas for illuminating and heating purposes, and electric energy for illuminating, heating, or power purposes. 0) Water supply: To acquire inside or outside the state such water, lands, and lands under water as the city may deem neces- sary for the purpose of providing, piping, and conducting an adequate water supply for the city; to lay all necessary mains; to erect and maintain all necessary dams, pumping stations, and other works in con- nection therewith; to make and enforce reasonable rules and regulations for pro- moting and protecting the purity of the water supply, and for such purpose to exer- cise full police powers and sanitary patrol over all lands comprised within the limits of the watershed tributary to any such supply wherever such lands may be located in this state; to prevent by injunction any pollution or threatened pollution of such water supply and any and all acts likely to 0Ad CHARTER impair the purity thereof; and for the pur- pose of acquiring lands or material for any such use, to exercise within the state all j powers oferninent domain. For any of these j purposes, the city may acquire by condem- nation, purchase, or- otherwise any estate or interest in such lands subject to what- ever conditions or reservations may be rea- sonable. The said city may sell or supply to persons residing or located outside of the city limits any surplus of water it may have over and above the amount required to supply its own inhabitants. (k) Rates of public utilities: To establish, im- pose, and enforce rates and charges for water, gas, electricity, and all other public utilities or other services or conveniences operated, rendered, or furnished by the city (n) or by any other person. (1) Telephone and telegraph rcires: To require the placing of all electric wires and also all telephone and telegraph wires in conduits, underground, and prescribe rules and reg- ulations for the construction and use of said conduits and to enforce compliance therewith, and in case of failure or refusal of the public utilities companies to place such wires underground and comply with the rules and regulations thereof, to con- struct such conduits and place the wires underground and maintain a lien against the franchise and property of such compa- nies. (m) Harbor and stripping facilities: To estab- lish, construct, maintain, and operate, both inside and outside the city, public landings, wharves, docks, and warehouses; to dredge or deepen harbors and rivers, or any branch or portion thereof; to install turning basins, build jetties, and otherwise improve the harbor and shipping facilities of the city, inside and outside the city and inside and outside harbor lines where such improve- ments outside of harbor lines are approved by the United States Government or its proper agencies; to acquire by condemna- tion or otherwise all lands, riparian, and other rights and easements [necessary for the purposes aforesaid; to lay and collect] CHT:5 reasonable duties or fees on vessels coming through or using said landings, wharves, docks or warehouses; to regulate the man- ner of using other landings, wharves, docks, and warehouses within the city; to pre- scribe and enforce reasonable rules and regulations for the protection and use of said property; to advance to the Govern- ment of the United States, with or without interest, funds to be expended in harbor improvements to be made by the govern- ment in or near the city, or directly affect- ing the city within Miami harbor and the approaches thereto, if such work has been duly authorized by laws of the United States; and to issue bonds or notes to obtain funds for such advances. Franchises: Subiect to the provisions of the Constitution of Florida and of this charter, both inclusive, to grant franchises for pub- lic utilities. (o) Sewage, of,,al, ashes, garbage, etc.: To col- lect and dispose of sewage, offal, ashes, garbage, carcasses of dead animals, and other refuse; to acquire, construct, or oper- ate incinerators and other plants for the disposal or reduction of such matter or the utilization of any part thereof; and to ac- quire by purchase, condemnation, or other- wise any estate or interest in any water, land, or land under water within the city or within any county in the state for such disposal, reduction, utilization, construc- tion, or operation. (p) Abatement of nuisances, etc.: To compel or cause the abatement and removal of all nuisances within the city or upon property owned by the city beyond its limits by the person causing the same or by the owner or occupant of the property where the same may be; in the event the city incurs any cost or expense for such abatement or re- moval, to claim a lien against any real property involved; to require all real prop- erty within the city to be kept clean, sani- tary, and free from dilapidated, deterio- rated, dangerous, or unsanitary buildings or structures, and weeds, undergrowth, ruE- bish, debris, trash, or unsightly and unsan- 44 CHARTER AND RELATED LAWS itary matter, to regulate or prevent noisy, unsightly, or offensive business within the city; to regulate or prohibit the keeping of animals or the conduct of any dangerous or unwholesome business activity; and gener- ally to define, prohibit, abate, suppress, or prevent all thing:; detrimental to the health, morals, comfort, safety, convenience, and welfare of the inhabitants of the city. (q) "'eights and measures: To inspect, test, measure, and weigh any commodity or ar- ticle of consumption or use within the city, and to fLt standards for such commodities or articles; to establish, regulate, license, and inspect weights, meters, measures and scales; and to make reasonable charges therefor. (r) Fire prevention; dangerous buildings; fire limits: To extinguish and prevent fires and to compel persons to render assistance to the fire department [department of fire - rescue] in case of need; to establish, regu- late, and control a fire departmert or divi- sion; to regulate the size, materials, and construction of buildings, fences and other structures in such manner as the public safety and convenience may require; to designate fire limits within which wooden buildings may not be constructed, removed, added to, or enlarged; and to remove or require to be removed any building or struc- ture which may have become dangerous'to life or property or which may be erected contrary to law. (s) Public assistance: To provide for the care, support, and maintenance of orphan, de- pendent, delinquent, or sick children; and of sick, aged, insane, or indigent persons. (t) Libraries -To organize, support, and admin- ister public libraries. (u) Detentire or penal institutions: To provide and maintain, inside or outside the city charitable, recreative, curative, corrective, detentive, or penal institutions. (v) Health: To provide for the preservation of the general health of the inhabitants of the city; to make regulations to secure the same, inspect all foods and foodstuffs, and prevent the introduction and sale in the city of anything intended for human con- sumption which is adulterated, impure, or otherwise dangerous to health; to con- demn, seize, destroy or otherwise dispose of any such thing without liability to its owner; to prevent the introduction or spread of contagious or infectious diseases, and to prevent and suppress diseases generally; to provide and regulate hospitals inside or outside the city, and to enforce the removal of persons afflicted with contagious or in- fectious diseases to hospitals provided for them; to provide for the organization of a department or bureau of health; to estab- lish and maintain a quarantine ground inside or outside the city, and such quaran- tine regulations against infectious or con- tagious diseases; to provide and keep records of vital statistics and require persons to report all births and deaths and provide other necessary information. (w) Burial of dead: To acquire real property inside or outside the city, by purchase, gift, devise, condemnation, or otherwise, to be used, kept, and improved as a place for the interment of the dead; to make and enforce all necessary rules and regulations for the protection and use thereof; and generally to regulate the burial and disposition of the dead. (x) Police power and division of police: To ex- ercise full police powers and establish and maintain a department or division of po- lice. (y) Promotion of general welfare: To do all things necessary or expedient for promot- ing or maintaining the general welfare, comfort, education, morals, peace, govern- ment, health, trade, commerce, or industry of the city or its inhabitants. (z) Enforcement by ordinances, rules, and reg- ulations, penalties; limitation on penalties:' To make and enforce all ordinances, rules, 'Editor's note --The user's attention is directed to Laws of Fla., ch. 67-853, included in pt. t of this volume as art. n of subpt. C. CHT`.6 L CHARTER rf 3 and regulations necessary or expedient for the purpose of carrying into effect the pow- ers conferred by this charter or by any law; and to provide and impose suitable penal- ties for the violation of such ordinances, rules, and regulations, or any of them, by fine not exceeding five hundred dollars ($500.00) or imprisonment at hard labor on the streets or other works of the city for a term not exceeding sixty days, or both. (aa) Licenses and privilege taxes:* To license and tax privileges, businesses, occupations, and professions carried on and engaged in within the city limits; and to fix the amounts of such licenses and the taxes indepen- dently of general state revenue laws. (bb) Municipal trade commission: To create a municipal trade commission similar in pur- pose, plan, and authority to the Federal Trade Commission. (cc) Municipal board of conciliation: To create a municipal board of conciliation with author- ity to investigate and report on disputes between employers and employees. (dd) Aircraft: To the extent permitted by law, to license and regulate aircraft operated over the city and stipulate the height at which and the manner in which they may be operated above the area within the city limits; and to license and register the pilots thereof. (ee) Alcoholic beverages: To regulate or prohibit the sale, transportation, or possession of alcoholic beverages within the limits of the city. (fib Bird sanctuary: To declare that all territory embraced within the corporate limits of the city shall be a bird sanctuary and to adopt all ordinances necessary to enforce same. (gg) Street sales; hawkers and peddlers; beg- gars; carriages; drays; jitneys and other vehicles; traffic; vehicles for hire: To license, control, tax, and regulate traffic and sales upon the streets, sidewalks, and public places inside the city and the use of space 'Editor's notes —For limitation on rate of occupational license tax, the user is referred to F.S. § 205.043( D(b). CHT:7 in such places; to regulate, or prohibit hawkers, peddlers, or beggars upon such streets, sidewalks, and public places; to license, register, control, tax, regulate, or prohibit carriages, omnibuses, motorbuses, cars, wagons, drays, jitney busses, and other vehicles, and the drivers thereof, to fix the rates to be charged for the carnage of persons or property inside the city; to provide for and regulate parking spaces on the streets; to require all vehicles for the carriage of persons or property for hire to execute a bond to be conditioned for the protection of persons or property which may be injured or damaged by the opera- tion of such vehicles for hire; and to require such bond with such surety to be furnished by all vehicles for hire operating upon the city streets, whether such operation be wholly within the city limits or between the city and other places outside of the city. (hh) Outdoor exhibitions, gams, and contests: To use parks and playgrounds to give out- door exhibitions, games, and contests; and to collect a reasonable admission fee for each person attending such events. (ii) Railways: For the development and exten- sion of the port and other shipping and transportation facilities of the city, to con- struct, purchase, lease, or otherwise ac- quire, and to equip, own, and maintain a single- or multiple -track line or lines of railway, as well as yards, terminals, sta- tions, warehouses, team and other tracks, switches, turnouts, and all buildings and appurtenances deemed appropriate in con- nection therewith for the receipt, transpor- tation, housing, and delivery of passengers, freight, mail, and express from, into, and within the city and the zone lying outside of the city and not distant more than ten miles from the city limits as now or here- after constituted; to extend or connect with such lines or facilities, or with the lines of any common carrier, the lines or facilities of shipping or transportation now or here- after owned by the city; to place said line or lines of railway upon or along the public highways, or upon lands or easements now fi'm CHARTER AND RELATED LAWS owned or hereafter acquired therefor, lo- cated in any part of said area; to acquire by gift, purchase, condemnation, or otherwise all land, easements, rights or property deemed necessary therefor; and to operate or cause to be operated said line or lines or facilities, or to lease or grant the use of any part thereof or any part of any port, termi- nal, or transportation line, with facilities appurtenant thereto, now or hereafter owned by the city, to any common carrier or carri- ers, for such time and upon such terms and conditions as may be determined by the city commission by ordinance; provided, however, that no ordinance making any such lease or grant shall become effective until approval thereof by a majority of the qualified electors voting thereon at a gen- eral or special election to be called by the city commission, notice of which election shall have been published in a newspaper published within the city once a week for two consecutive weeks. Qj) Codifcation of ordinances: To codify its or- dinances into a "Code of Ordinances of the City of Miami" and by a single ordinance to adopt such "Code of Ordinances of the City of Miami" as a complete revision of the existing and applicable code and ordi- nances on the date of such adoption; to amend such code or ordinances, revise it., and codify or recodify it; to adopt such revised code by a single ordinance; to have the city clerk exercise the power and au- thority to codify any duly adopted ordi- nance and assign proper section numbers and headings to various part of such ordi- nances, so that thereafter such sections shall be cited in referring to such ordi- nances. (kk) Self-insurance and insurance trust: To es- tablish and maintain a trust fund known as "The City of Miami Self -Insurance and Insurance Trust Fund" for the purpose of providing funds for a self-insurance and insurance program; to include in said fund monies from other trust funds of the city-, to disburse monies from said fund to accom- plish the purposes -)f the self-insurance and insurance program; to authorize inclusion in said fund of monies from other funds previously appropriated for the purpose of paying premiums to insurance carriers or for the purpose of paying liability claims and judgments; to establish a self-insur- ance and insurance committee composed of three members to be appointed annually by the city manager to administer the said fund and to recommend to the city commis- sion annually the amount of reserve to be accumulated and maintained and the amount to be contributed for maintenance of the fund. (11) Airports and landing fields: To acquire by purchase, lease, condemnation, or other- wise, lands inside or outside the city limits for use as landing fields or airports; to construct and equip thereon or on other property of the city such improvements as may be necessary for that purpose; to op- erate and maintain such facilities; to pro- vide rules and regulations governing their use and the use of other property or means of transportation within or over the same; and to enter into contracts or otherwise cooperate with other government entities or other public or private agencies in all matters relating to such facilities; other- wise to exercise such powers as may be required or convenient for such establish- ment, operation, and maintenance; to levy taxes for any such purpose; unless such facilities shall have been acquired by lease, to issue bonds to pay the cost of such facilities; and to grant, deed or dedicate lands, with or without consideration, to other governmental entities for use as land- ing fields or airports. (Laws of Fla., ch. 14234(1929)) (mm) Building and zoning: (i) To provide by ordinance building, plan- ning, and zoning regulations and re- strictions governing the height, num- ber of stories, method of construction, type, and size of buildings and other structures; the percentage and portion of the lot or site that may be occupied; the size of the front, rear, and side Cr%$ 1-- CHARTER yards, courts, and other open spaces; the location, use of buildings, struc- tures, and land for trade, industry, residences, apartment houses, and other purposes; and the widening and future widening of streets in zoned street areas that the city may establish. Such regulations may provide that a board of appeals or the city commission may determine and vary the application of building, planning, or zoning ordi- nances in harmony with their general purpose and intent. (ii) In order to preserve the city's natural scenic beauty, to guarantee open spaces, and to protect the waterfront, any- thing in this charter or the ordinances of the city to the contrary notGtiithstand- ing, neither the city nor any of its agencies shall issue building permits for any surface parking or enclosed structures located on Biscayne Bay or the Miami River from its mouth to the "- N.W. 5th Street Bridge, (A) which are not set back at least 50 feet from the seawall (where the depth of the lot is less than 200 feet, the setback shall be at least 25 percent of the lot depth), and (B) which do not have average side yards equal in aggregate to at least 25 percent of the water frontage of each lot bas(-,(] on average lot width. Gii) The above setback and side -yard re- quirements may be modified by the city commission after design and site - plan review and public hearing only if the commission determines that the modifications requested provide public benefits such as direct public access, public walkways, plaza dedications, cov- ered parking up to the floodplain level, or comparable benefits which promote a better urban environment and public advantages, or which preserve natural features. Wherever setback, side -yard or site -plan review requirements of zon- ing ordinances are greater than the foregoing requirements, such greater ' requirements shall govern. Ci-IT:9 43 (iv) These requirements shall not apply to docks and appurtenant structures, sin- gle-family residences and appurtenant structures, and waterfront industrial uses along the Miami River and at the Port of Miami. Nothing herein con- tained shall in any manner affect or apply to: the City of Miami/University of Miami James L. Knight Interna- tional Center and hotel facility, includ- ing all improvements thereon, or to lands and projects which the city com- mission has approved prior to Septem- ber 18, 1979, by development order pursuant to F.S. ch. 380 of a planned area development pursuant to article XXI-1, City of Miami Comprehensive Zoning ordinance or which have re- ceived site and development plan ap- proval, including Plaza Venetia, Phase II, Resolution No. 72-113, April 20, 1972; Resolution No. 72-114, April 20, 1972; and Resolution No. 72-416, July 20, 1972. (nn) Borrowing to erect and add to public build- ings: To borrow money for the erection, construction, and furnishing of public build- ings, including hospitals, city office build- ings, city halls, and other municipal struc- tures; to borrow money for the purpose of building additions to public buildings now owned by the city; to execute notes and other evidences of indebtedness, and to secure the same by a mortgage upon said buildings and the land upon which the buildings may be located; to pledge and hypothecate the net revenue, after the pay- ment of all operating expenses and fixed charges, including interest on the debt so created and on all other debt created in the construction of such building; as well as to pledge and hypothecate the net revenue derived from such buildings and the land upon which they stand, all for the purpose of securing the repayment of money bor- rowed to be used in such construction; to issue certificates of indebtedness secured by the net receipts from the use or rental of the buildings or additions to present exis'. ing buildings erected or to be erected for .,1 3 CHARTER AND RELATED LAWS public purposes. Notwithstanding the fore- debt so created and all other debt created going, no tax shall ever be levied nor money for the construction of such works, derived taken or diverted from the general funds of from the operation of such public utilities the city for the payment of the indebted- so constructed or purchased, including said ness authorized by this section. (Laws of net revenue derived from such street rail - Fla., ch. 1(3561(1533)) way, electric light plant, telephone and (oo) Borrowing to provide adequate iruterworks telegraph system, and water, ice, and gas system: To borrow money for the purpose of plants; to pledge such net revenue until the providing an adequate watenvorks system, money so borrowed shrill have been fully including new water lines, and fir the repaid. Notwithstanding the foregoing, no purpose of repairing, improving, and ex- tax shall ever be levied nor money taken or tending the existing waterworks system; to diverted from the general funds of the city issue promissory notes and certificates of f'or the payment of the indebtedness autho- indebtedness, and to secure same by an rized by this section. assignment of all net rentals and net reve- (qq) Registration and voting: To prescribe by rues, after the payment of all operating ordinance the registration of persons who expenses and fixed charges, including in- are qualified under the law to register and terest on the debt so created, and all debt vote in municipal elections held in the city; created for the construction of such work, to provide and prescribe the number of derived from said waterworks system or voting precincts; and to prescribe by ordi- any portion there -of, until moneys so bor- nance the time for registration, the method rowed shall have been fully paid; to mort- and procedure of registration, the establish - gage the entire waterworks system or any ment and keeping of the registration records, portion thereof to make necessary repairs; and the establishment of reasonable rules and to pledge the net revenue derived from defining when and how persons become said system, until said money shall have disqualified to vote, as well as the proce- been fully repaid. Notwithstanding the fore- dure for the removal from the registration going, no tax shall ever Ek levied nor money records of the names of persons so disqual- taken or diverted from the general funds of the city for the payment, of the indebted- ness authorized by this section. (rr) Borrowing money for engineering work nec- (pp) Borrowing to purchase, hire, maintain, op- essary to effect public improvements: When erate, or lease public utilities: To borrow the issuance of revenue bonds for the pur- money for the purpose of constructing, pur- pose of financing the construction of a public improvement has been authorized chasing, hiring, maintaining, operating, or and has been validated by judicial proceed - leasing local public utilities, including street ings but such revenue bonds have not been railways, electric light lines, and equip- ment necessary for supplying the city and issued because of the necessity of addi- its inhabitants with transportation, illumi- tional engineering work pertaining to such nation, power, water, ice, and gas for heat- public improvement, the city shall have ing and illuminating; to mortgage the pub- power to borrow money, in an amount not lic utilities so constructed, purchased, hired, to exceed three percent of the aggregate maintained, operated; to issue promissory principal amount of such revenue bonds, notes and certificates of indebtedness evi- for the purpose of doing or causing such denting the existence of the indebtedness additional engineering work to be done, created by the borrowing of said money; to and to issue, for the purpose of providing pledge and hypothecate the net revenue, for the repayment of money so borrowed, after the payment of all operating expenses its certificates of indebtedness payable ' and fixed charges, including interest on the within a period of not more than 10 years CRCVAUS O'D (20 CHARTER from the date of issue thereof, subject to prior payment under such conditions as may be prescribed by the city commission W from the proceeds of such revenue bonds when sold, or 00 in the event that such revenue bonds shall not be issued or their issuance shall be delayed, from such proper source, except ad valorem taxes, as the city commission may determine; pro%lded that no such certificate of indebt- edness shall be deerned to constitute a pledge of the faith and credit of the city, nor shall the issuance of any such certifi- cate of indebtedness directly, indirectly, or contingently obligate the city to levy or to pledge any form of taxation whatever there- for or to make any appropriation of tax revenues for its payment; and provided further that there be no levying or pledg- ing of any form of taxation for the pay- ment of any such indebtedness. (Laws of Fla., ch. 24703(1947)) (ss) Police jurisdiction over lands owned or leased in, county: To exercise police juris- diction over all lands owned or leased by the city in unincorporated Dade County, Florida, by enforcing all city ordinances containing police or sanitary regulations and prescribing fines and penalties for the violation thereof with the same force and effect as if the said lands were within the corporate limits of the City of Miami. (tt) Police jurisdiction over persons in county: To exercise police jurisdiction in any place in Dade County, Florida, over any person legally taken into custody by the city for the violation of any ordinance; to trans- port said person from or to the corporate limits of said city, or to or from any place in Dade County, Florida; to retake in Dade County, Florida, without a warrant any person who has escaped such custody, and to enforce all city ordinances contain- ing police or sanitary regulations with respect to such persons while in such 14 custody in any place in Dade County; Florida, as if the said custody was solely within the corporate limits of the city. (uu) Paupers and undesirables: To prevent per- sons having no visible means of support, paupers, and persons who may be danger- ous to the peace or safety of the city from coming to said city from without the same; and for this purpose to require any rail- road company, the master of any ship or vessel or the owners of any conveyance, bringing such person to the city, to take such person back to the place whence he was brought, or enter into bond with satisfactory security that such person, shall not become a charge upon, said city within one year from the date of his arrival; and also to expel therefrom any such person. (vv) Urban Renewal Lau,, of the City of Afiarni. Editor's note —The department of neighborhood rehabil- itation of the city and all functions involved therein were abolished pursuant to Ord. No. 7576, § ), adopted July 17, 1967, and effective on the date of transfer of said department to Dade County. At the direction of the city, § 3(vv), added to the charter by Char. Amend. No. 2, effective Jan. 1, 1963, is not set forth herein. Sec. 4. Form of government. (a) General description. Commencing with the election of the mayor in 1997, the form of govern- ment of the City of Miami, Florida, provided for under this charter shall be known as the "mayor - commissioner plan," and the commission shall consist of five citizens, who are qualified voters of the city and who shall be elected from districts in the manner hereinafter provided. The commis- sion shall constitute the governing body with powers (as hereinafter provided) to pass ordi- nances adopt regulations and exercise all powers conferred upon the city except as hereinafter provided. The mayor shall exercise all powers conferred herein and shall appoint a chief admin- istrative officer to be known as the "city manag- er." (b) Election of mayor and commission; terms of office, recall. Commencing with the election of the mayor in 1997, there shall be elected by the qualified electors of the city at large a mayor who shall be a qualified elector residing within the city CHT:11 P "' t`, c��3 t ' tJ' 44 CHARTER AND RELATED LAWS at least one (1) year before qualifying and must maintain an actual and real residence for the duration of his term. The mavnr shall not serve as a member of the commission. The commission shall consist of five members who shall be elected from districts within the city numbered 1. through 5. All persons desiring to qualify for commissioners shall file in districts numbered 1 through 5. Commissioner in district numbered 1 shall be elected at the general elec- tion to be held in the year 1997 and shall serve for a two year term. Commissioners in districts num- bered 3 and 5 shall be elected at the general elections to be held i.n the year 1997 and at each general election each four years thereafter. Com- missioners in districts numbered 1, 2, and q shall be elected at the general elections to be held in the year 1999 and at each general election each four years thereafter. The mayor shall be elected at the general election in the year 1997 and at each general election each four years thereafter and shall hold office for a term of four years. The mayor and all commissioners (are) to hold office until their successors are elected and qual- ified from twelve o'clock noon of the day after the canvass of the vote and the declaration of the result of the election. The mayor and all other members of the commission shall be subject to recall. Vacancies shall be filled as provided in section 12 of the charter of the City of Miami. If a candidate for office of mayor or commis- sioner receives a majority of votes in the primary election in his group, he shalt be considered elected upon and after the canvass of the vote and the declaration of the result of the election as hereinafter provided. If there be no majority, two candidates for nomination to the office of mayor or commissioner who receive the greatest vote in the primary election in each group shall be placed on the ballot at the next regular municipal elec- tion following the primary as provided in section 7 of this charter. The candidate for nomination receiving the greatest vote in the regular munic- ipal election following the primary election, if ,otherwise qualified, shall be elected to office from the group in which he is qualified. Anv incumbent commissioner desiring to run for the office of mayor shall present an irrevocable resignation of his office of city commissioner to the city commission not less than ninety days prior to the date of election, whether primary or general, and said resignation shall become effec- tive on the date of the election. Upon receipt of said resignation the commission shall make pub- lic announcement of the resignation and instruct the clerk to accept qualified candidates to run for election for the unexpired term of the commis- sioner resigning for the purpose of running for mayor. If any riayor or commissioner elected under the provisions of this act desires to run for some elective office other than the mayor or city commissioner, then under such circumstances he shall not be required to resign his city office unless and until he has been elected to such other elective office. In the event that such mayor or commissioner is elected to such other elective office other than that of mayor or commissioner, he shall immediately resign his office as mayor or commissioner and upon his failure or refusal to do so he shall be discharged and ousted from his office and said office declared vacant by a major- itv vote of the remaining members of the city commission. Note —Time and place for submitting resignation are gov- erned by F.S. § 99.012. (c) Qualifications of mayor and commission; mayor, commissioners, and other officers and em- ployees not to be interested in contracts, etc.; franks, free tickets, passes or service. Commencing with the election of mayor in 1997, the mayor and members of the commission shall be residents of the city for at least one (1) year, prior to qualifying and shall have the qualifications of electors therein. Further, members of the commission shall have resided within the district at least one (1) year before qualifying, and shall maintain an actual and real residence for the duration of their term of office, except for the 1997 election,. Those com- missioners elected in 1997 must reside in the district they are elected to represent within three (3) months after the election, and maintain an actual and real residence for the duration of their term of office. The mayor, commissioners, and other officers and employees shall not be inter- ested in the profits or emoluments of any con- supp. No. 2 CHT:12 L tract, job, work or service for the municipality. The mayor or any commissioner who shall cease to possess any of the qualifications herein re- quired shall forthwith forfeit his office, and any such contract in which any member is or may become interested may be declared void by the commission. No mayor, commissioner, or other officer or employee of said city shall accept any frank, free ticket, pass or service directly or indirectly, from any person, firm or corporation upon terms more favorable than are granted to the public generally. Any violation of the provisions of this section shall be a misdemeanor. Such prohibition of free service shall not apply to policemen or firemen in uniform or wearing their o;licial badges, where same is provided by ordinance. (d) Commission to be fudge of its own election; not to dictate appointments by or interfere with city manager. Commencing with the election of the mayor in 1997, the commission shall be the judge of the election and qualification of the mayor and its own members, subject to review by the courts. Neither the mayor, commission, nor any of its committees or members shall dictate the appointment of any person to off -ice or employ- ment by the city manager, or in any manner interfere with the city manager or prevent him from exercising his own judgment in the appoint- ment of officers and employees in the idministra- tive service. Except for the purpose of inquiry, the mayor, the commission and its members shall deal with the administrative service solely through the city manager, and neither the mayor nor the commission, nor any member thereof shall give orders to any of the subordinates of the city manager, either publicly or privately. Any such dictation, prevention, orders or other interference on the part of the mayor or a member of the commission with the administration of the city shall be deemed to be violation of the charter, and upon conviction before a court of competent juris- diction any individual so convicted shall be sub- ject to a fine not exceeding five hundred dollars ($500.00) or imprisonment for a term of not ex- ceeding sixty days or both, and in the discretion of the court shall forfeit his office. (e) Election of officers by commission; rules of commission; quorum. Commencing with the elec- tion of the mayor in 1997, the commission shall elect a city clerk and a city attorney, but no member of the commission or the mayor shall be chosen as manager or as a member of the civdl service board or appointed to any other city office or employment. The commission may determine its own rules of procedure, may punish its own members for misconduct and may compel atten- dance of members. A majority of all the members of the commission shall constitute a quorum to do business, but a smaller number may adjourn from time to time. (f) Meetings of commission; to act by ordinance or resolution; form of, manner of passage and publication of ordinances. Commencing with the election of the mayor in 1997, at twelve o'clock noon on the day the mayor or commissioners take office, they shall meet at the city hall. Thereafter the commission shall meet at such time and place as may be prescribed by ordinance or resolution. The meetings of the commission and all sessions of committees of the commission shall be public. The commission shall act only by ordinance or written resolution; and all ordinances and resolu- tions, except ordinances making appropriations, shall be confined to one subject which shall be clearly expressed in the title. The ordinances making appropriations shall be confined to the subject of appropriations. No ordinance shall be passed until it has been read on two separate days or the requirement of readings on two sepa- rate days has been dispensed with by a four -fifths vote of the members of the commission. Ordi- nances shall be read by title only. Copies of proposed ordinances shall be furnished to the mayor and each commissioner and shall be made available to all interested persons. The ayes and noes shall be taken upon the passage of all ordinances or resolutions and entered upon the journal of proceedings of the commission, and every ordinance or resolution shall require on final passage, the affirmative vote of a majority of all the members. No member shall be excused from voting except on matters involving the con- sideration of his own official conduct, or where his financial interests are involved. 8upp. No. 2 CHT:13 �1� CHARTER AND RELATED LAWS (g) Powers and duties of mayor. Commencing with the election of mayor in 1997, the mayor shall serve as head of the city government with the following specific powers and duties: (1) The mayor may be the presiding officer of the commission with the authority to des- ignate another member of the commission to serve as presiding officer. (2) He shall be recognized as the official head of the city for all ceremonial purposes, by the courts for the purpose of serving civil process, and by the governor for military purposes. (3) In time of public danger or emergency, he may, with the consent of the commission- ers, take command of the police and main- tain order and enforce the laws. (4) During his absence or disability his duties shall be performed by the mayor's desig- nee who shall be a member of the city commission. However, in the event that the mayor is unable to make such desig- nation, the same shall be made by a four -fifths vote of the commission. (5) The mayor shall, within ten days of final adoption by the Commission, have veto authority over any legislative, quasi- judicial, zoning, master plan or land use decision of the commission, including the budget or any particular component con- tained therein which was approved by the commission; provided, however that if any revenue item is vetoed, an expenditure item in the same or greater dollar amount must also be vetoed. The commission may, at its next regularly scheduled or special meeting after the veto occurs, override that veto by a four -Fifths vote of the com- missioners present, notwithstanding any provisions to the contrary contained in the charter and code of the City of Miami, Florida. Said veto power shall include actions pursuant to sections 29-B through 29-D of the city charter. (6) When one person succeeds another in the position of mayor, the successor shall have the right to appoint the manager, subject Supp. No. 2 L to the approval within 14 days of a major- ity of the commissioners then in office. The mayor shall appoint the manager, subject to the approval within 14 days of a majority of the commissioners then in office. The mayor may remove the man- ager subject to the commission's conduct- ing a hearing within 10 days of said removal and the commission's overriding the mayor's action by a four -fifths vote of those commissioners then in office. Addi- tionally, the commission by a four -fifths vote of those commissioners then in office shall be able to remove the manager. (7) The mayor shall appoint the members of all standing committees and the chairper- son and ,ice -chairperson of each commit- tee. There shall be as many standing and special committees as deemed necessary by the Mayor. Standing or special commit- tees shall mean those comprised of com- mission members. (8) The mayor shall prepare and deliver a report on the state of the city to the people of the city between November 1 and Jan- uary 31 annually. Such report shall be prepared after consultation with the com- missioners and the manager. (9) The mayor shall prepare and deliver a budgetary address annually to the people of the city between July 1 and September 30. Such report shall be prepared after consultation with the manager. (h) Salaries of the mayor and commission. There shall be paid to the commissioners of the City of Miami, Florida, by the City of Miami as colnpen- sation, the sun of five thousand dollars ($5,000.00) per year for each commissioner, payable monthly in twelve equal installments. Commencing with the election of 1997, the compensation of the mayor shall be determined by the commission. (Laws of Fla., ch. 15344(1931); Laws of Fla., ch. 23401(1945); Laws of Fla., ch. 260220 949); Laws of Fla., ch. 31000(1955); Char. Amend. No. 2, § 1, 1-1-60; Char. Amend. No. 1, 12-1-63; Char. Amend. No. 1, 12-1-65; Ord. No. 88-5.11, § 2a, 6-9-88/9-6- 88; Res. No. 97-447, § 2, 7-3-97) Case law reference --Officials provided for in subsection (e) shall be elected and none of them shall hold office at the will of the city commission when elected, but the city manager when appointed shall hold office subject to the will of the commission. State v. Bloodworth. 134 Fla. 369. 184 So. 1. CHT:14 I Jc�" ra 7 C HARTE R Where resolution adopted by the city commission appoint- ing the city clerk failed to Cyr or state the period of time he was to hold the said office, clerk was entitled to hold office until the next regular cite rlrction provided for in this charter unless lawfully removed. Id. See also, State v. Bloodworth, 135 Fla. 525, 185 so. 339. Sec. 5. The initiative. (a) Power to adopt ordinances. The electors shall have poNver at their option to adopt ordi- nances, including ordinances granting franchises or privileges, and to adopt the same at the polls, such power being known as the "initiative". A petition meeting the requirements hereinafter provided and requesting the commission to pass an ordinance therein set forth or designated shall be termed an "initiative petition" and shall be acted upon as hereinafter provided. (b) Preparation of initiatiue petition; affidavit ofgenuineness of signatures. Signatures of initia- tive petitions need not all be on one paper, but must include the residence address of each signer. The circulator of every such paper shall make an affidavit in substantially in the following form: STATE OF FLORIDA 1 SS. COUNTY OF DADE ) being duly sworn, de- poses and says that he (or she) is the circulator of the foregoing petition paper containing signatures, and that said. signa- tures were made in his (or her) presence and are the signatures of the persons whose names they purport to be. (Signed) Subscribed and sworn to before me this __ day of 19_. Notary Public All papers pertaining to any one measure shall be filed in the office of the city clerk as one instru- ment and shall have written or printed thereon the names and addresses of at least 5 registered voters who shall be officially regarded as filing the petition and who shall constitute the commit- tee of the petition for the purposes hereinafter named. Supp. No. 2 (c) Filing of petitions. Within 20 days after the filing of a petition, the clerk shall ascertain by examination the number of registered voters whose signatures are appended thereto and whether said number is at least 10 percent of the total number of registered voters as shown by the city registration books. The clerk shall attach to said petition a certificate showing the result of said examination and give notice thereof in writing to one or more of the members of the committee of the petition. If the number of signatures support- ing the petition is shown to be insufficient, the petition may be amended once within 10 days from the date of said certificate by the filing of additional signatures. The clerk shall, with 10 days after such amendments, make examination of the amended petition. The final finding of the insufficiency of a petition shall not prejudice the filing of a new petition for the same purpose. (d) Submission of petition to commission. Upon ascertaining that a petition is supported by a. sufficient number of signatures, the clerk shall so certify, and he shall submit the proposed measure to the commission at its next meeting. Upon receiving the proposed measure, the commission shall at once proceed to consider it and shall take final action thereon within 30 days from the date the petition is certified by the clerk. (e) Election on initiated measures. If the com- mission fails to pass the proposed measure, or if it passes it in a form different from that set forth in the petition, then the measure shall be submitted in its original form by the commission to the vote of the electors at the next election occurring not fewer than 30 days from the date of the final action by the commission. If no election is to be held within six months from such date, the com- mission shall call a special election to be held not fewer than 30 days nor more than 45 days from such date. Note —This section has been superseded by Dade County Charter § 5.03. (f) Initiative ballots. The ballots used when voting upon any such proposed measure shall state the substance thereof in clear, concise lan- guage, without argument or prejudice, and shall provide only for a vote "for the measure" o:- "against the measure". If a majority of the elec- CHT: 15 CHARTER AND RELATED LAWS tors voting on any such measure vote in favor thereof, it shall thereupon become an ordinance of the city. When a measure proposed by initiative petition is passed by the commission, but not in its original form, the measure as passed by the commission shall not take effect until after the vote of the electors; if the measure so submitted is approved by a majority of electors voting thereon, it shall thereupon become an ordinance of the city, and the measure as passed by the commission shall be deemed repealed. The following title shall be substantially the form of the ballot: TITLE OF MEASURE WITH GENERAL STATEMENT OF SUBSTANCE THEREOF FOR THE MEASURE. AGAINST THE MEASURE. 1 (g) Number of measures to be initiated. Any number of proposed measures may be voted upon at the same election in accordance with the pro- visions of this charter. Sec. 6. The referendum. (a) Power of referendum. The electors shall have power at their option to appr.-ve or reject at the polls any measure passed by the commission or submitted by the commission to a vote of.the electors, such power being known as the "referen- dum". Measures submitted to the commission by initiative petition and passed by the commission without change or passed in an amended form shall be subject to the referendum in the same manner as other measures. (b) Referendum petition. If within 30 days af- ter the final passage of any measure by the commission, a petition signed by 15 percent of the total number of registered voters as shown by the city registration books, is filed with the city clerk requesting that such measure or any part thereof be repealed or be submitted to a vote of the electors, that measure or part shall not, except in the case of an emergency measure, become oper- ative until the steps indicated herein have been taken. Supp. No. 2 (c) Signatures to petition. Signatures of refer- endum petitions need not all be on one paper, but the circulator of every such paper shall make an affidavit that each signature appended thereto is the genuine signature of the person whose name it purports to be. With each signature shall be stated the place of residence of the signer. All such papers shall be filed in the office of the city clerk as one instrument. A referendum petition need not contain the text of the measure or part of which repeal is sought but shall briefly describe the ordinance or part sought to be repealed. (d) Certification of petition. Within 20 days after the filing of the petition, the clerk shall ascertain by examination the number of regis- tered voters whose signatures are appended thereto and whether said number is at least 15 percent of the total number of registered voters as shown by the city registration books. The clerk shall attach to such petition his certificate showing the result of such examination and give notice thereof in writing to the circulator or circulators of the petition. If the number of signatures supporting the petition is shown to be insufficient, the peti- tion may be amended once within 10 days from the date of said certificate by the filing of addi- tional signatures. The clerk shall, within 10 days after such amendment, make examination of the amended petition. (e) Referendur election. If the petition be found sufficient, the commission shall proceed to recon- sider such measure or such section thereof as the petition shall specify. If upon such reconsidera- tion such measure, or such part thereof, be not repealed or amended as demanded in the petition, the commission shall provide for submitting the same, by the method herein provided, to a vote of the electors at the next municipal election occur- ring not less than thirty days after the receipt by the commission of the clerk's certificate, and such measure, or such part thereof, shall thereupon be suspended from going into effect until said elec- tion and shall then be deemed repealed unless approved by a majority of those voting thereon. Or the commission by a four -fifths vote may submit such measure or part thereof with-, like effect to the electors at a special election to be called by said commission not less than thirty days after the receipt of said clerk's certificate. CHT:16 0 •) l A0 L_ -,1 CHARTER 18 (f) ,Limitations on enforcement of ordinances. No measure shall go into effect until thirty days after its passage unless it be declared in such ordinance to be an emergency measure on the ground of urgent public need for the preservation of peace, health, safety, or property and the mea- sure being passed by a vote of not less than four -fifths of the members of the commission. But no measure granting or amending any public utility measure or amending or repealing any measure adopted by the people at the polls or by the commission in compliance with an initiative petition shall be regarded as an emergency mea- sure. (g) Form of ballot. The ballots used when vot- ing upon such proposed measure shall state the substance of the measure in clear, concise lan- guage, without argument or prejudice, and shall specify whether the measure is being submitted for approval or for repeal. If the measure is being submitted for approval, the ballot shall provide only for a vote "for the measure" or "against the measure". If the measure is being submitted for repeal, the ballot shall provide only for a vote "for repeal" or "against repeal". (h) Emergency measures. Measures passed as emergency measures shall be subject to referen- dum like other measures, except that they shall not be suspended from going into effect while referendum proceedings are pending. An emer- gency measure subsequently repealed shall be deemed sufficient authority for any payment made or expense incurred in accordance with the mea- sure previous to the repeal. (i) Conflict of referred measures. If two or more measures adopted or approved at the same elec- tion conflict with respect to any of their provi- sions, all nonconflicting provisions shall go into effect. The provisions of the measure receiving the highest affirmative vote shall prevail over the conflicting provisions of other measures. Sec. 7. Regular and primary elections of commissioners. A regular municipal election for the election of the mayor and commissioners shall be held on the second Tuesday after the first Monday in Novem- ber in odd -numbered years. A nonpartisan pri- mary election for the nomination of candidates for the mayor and the commission shall be held on the first Tuesday after the first Monday in No- vember in odd -numbered years. Any person who shall possess the qualifications requisite to an elector at the general state election and shall have resided in the City of Miami for six months next preceding the city election at which he offers to vote, and shall have been registered by the city registration books that have been prescribed by ordinance, shall be a qualified elector of the city, and all elections held in said city shall be con- ducted and held according to the provisions of the general election laws of the State of Florida, except as otherwise provided for in the charter of the City of Miami, and except that the city com- mission shall be substituted for a board of county commissioners. The name of any elector of the city shall be printed upon the primary ballot as a candidate for nomination to the office of mayor and commissioner upon paying to the City of Miami the sum of one hundred dollars ($100.00) to be deposited with the city clerk as a qualifying fee not less than forty-five days prior to the date of such primary election, and said elector shall submit concurrently therewith a sworn statement of his or her name, address, occupation and will- ingness to serve, if elected. All such qualifying fees shall be deposited with the said city clerk no later than 6:00 pm. on the forty-fifth day prior to the election. (Laws of Fla., ch. 15339(1931); Laws of Fla., ch. 19974(1939); Laws of Fla., ch. 21387(1941); Laws of Fla., ch. 22395(1943); Laws of Fla., ch. 23408(1945); Char. Amend. No. 1, 3-14-72; Char. Amend. No. 6, 11-6-73; Res. No. 97-447, § 2, 7-3-97) (j) Adoption or repeal. If a majority of the Sec. 8. Form of ballots; what candidates in electors voting on any referendum vote to adopt or primary election for mayor and com- repeal any measure or part thereof, such measure missioners placed on ballot. or part shall thereupon be deemed adopted or All ballots used in any primary election or repealed, as the case may be. general election held under authority of this char- Supp. No. 2 CHT:17 CHARTER AND RELATED LAWS ter shall be without party mark or designation and without any insignia or mark of any associa- tion or organization thereon, and shall be substan- tially in the same form as the election ballot used in all general state elections. The candidates for nomination to the office of commissioner who shall receive the greatest vote in the primary election shall be placed on the ballot at the next regular municipal election in number not to exceed double the number of com- missioners to be elected, but where not more than six candidates have been nominated and legally qualified for the office of commissioner as re- quired under this charter. The two (2) candidates for nomination to the office of mayor who shall receive the greatest vote in the primary election shall be placed on the ballot at the next regular municipal election, provided that they have been nominated and legally qualified for the office of mayor as re- quired under this charter. (Laws of Fla., ch. 15339(1931); Res. No. 97-447, § 2, 7-3-97) See. 9. Declaration of election; how tie vote decided. At any regular municipal election held under the provisions of this charter, the candidates for the office of commissioner, in number equal to the number of commissioners to be elected, who shall have received the greatest number of votes cast, shall be declared elected. A tie between two or more candidates for the office of commissioner shall be decided by a court of competent jurisdic- tion. At any regular municipal election held under the provisions of this charter, the candidate for the office of mayor, who shall have received the greatest number of votes cast, shall be declared elected. A tie between the candidates for the office of mayor shall be decided by a court of competent jurisdiction. (Res. No. 97-447, § 2, 7-3-97) Sec. 10. Distinction between general and special municipal. election. All elections held for the election of mayor and commissioners shall be known as general munic- Supp. No. 2 ipal elections. All other elections held under the provisions of this charter shall be known as special municipal elections. (Laws of Fla., ch. 14616(1929); Res. No. 97-447, § 2, 7-3-97) Sec. 11. The recall. Editor's note The provisions of this section have been superseded by F.S. 4 100.361. Sec. 12. Filling vacancies for mayor and com- mission. A vacancy on the commission or in the office of mayor caused by death, resignation, or other causes shall be filled within ten days after such vacancy occurs by a majority of the remaining commissioners and the term of office of the person so appointed shall be until his successor(s) in office islare elected and qualified at either (1) the odd -year first general election for mayor and commissioners held pursuant to sec- tion 4 of the charter of the City of Miami, or (2) the even -year State of Florida general election, at which election national, state and county offices are filled, whichever occurs first. In the event that the remaining commissioners shall fail or refuse to fill such vacancy within ten days after it occurs, as provided Herein, then, and in that event, the city commission shall call a special election to be held at a date not less than thirty or more than forty-five days after the expiration of the said ten-day period, for the purpose of the electors selecting the mayor, a commissioner, or commis- sioners. The person who receives the greatest number of votes in said special election is elected and shall be the mayor and/or city commissioner and his or her term of office shall be until his or her successor in office is elected and qualified at the first general election for mayor and/or com- missioners held pursuant to section 4 of the charter of the City of Miami subsequent to the special election held to fill such vacancy. Should there be more than one such vacancy on the commission, then, and in that event, the CHT:18 S9- 1111,20 L_ CHARTER § 16 person or persons receiving the highest number of votes in such election shall be the city commis- sioner or commissioners. In the event the commissioners shall fail to comply with their duties as set forth herein, then, and in that event, the court is hereby empowered and authorized to enforce compliance with this act or to call an election itself to fill such vacancy or vacancies on the commission. (Laws of Fla., ch. 22393(19.13); Laws of Fla., ch. 27724(1951); Ord. No. 8287, 11-5-74, Res. No. 97-447, § 2, 7-3-97) Sec. 13. Election when terms of four or more commissioners expire simulta- neously. Where the terms of four or more commissioners expire simultaneously at one general election, then the number of commissioners required to constitute a commission of five members shall be elected for the terms of office prescribed by sec- tion 4 of the charter of the City of Miami. (Laws of Fla., ch. 22393(1943); Laws of Fla., ch. 27724(1951)) Sec. 14. Commission may investigate offi- cial transactions, acts and conduct. The mayor, commission, or any committee thereof may investigate the financial transactions of any office or department of the city government and the official acts and conduct of any city official, and by similar investigations may secure information upon any matter. In conducting such investigations the mayor, commission, or any com- mittee thereof, may require the attendance of witnesses and the production of books, papers and other evidence, and for that purpose may issue subpoenas which shall be signed by the presiding officer of the commission or the chairman of such committee, as the case may be, which may be served and executed by any policeman. (Res. No. 97-447, § 2, 7-3-97) Sec. 15. City manager --(qualifications; term; salary; sickness or absence; removal. Commencing with the election of mayor in 1997, the manager shall be the head of the administrative branch of the city government. Supp. No. 2 The commission shall fix the manager's compen- sation, and the manager shall serve as provided in section 4(g). The manager shall be chosen on the basis of the manager's executive and admin- istrative qualifications. At the time of the manager's appointment the manager need not be a resident of the state. Neither the mayor nor any commis- sicner shall be eligible for the position of manager during or within two years after the expiration of their respective terms. Commencing with the election of mayor in 1997, the mayor, subject to the approval of the commission, may designate a qualified adminis- trative officer of the city to assume the duties and authority of the manager during periods of tem- porary absence or disability of the manager. Commencing with the election of mayor in 1997, the manager shall be responsible for the administration of all units of the city government under the manager's jurisdiction, and for carrying out policies adopted by the commission. The man- ager or his designee shall execute contracts and other instruments, sign bonds and other evi- dences of indebtedness. Neither the mayor nor any commissioner shall direct or request the appointment of any person to, or his or tier removal from, office by the manager or any of the manager's subordinates, or take part in the appointment or removal of officers and employees in the administrative services of the city. Except for the purpose of inquiry, as provided in section. 14, the mayor and commis- sioners shall deal with the administrative service solely through the manager and neither the mayor nor any commissioner shall give orders to any subordinates of the manager, either publicly or privately. Any willful violation of the provisions to this section by the mayor or any commissioner shall be grounds for his or her removal from office by an action brought in the Circuit Court by the state attorney of this county. (Char. ,Amend. No. 2, 1-1-62; Res. No. 97-447, § 2, 7-3-97) Sec. 16. Same —Powers and duties. The powers and duties of the city manager shall be: (a) To see that the laws and ordinances are enforced. CHT:19 116 CHARTER AND RELATED LAWS (b) To appoint and remove, except as herein provided, all directors of the departments and all subordinate officers and employ- ees in the departments in both the classi- fied and unclassified service; all appoint- ments to be upon merit and fitness alone, and in the classified service all appoint- ments and removals to be subject to the civil service provisions of this charter. (c) To exercise control over all departments and divisions created herein or that may be hereafter created by the commission. (d) To attend ail meetings of the commission with the right to take part in the discus- sion but having no vote. (e) To recommend to the mayor and commis- sion for adoption such measures as he may deem necessary or expedient. (f) To keep the mayor and commission fully advised as to the financial condition and needs of the city; and (g) To perform such other duties as may be prescribed by this charter or be required by the mayor or ordinance or resolution of the commission. (Res. No. 97-447, § 2, 7-3-97) Editor's note --As to removal and suspension of chief of police, see annotation to charter § 26. Case law reference —It was the intention of the legisla- ture to make the city manager at all times hold office subject to the will of the commission upon whom rested the adminis- trative affairs of the city government, which could be speedily checked and corrected if necessary at the will of the commis- sion by a change in the office of the city manager. State v. Bloodworth, 134 Fla. 369, 184 So. 1. Subsection (b)—The phrase "except as herein prcrvided," employed in subsection (b) of this section, qualifies or limits every provision of the city charter providing for removals in specific cases, and such other provisions must tx construed with the subsection. Bryan v. Landis, 106 Fla. 19,142 So. 650. The city manager has no summary power of appointment under civil service rules, and all appointments and promotions by the city manager must be within the requirements of such rules. Bloodworth v. Suggs, 60 So. 2d 765. Police officers may be demoted during probationary period after accepting probationary promotion in rank. Clarke v. City of Miami, 81 So, 2d 217. The city manager is not required as a matter of law to promote civil service employees when a vacancy occurs. His refusal to fill vacancies due to economic conditions is a matter within his discretion. City of `liami Y. Elmore, 131 So. 2d 517. Where city manager opts to utilize advisory group to directly assist him in the decision -making process to select a Supp. No. 2 new police chief, the advisory group is a "board" within the meaning of F.S. § 286.011, the city manager is an "agency" within the meaning of said statute, and meetings of the , son• group must be oper, meetings pursuant to said statute. State v. Krause, 47 Fla. Supp. 36, aff d Krause v. Reno, 366 So. 2d 1244, Sec. 17. Same —Examination of affairs of de- partments, officers or employees. The city manager may, without notice, cause the affairs of any department or the conduct of any officer or employee to be examined. Any person or persons appointed by the city manager to examine the affairs of any department or the conduct of any officer or employee shall have the same right to require the attendance of witnesses and production of books and papers and other evidence as is conferred upon the commission by this charter. Sec. 18. Departments established.' The following administrative departments are hereby established by this charter: (1) Department of law. (2) Department of public service. (3) Department of public welfare. (4) Department of public safety. (5) Department of finance. Sec. 19. Creation of new departments; dis- continuance of departments. The commission may, by ordinance adopted by vote of at least three members of the commission, create new departments or discontinue any de- partment and determine, combine, and distribute the functions and duties of departments and subdivisions thereof. (Laws of Fla., ch. 21391(1941)) *Note Pursuant to authority granted in section 19 of this charter, the departments of public service, public welfare and public safety have been discontinued and numerous new departments have been created by ordinance. The user's attention is directed to ch. 2 of the Code of Ordinances for existing departments and functions thereof. CHT:20 CHARTER See. 19-A. Authority to create and discon- tinue departments by ordinance not limited by other charter pro- visions. The force and effect of any ordinance passed and adopted pursuant to this act Shall not be limited, subject to, or controlled by, any limita- tions, definitions, or delegations of power, author- ity, duties or functions in other sections of the charter of the City of :Miami. (Laws of Fla., ch. 21391(1941)) Sec. 20. Directors of departments. The city manager shall appoint a director for each department and, in his discretion, may con- solidate two departments under one director. Each such director shall serve until removed by the city manager or until his successor has been ap- pointed and qualified, shall conduct the affairs of his department in accordance with rules and regulations made by the city manager, shall be responsible for the conduct of the officers and employees of his department, for the performance of its business, and for the custody and preserva- tion of the books, records, papers and property under its control, .and, subject to the supervision and control of the city manager in all matters, shall manage the department. None of the provi- sions of this section, however, shall be applicable to the department of law or to the department of water and sewers.' (Laws of Fla., ch. 21388(1941)) Sec. 21. Department of law. The city attorney shall be the director of the department of law and an attorney -at -law admit- ted to the practice in the State of Florida. He shall be the legal advisor of and attorney and counsel for the city, and for all officers and departments thereof in matters relating to their official duties. He shall prosecute and defend all suits for and in behalf of the city, and shall prepare all contracts, bonds and instruments in writing in. which the city is concerned and shall endorse on each his approval of the form and correctness thereof. 'Note --Transfer of the operations of the city's department of water and sewers to Metropolitan Dade County was autho- rized by Res. No. 73.225, adopted March 22. 1973. § 22-A The city attorney shall be the prosecuting at- torney of the municipal court. He shall have such number of assistants as the commission by ordi- nance may authorize. He shall prosecute all cases brought before such court and perform the same dirties, so far as they are applicable thereto, as are required of the prosecuting attorney of the county. When required to do so by the resolution of the commission, the city attorney shall prosecute or defend for and in behalf of the city all complaints, suits and controversies in which the city is a party, and such other suits, matters and contro- versies as he shall, by resolution or ordinance, be directed to prosecute or defend. The mayor, commission, the city manager, the director of any department, or any officer or board not included within a department, may require the opinion of the city attorney upon any question of law involving their respective powers and du- ties. The city attorney shall be a full-time govern- mental employee; shall not engage in the private practice of law; and upon his election by the city commission shall serve until the time for the election of the city officials specified in section 4(c) of the charter which follows the next general municipal election. (Char. Amend. No. 1, 11-6-73; Res. No. 97-447, § 2, 7-3-97) Sec. 22. Department of public service. Editor's note Pursuant to authority granted in § 19 of this charter, the department of public senlce has been discon- tinued. The user's attention is directed to ch. 2 of the Code of Ordinances for departments performing functions formerly assigned to this department. Sec. 22-A. Department of water and sewers; water and sewer board. Editor's note —Pursuant to Res. No. 73-225, adopted March 22, 1973. the city manager was authorized and directed to execute an agreement for transfer of the operations of the city's department of water and sewers to Metropolitan Dade County. At the direction of the city, § 22-A, added to the charter by Laws of Fla., ch. 21388(1941), and amended by Laws of Fla., ch. 2340011945), and Laws of Fla., ch. 24702(1947), is not set forth herein. i i l i 22•B CHARTER AND RELATED LAWS Sec. 22-B. Department of public welfare. r Editor's note —Pursuant to authority granted in § 19 of this charter. all powers and duties granted by this section to ; the department of public welfare have by ordinance been transferred to other departments within the city. See ch. 2 of the Code of Ordinances for present departmental functions. i i i i i x CHARTER 123 Sec. 22-C. Board of trustees of Jackson Me- morial Hospital. Editor's note --Jackson Memorial Hospital was trans- ferred to Dade County by a contract dated .June 14, 1948. Section 22-C, added w the charter by Laws of Fla., ch. 14234(1929), 17, is therefore not set out herein. The transfer of Jackson Mc-monal 110Snit11 to Dade County was upheld in Cleary v. Dade County, 160 Fla. 892, 37 So 2d 248, Sec. 23. Department of off-street parking, off-street parking board. (a) There is herebv created and established as an agency and instrumentality of the City of Miami, a new department to be named and known as the "Department of Off -Street Parking of the City of Miami" (hereinafter sometimes called the "department of off-street parking" or the "depart- ment"), and by that name it may sue and be sued, plead and be uapleaded, contract and be con- tracted with and have an official seal; provided, however, that the department shall not commence business or exercise any of the powers granted by this act unless and until the commission of the City of Miami shall by ordinance declare the need for the department and for the off-street parking board of the City of Miami hereinafter created. The department, which shall operate and func- tion under the supervisory control of the board created and established in subsection (b) hereof, shall consist of a chief executive officer to be known as the "director of the department of off-street parking" (hereinafter sometimes called the "director of the department" or the "director") and such other officers and employees as shall be necessary to exercise the powers and perform the duties and functions of the department. (b) 'There is hereby created and established a board to be known as the "Off -Street Parking Board of the City of Miami" (hereinafter some- times called the "off-street parking board" or the "board") which shall consist of five members. Each member of the board shall either reside or have his principal place of business in the city and shall be an individual of outstanding reputation for integrity, responsibility and business ability, but no officer or employee of the city shall serve as a member of the board while employed as such officer or employee of the city. Within thirty days after the commission of the City of Miami shall have adopted an ordinance declaring the need for the department and for the board, it shall appoint the members of the board, two of whom shall hold office for a term of two years, two of whom shall hold office for a term of three years, and one of whom shall hold office for a term of four years, and thereafter each member shall be appointed for a term of five years, as herein provided. At least ten days prior to the date of expiration of the term of any member of the board, or within ten days after the death, resignation or removal of any such member, his successor shall be named and appointed by the remaining members of the board, subject to confirmation by the commission of the city. In the event that any appointment so made shall not be confirmed by the commission within ten days after notice of such appointment has been served upon the commission, the appoint- ment shall be null and void, and thereupon the remaining members of the board shall make a new appointment, or appointments, which shall likewise be subject to confirmation by the com- mission and each member of the board shall be eligible for reappointment. The successor in each case shall be appointed and shall hold office for a term of five years from the date of expiration of the term of his predecessor, except that any person appointed to fill a vacancy shall serve only for the unexpired term. Upon the effective date of his appointment, or as soon thereafter as practicable, each member of the board shall enter upon his duties, but before doing so he shall take the oath prescribed by section 41(e) of the city charter and shall execute a bond in the penal sum of ten thousand dollars ($10,000.00) payable to the department and con- ditioned upon the faithful performance of the duties of his office, which bond shall be approved by the commission of the city and filed with the city clerk, the cost of the premium on any such bond to be treated as part of the cost of operating the department. The members of the board shall each be paid a salary of fifty dollars ($50.00) per annum, or such CHT:21 C Z I-,.s 00 120 � 23 CHARTER AND RELATED LAWS larger sum as the commission of the city may establish by ordinance, payable in monthly install- ments. Any member of the board may be removed by the commission of the city for good cause and after proper hearing by the commission, but if so removed, may apply W the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, for a review of the action of the commis- sion. (c) The board shall have the powers, duties and responsibilities customarily invested in the board of directors of a private corporation, and shall exercise supervisory control over the operation of the off-street parking facilities of the city, and all acts of the department and of the director with respect to such facilities shall be subject to the approval of the board. The board shall elect one of its members to serve as chairman of the board, shall make appropriate rules and regulations for its own goverment and procedure, and shall hold 1 regular meeting at least once a month and such special meetings as it may deem necessary, and all such meetings shall be open to the public. (d) From and after the date of appointment of the first member of the board, the department shall operate, manage and control the off-street parking facilities of the city and all properties pertaining thereto now owned or hereafter ac- quired or constructed by the city or by the depart- ment and shall succeed to and exercise all powers vested in and succeed to and perform all functions and duties imposed upon the department of off- street parking of the city by and under the provi- sions of this act. Upon the adoption by the commission of the city of an ordinance declaring the need for the depart- ment and the h:)ard, all powers, functions and duties relating to such off-street parking facilities and properties pertaining thereto then vested in the city or any of its departments or officers, including but not limited to the exercise of the power of eminent domain, shall be and are hereby transferred to the department, and all books, records and papers now existing or hereafter acquired in the operation and maintenance of 4aid facilities or relating thereto shall be the property of and under the jurisdiction and control of the department; provided, however, that noth- ing contained in this section shall be deemed to vest in the department the power to establish and Fix rates and charges for off-street parking service furnished by the off-street parking facilities of the city or the power to issue revenue bonds. The department shall have full power and authority to acquire, own, use, hire, lease, operate and dispose of real property and personal property and of any interest therein, including the power to acquire by eminent domain proceedings lands or any interest therein and rights -of -way and easements upon, in, along or across any public street, road or highway for the purpose of constructing, main- taining or operating off-street parking facilities as shall be necessary in the judgment of the off- street parking board, and to make and enter into all contracts necessary or incidental to the exer- cise of its powers and the performance of its duties and functions with respect to the opera- tion, management and control of said facilities, and to promulgate and enforce appropriate rules and regulations governing the utilization of the services of the off-street parking facilities of the city. (e) The director shall be appointed by and shall hold office at the will of the board. He shall be a person of good moral character and have an excellent reputation for integrity, responsibility and business ability, but no member of the board shall be eligible for appointment as director. The director shall receive such salary, payable to him in equal semi-monthly installments, as shall be fixed by the board but such salary shall not be less than ten thousand dollars ($10,000.00) per an- num. Before entering upon his duties, the director shall take the oatli and execute the bond pre- scribed hereinbefore for each member ofthe board. The director shall act as the chief executive officer of the department, shall devote his entire time and attention to the duties of his office and shall not engage actively in any other business or profession. Subject to the direction and approval of the board, the director shall have general supervision over and be responsible for the oper- ation and maintenance of the off-street parking facilities of the city and shall exercise the powers vested in and perform the functions and duties imposed upon him as herein provided. The diree- CHT:22 CHARTER 423 for shall attend all meetings of the board, shall furnish to the board and the commission of the city a monthly report with respect to the opera- tion, maintenance and financial condition of the department of off-street parking, and shall from time to time have prepared and shall furnish such reports, audits and other information relating to said facilities as may be required by the board. In the event that the director shall for anv reason be temporarily incapable of exercising the powers and of performing the duties and func- tions of his office, the board may appoint an acting director to exercise such powers and to perform such functions and duties until such incapacity of the director shall be terminated. (f) Subject to the approval of the board, the director shall employ such additional executive and operating assistance, including engineering and other experts and professional assistance, as shall be necessary to provide for the efficient operation of the department. Included in the personnel to be employed, there shall be the following subordinate officers whose positions shall be in the unclassified service of the city: (1) A treasurer, who shall perform the func- tions and duties customarily performed by the treasurer of a private corporation. The treasurer shall be responsible for all funds of the department, for all accounts and accounting records relating to the depart- ment and its operation, and for the prepa- ration of all checks and vouchers requisite to the operation of the department. (2) A secretary, who shall perform the func- tions and duties customarily performed by the secretary of a private. corporation. The secretary shall have charge and custody of the official seal and of all books, records, documents and papers of the department other than those required to be in the custody of the treasurer. fleJShe shall at- tend in person all meetings of the board, and shall keep a correct record of all the proceedings of the board, and shall perform such other duties as may be assigned to him/her as secretary by the board. (g) The city attorney shall act as general coun- sel for the department and for the board in all matters of law which may arise, and shall prose- cute or defend all suits brought by or against the city or the department or the board which relate to the off-street parking facilities of the city. Special counsel as shall be deemed necessary by the city attorney may be employed by the director subject to the approval of the board, city attorney and city commission. Such special counsel shall serve under the direct supervision and control of the city attorney. (h) All budgets, funds and accounts pertaining to the ofl-street parking facilities of the city shall be segregated from all other budgets, funds and accounts of the city and shall be so kept that they shall reflect the financial condition and the oper- ation of each off-street parking facility of the city separately. Not later than one month before the end of each fiscal year the director, with the approval of the board, shall prepare and submit to the commission of the city a budget estimate of expenditures and revenues for the ensuing fiscal year in the same form and like manner as all other departments of the city for approval by the commission with the exception, however, that such budget estimate will be submitted directly to the commission of the city for its approval. (i) All expenses incurred by the department and by the board in exercising their powers and performing their functions and duties shall be paid solely from the revenues of the off-street parking facilities of the city and no liability or obligation not payable from the revenues of said facilities shall at any time be incurred in connec- tion with the operation thereof. 0) Should there occur in any fiscal year an excess of revenue over expenditures required for operation, maintenance, required reserves and debt service, then such excess revenues shall, subject to the provisions of any ordinance of the commission of the city authorizing the issuance of parking facilities revenue bonds of the city, and to the provisions of any trust indenture or trust agreement securing such bonds, be paid into the general funds of the city. (k) All powers and rights conferred by this section shall be in addition and supplemental to those conferred by any other general or special law and shall be liberally construed to effectuate C HT:23 ,, 4 23 CHARTER AND RELATED LAWS the purposes hereof; and the department and the board shall have power, in addition to exercising the powers expressly conferred in and by this section, to do all things necessary or convenient to carry out the purposes hereof. (Laws of Fla., ch. 30997(1955); Res. No. 88-535, 6-9-88/9-6..88) Sec. 24. Department of public safety. The head of the department of public safety shall be known as the director of public safety. Subject to the supervision and control of the city manager in all matters, he shall be the executive head of the division of police, and fire. He shall be the chief administrative authority in all matters pertaining to the erection, mainte- nance, repair, removal, razing, occupancy and inspection of buildings under such regulations as may be ordained by the commission. (a) Division of police. The police force shall be composed of a chief and such officers, pa- trolmen and other employees as the city manager may determine. The chief of po- lice shall have the immediate direction and s control of the police force, subject to the supervision of the director of public safety, and to such rules, regulations and orders as the said director may prescribe, and through the chief of police, the director of public safety shall promulgate all orders, rules and regulations for the governmentpf the police force. He shall devote his entire time to the discharge of his official duties and shall not be absent Gem the city except in the performance of his official duties, unless granted a written leave of absence by the city manager. His office shall be kept open at all hours, day or night, and either he or a subordinate shall be in constant attendance. In case of the disability of the chief of police by reason of sickness, ab- sence from the city or other cause, the director of public safety shall designate one of the captains or lieutenants of police to act as chief of police during such disability, and the officer so designated shall serve without additional compensation. The mem- bers of the police force, other than the chief, shall be selected from the list of eligibles CHT:24 prepared by the civil service board, and in accordance with such rules as the said board may prescribe; provided, that in case of riot or emergency, the director of public safety may appoint additional patrolmen and officers for temporary service, who need not be in the classified service. Each member of the police force, both rank and file, shall have issued to him a warrant of appointment signed by the city manager, in which the date of his appointment shall be stated, and such shall be his commission. Each member of the said force shall, before entering upon his duties, subscribe to an oath that lie will faithfully, without fear or favor, perform the duties of his office, and such oath shall be filed and preserved with the records of said department. No person, except as otherwise provided by general law or this charter, shall act as special police or special detective except upon written authority from the director of public safety. Such authority, when con- ferred, shall be exercised only under the direction and control of the chief of police and for a time specified in the appoint- ment. The members of the police force of said city shall be invested with all the power and authority necessary for enforcing the ordi- nances of said city. The chief of police or any policeman of the City of Miami, may arrest without war- rant, any person violating any of the ordi- nances of the city committed in the pres- ence of such officer, and when knowledge of the violation of any ordinance of said city shall come to the said chief of police or policeman, not coninnitted in his presence, he shall make affidavit before the judge or clerk of municipal court against the person charged with such violation, whereupon, said judge or clerk shall issue a warrant for the arrest of such person. (b) Division of fire. The fire force shall be composed of a chief and such other officers, firemen and employees as the city manager may determine. The fire chief shall have ISD- (10 L CHARTER immediate direction and control of the said department, subject to the supervision of the director of public safety and to such rules, regulations and orders as the said director may prescribe and through the fire chief the director of public safety shall promulgate all orders, rules and regula- tions for the government of the fire depart- ment. The members of the fire department, other than the chief, shall be, appointed from the list of eligibles prepared by the civil service board and in accordance with such rules and regulations as may be prescribed by said board; provided, that in case of riot, conflagration or emergency, the director of public safety may appoint additional fire- men and officers for temporary service who need not be in the classified service. The chief of the fire department and his assistants are authorized to exercise the powers of police officers while going to, attending or returning from any fire or alarm of fire. The fire chief and each of his assistants shall have issued to him a war- rant of appointment signed by the city manager, in which the date of his appoint- ment shall be stated, and such warrant shall be his commission. Whenever any building in said city shall be on fire, it shall be lawful for the chief of the fire department to order and direct such building or any other building which he may deem hazardous and likely to commu- nicate fire to other buildings, or any part of such buildings, to be pulled down or de- stroyed and no action shall be maintained against said chief or any person acting under his authority therefor. Editor's note: 'this section and sections 25 and 26 were purportedly repealed by chapter 27719, Spc-cial Acts of 1951. However, !hat act, together with chapters 27720 and 27721, which established the departments of police and fire, was held invalid in the case of City of Miami v. flead!ey, 61 So. 2d 321, and, consequently, this section and sections 25 and 26 re- mained in effect. Also, chapter 27722, Special Acts of 1951, which added a section creating the department of communi- cations, is deemed to have been held invalid by implication by the same case and has been omitted. Although this section has never been expressly repealed, the department of public safety and all divisions thereof were 125 discontinued pursuant to the exercise of the authority con- tained in the provisions of charter section 19 (Laws of Fla., eh. 21391(1941)) by the adoption of ordinances establishing sep- arate departments of fire, police and communications, Sec. 25. Supervision in divisions of police and fire. The chief of police and fire chief shall have the right and power to suspend any of the officers and employees in their respective division who may be under their management and control for incom- petence, neglect of duty, immorality, drunken- ness, failure to obey orders given by proper au- thority, or for any other just and reasonable cause. If any officer or employee be suspended as herein provided, the chief of the division con- cerned shall forthwith in writing certify the fact together with the cause of suspension, to the director of public safety, who shall render judg- ment thereon, which judgment, if the charge be sustained, may be a reprimand, fine, suspension, reduction in rank or dismissal. The director of public safety in any investiga- tion shall have the power to administer oaths and secure the attendance of witnesses and the pro- duction of books and papers. The employee shall be allowed the same appeal procedure as set forth in section 65(a) (now 36(f)] of the charter, provided, however, in the event the offices of city manager and director of public safety are held by the same person, the city manager -director of public safety, before passing upon the guilt or innocence of the person sus- pended, may authorize the civil service board to conduct a hearing upon the suspension charges preferred by the chiefs of fire or police and to report its findings and recommendations back to said city manager -director of public safety. The city manager -director of public safety then shall pass judgment upon the person suspended, after CHT:25 - 1, 425 CHARTER AND RELATED LAWS considering the findings and recommendations of the civil service board. (Laws of Fla., ch. 24695(1947)) Editor's note —See the editor's note following § 24 Also, although this section his never been expressly repealed, the department of public safety and all divisions thereof were discontinued pursuant to the exercise of the authority con- tained in the provisions of charter section 19 (Laws of Fla , ch. 213910941)? by the adoption of ordinances eztablishing sep- arate departments of fire, police and communications. Case law reference In Rosenfelder v, liuttoe, 156 Fla. 682, 24 So. 2d 108, a mandamus proceeding by a civil service member of the poLice force, arising before the amendment, to cancel an order dismissing him from the division of police, it was held that while a court might not under all circumsthncrs substitute its judgment for that of the, director, it was compe- tent to determine whether jurisdictional charges were brought against accused and whether or not the requirements of the charter preliminary to his suspension were complied with. Sec. 26. Suspension and removal of chief of police and fire chief. The city manager shall have the exclusive right to suspend the chief of police and fire chief for incompetence, neglect of duty, immorality, drunk- enness, failure to obey orders given by proper authority, or for any other just and reasonable cause. If either of such chiefs be so suspended the city manager shall forthwith certify the fact, together with the cause of suspension, to the commission who within five (5) days from the date of receipt of such notice, shall proceed to hear such charges and render judgment thereon, which judgment shall be final. Editor's note --See note to § 24. Case law reference --This section provides the sole and exclusive means for suspending and removing the chief of police. Bryan v. Landis, 106 Fla. 19, 142 So. 650, 653. The chief of poLicc may be suspended by the city manager only for one or more of the causes enumerated in this section, and when such suspension has been certified to the city commission and the cause thereof examined by them and found after a full hearing to N2 well grounded, then the commission enters its affirmative judgment which is final. When the affirmative judgment of the commission is entered, the suspension, of the chief of police eo instante becomes a removal, but, if the judgment of the commission is in the negative, the suspension ceases, and he is eo instante rein- stated. Bryan v. Landis, 106 Fla. 19, 142 So. 650. 653. The city manager may not summarily remove from office the chief of pohee without notice or opportunity to be heard in his defense. Bryan v. Landis, 106 Fla. 19, 142 So. 650. 651. Pursuant to charter section 19 the department of public safety and the divisions thereof, police and fire, were discon- tinued. Subsequent ordinances established a department of police and department of fire with each department having a director. Section 16 of this charter authorizes the city manager to remove all department directors in accordance with the provisions set forth in this charter. Sec. 27. Finance, department of finance. (a) Department director: Subject to the supervi- sion and control of the city manager, the director of finance shall have charge of the department of finance and shall administer the financial affairs of the city, including the keeping and supervision of all accounts, the levy, assessment and collection of revenues, the making and collection of special assessments, the custody and disbursement of city funds and monies, the control over expendi- tures, and such other duties as the commission may by ordinance provide. (b) Form and manner of keeping accounts and making reports. Accounts shall be kept by the department of finance showing the financial trans- actions of all departments and offices of the city. The forms of all such accounts and the financial reports rendered to or by the department of finance shall be prescribed by the director of Finance with the approval of the city manager. The accounts and accounting procedure of the city shall be adequate to record all cash receipts and disbursements, all revenues accrued and liabili- ties incurred, and all transactions affecting the acquisition, custody, and disposition of values. The director of finance shall make such reports of the financial transactions and condition of the city as may be required by law or ordinance. Financial reports shall be prepared for each quar- ter and fiscal year and for such other periods as may be required by the city manager. (c) Budget estimates. Not later than one month before the end of each fiscal year, the city man- ager shall prepare and submit to the commission and make available to the public a budget esti- mate of the expenditures and revenues of all city departments, divisions, and offices for the ensu- ing fiscal year. This estimate shall be compiled from detailed information obtained from the sev- eral departments, divisions, and offices on uni- form blanks furnished by the city manager. The classification of the estimates shall be as nearly uniform as possible for the main functional divi- CHT:26 o- 0 4 U I L :.1 CHARTER sions of such departments, divisions, and offices and shall give in parallel columns the following information: (1) a detailed estimate of the expenses of con- ducting each department, division, and of- fice; (2) expenditures for corresponding items for the fast two fiscal years; (3) expenditures for corresponding items for the current fiscal year, including adjust- ments due to transfer between appropria- tions, as well as an estimate of the expen- ditures necessary to complete the current fiscal year; (4) the value of supplies and materials on hand at the date of the preparation of the estimate; (5) increases or decreases of requests com- pared with corresponding appropriations for the current fiscal year, with reasons for such increases or decreases; (6) a statement from the director of finance of the total probable income of the city from taxes for the period covered by the esti- mate; (7) an itemization of anticipated revenues from other sources; (8) the total amount of the outstanding city debt, with a schedule of maturities of bond issues; (9) the amount required for interest on the debt, for sinking funds, and for maturing serial bonds; (10) such other information as may be required by the commission; and (11) copies of such estimate shall be furnished to the newspaper of the city and each library of the city which is open to the public. (d) Appropriation ordinances, fiscal year. The commission shall prepare an appropriation ordi- nance, using the manager's estimate as a basis, and shall hold public hearings on the proposed appropriation ordinance, in accordance with state 4 27 law. The fiscal year of the city shall commence on the first day of October and end on the thirtieth day of September of each year. State law refereuceR--Fiscal years, financial reports; appropriations, and audits, F.S. $ 166.241. (e) Appropriations for current expenses prior to passage of annual appropriation ordinance. Be- fore the annual appropriation ordinance has been passed, the commission, upon recommendation in writing of the city manager, may make appropri- ations for the current expenses of the city, charge- able to the appropriations of the year when passed, in an amount sufficient to cover the necessary expense of the various departments, divisions, and officers until the annual appropriations ordi- nance is in force. No other liabilities shall be incurred by any officer or employee of the city, except in accordance with the provisions of the annual appropriation ordinance. (f) D-ansfer of appropriations. Upon request of the city manager, the commission may transfer any part of an unencumbered balance of an ap- propriation to a purpose or object for which the appropriation for the current year is insufficient, or may authorize a transfer between items appro- priated to the same office, department, or divi- sion. (g) Appropriations of accruing revenue and unexpended balances. Any accruing revenue of the city, not appropriated as hereinbefore pro- vided, and the balance at any time remaining after the purposes of an appropriation have been satisfied or abandoned, may from time to time be appropriated by the commission to such uses as will not conflict with any uses for which such revenue accrued. (h) Necessity for appropriation; reversion of un- encumbered balances, work not to be completed within year. No money shall be drawn from the treasury of the city, nor shall any obligation for the expenditure of money be incurred, except pursuant to appropriations made by the commis- sion; and whenever an appropriation is so made, the clerk shall forthwith give notice to the direc- tor of finance. At the close of each fiscal year the unencumbered balance of each appropriation shall revert to the fund from which it was appropriated and shall be subject to future appropriations; but CHT:27 Jr.r V 427 CHARTER AND RELATED LAWS appropriations may be made in furtherance of improvements or other objects or works of the city which will not be completed within the current year. (i) City not liable on contracts unless appropri- ations made, contracts extending over one year No liability shall be enforceable against the city upon any contract not supported by the previous appro- priation, nor shall the city be liable for any service, material, or supplies furnished to the city or to any department, office, or division thereof, the financial requirements of which are to be met out of the proceeds of taxes or of any other funds controlled by the commission, unless the commis- sion shall previously have made an appropriation therefor. In the event that contracts are made to extend over a period longer than one year and which are to be met from current receipts of the city, it shall be lawful for the commission to make appropriation sufficient to answer the require- ments of any such contracts for only one year, and the contract shall be legal and binding upon the city notwithstanding no appropriation has been made for the ensuing years over which it is to be operative, and it shall be the duty of the commis- sion to make appropriations from year to year as required for the purposes of such contracts. The obligations of the city under such contracts shall not be considered to be a part of the indebtedness of the city. 0) Accounts of appropriations. Accounts shall be kept for each specific item of appropriation made by the commission, and every warrant on the treasury shall state specifically against which of such items the warrant is drawn. Each account shall show in detail the appropriations made thereto by the commission, the amount drawn thereon, the unpaid obligations charged against it, and the unencumbered balance to the credit thereof. (k) Payment of payrolls, bills and claims. No claim against the city shall be paid except upon a voucher certified by the head of the appropriate department or other division of the city and by means of a check or warrant on the city treasury, issued and signed by the director of finance and countersigned by the chief accountant of the de- partment of finance; provided, however, that in the event of the illness or the absence of the director of finance or the chief accountant of the department of finance, the city manager may designate other officers of the city to sign and countersign such checks or warrants. The director of finance shall examine all payrolls, bills, and other claims and dernands against the city, and shall issue a check or warrant for payment only upon finding: that the claim is in proper form, correctly computed, and duly certified; that it is justly and legally due and payable; that. an appro- priation has been made therefor which has not been exhausted or that the payment has been otherwise legally authorized; and that there is money in the city treasury to make payment. The director of finance may require any claimant to make oath as to the validity of a claim, may investigate any claim; for that purpose may ex- amine witnesses under oath. (1) Liability of director of finance for issuing warrant without appropriationor sufficient money in fund. If the director of finance issues a warrant on the treasury authorizing payment for any item for which no appropriation has been made, or for the payment of which there is not sufficient money in the proper fund, or which for any other cause should not be approved, the director and his or tier sureties shall be individually liable to the city for the amount of such warrant if paid; provided, however, that where a department of budget has been created, the director of budget and his or her sureties shall be liable to the city for issuance of any such warrant. (m) Audit and investigation of accounts of of ficer when office vacant. Upon the death, resigna- tion, removal, or expiration of the term of any officer of the city, other than the director of finance, the director of finance shall cause an audit and investigation of the accounts of such officer to be made and shall report to the city manager. (n) Applicability of state law. The general law of Florida upon the subject of taxation shall apply to and govern in the assessment, levy, and collec- tion of taxes in the City of Miami and in the return and sale of property delinquent therefor; and shall also apply and govern in respect to the powers, duties, and liabilities of the persons and CfM28 J A r� 0 LIN I-- 1 CHARTER 627 property touching and concerning such taxes, except that this provision shall not repeal any nonconflicting provisions of this charter nor any other special legislative act applicable to the City of Miami on the subject of taxation and finance, except as herein otherwise provided. (o) Assessment; liens. MI the taxes there as- sessed shall become at once a debt to the city from the persons to whom they are assessed. All per- sonal taxes shall be a lien upon the personal property of such persons so assessed from and after the assessment thereof, and remain a lien thereon untii paid, and shall be superior to the rights acquired under any sale, assignment, or chattel mortgage, levy, or lien upon any such personal property executed or made after such assessment, except when such personal property is sold in the regular course of trade. The amounts assessed on any real estate shall become a lien on the first day of January of the year in which the assessment is made on such real property and the lien for such amount and for all interest and charges thereon shall continue until payment thereof. (p) Collection of money by director of finance; payment into city treasury; deposits; interest. All taxes, special assessments, license fees, and other monies accruing to the city shall be collected by the director of finance unless otherwise provided by state law. All money received by any officer or employee of the city for or in connection, with the business of the city shall be paid promptly into the city treasury and deposited with such respon- sible banking institutions furnishing such secu- rity as the commission may determine and paying the highest rate of interest deemed advisable. All interest on money so deposited shall accrue to the benefit of the city. (q) Assessment, let_v and collection under rules established by ordinance; notice before attachment of penalty for failure to return; not delinquent until sixty days from due date; provisions contin- ued in force. Except as otherwise provided in this charter, all property within the city shall be assessed and all city taxes shall be levied, as- sessed and collected under such rules and regu- lations as may be established by ordinance. Such rules and regulations may provide penalties for their nonobservance and may, in this and all other respects, make provision for the assessment of property and the levy, assessment and collec- tion of the city taxes as fully as might be done by a law of the State of Flor-ida. Before any penalty shall attach for the failure to return property for taxation, notice shall be given by publication at least four times in one or more daily papers of the city, of the time within which said return must be made. The first publication of such notice shall be at least thirty days before the last day for malting such return. hlc rule or regulation made by ordi- nance shall provide that a tax be considered delinquent sooner than sixty days after it be- comes due and payable. All provisions for the assessment of property and the levy, assessment and collection of taxes in force at the time of the adoption of this charter, and riot inconsistent therewith, shall continue in force until altered, repealed or superseded by this charter or by rules and regulations established as provided by this section. (r) Lien for costs involved in closing, removing, repairing, or demolishing unfit buildings. Upon the failure of the owner, owners, or persons inter- ested in property within the city to comply with the determination of the officer, board, or body empowered by the city code or by ordinance to require the closing, removal, repair, or demolition of any building or structure dangerous to the health, morals, safety, or general welfare of the people of the city, after reasonable notice for such compliance has been given, such officer, board, or body may cause such building or structure to be closed, removed, repaired, or demolished or may contract therefor, after advertisement for and receipt of bids. The amount of: (1) abstracting and title search fees or charges, expert witnesses' fees, and advertising charges incurred, and (2) the cost of such closing, removal, repair or demolition, if any, shall constitute and remain a municipal lien against the real property involved until paid with interest to accrue at the rate of six percent annu- ally. Such liens may be enforced and collected by any of the methods provided by any state or othe_- applicable law. CHT:29 --, 421 CHARTER AND RELATED LAWS (s) Classirwation of businesses and occupa- tions; fee. In providing for licensing and regu!at- ing persons, corporations, and entities engaged in businesses, occupations, professions, and trades, the commission may by ordinances classify and arrange the various businesses, occupations, trades, and professions carried on in the city into such classes as may be just and proper and fix the license fee payable by each, without regard to the state law fixing such fees. (t) Limitation as to levy of ad valorem taxes generally. The city shall have the right to levy ad valorem taxes not to exceed 12 mills on each dollar of the assessed value of all real and per- sonal property in the city, for the purpose of raising such amount as may be necessary for carrying on the government of the city, and in addition thereto shall have the right to levy such additional ad valorem taxes as may be necessary: (1) to pay the maturing principal of and the interest on the outstanding bonds of the city and such additional bonds as the city may from time to time issue, and to provide a sinking fund therefor; (2) to pay for the lighting and hydrant rental of the city; (3) to pay for the operation of such public utilities as the city may construct or ac- quire; and (4) to provide a publicity fund, the levy for which shall not exceed two mills on each dollar of such assessed value. (u) Tax deeds as evidence. Deeds made by the City of Miami pursuant to tax sale, or sale under decree granted for the collection of local assess- ments, shall be admissible in evidence on the same terms as deeds made pursuant to sales for taxes due the state and county; but it shall be competent for persons denying the validity of such tax deeds, or assessment deeds, to put in evidence the proceedings preliminary to the exe- cution thereof. The purpose of this provision is to give such deeds and all recitals therein the same i prima facie force and validity accorded to tax deeds made by officers of the state and county. See. 27-A. Limitation as to levy of ad valo- rem taxes for public library and library system. Editor's note --Res. No. 42709, adopted July 22, 1971, authorized and dirmt d transfer of the City of Miami Library Systems to Dade County, effective Nov, 1, 1971. Pursuant to inst:nictions of the city, the provisions of § 27-A, added by Laws of Fla., ch. 21394(1941), and amended by Laws of Fla., ch. 234020945), and Laws of Fla., ch. 247050947), are not set forth herein. .See. 27-B. Levy of taxes. Editor's no(e—Pursuant to § 4.04 of the Charter of Met- ropolitan Dade County, Lite county is responsible for the a.. se_ssment and collection of taxes; similar provisions with respect to county assessment and collection of municipal taxes are contained in F.S. § 193.116. Pursuant to instructions of the city, §§ 27-B through 27-G, as set forth in Laws of Fla., e.tt. 108470925), have not been set forth herein. Sec. 27-C. Tax assessor. Note —The user's attention is directed to the editor's note to § 27-B of this charter. Sec. 27-1). Board of equalization. Note —The user's attention is directed to the editor's note to § 27-B of this charter. Sec. 27-E. Assessor to have power of county assessor; general assessment roll. Note --The user's attention is directed to the editor's note to § 27-B of this charter. See. 27-F. Signing and endorsing general as- sessment roll; return and presump- tion of validity. Note --The user's attention is directed to the editor's net+e to § 27-B of this charter. Sec. 27-G. Copy of assessment roll annexed to warrant commanding collec- tion. Mote —The user's attention is directed to the editor's note to § 27-B of this charter. Sec. 27-IL State law as to taxes applied.. Note —This section has been substantially changed, by inference, inasmuch as assessment and coUection of taxes is now the exclusive responsibility of Dade County. The user's attention is directed to the editor's note to § 27-B of this charter. CH'1'':30 i i f i r f t 0 CHARTER 129-A (Sec. 27.1. Reserved.] Sec. 27-J. Discounts if taxes paid before cer- tain time. Note --The discount rates formerly set out in this section no longer apply; for prrsent rates, see F S § 197.162. The user's attention is alao directed to the editor's note to § 27-B of this charter. Sec. 27-K When taxes become delinquent; interest rates on delinquent taxes. Note —The user's attention is directed to the editor's note to § 2',-B of this charter. Sec. 27.1.. Tax certificates; interest rate thereon. Note --The user's attention is directed to the editor's note to § 27-B of this charter. Sec. 28. Chief procurement officer. (a) The city manager shall appoint a chief procurement officer who shall supervise all pur- chases for the city in the manner provided by ordinance and who shall, under such procure- ment methods as may be prescribed by ordinance, supervise sales of all real and personal property of the city not needed for public use or that may have become unsuitable for use. The chief pro- curement officer shall have charge of such store- rooms and warehouses of the city as the commis- sion may by ordinance provide. Before arty purchase or sale, the chief procurement officer shall require that all prescribed procurement procedures be followed. Supplies shall not be furnished to any department unless there be to the credit of such department an available appropriation balance in excess of all unpaid obligation sufficient to pay for such supplies. (b) No contract for furnishing supplies or ser- vices for the city, except as otherwise provided in this charter, shall be made for a period of more than one year. (c) The chief procurement officer shall see to it that all persons seeking to do business with the city not discriminate against any employee or applicant for employment because of age, race, creed, color, religion, sex, national origin, handi- cap, or marital status; and that they take affir- mative action to ensure that applicants are em- ployed and that employees are treated during employment without regard to their age, race, creed, color, religion, sex, national origin, handi- cap, or marital status. (d) The chief procurement officer shall be re- sponsible for developing such minority procure- ment program as may be prescribed by ordinance and permitted by law. Sec. 29-A. Contracts for personal property, public works or improvements, unified development projects, and reed property; safeguards. (a) Personal property. Any personal property, including but not limited to supplies, equipment, materials, and printed matter, may be obtained by contract or through city labor and materials, as provided by ordinance. All contracts for more than four thousand five hundred dollars ($4,500.00) shall be awarded by the commission to the lowest responsible bidder, after public notice and using such competitive sealed bidding methods as may be prescribed by ordinance; provided, however, that if the amount of a bid or proposal submitted by a vendor whose primary office is located in the City of Miami is not more than ten (10) percent in excess of the lowest other responsible bidder or proposer, such local vendor may be awarded the contract, but the city manager or designee shall �~ have the power to reject all bids and proposals. Notwithstanding the foregoing, the city manager may waive competitive sealed bidding methods by making a written finding which shall contain reasons supporting the conclusion that competi- tive sealed bidding is not practicable or not ad- vantageous to the city, which finding must be ratified by an affirmative vote of two-thirds of the commission after a properly advertised public hearing. When competitive sealed bidding meth- ods are waived, other procurement methods as may be prescribed by ordinance shall be followed. All invitations for bids, requests for proposals, or other solicitations shall contain a reservation of the foregoing right to reject all offers. All con- tracts for personal property in excess of four thousand five hundred dollars ($4,500.00) shall be signed by the city manager or his designee after approval thereof by the commission. This CHT:31 $ 29-A CHARTER AND RELATED LAWS section shall not apply to transfers to the United States or anv department or agency thereof, to the State of Florida, or to any political subdivision or agency thereof. (b) Public a orks or improvements. Any public work or improvement may be executed either by contract or by the city labor force, as may be determined by the commission. There shall be a separate accounting as to each work or improve- ment. Before authorizing the execution by the city labor force of any work or improvernent or phase thereof, the city manager ;hall submit to the commission a descriptiori of the anticipated scope of work and related cost estimates. A11 contracts for more than ten thousand dollars (310,000.00), which shall include contracts under which im- provements valued in excess of $10,000 are to be constructed for the city, shall bh, awarded to the lowest responsible bidder after public notice and using such competitive sealed bidding methods as may be prescribed by ordinance; provided, how- ever, that if the amount of a bid or proposal submitted by a contractor whose primary office is located in the City of Miami is not more than ten (10) percent. in excess of the lowest other respon- sible bidder or proposer, such local contractor may be awarded the contract, but the city manager or designee shall have the power to reject all bids and proposals. Notwithstanding the foregoing, the city manager may waive competitive sealed bidding methods by making a written finding that a valid emergency exists or that there is only one (1) reasonable source of supply, which finding must be ratified by an affirmative vote of two- thirds of the commission after a properly adver- tised public hearing. When competitive sealed bidding metho<ls are waived, other procurement methods as may be prescribed by ordinance shall be followed. rill invitations for bids, requests for proposals, or other solicitations shall contain a reservation of the foregoing right to reject all offers. Contracts for public works or improve- ments shall be signed by the city manager or his designee after approval thereof by the commis- sion. When it becomes necessary in the opinion of the city manager to make alterations or modifications 3 in a contract for any public work or improvement, such alterations or modifications shall be made only when authorized by the commission upon the written recommendation of the city mariager. No such alteration shall be valid unless the price to be paid for the work or material, or both, under the altered or modified contract shall have been agreed upon in writing and signed by the contrac- tor and the city manager prior to such authoriza- tion by the commission. (c) Unified development projects. A unified de- velopment project shall mean a project where an interest in real property is owned or is to be acquired by the city, is to be used for the develop- ment of improvements, and as to which the com- mission determines that for the development of said improvements it is most advantageous to the city to procure from a private person, as defined in the Code of the City of Miami, one or more of the following integrated packages: (1) planning and design, construction, and leas- ing; or (2) planning and design, leasing, and manage- ment; or (3) planning and design, construction, and man- agement; or (4) planning and design, construction, leasing, and management. So long as the person from whom the city procures one of the above -mentioned integrated packages provides all of the functions listed for that pack- age, such person need not provide each listed function for the entire unified development project nor for the same part of the unified development project. Requests for proposals for unified development projects shall generally define the nature of the uses the city is seeking for the unified develop- ment project and the estimated allocations of land for each use. They shall also state the following: (1) the specific parcel of land contemplated to be used or the geographic area the city desires to develop pursuant to the unified development project; (2) the specific evaluation criteria to be used by the below -mentioned certified public ac- counting firm; CHTM L CHARTER Il 29-A (3) the specific evaluation criteria to be used by the below -mentioned review committee; (4) the extent of the city's proposed commit- ment of funds, property, and services; (fi) the definitions of the terms "substantial increase" and "material alteration" that will apply to the project pursuant to sub- section (eX4) hereof; and (6) a reservation of the right to reject all pro- posals and of the rightof termination re- ferred to in subsection (e)(4), below. After public notice there shall be a public hearing at which the commission shall consider: (1) the contents of the request for proposals for the subject unified development project; (2) the selection of a certified public account- ing firm; which shall include at least one member with previous experience in the type of development in question; and (3) the recommendations of the city manager for the appointment of persons to serve on the review committee. Said review commit- tee shall consist of an appropriate number of city officials or employees and an equal number plus one of members of the public, whose names shall be submitted by the city manager no fewer than five days prior to the above -mentioned public hearing. At the conclusion of the public hearing the com- mission shall authorize the issuance of a request for proposals, select a certified public accounting firm, and appoint the member-- of the review committee only from among the persons recom- mended by the city manager. The procedure for the selection of an integrated package proposals shall be as follows: (1) all proposals shall be analyzed by a certi- fied public accounting firm appointed by the commission based only on the evalua- tion criteria applicable to said certified public accounting firm contained in the request for proposals. Said certified public accounting firm shall render a written re- port of its findings to the city manager. (2) the review committee shall evaluate each proposal based only on the evaluation cri- teria applicable to said review committee contained in the request for proposals. Said review committee shall render a written report to the city manager of its evaluation of each proposal, including any minority opinions. (3) taking into consideration the findings of the aforementioned certified public account- ing firm and the evaluations of the afore- mentioned review committee, the city man- ager shall recommend one or more of the proposals for acceptance by the commis- sion, or alternatively, the city manager may recommend that all proposals be re- jected. If there are three or more proposals and the city manager recommends only one, or if the city manager recommends rejection of all proposals, the city manager shall state in writing the reasons for such recommendation. In transmitting his recommendation or rec- ommendations to the commission, the city manager shall include the written reports, including any minority opinions, rendered to by the aforementioned certified account- ing firm and review committee. (4) all contracts for unified development projects shall be awarded to the person whose pro- posal is most advantageous to the city, as determined by the commission. The commission may accept any recommenda- tion of the city manager by an affirmative vote of a majority of its members. In the event the commission does not accept a proposal recom- mended by the city manager or does not reject all proposals, the commission shall seek recommen- dations directly from the aforementioned review committee, which shall make a recommendation or recommendations to the commission taking into account the report of the aforementioned certified public accounting firm and the evalua- tion criteria specified for the review committee in the request for proposals. After receiving the direct recommendations of the review committee, the commission shall, by an affirmative vote of a majority of its members: (1) accept any recommendation of the review committee; or CHT:33 0' 040 !€ 29-A CHARTER &ND RELATED LAWS (2) accept any previous recommendation of the city manager; or (3) reject all proposals. All contracts for unified development projects shall be signal by the city manager or desigriN? after approval thereof by the com mission. The city manager or designee shall be responsible for developing a minority prrxurement program, as may be prescribed by ordinance and permitted by law in conjunction with the award of contract., for unified development projects. The provisions of this charter section shall supersede any other charter or code provision to the contrary. (d) Sales and lenses of real property; prohibi- tion. Except as otherwise provided in this charter section, there shall tie no sale, convevance, or disposition of any interest, including any leasehold, in real property owned by the city, the department of off-street parking, or the downtown develop- ment authority, unless there has been prior public notice and a prior opportunity given to the public Ito compete for said real property or interest. Any such sale, conveyance, or disposition shalt be conditioned upon compliance with: the provisions of this section; such procurement methods as may be prescribed by ordinance; and any restrictions that may be imposed by the city, the department of off-street parking, or the downtown develop- ment authority, as appropriate. Further, no right, title, or interest shall vest in the transferee of such property unless the sale, conveyance, ,or disposition is inade to the highest responsible bidder, as is determined by the city commission, or the off-street parking board, or the downtown development authority board of directors. The city commission or the off-street parking board or the downtown development authority board of directors, as appropriate, may by resolution waive the requirement of sale, conveyance, or disposi- tion to the highest responsible bidder by means of the following; procedure: the city manager, the director of the off-street parking authority, or the director of the downtown development authority, as appropriate, must make a written finding that a valid emergency exists, which finding must be ratified by an affirmative vote of two-thirds of the commission after a properly advertised public hearing. When the requirement of sale, convey- ance, or disposition to the highest responsible CH'P34 bidder is waived, other procurement methods as may be prescribed by ordinance shall be followed. The city or the department of off-street parking or the downtown development authority shall have the power to reject all offers. All invitations for bids, requests for proposals, or other solicitations shall contain a reservation of the foregoing right to reject all offers. This section shall not apply to transfer; to the United States or any department or agency thereof, to the State of Florida, or to any political subdivision, or agency thereof. (e) Safeguards. (1) All persons contracting with the city under this section shall be required to certify their compliance with the antitrust laws of the United States and of the State of Flor- ida and to hold harmless, defend, and in- demnify the city for any noncompliance by said persons with the above laws. (2) All persons contracting with the city under this section shall be obligated to pay which- ever is the greater of the following: M all applicable ad valorem taxes that are law- fully assessed against the property in- volved or 60 an amount to be paid to the city equal to what the ad valorem taxes would be if the property were privately owned and used for a profit -making pur- pose. Such taxes shall not be credited against any revenues accruing to the city under any contract that may be awarded under this section. (3) Any proposal by a potential bidder or con- tractor that contemplates more than the estimated extent of the city's proposed com- mitment of funds, property, or services shall be ineligible for acceptance by the city commission.. (4) Any substantial increase in the city's com- mitment of funds, property, or services, or any material alteration of any contract awarded under subsection (c) of this sec- tion shall entitle the city commission to terminate the contract after a public hear- ing. Prior to such public hearing, the com- mission shall seek and obtain a report from the city manager and fi-om the review com- mittee that evaluated the proposals for the L CHARTER project, concerning the advisability of exer- cising that right. (Char. Amend. No. 3, 11-6-79; Ord. No. 9507, i 1, 10-28-82/11-2- 82; Res. No. 86-656, c 2.a, 7-24-8(i/11-4-86; Res. No. 87-678, § 2(a), 7-9-87/11-3-87) Editor's note —Ord. No. 9489, adopted by the commission on Sept. 17, 1982, sot forth C'herier Amendrncnt No. 1 for approvaVrejection at elcruon on Nov 2, 1982 On Oct. 28, 1982, Ord. No. 9507 amended the language of subsections (a) and (c) of § 53 as proporcd by Ord Nn- 9489. The election was to approve the language of Charter Amendment No 1, as amended by Ord. No. 9507. Subsequently, in light of Charter Amendment No. 2 of Nov. 3, 1987, the city attorney directed the codifier to delete paragraph (n) of subsection (d) as superseded by § 29-13 Case laws reference —For case docided prior to enactment by Charter Amendment No. 3 of 1979 of a competitive -bidding requirement for disposition of city property, see Mahoney v. Givens, 64 So. 2d 926. Said case held that competitive bidding is not required to lease city real estate. Material variance between plans bid upon and plans sub- mitted and adopted renders contract void, Glatstein v. City of Miami, 399 So. 2d 1005, Sec. 29-B. City -owned property sale or lease —Generally. Notwithstanding any provision to the contrary contained in this Charter or the City Code, except for the conveyance or disposition of city -owned property implementing city -assisted housing pro- grams or projects which are intended to benefit persons or households with low and/or moderate income by providing housing for such persons or households, such as, but not limited to, those funded programs or projects undertaken, pursu- ant to the Federal Housing Act of 1937 and the Florida Housing Act of 1972, as those statutes may be amended or revised from time to time, implementing city -assisted housing programs as may be authorized by federal or state law, imple- menting projects authorized under the Florida Community Redevelopment Act of 1969, and im- plementing projects of any governmental agency or instrumentality, the city commission is hereby prohibited from favorably considering any sale or lease of property owned by the city unless there is a return to the city of fair market value under such proposed sale_ or lease. The city commission is also hereby prohibited from favorably consider- ing any sale or lease of city -owned property unless (.a) there shall have been, prior to the date of the city commission's consideration of such sale or 4 29-C lease, an advertisement soliciting proposals for said sale or lease published in a daily newspaper of general paid circulation in the city, allowing not less than ninety (90) days for the city's receipt of proposals from prospective purchasers or lessees, said advertisement to be no less than one-fourth (1/4, page and the headline in the advertisement to be in a type no smaller than 18-point and, (b) there shall have been at least three (3) written proposals received from prospective purchasers or lessees, however, if there are less than three (3) such proposals received and if the guaranteed return under the proposal whose acceptance is being considered is equal to fair market value the city commission determines that the contem- plated sale or lease will be in the city's best interest then, subject to the approval of a majority of the votes cast by the electorate at a referen- dum, the sale or lease may be consummated. As a further exception to the above requirements and any other requirement for competitive bidding procedures to be used in the disposition of city - owned property or any interest therein, the city commission is authorized to waive all such dispo- sition requirements where the intended use of such property or interest therein is in furtherance of the objective of providing rental or sales hous- ing within the economic atTordability range of low and/or moderate income families and/or individu- als. In determining low and/or moderate income households as set forth above, the criteria shall be those provided for by federal and/or state law or by the city commission. (Res. No. 87-678, § 2(a), 7-9-87/11-3-87) Sec. 29-C. Same —Watson Island. Notwithstanding any provision to the contrary contained in the Charter or Code of the City of Miami, no sale, conveyance lease, management agreement, revocable use pennit, or license agree- ment may be entered into for the management, occupancy or use of the area known as Watson Island unless (1) there shall have been, prior to the date of the city commission's consideration of such sale, lease, management agreement, revoca- ble permit or license agreement, an advertise- ment soliciting proposals for said sale, lease, management agreement, revocable permit, or li- cense agreement published in a daily newspaper CHT:35 L -- 4 29-C CHARTER AND RELATED LAWS of general paid circulation in the city, allowing not less than ninety (90) days for the city's receipt of proposals from prospective purchasers or lessees. said advertisement to be no less than one-fourth page and the headline in the advertisement to be in a type no smaller than 18-point; and, (2) the proposed transaction be approved by a majority of the votes cast by the electorate at a referendum to be held at the next regularly scheduled general election. The procedures for selection of proposals shall be those provided by Charter section 29-A(c) or (d) as appropriate and/or by applicable City Code provisions. Nothing herein shall effect (af- fect) the existing rights or privileges, if any, of any lessee, permittee, licensee or concessionaire cur- rently situated in said area; however, any enlarge- ment, amendment, transfer, or increase in those rights or privileges as may be in existence at the time this amendment is adopted shall require compliance with the provisions of this amend- ment. This Charter Amendment shall not affect the city's use or occupancy of the area, nor shall it apply to contracts for the construction of any city facilities or improvements in the area; further, nothing contained herein shall apply to projects of any governmental agency or instrumentality. (Res. No. 87-677, § 2(a), 7-9-87/11-3-87) Sec. 29-D. City -owned waterfront property; leases with nonprofit organiza- tions; authorization to waive com- petitive bidding and referendum requirements; terms of lease. Notwithstanding any provision to the contrary contained in the Charter or Code of the City of Miami, the city commission is authorized to waive all competitive bidding and referendum require- ments when entering into a lease or extending an existing lease with a nonprofit, noncommercial, water -dependent organization which provides or seeks to provide marine -recreational services and/or activities to the community at any city owned waterfront property, provided all of the following conditions are met: (A) The terms of the lease allow reasonable J public access to the water and reasonable public use of the property, and complies with all waterfront setback and view - corridor requirements set forth in the Char- ter and Code; (B) The use is authorized under the then exist- ing master plan of the city; (C) The terms of the lease require that the property be used for public purposes only; (D) The terms of the lease result in a fair return to the city based on two (2) indepen- dent appraisals; and (E) The terms of the lease comply with all requirements pertaining to membership pre- scribed by ordinance_ for organizations us- ing city facilities, (Res. No. 93-485, 5 2, 7-22-93) Sec. 30. LocaI improvements. (a) Definitions; divisions into classes. In this section the following words and phrases shall have the following meanings, unless some other meaning is plainly intended: The main divisions of this section are some- times herein termed paragraphs, and the divi- sions of paragraphs are sometimes herein termed subparagraphs. Alocal improvement is an improvement defined by this section and made under the provisions thereof. The word commission shall be deemed to refer to the city commission of the City of Miami. A highway is a public way such as a street, boulevard, avenue, lane, alley, parkway, court, terrace, or place. A sidewalk is a path for pedestrians along a highway. A storm sewer is a conduit above or below ground for the passage of storm water, including a pumping station and outlet where deemed neces- sary; it may also include the building of culverts over streams or enclosing of streams where nec- essary or advisable to carry off storm water. A sanitary sewer is an underground conduit for the passage of sewage and may include a pump- ing station and outlet where necessary. CHT:36 J i Ip /� Z L CHARTER $ 30 The word sewer includes both sanitary and storm sewers unless a contrary intention is shown. A curb sewer is a sanitary sewer at. or near a curb, instead of at or near the middle of a high- way. Alateral is a pipe connecting a sewer main with the line of adjacent prolxprty or the curbline, as the commission may prescribe, being either a sewer lateral or a water lateral, but does not include a building connection, that is, a pipe extending from a lateral at the property line or curbline to the house or plumbing fixtures on the property to be served. Improvements authorized to be made under the provisions of this section are divided into seven classes as follows: Class 1. highway improvements include the grading, paving, repaving, macadamizing, remacadamizing, sanding, and oiling of high- ways, with necessary drainage, sewer inlets, manholes, and catch basins, and, if the commis- sion so orders, curbs and gutters, sidewalks, and landscaping, which improvements may be financed with funds available for highway con- struction. highway improvements may include as a means of drainage of highways improved, a well or wells sunk to a point below freshwater strata and so cased in throughout freshwater strata as to prevent seepage to or from such strata; further, in the discretion of the commis- sion, any such well or wells may constitute the whole or a part of a storm sewer improvement under class 4 below. The resolution ordering such improvement shall include the location of the well or wells with reasonable definiteness. Class 2. Sidewalk improvements include the grading and construction of sidewalks and, if the commission so orders, curbs and gutters. Class 3. Sanitary sewer improvements include the construction of sanitary sewers, the relay- ing where necessary of streets and sidewalks necessarily torn up or damaged, and, if the commission so orders, the laying of sewer lat- erals, as a separate improvement or as part of the main improvement. Class 4. Storm sewer improvements include the construction of storm sewers, the relaying where necessary of streets and sidewalks necessarily torn up or damaged, and, if the commission so orders, the laying of sewer laterals, as a sepa- rate improvement, or as a part of the main improvement. Storm sewer improvements may also include the building of culverts over streams or enclosing streams where necessary or advis- able to carry off storm water. Class 5. !Waterfront improvements include the construction of bulkheads, seawalls, and other retaining walls along a bay, river, canal, or lake, with necessary fills and dredging, and may include the acquisition by purchase, condemna- tion, or otherwise, of land, rights, and ease- ments therefor. Class 6. Street developments include the open- ing, widening and extension of highways and, if the commission so orders, the grading thereof. Class 7. Water main improvements include the laying of water mains, the relaying where nec- essary of highways and sidewalks necessarily torn up or damaged, and, if the commission so orders, the laying of water laterals. Incidental expense includes the following items, including reasonable sums paid or credited to the city or any department thereof for service ren- dered by any department or officer or employee thereof in connection with any such items: pre- liminary and other surveys; inspection and superintendence of work; preparation, of plans, specifications, and estimates; printing and pub- lishing of notices and proceedings; preparation of bonds; interest during construction; legal services and abstracts; and any other expense necessary or proper in conducting the proceedings and work herein provided for. Railroad includes all forms of transportation by rail, however powered, not owned by the City of Miami. (b) Authority of city. The city is authorized to make local improvements and to pay the cost thereof as herein provided, except that the com- mission shall have no power to order the making of any storm sewer improvement as a local im provement under the provisions of this section; provided, however, that any special assessments already levied and any proceedings already taken CHT:37 (` ,f L 30 CHARTER AND RELATED LAWS in connection with storm sewers shall not be repealed or affected by this provision; and pro- vided further, that all such pro eeyling,; may IN' I continued and completod, mid special assess-ments pursuant to such proceedings may be lev- ied under the provisions of this section. (c) Initial procceding.s. (1) Alocal improvement hereunder shall begin with the passage at a regular or special meeting of the commission of a resolution ordering the same to be made under this section, indicating the location by terminal points and route, and either giving a de- scription of the improvement by its mate- rial, nature, character and size, or giving two or more such descriptions with the direction that the material, nature, charac- ter, and size be subsequently determined in conformity with one of such descriptions. A single resolution may embrace only one improvement or one improvement of each of two or more classes of improvements. An improvement need not be continuous and may be in more than one locality or high- way, but a highway or sidewalk improve- ment shall be practically uniform in cost and kind throughout the improvement, and a sanitary sewer improvement shall not provide for a curb sewer as a part of the improvement and a sewer at or near the middle of a highway as another part. No herein contained shall prevent the com- mission from excluding from any highway improvement that portion of the highway which has been improved by any railroad or any portion which the city may, under the franchise or contract with such rail- road, require it to improve. If the resolution orders a waterfront improvement or storm sewer irnprovenwnt, it shall designate the property which the commission deems will be specifically benefited thereby, and, if a waterfront improvement is ordered, the resolution shall indicate the proportion of the cost thereof which shall be borne by the city at large and the proportion thereof which shall be specially assessed. A resolu- tion may give any short and convenient designation to each improvement ordered Cl~ rP38 thereby. The property against which assess- ments are to be made for the cost of such improvement shall be designated as a dis- trict, followed by a letter or number or name to distinguish it from other districts, after which it shall be sufficient to refer to such improvement and property by such designations in all proceedings, assess- ments, and bonds, except in the notice provided by paragraph (e) of this section. (2) Designation of benefited property; appor- tionment of cost. if the initial resolution shall order a street development or a wa- terfront or wager main or storm sewer improvement, it shall designate the prop- erty which the commission deems will be specially benefited thereby (sometimes herein referred to as the "area of special benefits") and shall indicate the proportion or part of the cost thereof which shall be borne by the city at large and the propor- tion or part thereof which shall be specially assessed within the area of special bene- fits. The city shall bear one-third of the cost of storm sewers including any pumping station and outlet but excluding storm sewer laterals, and shall bear not more than 15 percent of the cost of street developments and not more than 15 percent of the cost of waterfront improvements and not more than 15 percent of the cost of water main im- provements, and the remainder shall be specially assessed within the area of spe- cial benefits. If the resolution shall also, as it may in the discretion of the commission, state the opinion of the commission as to the relative proportions of special benefits as between the several loth and parcels within such area, or as between different classes or different locations of property within such area, such statement of opin- ion shall not prevent the city manager from stating different proportions in the prelim- inary assessment roll, nor prevent the com- mission from changing any such propor- tions in sustaining or modifying such assessments indicated by said roll in the manner and under the conditions provided herein. V. wI 0r 1,40 L.r CHARTER 630 (d) Plans and specifications prepared by city manager and filed ulith city clerk. Promptly after the passage of said resolution, the city manager shall prepare and file with the city clerk plans and specifications of each improvement, ordered thereby and an estimate of the cost thereof, in- cluding an estimate of the cost of each kind of improvement if the resolution provides alterna- tive descriptions of material, nature, character, and size. Such estimate shall show the amount of cost and incidental expense to be assessed against property and, except in the case of storm sewer improvements, the estimated amount to be as- sessed against each foot of abutting property. The estimate made by the city manager of the cost of a street development or a storm sewer or water- front or water main improvement shall show the estimated amount of cost and incidental expense to be assessed against all property in the area of special benefits, but shall not show any estimated assessment against any particular property within the area, or against any frontage or portion of such property. (e) Cost or improvements. The cost of improve- ments shall include: (1) labor and material; (2) in waterfront and street development im- provements, the cost of any property pur- chased, condemned, or otherwise acquired, including court costs, attorneys' fees, and other expenses incident to such acquisi- tion; (3) damages paid or to be paid for injury to property by change of grade or drainage, including court costs, attorneys' fees, and other expense incidental to the determina- tion of damage; (4) the cost of retaining walls, sidewalks, or fences built or altered in lieu of cash pay- ment for such property damage or acquisi- tion, including the cost of moving or alter- ing any structure; and (5) the cost, whether in the nature of damages or otherwise, of establishing a building setback line or lines. (f) Publication of notice of hearing. The city clerk, upon the filing with him or her of such plans, specifications, and estimates, shall publish once in a daily newspaper of general circulation in the city a notice stating that at a meeting of the commission on a certain day and hour, not earlier than 10 days from such publication, the commis- sion will hear the objections of all interested persons to the confirmation of said resolution. Such notice shall state in brief and general terms a description of the proposed improvement, shall state the location thereof, shall clearly describe any area of special benefits, and shall state that plans, specifications, and estimates of the cost thereof are on file in the office of the city clerk. (g) Nearing objections, repeal or confirmation. At the time named in said notice or at an adjourn- ment thereof, the commission shall receive any objections of interested persons and repeal or confirm said resolution with such amendments as may be desired by the commission and which do not change in any way the location of the improve- ment or improvements; provided, however, that such resolution shall not be confirmed if the estimate or improvement to which it relates con- tains items which cannot be properly charged to the property owners, or has any defect which renders it, void or voidable in whole or in part, or exceeds the power of the commission. (h) Recordation of resolution and estimates. Within, two days after such confirmation, the resolution confirming the same, together with the estimate submitted, shall be recorded by the city clerk in a special book to be kept for that purpose, which book shall be known as the "improvement and assessment book" and which book shall give the description by lot and block number of all pieces of property affected, together with the estimated amount assessable against each lot or portion thereof which abuts upon or is benefited by the improvement or improvements. Said book shall be kept in such a way that any person can readily ascertain the assessment against any piece of property affected. (i) Mariner of making objections. All objections to any improvement resolution or to the estimate to which it refers on the grounds that it contains items which cannot be properly charged to the property owners or that it has any defect which renders it void or voidable in whole or in part, or CHT:39 0J- 420 _._. 630 CHARTER AND i RELATED LAWS that it exceeds the power of the commission shall j as to each improvement. The notice shall require be made in writing, in person or by attorney, and bidders to file with their bids either a certified filed with the city clerk at or before the time or check upon an incorporated bank or trust com- adjourned time of such hearing. Any objections pang for 21/-, percent of the amount of the bids or against the making of an improvement not so a bid bond. The bid bond shall be in like amount made shall bo considered waived. The confirma- with corporate .surety satisfactory to the city to Lion of the resolution shall be the final adjudica. insure the execution of a contract to carry out the tion of all objections presented unless proper work in accordance with such plans and specifi- steps are taken by the objector in a court of cations and to insure the filing, at the making of competent jurisdiction within 10 days to secure such contract, of a bond in the amount of the relief. contract price with sureties satisfactory to the city manager conditioned on the performance of (j) Publication of notice calling for bids. As the work in accordance with such contract. The soon as practicable after the confirmation of any commission shall have the right to reject all bids such resolution ordering work to be constructed, and if all bids are rejected the commission (may] the city clerk shall publish at least once in a readvertise or determine to do the work by the newspaper of general circulation in the city, and if city labor forces without contract. the estimated cost exceeds $5,000 in a newspaper ik) Preparation and contents of preliminary of general circulation throughout the state, a osses<ement roll. Alter a contract has been entered ] notice calling for sealed bids to be received by the into for an improvement ordered in any resolu- i commission on a date not earlier than 15 days ! lion, or after an authorized improvement to be from the first publication in the local paper, or if done by the city s labor farce has been completed, said estimate exceeds $5,000, in each of said two the city manager shall prepare and file with the ! newspapers, for the construction of the work, city clerk a preliminary assessment roll which unless in such resolution the commission declared shall contain the following: its intention to have the work done by the city labor forces without contract. The notice may (1) Description of lots and lands within dis- refer in general terms to the extent and nature of trict. Adescription of the lots and parcels of j the improvement or improvements and may iden- land within the district, which in the case tify the same by the short designation indicated of waterfront and storm sewer improve - in the initial resolution and by reference to the ments shall include all property declared plans and specifications on file. If the initial by the commission in such improvement resolution gave two or more alternative descrip- resolution to be specially benefited thereby, tions of the improvement as to its materials, and in the case of the other improvements nature, character, and size, and if the commission shall include lots and lands which abut did not later determine a definite description, the upon the sides of that part of any highway notice may call for bids upon each of such descrip- to be improved or in which a sanitary tions. No contractor shall be required to take sewer, except a curb sewer, is to be laid and bonds, warrants, or certificates in payment; pay the lots and lands which abut, upon that ment shall be made in cash upon rrionthly esti- side or sides of any highway in or along mates of the city manager to an amount not which side or sides a sidewalk is to be greater than 97y� percent of such estimates, and constructed or a sanitary curb sewer is to { the balance due shall be paid in cash within 60 be laid. Such property, lots, and lands shall days after acceptance of the work. Bids may be include city property and land within the requested for the work as a whole or for any part city which abuts upon an intersection as l thereof separately, and bids may be asked for any herein defined; there shall also be given the one or more improvements authorized by the name of the owner of each lot or parcel, same or different resolutions, but any bid cover- where such can be ascertained, and in all I ing work upon more than one improvement shall cases save storm sewer improvements, a z be in such form as to permit a separation of cost statement of the number of feet of property i CHT-40 ,._ - CHARTER 1130 4 so abutting, which number of feet shall be and between the rails of each track known as the frontage. In the case of a and for the distance of 18 inches be - street development. of a storm sewer or yond each outer rail, including switches waterfront or water main improvement, and turn -outs; and when an assess - the said preliminary assessment roll shall ment of -such apportionment shall have describe the property in the area of special been confirmed against any such rail - benefits, but need not state the number of road, it shall constitute a lien upon all feet of property abutting any such improve- the franchises and property thereof to ment unless such statement is necessary in the same extent as other assessments describing property in the., area of special herein provided for constitute liens upon benefits, abutting or benefited property; pro- vided, however, that where any such (2) Description of railroad tracks. In the case railroad shall operate or be about to of highway improvement, a description of operate under any ordinance, contract any track or tracks of a railroad as herein or franchise which pro.ddes for the defined already laid or for the laying of amount, manner and condition of the which any franchise has been granted, payment of cost by such railroad, the within the portion of the highway or high- foregoing provisions as to such rail- ways to be improved, giving the number of road shall apply only to the extent the tracks, the distance between the tracks, same may not be inconsistent with any and the distance between the rails. such ordinance, contract or franchise. (3) Total cost. The total cost of the improve- (ii) To city —To the city shall be appor- ment which, if made by contract, shall tioned the cost of highway improve- ""` include the price stated therein or the price ments at intersections, except that part computed from the unit prices stated therein, of such intersection cost as is appor- taking into consideration minor changes tioned to railroads, and to the city and alterations found necessary, and inci- shall also be apportioned three -fourths dental expenses, actual or estimated. If the of the cost of the highway improve - city is to do the work itself, the cost shall ment abutting property. The word "in - include the actual cost of said work, and tersection" shall be deemed to include the incidental expenses, actual or esti- not only that part of the highway which mated. If the preliminary assessment roll is common to another highway, but is prepared and filed with the city clerk also that portion of highway which after the completion of the work, whether would be embraced within the exten- the work be done by city forces or by sion, if extended, of another highway contract, the total cost of the improvement entering into it or meeting it. In the therein stated shall be the actual cost. preliminary assessment roll, there shall be apportioned to the city such part of (4) Apportionment of cost. An apportionment the cost of a street development as may to be computed as follows, of the cost of have been determined by the initial each improvement: resolution, and to the lots and parcels IN HIGHWAY IMPROVEMENTS within the area of special benefits, (i) To railroads --To any railroad as herein there shall be apportioned the remain - defined, the track or tracks of which ing part of such cost. may be in or upon any portion of the (iii) To abutting owner —To abutting prop - highway or intersection to be improved erty shall be apportioned the remain - or to which any franchise for such ing cost of highway improvements. track or tracks shall have been granted, IN SIDEWALK IMPROVEMENTS there shall be apportioned the cost of (iv) To abutting owner —To abutting prop such improvement between the tracks erty shall be apportioned one-fourth of CHT:41 r; v L 130 CHARTER AND RELATED LAWS the cost of sidewalk improvements, and to the city shall be appwrtioned the other three -fourths of the cost of the sidewalk improvement, the lots within a block deemed to abut upon a side- walk although the latter extends be- yond the lots to the curb Line of an intersecting highway. IN SANITARY SEWER IMPROVEMENTS (v) For improcenrents at intersectiors—To the city shall be apportioned the cost of sanitary sewer improvements at inter- sections. (vi) For pumping station or outlet —To the city shall be apportioned the cost of any pumping station or outlet.. (vii) For laterals —To each lot or parcel to the property or curb line of which a sanitary sewer lateral is laid shall be apportioned the cost of that lateral. (viii) To abutting owner —The abutting prop- erty shall be apportioned either (a) three-quarters of the cost of a san- itary sewer except at intersec- tions, or (b) three-quarters of the cost of an eight -inch sanitary sewer except at intersections as such cost is estimated by the city manager (whichever be the lesser) not including herein the cost of laterals, pumping station or outlet. IN WATERFRONT IMPROVEMENTS (ix) To city —To the city shall be appor- tioned such part of the cost of water- front improvements as may have been determined by the initial resolution. (x) To lots and parcels —To the lots and parcels within the district shall be ap- portioned the remaining part of water- front improvements, IN ASSESSMENT OF INDIVIDUAL, LOTS (xi) According to special benefits or front- age —The amount of the cost of water- front improvements and storm sewers, excluding laterals, so apportioned to lots and parcels of land, shall in said roll be assessed to the several lots and parcels within the district in the pro- portion which the city manager deems to be in the proportion of special ben- efits each such lot or parcel will re- ceive, and the amount of cost of each highway, sidewalk and sanitary sewer improvement, except laterals, so appor- tioned to abutting property shall be assessed in said roll against such abut- ting property according to frontage; provided that in the case of highway and sidewalk improvements the corner lots shall be apportioned the cost of the improvement abutting that portion of the long side of the lot in excess of 50 feet in addition to the cost of the im- provement abutting the short side of the lot. Notwithstanding the foregoing, the amount of the cost of a street development or a storm sewer or a waterfront or water main improve- ment (excluding storm sewer laterals in the storm sewer improvements) which in the preliminary assessment roll is apportioned to lots and parcels of land in an area of special benefits, shall in said roll be assessed to the several lots and parcels within the area of special benefits in proportion to the special benefits which the city man- ager deems each such lot or parcel will receive. (1) Preliminary roll advisory only. The prelimi- nary roll shall be advisory only and shall be subject to the action of the commission as herein- after provided. W Notice of !rearing after fling preliminary assessment roll. Upon the filing with the city clerk of the preliminary assessment roll required by this section, the city clerk shall publish once in each of two successive weeks in a daily newspaper of general circulation in the city, a notice stating the class of the improvement and location thereof, and further stating that at a regular meeting of the commission held on a certain day and hour, not less than 12 days from the date of the first CHT:42 L_ CHARTER publication, all interested persons may appear and file written objections to the confirmation of said roll. (n) Hearing objections and actions thereon. At the time and place stated in such notice, the commission shall meet and receive the objections in writing of all interested persons. Then or thereafter, the commission shall either annul or sustain, or modify in whole or in part the prima facie assessment as indicated on said roil, either by confirming the prima facie assessment against any or all lots or parcels described therein, or by cancelling, increasing, or reducing the same, ac- cording to the special lx nefits which said commis- sion decides each said lot or parcel has received or will receive or, account of such improvement. If any property which may be chargeable under this section has been omitted from said preliminary roll or if the prima facie assessment has not been made against it, the commission may place on said roll an apportionment to said property. The commission may thereupon confirm said roll, but shall not confinn any assessment in excess of the special benefits to the property assessed, and the assessments so confirmed shall be in proportion to the special benefits. Forthwith after such con- fu-mation said assessment roll shall be delivered to the director of finance, and such confirmation shall be final and conclusive except as hereinafter provided. (o) Assessments against lots in excess of 50 percent of value. The commission shall not con- firm any special assessments against any lot or parcel of* land in excess of 50 percent of the value thereof as last fixed for taxation by or on behalf of the city. Any deficit from the application of this prohibition shall be charged to the city as a general charge. (p) Appeal to court, if the owners of any rail- road, lot, or parcel of land so assessed shall witlun 20 days fiom such confirmation file a written verified petition in a court of competent jurisdic- tion, setting forth that the amount so assessed against any property of the petitioner exceeds the amount of the special benefit the petitioner has sustained or will sustain by reason of such im- provement, or is out of proportion to benefits, or that the assessment is invalid for any reason 030 whatsoever, and shall at the same time file with the court clerk a written undertaking in at least the sum of $200, with a good and sufficient surety, to the effect that the petitioner will pay to the city all costs and damages to be sustained by it. by reason cf such proceeding, and shall, within 10 days from such confirmation, deliver to the city manager a copy of said petition, then the validity of such assessment against said property shall be determined in the judicial proceeding so begun. Within 10 days after the delivery of said copy of petition to the city manager, the city manager shall answer the said petition, and the case shall be heard upon such petition and answer and upon such evidence as may be presented to the court. (q) Amount of assessment set aside by court may be charged to city or new assessment roll may be prepared. The amount of the special assess- ment against any lot or parcel which may be set aside by the court, unless the assessment upon the entire district is set aside, or the amount by which such assessment is so reduced, may by resolution of the commission be made chargeable against the city at large; or, in the discretion of the commission, a new assessment roll may be prepared and confirmed in the manner hereinabove provided for the preparation and confirmation of the original assessment roll, except that no notice of hearing upon such roll need be published or given as to any property unless the assessment against it is increased. The commission shall take prompt action as herein provided in case of the reduction or invalidation of any assessment, and any such action shall be noted by the director of finance on said assessment roll, unless a new roll shall be made and confinned in which case the former roll shall be a nullity and the right of petition to the circuit court as to the amounts apportioned by the new roll shall again be in force as to such new roll. The costs of any such proceed- ings shall be paid by the party complaining of such assessment, unless the said assessment is abated or is reduced by the court 10 percent or more, and judgment shall be rendered against him for the amount of such costs; in case such assessment shall be abated or shall be reduced 10 percent or more, such costs and expenses shall be paid by the city and judgment shall be entered against it for the amount thereof. CHT:43 V � — p'i 0 4� 14 C1iARTER AND RELATED LAWS (r) 71 me and manner of payments. Thirty days after the confirmation of the assessments, the amount apportioned and assessed sliall be due and payable at the office of the director of finance, except as to any property, including railroads, whose owner shall have filed a potition in the circuit court as hereinabove provided, which as- sessments shall be due and payable I days after the decision of the court thereupon but not within said 30 days; but it shall be lawful for the com- mission to provide by resolution that if the owner of any lot or parcel assessed in excess of $25 shall file with the director of finance on such date on which full payment is required a written under- taking waiving all irregularity and illegality in connection with the said assessment against such lot or parcel, such owner shall have the privilege of paring the same in equal annual installments in each of the 10 succeeding years or such period as may be fixed by the commission, at the time in said years at which the general city taxes are due and payable, with interest upon such deferred installments at the rate of 5 percent per annum, payable annually from the date such assessment would be due if such undertaking were not filed; and upon the filing of any such undertaking, the assessments embraced by it shall be payable at the time or times so fixed, and with such interest, but any assessment whose payment shall be so deferred may be paid at any time when accompa- nied by the payment of interest accrued thereon and that which will accrue to the next succeeding annual date for payment; provided, however, that nothing herein contained shall be deemed to pre- vent the commission from extending the time in which such undertaking as to any one or more lots or parcels of land shall be filed. (s) Assessment constitutes lien; failure to pay installments. The said assessments shall consti- tute a lien u flan the property so assessed from the date of the passage of the resolution ordering the improvement. The lien shall be of the same na- ture and extent as the lien for general city taxes and shall be collectible in the same manner and with the same penalties and under the same provisions as to sale and forfeiture as city taxes are collectible. Collection of such assessments may also be made by the city by proceedings in a court of equity to foreclose the lien of assessments as a lien for mortgage is or may be foreclosed under the laws of the state; it shall be lawful to join in any foreclosure suit any one or more lots or parcels of land, by whomsoever owned, i f assessed for an improvement ordered by the same resolu- tion; provided, that failure to pay any installment of principal or interest of any assessment when such installment is due shall, without notice or other proceedings, cause all installments of prin- cipal remaining unpaid to be forthwith due and payable, with interest thereon at 6 percent per annum; but if before any sale of the property for delinquent assessments the amount of such delin- quency is paid with all penalties, interest, and costs, further installments of the principal shall cease to become due and payable and shall be due and payable at the times scat forth in or contem- plated by said written undertaking. (t) Assessments pledged to pay principal and interest of bonds or deposited to credit of any capital improvement fund. All such assessments made under this section since the twenty-first day of August, 1923, and hereafter to be made, for local improvements financed in whole or in part from the proceeds of bonds issued under the provisions of this section are hereby pledged to the payment of the principal and interest of the bonds authorized by this section and issued since the twenty-first day of August, 1923, or hereafter to be issued, and shall when collected be placed in the fund now known as "improvement fund no. 19", which fund shall make no distinction or separation among the assessments for different improvements and shall be used solely for the payment of the principal and interest of such bonds as the same fall due. All or any of such assessments made under this section for local improvements for which bonds are issued under any other section of this charter or under any other general or special law or for which any other funds may be made available by the city may be placed in said improvement fund no. 19, or may be pledged to the payment of the principal of and interest on such bonds, or may be deposited to the credit of any capital improvement fund of the city, as the commission shall determine. (u) Authorisation of issuance of bonds. On or after the confirmation of the resolution ordering an improvement or improvements, the commis- C HT-44 L CHARTER sion may by resolution issue bonds of the city for the payment of the entire cost or any part thereof, including incidental expense, and for the reim- bursement of any fund of the city from which any part of such cost shall have theretofore been paid, in an amount not greater than the estimate herein provided of the cost and incidental ex- pense, which estimate, if' the initial resolution shall have given two or more alternative descrip- tions of the improvement by its material, nature, character, and size, with estimates as to each description, shall be the lowest of such estimates; but no bonds shall be issued in excess of the contract price and estimated cost of incidental expenses unless such bonds shall have been de- livered or sold or advertised for sale prior to the making of such contract. If bonds are authorized after such contract is made, they may be issued to the full amount of such contract and the amount paid, or the amount awarded in eminent domain proceedings, for any land, rights, and easements necessary to be acquired for the improvement, and the estimated incidental expense; a finding by the commission of the amount of a contract or of the amount so paid or awarded for land, rights, or easements, or the amount of incidental ex- penses, shall be conclusive for the purposes of this paragraph. An issue of bonds need not be limited to one L-nprovement, and bonds may be issued in one or more series for all or a part of the cost of any one or more improvements. Each series of bonds shall mature in annual installments on such date in each year and in such amounts as the commission may determine, beginning not more than two years from their date, nor extending beyond 12 years from their date, and no option of prior redemption of such bonds sliall be reserved; such bonds shall bear interest not greater than 6 percent per annum, payable semiannually, and the principal and interest payable in such me- dium and at such place as the commission may determine. Such bonds shall be the absolute, general, and direct obligations of the city and shall be issued only in denominations of $500 or S 1,000, with interest coupons attached. They shall be sold by the commission after publishing at least 10 days before receipt of bids therefor a notice calling for such bids and shall not be sold at less than par and accrued interest; provided that by unanimous vote of all members of the commis- 4 30 sion such bonds may be sold at private sale without advertisement and may be sold at a price not less than $0.97 on the dollar and accrued interest. They may be made registrable as to principal alone, or as to both principal and inter- est, under such conditions as the commission may determine and shall, %vith the coupons thereto attached, be executed as provided by the commis- sion. (v) Levy of tax to pay interest and principal of bowls. Notwithstanding the provisions made herein for the conservation and pledge of special assess- ments for the payment of such bonds and interest, the commission is hereby authorized and required annually to levy a special tax upon all taxable property within the city over and above all taxes authorized or limited by this charter or other laws, sufficient to pay the interest and principal of all such bonds at their several dates of matu- rity; the proceeds of all which taxes shall when collected be paid into the fund referred to in paragraph (r) [(t)] of this section, together with the special assessments in said fund contained; and said fund shall be used for no other purpose than the payment of such principal and interest; provided, however, that the amount of the annual tat levy herein required may be reduced in any year by the amount then contained in said fund, it being the intention hereof to provide that such bonds be payable by general taxation as other bonds of the city, but that the additional security provided herein by way of special assessments will reduce the amount of such general taxation. (w) Issuance of bonds not submitted to voters. It shall not be necessary to submit to the voters the proposition of issuing any such bonds or making any such improvements or special assessments or any other matter or thing herein authorized; the initiative and referendum provisions of the char- ter shall not be applicable; all proceedings of the commission herein provided for may be taken by resolution, which resolution shall be in force from and after its passage. (x) Bonds may be issued to amount of unpaid assessments. In all cases in which assessments or charges against property have heretofore been or shall be made for improvements authorized here- under for which assessments or charges the city CHT:45 �-- , 20 430 CHARTER AND RELATED LAWS shall hold liens upon abutting or benefited prop- erty not pledged to the payment of any bonds or other obligations, bonds of the city may be i sued to the amount of such unpaid assessments or charges, of the character and in the manner in this section provided for other bonds; the proceeds of such bonds shall be used in repaying to any fund of the city any amounts which have been paid therefrom upon the cost of the improvement. for which such assessments or charges are made, and in paying any sums remaining due upon such cost; and after the issuance of bonds under this paragraph, such assessments and charges when collected shall be placed in the fund referred to in paragraph (r) [(0] of this section, and be subject to the provisions of this section concerning said fiend. (y) Ratification of resolutions and contracts. All resolutions heretofore passed and confirmed and not repealed which have ordered improvements which might be initiated under this section as amended in 1925, and which declared the inten- tion of the commission to proceed under [former] section 56 of this charter, and all contracts here- tofore made for the construction of improvements ordered thereby are hereby ratified; the improve- ments so ordered may be made and the procedure therefor continued under this section as so amended; the provisions of this section shall ap- ply to the advertisement and letting of the con- tracts, the making of assessments, the signing of waivers, the issuance of bonds, and all other details herein, except as any of said steps may already have been taken. (z) Proceeds of bonds in excess of costs. Where the proceeds of bonds issued or to be issued under this section have been or shall be found to exceed the costs of the improvements for which such bonds were or shall be issued, such excess may be transferred by the commission to a fund to be created by it for use only in paying the city's share of the costs of other local improvements made under this section. (aa) Notice of hearing of objections to accep- tance of improvements. As soon as any improve- ment has been completed, the commission shall cause a notice to be published in a newspaper of general circulation in the city, stating that at a meeting of the city commission to be held at a certain day and hour, not fewer than 10 days from the publication of such notice, the commission will hear any objections of persons interested in or affected by the said improvement as to the acceptance thereof by the commission. At the time and place mentioned in said notice., said commis- sion shall hear such objections, if any, and may then or thereafter accept the said improvement. (bb) Allowance and credit for improvements already made. The commission may make allow- ances and grant credit to property owners for improvements previously made by such property owners to the extent, and only to the extent, that said existing improvements be of value and utility as a part of the improvements for which such assessment is made; and the commission may prescribe a plan or system for fixing and deter- mining said allowances and credits. (cc) Description try reference to subdiuision. In fixing the assessments herein provided for, when- ever any such land has been surveyed or subdi- vided and platted into small tracts designated as lots or blocks or otherwise, and the owner of any land embraced in the said survey or subdivisions has recognized such survey or subdivision by reference thereto in making any conveyance of land therein, or by selling any lands therein by reference thereto, then, and in that event, the land embraced in such subdivision may be de- scribed for assessment purposes by reference to such subdivision whether or not any plat thereof has been recorded. (dd) Surface privies, septic tanks, and the like. The commission shall have power to authorize and require the use of surface privies, septic tanks, and other devices for the disposal of sew- age where connection with sanitary sewers is deemed by the commission to be impracticable; to regulate and control the location, construction, maintenance, care and use of the same; to compel the payment to the city of reasonable charges for its sanitary services in connection therewith; to make the said charges a lien upon the houses, lands, and premises served; and where connection with sanitary sewers is deemed by the commis- sion to be practicable, to prohibit, destroy, and CHT:46 J �- 14 V WO CHARTER forbid the use of surface privies, cesspools, and all other devices for the disposal of sewage, except sanitary sewers. (ee) Immaterial irregularities and illegalities. The purpose of this act being to provide an eco- nomical method by which local improvements may be made, it is hereby declared that no irreg- ularity or illegality in connection with any of the proceedings herein authorized shall in any way affect the validity of the orders for such improve- ment or special assessment or bonds or contracts, unless such irregularity or illegality substantially affects the rights of said city or its inhabitants or the owners of property assessed for such improve- ment. (ft) Supplemental assessment to correct omis- sions, errors and mistakes. In case of any omis- sions, errors, and mistakes in making the assess- ments, or in case of deficiencies, unless the commission or the court determines that the assessments already made fully equal the amount of special benefits, a supplemental assessment may be made for such deficiencies, errors, omis.. sions, or mistakes; such supplemental assess- ments shall be made in the same manner and after the same notice hereinabove provided for the original assessments and shall be a lien to the same extent, be payable in the same manner, draw the same rate of interest, be subject to the same penalties, and be in force and collected in the same manner as such original assessments. (gg) Copies of ussessments as evidence. A copy of any assessment certified as correct by the director of finance shall be admissible in evidence and shall be prima facie proof of the amount of the assessment and the property upon which such assessment is levied. (hh) Real property of county, school districts and political subdivisions. Dade County and any school district or other political subdivision, wholly or partly within the city, shall possess the same power and be subject to the same duties and liabilities in respect of said assessments affecting their real property that private owners possess or are subject to hereunder, and such real property of said county, school districts, and political sub- divisions shall be subject to liens for said assess- 130 ments in all cases where the property would be subject had it, at the time the lien attaches, been owned by a private. owner. (ii) Sideicalks; rubbish, weeds and trash. The commission shall have the power by resolution or ordinance to prescribe the width of every, side- walk in the city and the material of which the scone shall be constructed. The commission shall have power on such notice as may be prescribed by resolution to require owners of property to lay, construct, or repair sidewalks in front of their property. The commission shall also have the power on such notice as may be prescribed by resolution to require owners of property to clear the same of and destroy weeds, undergrowth, rubbish, debris, trash, and unsightly and unsan- itary matter; to fill in unsanitary excavations or depressions; and if the owner does not comply with any such requirement within the time pro- vided in the resolution, the commission may cause such work to be done and may make the cost thereof a charge against such property, a lien of the same extent and character as the lien herein provided for special assessments, which charge shall be forthwith due and payable unless the time for such payment is extended by the commis- sion, with the same penalties and with the same rights of collection and sale and forfeiture as obtain for city taxes. Nothing herein contained shall prevent the city from constructing sidewalks and providing for the payment therefor as else- where provided in this section. (jj) Connection with laterals. Where laterals shall have been constructed or ordered, the com- mission may require property owners to connect their premises with the laterals and may provide by general ordinance that in case of their refusal after notice is given, the said connection shall be made by the city and the cost thereof shall con- stitute a lien upon the house, land, and premises thereby affected. The notice last above provided for may be by service on the owner of the property or the agent who collects his rent, or the occupant. of said property, or in the case the said property is unimproved, by posting such notice on the prop- erty. The city commission may provide by general ordinance that upon application and showing of CHT:47 L CHARTER AND RELATED LAWS financial hardship by the property owner, the connection of the property owner's premises with the lateral may be made by the city and the costs thereof be provided for from any fund: available for sanitary sewer construction and shall consti- tute a lien upon the house, land, and premises thereby affected. The said lien shall be payable in equal annual installments with interest for any period of years provided for by the city commis- sion in the general ordinance. Said equal annual installments with a rate of interest as provided for in the general ordinance shall be due from the date such lien is filed at the time in said years in which the city general taxes are due and payable. (kk) Apportioning cost of sanitary or storm sewer laterals. In lieu of apportioning the cost of each sanitary or storm sewer lateral to the lot or parcel to the property or curb line of which it is laid as provided in this section, it shall be lawful for the city commission to provide in any resolution or- dering the construction of two or more such lat- erals, for the apportionment to each lot or parcel to the property or curb tine of which any such lateral is laid, of the average cost of each lateral, computing such average by dividing the total cost of all the sanitary sewer or storm sewer laterals ordered by said resolution, including incidental expense, by the number of such sanitary sewer laterals or storm sewer laterals, as the case may be; provided, however, that the provisions of this section shall not apply to sanitary sewer laterals connecting with a curb sewer; and provided, fur- ther, that any provisions of this section not adapted to the apportionment of cost authorized by this section may be disregarded in any proceedings which contemplate such apportionment. Sec. 31. Temporary bonds. The commission of the City of Miami, by reso- lution, may issue frorn time to time revenue bonds of the city; bearing interest at not more than 6 percent per annum, payable at the time of issu- ance or thereafter, for the purpose of providing funds in anticipation of current revenues, and may issue revenue refunding bonds, with like limitations as to interest, when deemed necessary to provide for the payment of any such revenue bonds or revenue refunding bonds at their matu- rity; no such revenue bonds or revenue refunding bonds shall mature later than the close of the fiscal year in which the same are issued, except that revenue refunding bonds issued in the last three months ofany fiscal year may mature either in said fiscal year or at any time in the ensuing fiscal year. Before the passage of any resolution authoriz- ing revenue bonds, the director of finance shall submit to the commission a statement showing: (a) the amount of uncollected taxes and reve- nues of the preceding fiscal year, (b) the amount of uncollected taxes for the current fiscal year, if theretofore levied, but otherwise the amount of the tax levy for the preceding fiscal year regardless of what part thereof remains collected, (c) the estimated amount of the uncollected revenues for the current fiscal year except- ing taxes, (d) the amount of all taxes and revenues em- braced in (a) and (b) and (c) above, which are sinking funds for the payment of bonds maturing after the current fiscal year, and (e) the face value of all bonds, notes, warrants, judgments, and other city obligations to pay money then outstanding or authorized, which have no fixed time of payment, or which by their terms are payable within one year and three months from the date of their respective issuance, except notes is- sued in anticipation of the receipt of the proceeds of the sale of bonds. The substance of such statement of the director of finance shall be recited in said resolution, and no revenue bonds shall therein be authorized whose face value, together with the amount of item (e), above, shall exceed 75 percent of the remainder obtained by subtracting item (d) from the sum of items (a), (b), and (c), above. Such revenue bonds and revenue refunding bonds shall be sold by the commission upon such terms as it may elect but shall not be sold at less than par value, except by a vote of at least four members of the commission, and then at a price of not less than $99 on the $100; but said resolution may authorize the director of finance to sell the CHT:48 CHARTER 032 bonds authorized by it at one time or from time to time as he deems for the best interest of the city, provided that any such authority to the director of finance shall specify the maximum amount of bonds to be issued, the maximum rate of interest, and the minimum price for which they may be sold. The proceeds of revenue bonds shall be paid into the treasury of the city to the credit of any one or more of the funds for which the uncollected taxes and revenue anticipated are to be collected, in such amount, and to such fund or funds as may be specified in such resolution, but the commis- sion shall not appropriate any greater amount of such proceeds into any one fund than can reason- ably be repaid therefrom to meet the payment of such bonds at their maturity; provided, however, that the validity of any such bonds shall not be affected by failure of the commission to comply with the last-mentioned direction. The proceeds of revenue refunding bonds shall be applied solely to the payment of the bonds for whose retirement they are issued. For the payment of said revenue bonds and revenue refunding bonds, and the interest thereon, the place of payirer.t shall be at such place or places in Florida or elsewhere as may be designated by the commission. The com- mission is hereby authorized to levy sufficient taxes upon all the taxable property within the City of Miami over and above all taxes authorized or limited by law, and said bonds shall be the absolute, direct, and general obligations of the said city. In each year at the time of the annual tax levy, there shall be included therein a tax for the payment of the principal and interest of any revenue bonds which have matured and remain unpaid, and any revenue refunding bonds, whether matured or not. It shall be the duty of said city, after the authorization of any revenue bonds or revenue refunding bonds, to reserve from current reve- nues, as received, except revenues for sinking funds for bonds maturing after the current fiscal year, a sum sufficient to meet the payment of such revenue and revenue refunding bonds at matu- rity, and the interest thereon. Authority to issue any or all bonds authorized hereunder by resolution may be revoked by reso- lution of the commission, thereby reducing the amount of authorized bonds and pro tanto reduc- ing the amount of current revenues which must be reserved for their payment. It shall not be necessary to submit such bonds or the resolution authorizing the same to a vote of electors or taxpayers, and the resolution autho- rizing the same shall be in force upon its passage. All revenue bonds and revenue refunding bonds issued by said city and now outstanding are hereby ratified and validated. Sec. 32. General bonds. (a) Power to issue; amount. The commission shall have power to issue bonds of the city for any municipal purpose, except for maintenance and repairs, and except for the running expenses of the city, to an amount, including debt then out- standing, of 15 percent of the assessed valuation of all real and personal property within the city limits as shown by the last preceding assessment roll of the city; provided, however, that bonds for street, sewer, sidewalk, and other public improve- ments, which are paid from special assessments, to the amount for which the city shall hold liens for uncollected special assessments, and tempo- rary revenue bonds as hereinbefore provided for shall not be subject to such limitation of amount nor be considered when computing the amount of bonds that may be issued under this section; and provided, further, that before the issuing of any bonds under this section, the proposition of issu- ing the same with the statement of the maximum amount and the purpose thereof shall be submit- ted to and ratified by the vote of a majority of the electors who are freeholders of the city voting thereon at an election called by ordinance, notice of which shall have been published once a week for a period of 15 days in a newspaper published in the City of Miami. (b) Denomination; interest maturity. Said bonds shall be in such denomination as the ordinance shall prescribe and shall bear interest not exceed- ing the rate provided for in the statutes of the State of Florida, both principal and interest to be payable in legal tender of the United States. The CHT:4g § 32 CHARTER A' MD RELATED LAWS principal of such bonds is to be due and payable at such time or times, not exceeding 30 years from the date thereof, as the commission may, in said ordinance, determine, but not longer than the probable life of any improvement for which the same are issued, as estimated by the commission and declared in such ordinance. Subject to the provisions of the respective ordinances authoriz- ing such bonds, the commission may by resolution consolidate into a single issue all or any part of the bonds authorized by any two or more such ordinances and approved by the freeholder elec- tors of the city. (c) Sale of bonds. Such bonds, when approved by the electors of the city, shall be sold by the commission after First advertising for bids there- for; provided, however, that said bonds shall not be sold for less than par and accrued interest, except that by vote of four -fifths of the commis- sion said bonds may be sold for not less than $98 on the $100 and accrued interest. The commission may reject any or all bids and readvertise. (d) Ordinance effective at passage. The said ordinance and any subsequent ordinance or reso- lution to carry out the purposes of the section shall go into effect immediately upon passage and shall not be subject to the right of referendum except as hereinbefore provided. (e) Taxes to pay interest and principal at matu- rity. The commission shall in each year, while any issue of bonds is outstanding, levy and collect a general tax upon all the t•_xable property within the city sufficient to pay the current interest thereon, and sufficient to provide for the payment of the principal thereof at maturity; provided, however, that if, at the time of any such levy, the city has received and holds moneys from any sources applicable to the payment of such princi- pal and interest and for which payment such money has been pledged, such annual tax levy may be reduced in like sum. (0 Borrowing in anticipation of proceeds from sale. At any time after ratification of a bond issue for advances to the United States Government for harbor improvement`s, at an election as in this section provided, the commission may borrow money for the purposes for which the bonds are to be issued, in anticipation of the receipt of the proceeds of the sale of the bonds. The commission may borrow money for the purposes for which the bonds are to be issued, in anticipation of the receipts of the proceeds of the sale of the bonds, and within the maximum authorized amount of the bond issue. Such loans shall be paid not later than three years after the time of election. The commission may in its discretion retire all or any part of such loans through government appropri- ations, current revenues, proceeds of the sale of property, or other funds in lieu of retiring the same by means of the bonds, but in the event of any such retirement of any such loan by any means other than the issuance of the bonds so voted, the commission shall amend or repeal the ordinance authorizing such bonds, so as to reduce the authorized amount of the bond issue by the amount of the loan so to be retired. Such amen- datory or repealing ordinance shall take effect upon its passage. Neither such amendatory or repealing ordi- nance nor such resolution authorizing a loan shall be subject to the right of referendum. Negotiable notes of the city shall be issued for all such loans, which notes may be renewed from time to time; money may be borrowed upon new notes from time to time for the payment of any indebtedness evidenced thereby, but all such notes shall mature within three years after the election upon the bonds. No money shall be borrowed at an interest rate exceeding six percent per annum. The said notes may be disposed of by public or private negotiations, without advertisement. The resolu- tion authorizing any such notes shall fix the actual or maximum face amount of the notes and the actual or maximum rate of interest to be paid, and the commission may delegate to any officer the power to fix such face amount and maturity and rate of interest within the limitations pre- scribed in this section, as well as the power to dispose of said notes, which shalt be executed in the manner prescribed in this section for the execution of bonds and which may have interest coupons attached, in the discretion of the commis- sion, to evidence interest to be paid; provided, however, that no bond anticipation notes as herein provided shalt be issued against bonds voted except against bonds voted for the purpose of harbor improvements in or adjacent to or near the CHT:50 1;20 L CHARTER 634 city or directly affecting the city within Miami Harbor and the approaches thereto, and the said bond anticipation notes as herein provided for are applicable only and limited to harbor improve- ments and sha11 not be issued for any other purpose. The said notes shall be submitted to and approved by the city attorney; his written ap- proval shall be placed upon each note or endorsed thereon. For the payment when due of the prin- cipal and interest upon such notes, all the taxable property within the city shall be subject to the levy of a sufficient tax to the same extent as is herein provided in the case of bonds authorized by this section. Sec. 33. Bond anticipation notes. At any time and from time to time after the issuance of bonds of the city has been authorized, whether such bonds be general, special, revenue or other obligations of the city, and, if the ap- proval of such bonds at an election is required, after the holding of such election, the commission shall have the power to borrow money for the purposes for which such bonds are to be issued in anticipation of the receipt of the proceeds of the sale of such bonds and within the authorized maximum amount of such bond issue. Any such loan shall be paid within three years after the date on which the issuance of such bonds is authorized or, if such bonds are approved at an election, within five years after the date on which such election is held. Bond anticipation notes shall be issued for all moneys borrowed under the provisions of this section; such notes may be renewed from time to time, but all such notes shall mature within the time above limited for the payment of the original loan. Such notes shall be authorized by resolution of the commission, which resolutions shall prescribe the denomination or denominations, the interest rate or rates not exceeding the maximum rate permitted by law or by the ordinance or resolution authorizing the issuance of the bonds, whichever shall be the lesser, the form and the manner of execution of the notes. Such notes may be sold at either public or private sale or, if such notes be renewal notes, they may be exchanged for notes then outstand- ing on such terms as the commission shall deter- mine. The commission may, in its discretion, retire any such notes by means of current reve- nues, special assessments, or other funds, in lieu of retiring them by means of bonds; provided, however, that before the retirement of such notes by any means other than the issuance of bonds, the commission shall amend or repeal the ordi- nance or resolution authorizing the issuance of the bonds in anticipation of the proceeds of the sale of which such notes are to be issued, so as to reduce the authorized amount of the bond issue by the amount of the notes so retired. Such amendatory or repealing ordinance or resolution shall take effect upon its passage and need not be published. All powers and rights conferred by this section shall be in addition to and supplemental to those conferred by any other general or special law and shall be liberally construed to effectuate the purposes hereof. Sec. 34. Execution of bonds. (a) As used in this section, the word "bonds" shall include all bonds, certificates, notes, and other obligations of the City of Miami, whether payable in whole or in part from the proceeds of taxes, revenues, or any other source. (b) All bonds authorized to he issued by the city under the provisions of this charter or under the provisions of any general, special, or local law and any interest coupons attached thereto shall be in such form, shall be executed in such manner, and shall bear such endorsements as may be provided by the commission; provided, however, that each such bond shall be manually signed by at least one officer of the city. In case any officer whose signature or a facsimile of whose signature ap- pears on any bonds or coupons shall cease to be such officer before the delivery of such bonds, such signature or such facsimile shall neverthe- less be valid and sufficient for all purposes as if the person had remained in office until such delivery. Any bond may bear the facsimile signa- ture of, or may be signed by, such persons as at the actual time of the execution of such bond are the proper officers to sign such bond, regardless of whether at the date of such bond such persons remain as such officers. (c) Any bonds issued by the City of Miami may be in coupon or in registered form, or both, as the CHT:51 0 �) 4 34 CHARTER AND RELATED LAWS commission may determine by ordinance or reso- lution. Provision may be, made for the registration of any coupon bonds as to principal alone and also as to both principal and interest, for the reconver- sion into coupon bonds of any bonds registered as to both principal and interest, and for the inter- change of coupon and registered bonds. (d) No commission or brokerage shall be paid either directly or indirectly for the sale of any bonds or other evidence of indebtedness of the city. Sec. 35. Municipal court. Editor's note --Municipal courts ha%,c been abolished pur- suant to amendment to the Fla. Cont., art. V, S 20(dH4), adopted 1972. Pursuant to instruction of the city the provi- sions of 4 35, as set forth in Laws of Fla., ch. 10847(1925) and amended by Laws of Fia., ch. 13098(1927 ), Laws of Fla., ch_ 22392(1943); and Laws of Fla., ch. 23403(1945), bane not been set forth herein. Sec. 3& Civil service. (a) Creation of board; appointment; terms of office; vacancies; rules and regulations. A civil service board of the city is hereby created and established. There shall be five members consti- tuting the said civil service board. Three shall be appointed by the commission, and two shall be elected by the employees of the city with civil service status, from said employees with such civil service status. The two so elected shall become members of the board when confirmed by the city commission. All members of the said civil service board shall sen•e for two years, and they shall take office as soon as appointed and quali- fied. The commission may remove any member of the board for cause, upon; stating in -writing the reasons for the removal, after allowing him or her to be heard by the commission in his or her own defense. Any vacancy shall be filled by the com- mission for the unexpired term. The city manager shall be authorized to prescribe the rules, regula- tions, and procedure for the holding of election for the purpose of electing the two members of the civil service board by the city employees with civil service status. (b) Chairperson; examiner; subordinates. Irnme- diately after appointment, the board shall orga- nize by electing one of its members chairperson. CHT:52 The board shall appoint a chief examiner who shall be a member of the board and who shall also act as secretary. The board may appoint such other subordinates as may by appropriation be provided for. (c) Unclassified acid classified service. The civil service of the city is hereby divided into the unclassified and the classified service. (1) The unclassified service shall include: (A) The city manager, his assistants, and secretarial staff; (B) The heads of departments, members of appointive boards, judges of the city court, the city clerk, chief of police, chief of fire division, and the superin- tendent of communications division; (C) Assistants to department heads: Assistant chiefs of the police division; All ranks in the police division above the classified position of polio captain; Assistant chiefs of the fire division; Chief of fire prevention; Director of training in the fire division; Battalion chiefs; Chief of fire rescue; Assistant to the superintendent of the division of communications; Director of corrections. (D) All attorneys employed by the city. The city attorney shall be the supervisor of all attorneys employed by the city. The city attorney shall have exclusive au- thority regarding, but not limited to appointment, removal and salary as to assistant city attorneys. The foregoing provisions of subsection (D) shall not apply to those attorneys in the classi- fied service of the city on November 1, 1972. Attorneys with permanent civil service rights appointed by the city attorney to any applicable unclassified position above, shall retain civil service rights in the position from which selected as may have accrued. aS- i'`�'0 L CHARTER $ 36 Personnel with permanent civil service rights appointed by the city manager to unclassified positions shall retain said civil (service) rights in the position from which selected as may have accrued. (2) The classified services shall include all positions not specifically included by this charter in the unclassified service. There shall be in the classified service three classes, to be known as the competitive class, non- competitive class, and labor class. (A) The competitive class shall include all positions and employment for which it is practicable to determine the merit and fitness of applicants by competi- tive examinations. (B) The noncompetitive class shall consist of all positions requiring peculiar and exceptional qualifications of a scien- tific, managerial, professional, or edu- cational character, as may be deter- mined by the rules of the board. (C) The labor class shall include ordinary unskilled labor. (Laws of Fla., ch. 24694(1947); Laws of Fla., ch. 31001(1955); Char. Amend. No. 2, 12- 1-&3; Char. Amend. No. 2, 1972, 10-7- 72; Char. Amend. No. 1, 12-1-74; Char. Amend. No. 3, 12-1-74; Char. Amend. No. 1, 11-4-75) (d) Rules; examinations; eligible lists; certirwa- tion of vacancies. Subject to the approval of the commission, the board shall adopt, amend, and enforce a code of rules and regulations which shall have the force and effect of law providing for appointment and employment in all positions in the classified service, based on merit, efficiency, character, and industry; shall make investiga- tions concerning the enforcement and effect of this article and of the rules adopted; and shall make an annual report to the commission. The chief examiner shall provide examinations in ac- cordance with regulations of the board and main- tain lists of eligibles of each class of the services of those meeting the requirements of said regula- tions. Positions in the classified service shall be filled from such eligible lists upon requisition from and after consultation with the city man - alter. When positions are filled, the employment officer shall so certify, by proper and prescribed form, to the director of finance and to the director of the department in which the vacancy exists. (e) Pronwtion. The board shall provide uniform rules for promotion to all positions in the classi- fied service. M Power of suspension, removal, fine, or demo- tion. CHI%53 (1) Any officer or employee in the classified service may be removed, suspended, fined, laid off, or demoted by the city manager or by the head of the department in which such person is employed, for any cause which will promote the efficiency of the service; but such person must be furnished with a written statement of the reasons therefor within five days from the date of the removal, suspension, fine, layoff, or demotion, and be allowed a reasonable time for answering such reasons in writing, which answer shall be made a part of the records of the board, with the suspension to take effect as of the date that such written statement is furnished. No trial or exami- nation of witnesses shall be required ex- cept in the discretion of the city manager or the head of the department. Any employee in the classified service who deems that he or she has been suspended, removed, fined, laid off, or demoted without just cause may, within 15 days of such action, request in writing a hearing before the civil service board to determine the reasonableness of the action. The board shall, within 30 days after appeal of the employee disciplined, proceed to hear such appeal. After hearing and considering the evidence for and against the employee, the board shall report in writing to the city manager its findings and recommendations. The city manager shall then sustain, reverse, or modify the action of the department director. Any member of the civil service board and the director of personnel may administer an oath to wit- nesses appearing before said board or be- fore said director in an investigation, disci- plinary or appeal proceedings, and they 0 436 CHARTER AND RELATED LAWS shall have the power to issue witness sub- poenas and to compel the attendance of witnesses. (2) The civil service board shall also have the right to remove or demote anv official or employee in the classified service upon written charges of misconduct made by any citizen, but only after reasonable notice to the officer or ernployc and after a full hearing. It shall also Ix� the duty of the board to fit a minimum standard of con- duct and efficiency for each grade in the service. Whenever it appears from the re- ports of efficiency made to said board for a period of six months that the conduct or efficiency of any employee has fallen below such minimum standard, that employee shall be called before the board to show cause why he or she should not be disci- plined. If upon hearing no reason is shown satisfactory to the board, the employee shall be removed, suspended, or demoted, as the board may determine. (g) Present employees. All persons in the em- ploy of the city holding positions in the classified service, as established by this charter. at the time it takes effect, shall, unless their position is abolished, retain same until discharged, demoted, promoted, or transferred, in accordance herewith. (h) Certificate of board on payroll account nec- essary before payment of classified service mem- ber. The treasurer or other public disbursing officer shall not pay any salary or compensation for service to any person holding a position in the classified service unless the payroll or account for such salary or compensation bears the certificate of the board, by its secretary, that the persons named therein have been appointed or employed and are perfonning service in accordance with the provisions of this charter and of the rules estab- lished thereunder. 6) Inuestigations and hearings. In any investi- gation conducted by the board, it shall have the power to subpoena and require the attendance of witnesses and the production thereby of books and papers pertinent to the investigation and to administer oaths to such witnesses. (j) No discrimination in classified service. No person in the classified service or seeking admis- sion thereto shall be appointed, demoted, re- moved, or in any way favored or discriminated against fmcause of political opinions or affilia- tions. No person holding a position in the classi- fied service shall take part in political manage- ment or affairs or in political campaigns during city working hours or with personal property belonging to the city. (k) Penalties, The civil service board, subject to the approval of the commission, shall determine the penalties for the violation of the civil service provisions of this charter. (1) Salaries of board and employees. The sala- ries of the civil service board and its employees shall be determined by the commission, and a sufficient sum shall be appropriated each year to carry out the civil service provisions of this char- ter. Sec. 37. Pension funds. (a) The commission of said city shall establish a fund or funds for the relief or pension of persons in the classified service of the city. The commis- sion, on behalf of the city, may receive gifts, devises, and bequests of money or property for the benefit of such fund or funds; may make contri- butions of public money thereto on such terms and conditions as it may see fit; and shall make rules and regulations for the management, invest- ment, and administration of such fund or funds. (b) The commission shall have power to make contracts of insurance with any insurance com- pany authorized to transact business in this state, insuring its employees or any class or classes thereof under a policy or policies of group insur- ance covering life or health or accident insurance or any two or more of such classes of insurance and may contract with any company granting annuities or pensions ar:d authorized to transact business within the state for the pensioning of such employees or any class or classes thereof; for any and all such purposes the commission may appropriate the funds necessary to pay premiums or charges incident to the carTyirg on of such policies or contracts. CHT:54 CHARTER Sec. 38. City planning and zoning board. (a) Compreheasire planning. The commission is empowered to plan for the future development of the city and, as an integral part of the planning process, to take all lawful actions necessary to implement plans made. In furtherance of this authority, the commission may undertake continuing comprehensive plan- ning programs and may adopt comprehensive plans to guide the future development of the city in order to preserve and enhance the present advantages of the city, to overcome present hand- icaps, and to prevent or minimize future prob- lems. Continuing comprehensive planning pro- grams and comprehensive plans that may be adopted may include, but are not to be deemed as limited to: (1) principles and policies to be followed in future development of the city, (2) location, relocation, and character of the various uses of land and water; (3) location, relocation, and character of public and private open spaces for recreation, amenity, and cultural life; (4) modes and means of travel and transporta- tion; (5) location and character of public buildings, services, and facilities; (6) provision of necessary utilities, (7) conservation, rehabilitation, or replace- ment of housing; (8) density of population; (9) methods and policies for encouragement of cooperation of private persons and groups in the accomplishment of adopted compre- hensive plans; (10) taxing and financial arrangements and long- range capital improvement programs deemed necessary to implement the plan- ning program; and (11) land -use control and regulatory measures and other instruments deemed necessary to accomplish the aims and objectives of adopted comprehensive plans. 138 (b) Authority to implement comprehensive plans. The commission is authorized to use all lawful powers conferred upon the city to implement comprehensive plans that may be adopted and to provide for the status of such adopted plans. Particularly, but not in limitation thereof, the commission is authorized to adopt and enforce: (1) controls on the use of lands and waters; (2) zoning of lands and waters; (3) regulations for the development or subdi- vision of land; ('4) building, plumbing, electrical, gas, fire, safety, sanitary, and other codes; and (5) minimum housing codes. (c) Creation of implementing hoards. The com- mission shall by ordinance create such appropri- ate board or boards as it may deem necessary to carry out the functions as set out in subsections (a) and (b) above. The commission may by ordinance provide for the establishment and method of composition of the board or boards; the number of members; the qualifications of members; the staggering of terms to insure board continuity; the method of filling vacancies; the method of removal; the comperisa- tion, if any; the participation of alternate mem- bers, if any, in board business; the general rules of organization, procedures, and conduct of busi- ness; the giving of notice and necessary public hearings on matters relating to the functions of the board or boards; and other matters deemed necessary by the commission to the proper func- tioning of such board or boards. The commission may by ordinance make provi- sion for the functions, responsibility, advisory or quasijudicial duties, and authority of the board or boards created by the commission. The commis- sion may by ordinance set out the standards and limitations under which such board or boards shall operate; the relationship of the board or boards to each other, to the commission, or to the courts as provided by law; and the method of review of any decisions of such board or boards. (d) Administrative support andappropriations. The commission shall provide such administra- tive arrangements, support, and appropriations CHT:55 ! F:d 638 CHARTER AND RELATED LAWS as it may deem necessary to enable the board or boards established under this section properly to perform their functions and meet their responsi- bilities and to insure that proper and necessary liaison is maintained between them and with the commission. (e) Task forces or commttiecs. The commission may by resolution appoint task forces or commit- tees to serve as advisory or recommendatory agents to the board or boards established under this section on particular problems relating to the areas of responsibility and authority of the par- ticular board. Sec. 39. Franchise and public utilities --Or- dinance requires four -fifths vote of commission; approval of ordinance by voters; limitation on duration of grant. (a) Requirements. No right, title, or interest of the city in and to the waterfront, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, and other public places and its gas, water, electricity, and other works, shall be sold except by authority of an ordinance passed by a recorded affirmative vote of four -fifths of all the members of the commission, and under such other restrictions as may be imposed by law. (b) Approval by voters. No ordinance granting, renewing or leasing the right to use the streets, alleys, public grounds, or buildings of the City of Miami to any private person, persons, firm or corporation shall become a law or effective in any way until the same has been approved by a majority of the qualified voters of the City of Miami, voting at an election held therefor and the question of its being granted, renewed or leased shall not be submitted to such vote except upon deposit with the city cleric of the expense of such submission (to be determined by the commission) by the applicant for such grata, renewal or lease; and no such grant, renewal or lease shall be for a longer period than thirty years and no such grant, renewal or lease shall be transferable except with the approval of the commission expressed by } ordinance; and copies of all transfers and mort- gages or other documents affecting the title or use of such grants, renewals or leases shall be filed with the city clerk within ten days after the execution thereof. Cave laws rcferrn"—. This section consUtut" limitation on bonvw-rng and lea -sing powers of city which has been nullified by FS. 4 166021(4) providing for municipal home rile. State v City of Miami, 379 So. 2d 651. Sinct neither the Municipal Home Rule Powers Act nor the Florida Constitution require electron to approve issuance of mvenue bonds which do not pledge ad valorem taxes, ekxtion 19 not necessary to approve financing of a project for a municipal purpose, and the city commission can approve such financing. Id. Cases prior to the above decision: Section quoted in Coast Cities Coaches v. !Miami Transit Co., 41 So. 2d 644. A nonexclusive contract with the city permitting a company to erect bus benches did not constitute a franchise under this section. City of Miami v. Bus Benches Co., 174 So. 2d 49, There is no conflict between this section and section 3(gg) of this Charter. This section applies to franchises and section 3iggt to contracts. City of Miami v. South NCiami Coach Linea, 59 So. 2d 52; City of Miami v. Bus Benches Co., supra Franchises on city property may be approved by city com- mission without submitting same to referendum, Rolle v. City of iiiami, 408 So. 2d 642 (3 DC A. 1981), interpreting F.S. J 166.021(4). (c) Powers confirmed. Nothing herein con- tained shall be construed as limiting or applying to the power of the city, which is hereby expressly conferred, to grant franchises or to enter into franchise contracts f-or the construction, mainte- nance, and operation of any general railroad over, along, or upon or across the streets, avenues, alleys, and public places of the city, provided, however, that no franchise or franchise contract for the construction, maintenance, and operation of any general railroad over, along, upon or across the streets, avenues, alleys, and public places of the city shall become effective until the approval thereof by a majority of the qualified electors voting thereon at a general or special election, notice of which shall be published in a newspaper in the city for a period of at least 15 days. (d) Rights of city retained. All grants, renewals, extensions, or amendments of public utility fran- chises, whether so provided by ordinance or not, shall be subject to the right of the city: (1) to repeal the same by ordinance at any time for misuse or nonuse or failure to begin construction within the time pre- scribed, or other failure to comply with the terms prescribed; CHT:56 e01.�al' i/ 9� y� CHARTER § 40 (2) to require proper and adequate extensions of plant and service, or the maintenance of the plant and fixtures at the highest prac- ticable standard of efficiency: (3) to establish reasonable standards of ser- vice and quality of products and prevent unjust discrimination in service or rates; and (4) to impose such other regulations as may be conducive to the safety, welfare, and accom- modation of the public. (e) Extension of public utility. All extensions of public utilities within the city limits shall become a part of the aggregate property of the public utility, shall be operated as such, and shall be subject to all the obligations and reserved rights contained in this charter and in any original grant hereafter made. The right to use and main- tain any extension shall terminate with the orig- inal grant. In case of an extension of a public utility operated under a franchise hereafter granted, such right shall be terminable under the same conditions as the original grant. (f) Subject to terms of charter commission and electors not limited. Every public utility franchise hereafter granted shall be subject to all the terms and conditions of this charter, whether or not such terms are specifically mentioned in the fran- chise. Nothing in this charter shall operate to limit in any way, except as specifically stated, the discretion of the commission or of the electors of the city to impose terms and conditions in connec- tion with any franchise grant. (g) Copies filed and recorded. Within sLx months after this charter takes effect, every public utility and every owner of a public utility franchise shall file with the city, certified copies of all the fran- chises owned or claimed or under which any such utility is operated. The city shall compile and maintain a public record of all public utility fixtures in the streets and other public places of the city. (h) Accounts. Accounts shall be kept for each public utility owned or operated by the city, dis- tinct from other city accounts, and in such man- ner as to show the true and complete financial result of such city ownership and operation, in - eluding all assets, liabilities, revenues, and ex- penses. The accounts shall show the actual cost to the city of each public utility owned; the cost of all extensions, additions, and improvements; all ex- penses of maintenance; the amount set aside for sinking fund purposes; and, in the case of city operation, all operating expenses of every descrip- tion. The accounts shall show as nearly as possi- ble the value of any service furnished to or ren- dered by any such public utility by or to any other city or governmental department; they shall also show a proper allowance for depreciation, insur- ance, interest on the investment, and estimates of the amount. of taxes that would be chargeable against the property if privately owned. The com- mission shall annually cause to be made and printed for public distribution a report showing the financial results of such city ownership and operation, which report shall give the information specified in this section and such other informa- tion as the commission may deem expedient. (i) Effect on previous grants. Nothing contained in this charter shall be deemed to abrogate or terminate any right or franchise heretofore granted by the city to any public utility, provided that all public utilities now in existence shall comply with the requirements of this charter and all ordi- nances enacted pursuant thereto. 0) Exclusive franchises prohibited. No exclu- sive franchise or extension or renewal thereof shall ever be granted. Sec. 40. Subdivisions. (a) Plat requirements. Any owner of lots or grounds within the city who subdivides sarne for sale shall cause to be made an accurate plat of said subdivision describing with certainty all grounds laid out or granted for streets or other public uses. Lots intended for sale shall be num- bered by progressive numbers or described by the squares in which situated, and the precise length and width shall be given of each lot sold or intended for sale; such plat shall be subscribed by the owner, acknowledged before an officer autho- rized to take the acknowledgement of deeds, ap- proved by the director of public works, and rf-- corded in the office of the clerk of circuit court it and for Dade County, Florida. No such plat sha!'. CHT:57 4�� �,V0 ,640 CHARTER AND RELATED LAWS be approved unless it clearly gives an accurate description of the property showing section cor- ners or quarter -section corners or at least tying the property to one or more sections or quarter - section corners or government monuments. (b) Superuisor of plats. The director of public works shall be supervisor of plats of the city and shall provide regulations governing the platting of all lands so as to require all streets and alleys to be of proper width, to be coterminous with adjoining streets and alleys, and otherwise to conform to the regulations prescribed. Whenever said director shall deem it expedient to plat any portion of territory within the city limits, within which the necessary streets or alleys have not already been accepted by the city, so as to become public streets or alleys, or when any person plats land within the corporate limits or within two miles thereof, the director of public works shall, if such plats are in accordance with the prescribed regulation, endorse his or her written approval thereon. No plat subdividing lands within the corporate limits of the city or within two miles thereof shall be entitled to record in the office of the clerk of the circuit court in and for Dade County, Florida, without such written approval. (c) Streets or alleys not accepted unless laid dawn on plat. No streets or alleys except those laid down on the plats referred to in this section and bearing the approval of the director of public works, as hereinbefore provided for, shall subse- quently in any way be accepted as public streets or alleys by the city, nor shall any public funds be expended in the repair or improvement of streets and alleys subsequently laid out and not on such plat. This restriction shall not apply to a street or alley laid out by the city nor to streets, alleys, or public grounds laid out on a plat by or with the approval of the director of public works. (d) Acceptance and confirmation of street or alley dedication. No streets or alleys hereafter dedicated to public use by the owner of ground in the city shall be deemed a public street or alley, or under the care and control of the commission, unless the dedication be provided in the plat or by warranty deed or other instrument of grant; un- less the grant be accepted and confirmed by resolution passed for that purpose; and unless the provisions of this charter relating to subdivisions shall have been complied with. Sec. 41. Conduct of a city business; compen- sation, duties, and oaths of officers and employees. (a) Books and records. All books, records, and documents used by any city officer in his [or her] office or pertaining to his (or her] duties shall be deemed the property of the city, and the chief officer in charge of such office shall be responsible therefor. Any such officer or person made by this section responsible for the keeping of such books, records, and documents shall, within three days after the end of his or her term of office, or within three days afl.ar the date of his or her resignation or removal from office, as the case may be, deliver to the city clerk or to his or her successor in office all such books, records, and documents. Any such officer or person failing to deliver such books, records or documents as required by this section shall be deemed guilty of an offense against the city, and upon conviction thereof shall be fined not more than $$500 or imprisoned for a period not exceeding 60 days. (b) Of we hours; availability of books and records. The commission is hereby authorized and empow- ered, by appropriate ordinance, to fix the days and hours during which all public offices of the city shall be kept open for business. All books and records of every office and department shall be open to the inspection of any citizen at any time during such business hours, subject to the proper rules and regulations for the efficient conduct of the business of such department or office. (c) Bonds of officers. Except in the case of officers whose bonds are specifically provided for by this charter, the commission shall determine, by resolution, whether officers, clerks, or employ- ees shall give bond and, if so, the amount or penalty thereof. All officers required by this char- ter to give bond, and all officers, clerks, and employees of whom bond is required by the com- mission shall before entering upon their respec- tive duties give bond with surety to be approved by the commission, conditioned on the faithful performance of the duties of their respective of- CHT:58 L CHARTER flees. Such bonds, unless otherwise specifically provided by this charter, shall be payable to the city and shall provide such penalty as the com- mission may by resolution prescribe. The commis- sion shall accept as surety on any such official bond a good, solvent surety company authorized to do business in the State of Florida. The pre- mium on any such fond shall be paid by the city. Unless otherwise specifically provided in this charter, all such bonds shall be filed with and preserved by the city clerk. (d) Compensation of offt.ers and emplcwces. The commission shall fix by ordinance the corn- pensation of the city manager, heads of depart- ments, municipal judges and the city clerk. The city manager shall fix the number and salaries or compensation of all other officers and employees. The salaries or compensations so fixed shall be uniform for like service in each grade of the service as the same shall be graded or classified by the city manager in accordance with the rules and regulations adopted by the civil service board. All fees and moneys received or collected by officers and employees shall be paid into the city treasury. Case law reference —Peremptory writ of mandamus held improper to compel the city manager to grant increases in salaries of police officers in accordance with resolution of city commission authorizing such increases where refusal of city manager to grant the authorized increases was "uniform for like service in each grade of the service Reese v. Golden, 209 So. 2d 490. (e) Oath of office. Every officer of the city shall, before entering upon the duties of office, take and subscribe to an oath or affirmation, to be filed and kept in the office of the clerk, that he or she will support, protect, and defend the constitution and laws of the United States and of the State of Florida and in all respects faithfully discharge the duties of the office. (f) Clerk may administer oaths. The city clerk of the City of Miami, Florida, shall have the power and is hereby authorized to administer oaths. Sec. 42. Power to appoint boards or commis" sions of citizens. The commission may, at the request of the mayor or the city manager, appoint boards or Supp. No. 2 143 commissions, to be composed of such number of citizens as the commission may deem expedient to act in an advisory capacity in conjunction with any one or more of the department:, created or authorized herebv. The members of all such boards and commissions shall serve without compensa- tion, and may be removed at any time by a majority vote of the commission. (Res. No. 97-447, § 2, 7-3-97) Sec. 43. Continuity. (a) All city ordinances, resolutions, and regu- lations in force at the time this charter takes effect, and not inconsistent with the provisions hereof, are hereby continued in force until the same shall be duly amended or repealed. (b) Present ofcers and powers. All persons holding office in or employed by the city at the time this charter goes into effect shall continue in such office or employment and in the performance of their duties until provisions shall have been otherwise made in accordance with the provisions of this charter for the performance or discontinu- ance of the duties of any such office or employ- ment. When such provisions are made the term of any such officer shall expire, and the office shall be abolished. The powers which are conferred and the duties which are imposed upon any officer, board, commission, or department of the city under the laws of the state, shall, if such officer, board, commission, or department is abolished by this charter, be thereafter exercised and dis- charged by the officer, board, or department upon whom are imposed corresponding functions, du- ties, and powers under the provisions of this charter. (c) Present contracts and proceedings. All rights, actions, proceedings, prosecutions, and contracts of the city or of any of its departments or officers, pending or unexecuted when this charter goes into effect, and not inconsistent therewith, shall be enforced, continued, or completed, in all re- spects, as though begun or executed hereunder. (d) Present titles and rights. The title, rights, and ownership of property, uncollected taxes, dues, claims, judgments, decrees, and chosen in action, held or owned by the city at the time of the CHT:b9 �- 20 L 43 CHARTER A.N'D RELATED LAWS adoption of this charter shall pass to and be vested in the municipal corporation hereby orga- nized to succeed such municipality. (e) Acts under former charters. All acts and proceedings of the commission or of any officer of the city done or taken pursuant to the provisions of the previous city charter are hereby ratified. Sec. 44. Suits against the city. No suit shall be maintained against the city for damages arising out of any tort, unless written notice of such claim was, within sixty days after the day of receiving the injury alleged, given to the city attorney with specifications as to time and place of the injury. It shall be the duty of the city attorney, upon receiving such notice, to promptly investigate the matter and lay the facts, supported by the evidence, before the city com- mission in a written report, and the commission may, by resolution, after investigating, make rea- -onable settlement for the injury suffered, or deny -lability and direct the city attorney to defend any suit brought for the recovery of damages. Editor's note —This section is now substantially super- seded by F.S. § 768.28. Sec. 45. General provisions. (a) Codifi-cation of ordinances. The commission may at any time appoint a person or persons and authorize them to arrange and codify the ordi- nances of the city and to publish such codification in appropriate volume or volumes, which shall become the laws of the city upon adoption by ordinance; provided, that in the exercise of the power by the commission to adept said codifica- tion, it shall not be necessary to publish said codification, the publication of the ordinance adopt- ing the same being sufficient to make said publi- cation binding as the law of the city. (b) Record of ordinances; evidence_. It shall be the duty of the city clerk to record all ordinances adopted by the commission within 10 days after their passage in a book kept for that purpose, properly indexed. A copy of any ordinance there- from, certified by the clerk under the seal of the -ity, shall be received in evidence in all courts of this state. Supp. Nu 2 (c) Ordaining clause. The ordaining clause of every ordinance shall be as follows: "Be It Or- dained by the Commission of the City of Miami". (d) Enumeration of potters not exclusive. The enumeration of particular powers in this charter shall not be deemed or held to be exclusive, but additional to the powers enumerated herein, im- plied thereby, or appropriate to the exercise thereof, the city shall have and may exercise all other powers which are now, or may hereafter be, pos- sessed or enjoyed by cities under the constitution and general laws of this state; and all the powers of the city, whether express or implied, shall be exercised and embraced in the manner prescribed in this charter, or when not so prescribed, then in such manner as may be proNided by ordinance or resolution of the commission. (e) General laws to apply. All general laws of the state, applicable to municipal corporations, heretofore or hereafter enacted and which are not in conflict with the provisions of this charter or with ordinances or resolutions hereafter enacted by this commission pursuant to authority con- ferred by this charter shall be applicable to the city; provided, however, that nothing contained in this charter shall be construed as limiting the power of the commission to enact any ordinance or resolution not in conflict with the constitution of the state or with the express provisions of this charter. (f) Effect of state law and present ordinances. Nothing in this act shall be so construed as to alter, abolish, affect or amend any of the laws of this state now in force or which may hereafter be enacted relative to towns and cities of the state incorporated under the general law, nor any of the ordinances of the city now in force, except such as are in conflict with the provisions of this charter; all such laws and ordinances are hereby declared to be in full force and effect. (g) Unconstitutionality of part of charter. If any section or part of this charter is declared invalid or unconstitutional, such declaration shall not be held to invalidate or impair the validity, force, or effect of any other section or part of this charter, unless it clearly appears that such other section CHT:60 il 0 �— / fVU ^, CHARTER {4 4fi or part is wholly and necessarily dependent for its operation upon the section or part declared in- valid or unconstitutional. (h) Effective Date. This charter snail take effect immediately upon being approved by a majority of the electors of the city voting at an election called for the pugl ose of approving this chatter. State lane reference—Niinimum procedural requirements for adoption of ordinances, F.S. f 166.041. Sec. 46. Bureau of legal aid. The commission shall have power to establish a bureau of legal aid under such rules and regula- tions as the commission shall prescribe, which bureau shall be under the direction of the director of public welfare. Editor's notA --Legal aid functions are at present handled r by the Dade County Bar Association. i Sec, 47. Credit to prisoners for work; costs i.n criminal prosecutions. Editor'o note. —Municipal courts have been abolished pur- suant to amendment to the Fla. Const, art. V, 20(dX4), adopted 1972. Pursuant to directions of the city, § 47, as set forth in Laws of Fla., ch. 10847(1925), has not been set forth herein. I i t f 4 t CHT:i71 i i Chapter 19.5 i FIRE RESCLTE ASSESSMENT* i i ; Article 1. In General l Sec. 195.1 Definitions { Sec. 19.5.2. Interpretation. Sec. 19.5-3. Findings. j Sec. 19.5.4, Legislative determinations of special benefit. Sec. 19.5-5. Applicability. Sec. 19.5.6. Alternative method. Secs. 19.5-7-19.5.20. Reserved. t Article 1I. Annual. Assessments Sec. 19.5.21. General authority. Sec. 19.5.22. Initial proceedings. ) Sec. 19.5-23 Initial assessment roll Sec. 19.5.24. Notice by- publication i Sec. 19 5-25. Notice by mail Sec. 19 5 26. Adoption of final assessment resolution. Sec. 19.5.27, Effect of final assessment resolution. i Sec. 19.5.28. Adoption of annual rate resolution. i Sec. 19 5.29. Lien. Sec. 19.5.30 { Revisions. 1 Sec. 19.5-31. Procedural irregularities. Sec. 19.5-32. Correction of errors and omissions. i } Sec. 19 5.33. Interim assessments. !j Secs 19 5-34-19 5-50 Reserved. t j Article II1. Collection and Use Sec. 19.5-51. Method of collection. 4 Sec 19 5-52 Alternative.hod f 11 me o co ectdon. Sec. 19.5.53, Government property. Sec, 19.5.54. Appeals. 1 i i 1 ""� *City Code cross references —Fire protection. ch. 19. FIRE RESCUE ASSESSMENT § 19.5.1 ARTICLE I. IN GENERAI, resolution and which shall be the final proceeding for the initial imposition of fire rescue assess - Sec. 19.5-1. Definitions. ments. As used in this chapter, the following words and terms shall have the following meanings, unless the contt,xt clearly otherwise roquires: :)Jznual ratr resolution means the resolution described in section 19.5-28, establishing the rate at which a fire rescue assessment for a specific fiscal year will be computed. The final assessment resolution shall constitute the annual rate reso- lution for the initial fiscal year in which a fire rescue assessment is imposed or reimposed. Assessed propert means all parcels of land included on the assessment roll that receive a special benefit from the delivery of the fire rescue services, programs or facilities identified in the initial assessment resolution or the preliminary rate resolution. Assessment roll means the special assessment roll relating to a fire rescue assessment approved by a final assessment resolution pursuant to section 19.5-26 or an annual rate resolution pur- suant to section 19.5-28. Building means any structure, whether tempo- rary or permanent, built for support, shelter or enclosure of persons, chattel, or property of any kuid. This term shall include mobile homes or any vehicles serving in any way the function of a building. Certificate of occupancy means the written cer- tification issued by the city that a building is ready for occupancy for its intended use. For the purposes of this chapter, a set up permit or its equivalent issued for a mobile home shall be considered a certificate of occupancy. City mean., the City of Miami, Florida. City commission means the governing body of City of .Miami, Florida. City manager means the head of the adminis- trative branch of the city as defined in the City Charter, or his designee. Final assessment resolution means the resolu- tion described in section 19.5-26 which shall con- firm, modify, or repeal the initial assessment Supp. No. 3 Fire rescue assessed cost means the amount determined by the city commission to be assessed in any fiscal year to fund all or any portion of the cost of the provision of fire rescue services, facil- ities, or programs which provide a special benefit to assessed property, and shall include, but not be limited to, the following components: (1) The cost of physical construction, recon- struction or completion of any required facility or improvement; (2) The costs incurred in any required acqui- sition or purchase; (3) The cost of all labor, materials, machin- ery, and equipment; (4) The cost of fuel, parts, supplies, mainte- nance, repairs, and utilities; (5) The cost of computer services, data pro- cessing, and communications; (6) The cost of all lands and interest therein, leases, property rights, easements, and franchises of any nature whatsoever; (7) The cost of any indemnity or surety bonds and premiums for insurance; (8) The cost of salaries, workers, compensa- tion insurance, or other employment ben- efits; (9) The cost of uniforms, training, travel, and per diem; (10) The cost of construction plans and speci- fications, surveys and estimates of costs; (11) The cost of engineering, financial, legal, and other professional sen•ices; (12) The costa of compliance with any con- tracts or agreements entered into by the city to provide fire rescue services; (13) All costs associated with the structure, implementation, collection, and enforce- ment of the fare rescue assessments, in- cluding any service charges of the tax collector, or property appraiser and amounts necessary to offset discounts re- CD19.5:3 0 1 "M t -~\ § 19.5.1 MIAMI CODE ceived for early payment of fire rescue assessments pursuant to the uniform as- sessment collection act or for early pay- ment of fire recur assessments collected pursuant to section 19.5-52; (1.1) All other costs and expenses necessary or incidental to the acquisition, provision, or construction of fire rescue services, facili- ties, or programs, and such other ex- penses as may be necessary or incidental to any related financing authorized by the city commission by subsequent resolu- tion; (15) A reasonable amount for contingency and anticipated delinquencies and uncollect- ible fire rescue assessments; and (16) Reimbursement to the city or any other person for any moneys advanced for any costs incurred by the city or such person in connection with any of the foregoing components of fire rescue assessed cost. Fire rescue assessment means a special assess- ment lawfully imposed by the city against as- sessed property to fund the fire rescue assessed cost imposed to fund all or any portion of the cost of the provision of fire rescue services, facilities, or programs providing a special benefit to prop• erty as a consequence of possessing a logical relationship to the value, use, or characteristics of property identified in the initial assessment res- olution or the preliminary rate resolution. Fiscal }•ear means that period commencing October 1 of each year and continuing through the next succeeding September 30, or such other period as may be prescribed by law as the fiscal year for the city. Government propertN, means property owned by the United States of America or any agency thereof, a sovereign state or nation, the State of Florida or any agency thereof, a county, a special district or a municipal corporation. Initial assessment resolution means the resolu- tion described in section 19.5-22 which shall be the initial proceeding for the identification of the Supp Nn.3 fire rescue assessed cost for which an assessment is to be made and for the imposition of a fire rescue assessment Ordinance means this fire rescue assessment chapter. Owner shall mean the person reflected as the owner of assessed property on the tax roll. Person means any individual, partnership, firm, organization, corporation, association, or any other legal entity, whether singular or plural, mascu- line or feminine, as the context may require. Prelinrinary rate resolution means the resolu- tion described in section 19.5-28 initiating the annual process for updating the assessment roll and directing the reimposition of fire rescue as- sessments pursuant to an annual rate resolution. Property appraiser means the property ap- praiser of the county. Tax collector means the Department of Finance and Administrative Services as described in arti- cle IV of the Dade County Charter. Tax roll means the real property ad valorem tax assessment roll maintained by the property appraiser for the purpose of the levy and collec- tion of ad valorem taxes. Uniform assessment collection act means F.S. §§ 197.3632 and 197.3635, or any successor stat- utes authorizing the collection of non -ad valorem assessments on the same bill as ad valorem taxes, and any applicable regulations promulgated there- under. Ord. No. 11584, § 1, 12.30-9 7 ) Sec. 19.5-2. Interpretation, Unless the context indicates otherwise, words importing the singular number include the plural number, and vice versa: the terms "hereof," "here- by," "herein," "hereto," "hereunder" and similar terms refer to this chapter: and the term "hereaf- ter" means after, and the term "heretofore" means before the effective date of the ordinance from which this chapter derives (January 13, 1998). CD 19.5:4 L FIRE RESCUE ASSESSMENT § 19.5-4 Words of any, gender include the correlative words (4) The annual fire rescue assessments to be of the other genders, unless the Sense indicates imposed pursuant to this chapter shall othenvise constitute non -ad valorem assessments (Ord. No. 115,;;4, ; 1, 13-30-97) within the meaning and intent of the Uniform Assessment Collection Act.. Sec. 19.5-:3. Findings. It is hereby ascertained, determined, and de- clared that: (1) Pursuant to Article VIII, section 2(b) of the Florida Constitution, and F.S. §§ 166.021 and 166.0.11, the city commission has all powers of local self-government to perform municipal functions, render mu- nicipal services except when prohibited by law, and such power may be exercised by the enactment of legisiation in the form of city ordinances. (2) The city commission may exercise any governmental, corporate, or proprietary ti power for a municipal purpose except when expressly prohibited by law, and the city commission may legislate on any subject matter on ,.ti•hich the state legislature may act, except those subjects described in F.S. § 166.021(3'(a), (b�, (c), and (d). The sub- ject matter of F.S. § 166.021(3)(a), (b), (c), and (d) are not relevant to the imposition of assessments related to fire rescue ser- vices, facilities or programs of the city. (3) The purpose of this chapter is to: a. Provide procedures and standards for the imposition of city-wide fire rescue assessments under the gen- eral home rule powers of a munici- pality to impose special assessments; b. authorize a procedure for the fund- ing of fire rescue services, facilities, or programs providing special bene- fits to property within the city; and C. Legislatively determine the special benefit provided to assessed prop- erty from the provision of combined fire control and emergency medical y 1 services by the city under its consol- idated fire rescue program. Supp. No. 3 (5( The fire rescue assessment imposed pur- suant to this chapter is imposed by the city commission,, not the county board of county commissioners, property appraiser or tax collector. Any activity of the prop- erty appraiser or tax collector under the provisions of this chapter shall be con- strued as ministerial. (Ord. No. 11584, § 1, 12-30-97) See. 19.5-4. Legislative determinations of special benefit. It is herebv ascertained and declared that the fire rescue services, facilities, and programs of the city provide a special benefit to property within the city that is improved by the existence or construction of a dwelling unit or building based upon the following legislative determinations: (1) Fire rescue services, which include the combined fire control and emergency med- ical services of the city under its existing consolidated fire rescue program, possess a logical relationship to the use and en- joyment of improved property by: a. Protecting the value of the improve- ments and structures through the provision of available fire rescue ser- vices; b. Protecting the life and safety of in- tended occupants in the use and enjoyment of improvements and structures within improved parcels; C. Lowering the cost of fire or other insurance by the presence of a pro- fessional and comprehensive fire res- cue program within the city: and d. Containing the spread of fire inci- dents occurring on vacant property with the potential to spread and endanger the structures and occu- pants of improved property. CD 19,5:5 �} 119.3.4 ` IAMI CODE (2) The combined fire control and emergency medical services ofthe city under its ex- isting consolidated fire rescue program enhance and strrn,,thens the relationship of such sen ices to the use and enjoyment of buildings v+,thin improved parcels of property �� ithin the city (3) The combined fire control and emergency medical services of the city under its ex- isting consolidated fire rescue program enhance the value of business and com- mercial property that is improved by the existence or construction of it building which enhanced value can be anticipated to be reflected in the rental charge or value of such business or commercial prop- ertv. (Ord. No. 11584. ` 1. 12-30-971 Sec. 19.5-5. Applicability. This chapter and the citv's authority to impose assessments pursuant hereto shall be applicable throughout the city. (Ord. No. 11584, § 1, 12-30-97) Sec. 19.5-6. Alternative method. (a) This chapter shall be deemed to provide an additional and alternative method for the doing of the things authorized hereby and shall be re- garded as supplemental and additional to powers conferred by other laws. and shall not be regarded as in derogation of any powers now existing or which may hereafter come into existence. This chapter, being necessary for the welfare of the inhabitants of the city, shall be liberally construed to effect the purposes hereof. (b) Nothing herein shall preclude the city com- mission from directin% and authorizing, by reso- lution, the combination with each other of: (1) Any supplemental or additional notice deemed proper, necessary, or convenient by the city; (2) Any notice required by this chapter; or (3) Any notice required by law, including the Uniform Assessment Collection Act. (Ord. No. 11584, ,§' 1. 12.30.97) Supp 'N0. 3 Secs. 19.5-7-19.5-20. Reserved. ARTICLE 11. A_,NNU,'kL ASSESS14tENTS See. 19.5-21. General authority. +ai The city commission is hereby authorized to impose an annual fire rescue assessment to fund all or any portion of the fire rescue assessed cost upon benefitted property at a rate of assess- ment based on the special benefit accruing to such property from the city's provision of fire rescue services, facilities, or programs. All fire rescue assessments shall be imposed in conformity with the procedures set forth in this article. (b) The amount of the fire rescue assessment imposed in a fiscal year against a parcel of as- sessed property shall be determined pursuant to an apportionment methodology based upon a clas- sification of property designed to provide a fair and reasonable apportionment of the fire rescue assessed cost among properties on a basis reason- ably related to the special benefit provided by fire rescue services, facilities, or programs funded with assessment proceeds. Nothing contained in this chapter shall be construed to require the imposition of fire rescue assessments against,gov- ernment property. (Ord. No. 11584, § 1, 12-30-97) Sec. 19.5-22. Initial proceedings. The initial proceeding for the imposition of a fire rescue assessment shall be the adoption of an initial assessment resolution by the city commis- sion which: (1) Contains a brief and general description of the fire rescue services, facilities, or programs to be provided; (2) Estimates the fire rescue assessed cost to be assessed; (3) Describes the method of apportioning the fire rescue assessed cost and the compu- tation of the fire rescue assessment for specific properties; (4) Provides a summary description of the parcels of property (conforming to the description contained on the tax roll) lo- CD 19.5:6 4 — / Irw I t FIRE RESCUE ASSESSMENT cated within the city that receive a special benefit from the provision of fire rescue sen-ices, facilities, or proirranls or describ- ing a specific: reot;raphic area in which such service, facility, or program will be provided, (5) Establishes an assessment rate for the upcoming fiscal year; and (6) Directs the city manager to: a. Prepare the initial assessment roll, as required by section 19.5-23; b. Publish the notice required by sec- tion 19.5-24; and C. flail the notice required by section 19.5-25 using information then avail- able from the tax roll. (Ord. No. 11584, § 1, 12-30-97) Sec. 19.5-23. Initial assessment roll. (a) The city manager shall prepare, or direct the preparation, of, the initial assessment roll, which shall contain the following: (1) A summary description of all assessed property conforming to the description contained on the tax roll. (2) The name of the owner of the assessed property. (3) The amount of the fire rescue assessment to be imposed against each such parcel of assessed property. (b) The initial assessment roll shall be re- tained by the city manager and shall be open to public inspection. The foregoing shall not be con- strued to require that the assessment roll be in printed form if the amount of the fire rescue assessment for each parcel of property can be determined by use of a computer terminal avail- able to the public. (Ord. No. 11584, § 1, 12.30-97) Sec. 19.5-24. Notice by publication. Upon completion of the initial assessment roll, the city manager shall publish, or direct the publication of, once in a newspaper of general circulation within the city, a notice stating that at § 19.5-25 a meeting of the city commission on a certain day and hour, not earlier than 20 calendar days from such publication, which meeting shall be a regu- lar, adjourned, or special meeting, the city com- mission will hear objections of all interested per- sons to the final assessment resolution which shall establish the rate of assessment and ap- prove the aforementioned initial assessment roll. The published notice shall conform to the require- ments set forth in the uniform Assessment Col- lection Act. Such notice shall include: (1 1 A geographic depiction of the property subject to the fire rescue assessment; (2) A brief and general description of the fire rescue senices, facilities, or programs to be provided; (3) The rate of assessment; (4) The procedure for objecting provided in section 19.5-26; (5) The method by which the fire rescue as- sessment will be collected; and (6) A statement that the initial assessment roll is available for inspection at the office of the city manager and all interested persons may ascertain the amount to be assessed against a parcel of assessed prop- erty at the: office of the city manager. (Ord. No. 11584, § 1, 12-30-97) Sec. 19.5-25. Notice by mail. (a) If the city decides to collect the fire rescue assessments on the same bill as ad valorem taxes in the manner provided in the uniform assess- ment collection act, the city manager shall addi- tionally provide notice, or direct the provision of notice, of the proposed fire rescue assessment by first class mail to the owner of each parcel of property (except government property) subject to the fire rescue assessment. Such notice shall include: (1) The purpose of the fire rescue assess- ment; (2) The rate of assessment to be levied against each parcel of property; Supp. No. 3 CD19.5:7 0Qi- 1 ZU b 19.5-25 MIAMI CODE (3) The unit of measurement applied to de- termine the fire rescue assessment; (4 ) The nurnber of <uch units contained in each parcel of property; (5) The total revenue to be collected by the city from the fire rescue assessment; (6) A statement that failure to pay the fire rescue assessment will cause a tax certif- icate to be issued against the property or foreclosure proceedings to be instituted. either of which may result in a loss of title to the property; (7) A statement that all affected owners have a right to appear at the hearing and to file written objections with the city commis- sion within 20 days of the notice; and (8) The date, time, and place of the hearing. Such mailed notice shall conform to the require- ments set forth in the Uniform Assessment Col- lection Act. Notice shall be mailed at least 20 calendar days prior to the hearing to each owner at such address as is shown on the tax roll. Notice shall be deemed mailed upon delivery thereof to the possession of the United States Postal Ser- vice. The city manager may provide proof of such notice by affidavit. Failure of the owner to receive such notice due to mistake or inadvertence, shall not affect the validity of the assessment roll nor release or discharge any obligation for payment of a fire rescue assessment imposed by the city commission pursuant to this chapter. (b) No individually mailed notice to affected owners, in addition to the published notice in section 19.5-24, shall be required in the event the city employs an alternative method of collection and chooses not to collect the fire rescue assess- ments on the same bill as ad valorem taxes. (Ord. No 11584, § 1, 12-30-971 Sec. 19.5-26. Adoption of final assessment resolution. At the time named in such notice, or to which an adjournment or continuance may be taken by the city commission, the city commission shall receive any written objections of interested per- Supp, NO, :S sons and may then, or at any subsequent meeting of the city commission adopt the final assessment resolution which shall: (1 1 Confirm, modify, or repeal the initial as- sessment resolution with such amend- ments, if deemed appropriate the rate of any, as may be by the city commission; 121 Establish assessment to be imposed in the upcoming fiscal year; (3) Approve the initial assessment roll, with such amendments as it deems just and right; and (4) Determine the method of collection. The final assessment resolution, or any subse- quent annual rate resolution, may modify, ratify or confirm the initial assessment resolution, or any subsequent preliminary rate resolution. The adoption of the final assessment resolution by the city commission shall constitute a legislative de- termination that all parcels assessed derive a special benefit from the fire rescue services, facil- ities, or programs to be provided or constructed and a legislative determination that the fire res- cue assessments are fairly and reasonably appor- tioned among the properties that receive the special benefit. All objections to the final assess- ment resolution shall be made in writing, and filed with the city manager at or before the time or adjourned time of such hearing. The final assessment resolution shall constitute the annual rate resolution for the initial fiscal year in which fire rescue assessments are imposed or reimposed hereunder. (Ord. No. 11584, § 1, 12-30-97) Sec. 19.5.27. Effect of final assessment reso- lution. The fire rescue assessments for the initial fiscal year shall be established upon adoption of the final assessment resolution. The adoption of the final assessment resolution shall be the final adjudication of the issues presented (including, but not limited to, the determination of special benefit and fair apportionment to the assessed property, the method of apportionment and as- sessment, the initial rate of assessment, the ini- tial assessment roll, and the levy and lien of the CD 19.5:8 S f � i I L_ "•mil " FIRE RESCUE ASSESSMENT § 19.5-28 fire rescue assessments), unless proper steps shall be initiated in a court of competent jurisdiction to secure relief within 20 days from the date of the city commission ,fiction on. the final assessment resolution. The initial assessment roll, as ap- proved by the. final assessment resolution, shall be delivered to the tax collector, as required by the Uniform Asse,4sment Collection Act, or if the al- ternative method described in section 19.5-5'2 is used to collect the fire rescue assessments, such other official as the city commission by resolution shall designate. (Ord. No. 1155.1. § 1, 12-30-9; ) Sec. 19.5-28. Adoption of annual rate resolu- tion. (a) The city commission shall adopt an annual rate resolution during its budget adoption process for each fiscal year following the initial fiscal year for which a fire rescue assessment is imposed hereunder. (b) The initial proceedings for the adoption of an annual rate resolution shall be the adoption of a preliminary rate resolution by the city commis- sion which: (1) Contains a brief and general description of the fire rescue services, facilities, or programs to be provided; (2) Estimates the fire rescue assessed cost to be assessed for the upcoming, fiscal year; (3) Establishes the assessment rate for the upcoming fiscal year; (4) Authorizes the date, time, and place of a public hearing to receive and consider comments from the public and consider the adoption of the annual rate resolution for the upcoming fiscal year; (5) Directs the city manager to update the assessment roll, and provide notice by publication and first class mail to affected owners in the event circumstances de- scribed in subsection W, below, so require; and (6) Directs and authorizes any supplemental or additional notice deemed proper, nec- essary or convenient by the city. (c) The annual rate resolution shall establish the rate of assessment to be imposed in the upcoming fiscal year, and approve the assessment roll for the upcoming fiscal year with such adjust- ments as the city commission deems just and right. The assessment roll shall be prepared in accordance with the method of apportionment set forth in the initial assessment resolution together with modifications, if any, and as confirmed in the final assessment resolution or as provided in the preliminary rate resolution. (d) Nothing herein shall preclude the city com- mission from providing annual notification to all owners of assessed property in the manner pro- vided in either or both sections 19.5-24 or 19.5-25. (e) Nothing herein shall preclude the city com- mission from establishing by resolution a maxi- mum rate of assessment provided that notice of such maximum assessment rate is provided pur- suant to sections 19.5-24 and 19.5-25. (f) In the event (1) the proposed fire rescue assessment for any fiscal year exceeds the maxi- mum rate of assessment adopted by the city commission and included in notice previously provided to the owners of assessed property pur- suant to sections 19.5-24 and 19.5-25, (2) the method of apportionment is changed or the pur- pose for which the fire rescue assessment is imposed is substantially changed from that rep- resented by notice previously provided to the owners of assessed property pursuant to sections 19.5-24 and 19.5-25, (3) assessed property is re- classified in a manner which results in an in- creased fire rescue assessment from that repre- sented by notice prev�iously provided to the owners of assessed property pursuant to sections 19.5-24 and 19.5-25, or (4) an assessment roll contains assessed property that was not included on the assessment roll approved for the prior fiscal year, notice shall be provided to affected owners in substantial conformance with the notice require- ments set forth in sections 19.5-24 and 19.5-25 and inform the owner of the date, time, and place for the adoption of the annual rate resolution. The failure of the owner to receive such notice due to mistake or inadvertence, shall not affect the va- lidity of the assessment roll nor release or dis- Supp. No.:3 CD19.5:9 4 19.5-za MIAMI Cunt; charge any obligation for payment of a fire rescue assessment imposed by the city commission pur- suant to this chapter. 17 i rL< to any as:e. scd property not included on an assessment roil approved by the adoption of the final assys<;vwnt resolution or it prior year's annual rate resolution, the adoption of the suc- ceeding annual rate resolution shall be the final adjudication of the issues presented as to such assessed property (includin1g, but not limited to, the determination of special benefit and fair ap- portionment to the assessed property, the method of apportionment and assessment, the rate of assessment, the assessment roll, and the levv and lien of the fire rescue assessments(, unless proper steps shall be initiated in a court of competent jurisdiction to secure relief ,vithin 20 days from the date of the city commission action on the annual rate resolution. Nothing contained herein shall be construed or interpreted to affect the finality of any fire rescue assessment not chal- lenged within the required 20 day period for those fire rescue assessments imposed against assessed property by the inclusion of the assessed property on an assessment roll approved in the final as- sessment resolution or any subsequent annual rate resolution. (h) The assessment roll, as approved by the annual rate resolution, shall be delivered to the tar collector as required by the Uniform Assess- ment Collection Act, or if the alternative method described in section 19.5-52 is used to collect the fire rescue assessments, such other official as the city commission by resolution shall designate. If the fire rescue assessment against any property shall be sustained, reduced, or abated by the court, an adjustment shall be made on the assess- ment roll. (Ord. No. 11584, § 1, 12-30-9711 Sec. 19.5-29. Lien. Upon the adoption of the assessment roll, all fire rescue assessments shall constitute a lien against assessed property equal in rank and dig- nity with the liens of all state county, district, or municipal taxes and special assessments. Except as otherwise provided by law, such liens shall be superior in dignity to all other period liens, mort- Supp. No.3 gages, titles, and claims until paid. The lien for a fire rescue assessment shall be deemed perfected upon adoption by the city commission of the final assessment resolution, whichever is applicable. The lien for a fire rescue assessment shall be deemed perfected upon adoption by the city com- mission of the Final assessment resolution or the annual rate resolution, whichever is applicable. The lien for a fire rescue assessment collected under the Uniform Assessment Collection Act shall attach to the property included on the as- sessment roll as of the prior January 1, the lien date for ad valorem takes imposed under the tax roll. The lien for a fire rescue assessment collected under the alternative method of collection pro- vided in section 19.5-52 shall be deemed perfected upon adoption by the city commission of the final assessment resolution or the annual rate resolu- tion, whichever is applicable, and shall attach to the property on such date of adoption. (Ord. No. 11584, § 1, 12-30-9 7 ) Sec. 19.5-30. Revisions. If any fire rescue assessment made under the provisions of this chapter is either in whole or in part annulled, vacated, or set aside by the judg- ment of any court, or if the city commission is satisfied that any such fire rescue assessment is so irregular or defective that the same cannot be enforced or collected, or if the city commission has omitted any property on the assessment roll which property should have been so included, the city commission may take all necessary steps to im- pose a new fire rescue assessment against any property benefitted by the fire rescue assessed costs, following as nearly as may be practicable, the provisions of this chapter and in case such second fire rescue assessment is annulled, va- cated, or set aside, the city commission may obtain and impose other fire rescue assessments until a valid fire rescue assessment is imposed. (Ord. No. 11584, § 1, 12-30-97) Sec. 19.5-31. Procedural irregularities. Any informality or irregularity in the proceed- inas in connection with the levy of any fire rescue assessment under the provisions of this chapter shall not affect the validity of the same after the approval thereof, and any fire rescue assessment CD 19.3:10 FIRE RESCUE ASSESSMENT as finally approved shall be competent and suffi- cient evidence that such fire rescue assessment was duly levied, that the fire rescue assessment was duly made and adopted, and that all other proceedings adequate to such fire rescue assess- ment. were duly had, taken, and performed as required by this chapter; and no variance from the directions hereunder shall be held material unless it be clearly shown that the party objecting was materially injured thereby. Notwithstanding the provisions of this section, any party objecting to a fire rescue assessment imposed pursuant to this chapter mint file an objection with a court of competent jurisdiction within the time periods prescribed herein. (Ord. No. 11584, § 1, 12-30-97) Sec. 19.5-32. Correction of errors and omis- sions. (a) No act of error or omission on the part of the property appraiser, tax collector, city man- ager, city commission, or their deputies, employ- ees, agents or designees shall operate to release or discharge any obligation for payment of a fire rescue assessment imposed by the city commis- sion under the provision of this chapter. (b) When it shall appear that any fire rescue assessment should have been imposed under this chapter against a parcel of property specially benefitted by the provision of fire rescue services, facilities, or programs, but that such property was omitted from the assessment roll or was not listed on the tax roll as an individual parcel of property as of the effective date of the assessment roll approved, by the annual rate resolution for any upcoming fiscal year, the city commission may, upon provision of a notice by mail provided to the owner of the omitted parcel in substantially the manner, and form provided in section 19.5-25, impose the applicable fire rescue assessment for the fiscal year in which such error is discovered, in addition to the applicable fire rescue assess- ment due for the prior two fiscal years. Such fire rescue assessment shall constitute a lien against assessed property equal in rank and dignity with the liens of all state, county, district, or municipal taxes and special assessments. and superior in rank and dignity to all other prior liens, mort- gages, titles, and claims in and to or against the § 19.5-33 real property involved, shall be collected as pro- vided in article III, and shall be deemed perfected on the date of adoption of the resolution imposing the omitted or delinquent assessments. (c) Prior to the delivery of the assessment roll to the tax collector in accordance with the uni- form Assessment Collection Act, the city manager shall have the authority at any time, upon his or her own initiative or in response to a timely filed petition from the owner of any property subject to a fire rescue assessment, to reclassify property based upon presentation of competent and sub- stantial evidence, and correct any error in apply- ing the fire rescue assessment apportionment method to any particular parcel of property not otherwise requiring the provision of notice pursu- ant to the uniform Assessment Collection: Act. Any such correction shall be considered valid ab initio and shall in no way affect the enforcement of the fire rescue assessment imposed under the provisions of this chapter. All requests from af- fected property owners for any such changes, modifications or corrections shall be referred to, and processed by, the city manager and not the property appraiser or tax collector. Any property owner unsatisfied with the decision of the city manager may seek review by a hearing officer in the manner provided in section 19.5-54. id) After the assessment roll has been deliv- ered to the tax collector in accordance with the Uniform Assessment Collection Act, any changes, modifications, or corrections thereto shall be made in accordance with the procedures applicable to correcting errors and insolvencies on the tax roll upon timely written request and direction of the city manager. Ord. No. 11584, § 1, 12-30-97 ) Sec. 19.5-33. Interim assessments. (a) An interim fire rescue assessment shall be imposed against all property for which a certifi- cate of occupancy is issued after adoption of the annual rate resolution. The amount of the interim fire rescue assessment shall be calculated upon a monthly rate, which shall be one -twelfth of the annual rate for such property computed in accor- dance with the annual rate resolution for the fiscal year in which the certificate of occupancy is Supp. No. 3 CD19.5:11 IL '"--� 3 19.5.33 MIAMI CODE; issued. Such monthly rate shall be imposed for each full calendar month remaining in the fiscal year. In addition to the monthly rate, the interim fire rescue assessment shall also include an esti- mate of the subsequent fiscal year's fire rescue assessment. No certificate of occupancy shall be issued until Bill payment of the interim fire rescue assessment is received by the city. Issu- ance of the certificate of occupancy by mistake or inadvertence, and v.-ithout the payment in full of the interim fire rescue assessment, shall not relieve the owner of such property of the obliga- tion of full payment. For the purpose of this provision, such interim fire rescue assessment shall be deemed due and payable on the date the certificate of occupancy was issued and shall constitute a lien against such property as of that date. Said lien shall be equal in rank and dignity with the liens of all state, colmty, district or municipal taxes and special assessments, and superior in rank and dignity to all other liens, encumbrances, titles and claims in and to or against the real property involved and shall be deemed perfected upon the issuance of the certif- icate of occupancy. (b) Any property owner unsatisfied with the imposition of an interim fire rescue assessment may seek review by a hearing officer in the manner provided in section 19.5-54. (Ord. No. 11584, § 1, 12-30-97) Secs. 19.5-34---19.5-50. Reserved. ARTICLE III. COLLECTION AND USE Sec, 19.5-51. Method of collection. (a) Unless otherwise directed by the city com- mission, the fire rescue assessments shall be collected pursuant to the uniform method pro- vided in the Uniform Assessment Collection Act, and the city shall comply with all applicable provisions of the Uniform Assessment Collection Act. Any hearin;, or notice required by this chap- ter may be combined with any other hearing or notice, required by the Uniform Assessment Col- lection Act. (b) The amount of a fire rescue assessment to be collected using the uniform method pursuant to the Uniform Assessment Collection Act for any specific parcel of benefitted property may include an amount equivalent to the payment delin- quency, delinquency fees and recording costs for a prior year's assessment for a comparable serer -ice, facility, or program, provided: (1) The collection method used in connection with the prior year's assessment did not employ the use of the uniform method of collection authorized by the Uniform As- sessment Collection Act; (2) Notice is provided to the owner as re- quired under the Uniform Assessment Collection Act; and (3) Any lien on the affected parcel for the prior year's assessment is supplanted and transferred to such fire rescue assess- ment upon certification of a non -ad valo- rem roll to the tax collector by the city. (Ord. No. 11584, § 1, 12-30-97) Sec. 19.5-52. Alternative method of collec- tion. In lieu of utilizing the Uniform Assessment Collection Act, the City may elect to collect the Fire Rescue Assessments by any other method which is authorized by law or under the altema- tive collection method provided by this section: (1) The city shall provide fire rescue assess- ment bills by first class mail to the owner of each affected parcel of property, other than government property, at any time prior to or during the fiscal year for which such fire rescue assessments are imposed. The bill or accompanying explanatory ma- terial shall include: a. A brief explanation of the fire rescue assessment; b. A description of the unit of measure- ment used to determine the amount of the fire rescue assessment; C. The number of units contained within the parcel; i SUPP. No. 3 CD19.5:12 fI + 11 FIRE RESCUE ASSESSMENT d. The total amount of the fire rescue assessment imposed against the par- cel for the appropriate period; e. The location at which payment will be accepted: f. The date on which the fire rescue assessment is due; and g. A statement that the fire rescue as- sessment constitutes a lien against assessed property equal in rank and dignity with the liens of all state, county, district or municipal taxes and other non -ad valorem assess- ments. (2) A general notice of the lien resulting from imposition of the fire rescue assessments shall be recorded in the official records of the county. Nothing herein shall be con- strued to require that, individual liens or releases be filed in the official records. (3) The city shall have the right to foreclose and collect all delinquent fire rescue as- sessments in the manner provided by law for the foreclosure of mortgages on real property or appoint or retain an agent to institute such foreclosure and collection proceedings. A fire rescue assessment shall become delinquent if it is not paid within 30 days from the date any installment is due. The city or its agent shall notify any property owner who is delinquent in pay- ment of his or her fire rescue assessment within 60 days from the date such assess- ment was due. Such notice shall state in effect that the city or its agent will either: a. Initiate a foreclosure action or suit in equity and cause the foreclosure of such property subject to a delin- quent fire rescue assessment in a method now or hereafter provided by law for foreclosure of mortgages on real property; or b. Cause an amount equivalent to the delinquent fire rescue assessment, not previously subject to collection using the uniform method under the Uniform Assessment Collection Act, to be collected on the tax bill for a subsequent year. Supp. No. 3 19.5-52 (41 All costs, fees and expenses, including reasonable attorney fees and title search expenses, related to any foreclosure ac- tion as described herein shall be included in any judirment or decree rendered therein. At the sale pursuant to decree in any such action, the city may be the purchaser to the same extent as any person. The city or its agent may join in one foreclosure ac- tion the collection of fire rescue assess- ments against any or all property as- sessed in accordance with the provisions hereof. All delinquent owners whose prop- erty is foreclosed shall be liable for an apportioned amount of reasonable costs and expenses incurred by the city and its agents, including reasonable attorney fees, in collection of such delinquent fire rescue assessments and any other costs incurred by the city as a result of such delinquent fire rescue assessments and the same shall be collectible as a part of or in addition to, the costs of the action. (5) In lieu of foreclosure, any delinquent fire rescue assessment and the costs, fees and expenses attributable thereto, may be col- lected pursuant to the Uniform Assess- ment Collection Act; provided however, that: a. Notice is provided to the owner in the manner required by the Uniform Assessment Collection Act and this chapter; and b. Any existing lien of record on the affected parcel for the delinquent fire rescue assessment is supplanted by the lien resulting from certifica- tion of the assessment roll, as appli- cable, to the tax collector. (6) Notwithstanding the city's use of an alter- native method of collection, the city man- ager shall have the same power, and au- thority to correct errors and omissions as provided to him or county officials in section 19.5-32. (7) Any city commission action required in the collection of fire rescue assessments may be by resolution. (Ord. No. 11584, § 1, 12-30-97 ) CD 19.5:13 L 3 19.5.53 Sec. 19.5-53. Government property. %YilAMt CODE (a) If fire rescue assessments are imposed against government property, the city shall pro- v-ide fire rescue asse:>snient bills by first class mail to the owner of each affected parcel of government property. The bill or accompanying explanatory material shall include: (1) A brief explanation of the fire rescue as- sessment; (2) A description of the unit of measurement used to determine the amount of the fire rescue assessment; (3) The number of units contained within the parcel; (4) The total amount of the parcel's fire res- cue assessment for the appropriate pe- riod; (5) The location at which payment will be accepted; and (6) The date on which the fire rescue assess- ment is due. (b) Fire rescue assessments imposed against government property shall be due on the same date as all other fire rescue assessments and, if applicable, shall be subject to the same discounts for early payment. (c) A fire rescue assessment shall become de- linquent if it is not paid within 30 days from,the date any installment is due. The city shall notify the owner of any government property that is delinquent in payment of its fire rescue assess- ment within 60 days from the date such assess- ment was due. Such notice shall state that the city will initiate a mandamus or other appropri- ate judicial action to compel payment. (d) All costs, fees and expenses, including rea- sonable attorney fees and title search expenses, related to any mandamus or other action as described herein shall be included in any judg- ment or decree rendered therein. All delinquent owners of government property against which a mandamus or other appropriate action is filed shall be liable for an apportioned amount of reasonable cost,-; and expenses incurred by the City. including reasonable attorney fees, in collec- supp. No. :3 tion of such delinquent fire rescue assessments and any other costs incurred by the city as a result of such delinquent fire rescue assessments and the same shall be collectible as a part of or in addition to, the costs of the action. (e) As an alternative to the foregoing, a fire rescue assessment imposed against government property may be collected as a surcharge on a utility bill provided to such government property in periodic installments with a remedy of a man- damus action in the event of nonpayment. The city commission may contract for such billing services with any utility, whether or not such utility is owned by the city. (Ord. No. 11584, § 1, 12-30-97) Sec. 19.5-54, Appeals. (a) A hearing officer shall be appointed by the city manager to hear appeals from affected prop- erty owners concerning: (1) The classification, size, or use of the owner's parcel or any other factual matter related to the application of the method of appor- tionment employed in imposing the fire rescue assessment; (2) The imposition of an interim assessment; or (3) The correction of an error or omission. (b) The aggrieved property owner shall file a written notice of appeal with the city manager's office within 20 days following the effective date of the assessment or action by the city manager under sections 19.5-32 or 19.5-33. The filing of an appeal at any point in time shall not stay the collection of the fire rescue assessment. (c) An appeal to the hearing officer shall be made within 20 days after the effective date of the fire rescue assessment or action by the city man- ager under sections 19.5-32 or 19.5-33 by filing a notice of appeal or letter of appeal with the city manager stating therein the basis for such ap- peal. (d) No hearing shall be heard by the hearing officer unless the respective appeals have been filed within the time and at the place provided in this chapter. C D 19.5:14 FIRE RESCUE ASSESSMENT (o All decisions of the hearing officer made under this section shall be deemed final. (f) All such requests for review by the city under this chapter shall be subject to the disclo- sure requirements set forth in section 2-618 of this Code. (g) The city manager shall (rive the appealing party at least ten days' notice of the time and place of such hearing. The notice ,hall be in a form acceptable to the city attorney. No public or published notice is required. (h) The aggrieved property owner shall, at his own cost, provide supplemental information in advance to the city manager including, but not limited to, relevant data, consulting or expert reports or opinions, or other information to be used or relied upon at the hearing. Failure to tL-nely provide such information shall preclude the use and consideration of same at the hearing and may result in the denial of the appeal. «.� G) At the time and place set for the hearing the hearing officer shall give the appealing party a reasonable opportunity to be heard. Parties may present evidence to support their position; how- ever, no economic or technical reports, studies, appraisals or other information, expertise or opin- ions shall be considered by the hearing officer unless the same shall have been disclosed to the city and fled with the city manager at least ten days prior to that hearing. All exhibits presented 3 19.5-54 to the hearing officer shall become part of the record and shall remain so until the determina- tion of the hearing officer or the expiration of any administrative or judicial appeal period. (Ord. No. 11584_ § 1, 12.30-97) i Supp. No. 3 CD19,5:15 � .. 1 20 v� Chapter 22 GARBAGE AND OTHER SOLID WASTE' Article 1. In General Sec. 22-1. Definitions Sec. 22-2. Collection sen ices. container usage. condition and requirements for placement location Sec. 22-3. Accumulation of waste; proof Sec. 22-4. Plans for waste storage on certain premises to be approved before issuance of building perrr,it. Sec. 22.5. Duty to dispose of trash and prevent accumulations. Sec. 22-6 littering and dumping prohibited; dumping or burring waste without proper authorization; illegal dumping in area bulky waste transfer stations: engaging in business of solid waste collection without permit; declared public nuisance. presumption. Sec. 22.7. .Method of transporting waste. Sec. 22-8. Manner of handling garbage and trash; placing dangerous mate. rials in waste containers prohibited. Sec. 22.9. Responsibility of persons other than owners of premises for violations and for noncompliance. Sec. 22.10. Operation of business where kind regularly carries solid waste into street; fencing requirements. Sec. 22-11. Dumping on public right-of-way prohibited. Sec. 22.12, %V,asLe fees. Sec. 22.13. Emergency powers of the director. Sec. 22.14. City collection of solid waste. Sec. 22-15. Educational trust fund established from recycling program for scholarships to children of certain city employees; conditions for implementation. Sec. 22-16. Special collections, fees, extra charges. Sec. 22-17. Private disposal of waste. Sec. 22-18. Responsibility for removal of certain waste; collection and dis- posal of furniture, appliances, etc. Secs. 22-19-22-45. Reserved. Article 11. Regulation of Persons Engaged in Commercial Waste Collection Sec. 22-46. Engaging in business of solid waste collection and disposal; issuance of permit to private solid waste collectors. Sec. 2247. Application for regulatory permit. Sec. 22-48. Denial of permit. Sec. 22-49. Appeal from the departmental denial of permit; appeal from revocation of permit. Sec. 22.50. Vehicle registration fees. Sec. 22.51. Renewal of permit. Sec. 22-52 Identification of equipment. Sec 22.53 Information required of permittees. Sec. 22.54. Change in rates. Sec. 22.55. Disposal required at city- and/or county -approved facilities. 'Charter references —Authority of city to collect and dispose of garbage, etc., § 1o); nuisances generally, § 3(p). City Code cross references --General services administration department. § 2.326 et seq.: throwing or depositing substances, etc., within city stadiums, parks and adjacent grounds. § 38.17; disposal of trash in city parks, § 3S-63; control of marine pollution, § 50.96 et seq.; disposal of garbage, waste and refuse into marinas or yacht basins, § 50.237. State law reference —State sanitary code, F.S. § 403 413. Supp. No. 2 CD22:1 L 1 (w GARAGE A,Xb OTHEtt SOLM WASTE ARTICLE 1. IN GENERAL Sec. 22-1. Definitions. For the purpose of this chapter, the definitions contained in this section shall apply unless other- wise specifically stated. Biological a astc. The �kords "biological -waste" shall mean solid waste that causes or has the capability of causing disease or infection and includes, but is not limited to, biomedical waste, diseased or dead animals, and other wastes capa- ble of transmitting pathogens to humans or ani- mals. The term does not include human remains that are disposed of by persons licensed under chapter 470. Biomedical waste. The words "biomedical waste" shall mean any solid waste or liquid waste which may present a threat of infection to humans. The term includes, but is not limited to, nonliquid human tissue and body parts; laboratory and veterinary waste which contain human -disease - causing agents; discarded disposable sharps; hu- man blood, and human blood products and body fluids; and other materials which in the opinion of the Department of Health and Rehabilitative Services of the State of Florida represent a signif- icant risk of infection to persons outside the generating facility. Bulkv waste. The words "bulky waste" shall mean large items of household refuse such as appliances, furniture, accumulations• from major tree cutbacks, large crates and like articles. Bundled garden trash. The words "bundled garden trash" shall mean refuse attending the care of lawns, shrubbery, vines and trees that is capable of being gathered into bundles and tied securely so that each bundle does not exceed three feet in length or weigh more than 50 pounds. Commercial establishments. The -words "com- mercial establishments" shall mean any hotel, motel, roominghouse, tourist court, trailer park, bungalow court, apartment building with rental apartments, cooperative apartments, and/or mul- tiple -story condominium buildings and any other business or establishment of any nature or kind whatsoever other than a residential unit as de- fined in this section. § 22.1 Condominiums. The words "condominiums" or "condominium buildings" shall be deemed to mean any building or structure that evidences that form of ownership of real property which is cre- ated pursuant to the State of Florida Condomin- ium Act, which is comprised of units that may be owned by one or more persons, and in which there is appurtenant to each unit an undivided share in common elements. i%jiy condominiums -with three or more dwelling units therein shall be classified as commercial establishments for purposes of this chapter. Construction and demolition debris. The words "construction and demolition debris" shall mean materials generally considered to be not water soluble and nonhazardous in nature, including, but not limited to, steel, glass, brick, concrete, asphalt roofing material, pipe, gypsum wallboard, and lumber, from the constriction or destruction of a structure as part of a construction or demo- lition project, and including rocks, soils, tree remains, trees, and other vegetative matter which normally results from land clearing or land devel- opment operations for a construction project, in- cluding such debris from construction of struc- tures at a site remote from the construction or demolition project site. Mixing of construction and demolition debris with other types of solid waste, including material from a construction or demolition site which is not from the actual construction or destruction of a structure, will cause it to be classified as other than construction and demolition debris. Construction dumpster or roll -off. Approved open metal container without wheels, with capac- ity up to 40 cubic yards, used at construction sites for the purpose of removing construction and demolition debris, which includes rock, metal and other materials which are heavy in weight or substantial in size, used in connection with a construction and/or demolition project. Containerized waste. The words "containerized waste" shall mean and include refuse, not to include garbage as defined herein, which is placed in cans, plastic bags, and/or bulk containers not exceeding three feet in length or weighing more than 50 pounds. Supp. no. 1 CD22:3 0J- 1�20 L MIAbtl CODE Sec. 22-56 Regulatory permit fee requirement, monthly repulatory permit fee payment; approval by director as a prerequisite to issuance; financial statemrnu5, list of account< Sec. 22-57. List of qualifications for permits, term, nontransferability; rules and renilatlons Sec. 22-58. Revocation of permit Sec. 22-59. Procedure upon vinlation of sections 22-46 through 22.58. Secs. 22-60-22.55 fZeser%,ed. Article 111. Enforcement and Administration Sec 22-86. Waste fees; implementation Sec. 22-87. Schedule of waste collection and disposal fees; records to be kept. Sec. 22-88 Payment of waste fees Sec 22.89. Waste and right-of-wav cleaning fees shall constitute special assessment liens against all improved real property. Sec. 22.90. Waste fee receipts. Sec 22-91. Multiple occupancy of premises. Sec. 22-92. Certain exemptions from payment of waste fees. Sec 22-93. Enforcement and administrative fees. Secs. 22-94-22-115. Reserved. Article M Lot Clearing Sec. 22-116. Accumulations of debris, rubbish, etc., and dense growth of trees, vines, etc., as nuisances. Sec. 22-117. Lot clearance. Sera. 22-118-22-145. Reserved. Article V. Removal of Abandoned Property Sec 22-146. Removal from private property. j Sec- 22-147. Owner responsible for costs of removing abandoned property. Sec. 22.148. Obstrictiou of enforcement officer. Sec. 22.149. Enforcement officer immune from prosecution. Sec. 22.150. Enforcement officers designated. Sec. 22-151--22-160. Reserved. Article VI. Donation Collection Bins Sec. 22.161. Donation bins prohibited. Supp. No, 2 SJ- 140 GARAGE AND OTHER SOLID WASTE 22.1 Noncombustible refuse. The words "noncombus- tible refuse" shall mean refuse materials that are unbumable at ordinary incinerator temperatures (800 degrees to 1.,800 degrees Fahrenheit) such as metals, mineral matter. large quantities of glass or crorkerv, metal furniture, auto bodies or parts, and other similar material or refuse not usual to housekeeping or to the operation of stores or offices. Permittec. 'Termittee" shall be defined as a private hauling company that receives a permit from the department. Plastic bag. The words "plastic bag" shall mean a polyethylene or other heavy-duty plastic bag meeting the National Sanitation Foundation stan- dard of 1.5 mils and not exceeding a 32-gallon capacity with a securing twist tie. Portable container. The words "portable contain- er" shall mean dumpster, roll -away or other sim- ilar container designed for mechanized collection. Refuse. The word "refuse" shall mean any gar- bage, garden trash, industrial waste, noncombus- tible refuse, rubbish, waste, bulk waste, container- ized waste and/or solid waste. Residential unit. The words "residential unit" shall mean any stricture used or constructed or modified or adopted for use as a single-family dwelling, duplex, cluster housing, townhouse or multiple -family apartment building or other sim- ilar structure containing four or fewer residential units, and which is located on a single lot, parcel or tract of land. Each dwelling unit'of a duplex, cluster housing, tov.-nhouse, or multiple -family building or other similar structure shall be deemed a separate residence. Roorninghoases; boardinghouses. A rooming - house is a residential building used, or intended to be used, as a place where sleeping or house- keeping accommodations are furnished or pro- vided for pay to transient or permanent guests or tenants which does not maintain a public dining room or cafe in the same building or in any building in connection thercwith. A boarding- house is an establishment where meals are regu- larly prepared and served for compensation for five or more persons, and where most of the food is placed upon the table family style without Supp. No. 1 service or ordering of individual portions from a menu. Boardinghouses may also provide lodging for compensation. The proprietor of a rooming - house or boardinghouse may receive or reiect whom he wishes and usuall'• makes special oral or written contracts with each of his lodgers concerning compensation and length of stay. Rubbish. The word "rubbish" shall mean refuse accumulation of paler, excelsior, rags or wooden or paper boxes or containers, sweepings and all other accumulations of a nature other than gar- bage, which are usual to housekeeping and to the operation of stores, offices and other business places, and also any bottles, cans or other Contain- ers which, due to their ability to retain water may serve as breeding places for mosquitoes or other water breeding insects: rubbish shall not include noncombustible refuse, as defined above. Screening. A landscaped area with shrubs three feet in height at time of planting to form a continuous, unbroken solid buffer, or a five -foot - high fence or C.B.S. wall finished and painted on both sides to provide a visual barrier. Service unit. The words "sendce unit" shall mean four sleeping rooms or a fraction thereof, where no cooking pri,,ileges are provided, located in any commercial establishment. Special handling trash. Accumulation of tree branches, tree limbs, parts of trees, bushes and shrubbery which are over three inches in diame- ter and not exceeding four feet in length, too large to be containerized or bundled and tied, and including furniture, refrigerators, stoves, mat- tresses and other bulky waste items. Solid waste. The words "solid waste" shall mean garbage, rubbish, refuse, or other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from domes- tic, industrial, commercial, mining, agricultural or governmental operations. Solid ivaste disposal and resource recovery fa- cility. The words "solid waste disposal and re- source recovery facility" shall mean any solid waste disposal area, volume reduction plant, trans- fer station or other facility, the purpose of which is resource recovery or the disposal, recycling, pro- cessing, transfer or storage of solid waste. CD22:5 L. 4 22-1 NIWII CODE Curbside. The area between the Sidewalk and the street edge or, in areas without sidewalks, the area between the edge of the traveled portion of any public or private street and the property line. Department. The word "department" shall mean the department of general services administra- tion, division of solid % aste, except as othervise stated in section 2-326 ct seq Director The word "director" shall mean the director of the department of general services administration, dMsion of solid waste, except as otherwise noted in section -326 et seq. Durnping. Dumping means to throw, discard, place, deposit or bury any litter and/or refuse except where permitted. Dunipster. An approved metal container on wheels with a tightfitting solid top and a mini- mum capacity of one cubic yard or 202 gallons. Garbage. The word "garbage" shall mean every refuse accumulation of animal, fruit or vegetable matter that attends the preparation, use, cooking and dealing in, or storage of edibles, and any other matter, of any nature whatsoever, which is subject to decay, putrefaction and the generation of noxious or offensive gases or odors, or which, during or after decay, may sere as breeding or feeding material for flies or other germ -carrying insects. Garbage can. The words "garbage can" shall mean a galvanized metal, durable plastic or other suitable material container of the type commonly sold as a garbage can, including wheeled contain- ers, of a capacity not less than 20 gallons and not to exceed 32 gallons, having at least two handles upon the sides thereof, sufficiently strong for workmen to empty conveniently, or a bail by which it may he lifted, and a tightfitting metal or plastic top with handle, and so constructed as to permit the free discharge of its contents. The container must not have any inside structures such as inside bands and reinforcing angles or anything within the container to prevent the free discharge of the contents. The container shall be free of jagged or sharp edges. Garden trash. All accumulations of lawn, grass, or shrubbery cuttings or clippings and leaf rak- Supp. No. 1 ings, free of dirt, rock, large branches and bulky or noncombustible materials which can be containerized. Hazardous waste. The words "hazardous waste" shall mean solid waste, or a combination of solid wastes, which because of its quantity, concentra- tion, or physical, chemical or infectious character- istics may cause, or significantly contribute to, an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or may pose a substantial present or potential haz- ard to human health or the environment when improperly transported, disposed of, stored, treated or otherwise managed. Industrial wastes. The words "industrial wastes" shall mean the waste products of canneries, slaugh- terhouses or packing plants; condemned food prod- ucts; wastes and debris from brick, concrete block, roofing shingle or the plants; debris and wastes accumulated from land clearing, excavating, build- ing, rebuilding and altering of buildings, struc- tures, roads, streets, sidewalks, or parkways; and any waste materials which, because of their vol- ume or nature, do not lend themselves to collec- tion and incineration commingled with ordinary garbage and trash, or which, because of their nature or surrounding circumstances, should be, for reasons of safety or health disposed of more often than the city collection service schedule provided for in this chapter. Landscape firm. Landscape architects, land- scape contractors, landscape maintenance firms and all others doing work similar to that per- formed by landscape architects, landscape con- tractors and landscape maintenance firms doing business within the city. Litter. The word "litter" shall mean any form of uncontainerized solid waste including, but not limited to, any garbage, cans, bottles, containers, trash, refuse and papers. Minidump. The word "minidump" shall mean a disposal site, maintained by the department, where householders of the city may deposit garden trash and tree and shrubber• trash. Mow. The word "mow" shall mean to cut down grass or similar growth with a mechanical device such as lawn mower. CD22:4 t ,_ p"1 6e .� 120 l_. 1 GARAGE AND OTHER SOLID WASTE gally established but currently nonconforming with regard to Ordinance No. 11000, upon expan- sion of the existing structure by 25 percent or more of its existing floor area, or its repair or renovation at cost exceeding 50 percent of its current value as established in the assessment made by the Dade County property appraiser, i shall be required to comply with the requirements of this chapter; any series of repairs and/or reno- vations during any five-year period shall require the property to conform to the requirements of this chapter. Additionally, a change in the use of any legally established, but nonconforming struc- ture shall require such structure's compliance with the requirements of this chapter prior to the issuance of a certificate of use and/or occupancy by the planning, building and zoning depart- ments. (e) At no time shall any garbage cans, dumpsters or any containers, whether such containers are approved or not approved, be placed upon any street, alley, sidewalk, right-of-way, or in any pubLc area or upon any property used by the public not owned or occupied by the person(s) placing such garbage cans, dumpsters or contain { ers. (f) The director or director's designee is hereby required and granted full power and authority to ! designate the location of containers and the num- ber of containers to be kept at each location. Supp. No. 1 CD22:6.1 L 1 22.1 MIAMI CODE Swale area. The words "swale area" shall mean the paved or unpaved area between the edge of the sidewalk or property line and the edge of the street. P-ee and shrubben- trash. Accumulation of tree branches, tree limbs, party of trees, bushes and shrubbery which are up to three inches in diam- eter and do not exceed four feet in length, too large to be containerized and requiring bundling and tying. (Ord. No. 10128, § 1, 7-10-86; Ord. No. 10232, § 1, 3-13-87; Ord. No. 10371, § 1, 1-14-88; Ord. No. 10887, § 1, 6-20-91; Ord. No. 11184, § 2, 10-27-94; Code 1980, § 22-1; Ord. No. 11352, § 2, 4-25-96; Ord. No. 11444, § 1, 2-20-97) Sec. 22.2. Collection sen-ices, container us- age, condition and requirements for placement location. (a) Every commercial establishment shall uti- lize the waste collection ser�ices of a licensed waste hauler authorized to perform such sen~ices by the director. It shall be the responsibility of the owner, occupant, tenant or lessee of the commer- cial establishment to properly dispose of all trash, waste and garbage generated by such commercial establishment. Each residence or commercial es- tablishment in the city shall have a sufficient number of garbage cans, plastic bags or portable containers to accommodate all garbage, bundled garden trash or rubbish to be removed by the city or other approved contractors. All bundled garden trash, containerized waste, and garbage to be removed by the cite shall he placed at curbside in front of the property for removal by the city as scheduled by the director, in such a manner as not to obstruct pedestrian passage. The director may make exceptions to these rules to accommodate disabled and elderly persons. Any private hauling company providing waste collection sen-ices who will he discontinuing its collection service to a commercial establishment shall give the Neighborhood Enhancement Team (NET) sen•ice center for the area where sc-nice will be discontinued at least seven business days' prior notice of its intention to discontinue such service. The private hauler shall additionally mail to the owner, occupant, tenant or lessee of the commercial establishment a notice that it is dis- continuing waste collection sendces for that com- mercial establishment. A duplicate copy of this notice shall be simultaneously mailed by the private hauler to the Neighborhood Enhancement Team (NET) service center for the area where such service will be discontinued. A commercial establishment which does not have current waste collection services being furnished shall be sub- ject to having an administrative service fee im- posed pursuant to section 22-93 of this chapter. (b) Garbage from single and duplex residences shall be collected twice a week. Hours and days on which containers are to be collected shall be as prescribed by the director. All food sen-ice estab- lishments producing raw or processed organic waste matter as a major portion of their waste stream shall provide for the removal of such material a minimum of three times per week. (c) The garbage or trash container site (com- mercial and/or residential) shall: (1) Be situated in an easily accessible loca- tion for collectors; (2) Be a platform constructed of wood or concrete above ground level in the case of a commercial establishment; (3) Be constructed in such a manner as to discourage or eliminate the possibility of rodents breeding under the platform; and (4) Be screened from any street, alley, side- walk or adjacent property. Such screening shall be maintained in perpetuity by the property owner. Sunken containers are hereby declared to be hazardous to the health, welfare and safety of the residents of and visitors to the city and to the city's waste collection personnel. Accordingly, such containers shall immediately be replaced with approved containers and the holes where they were previously sunk shall be filled with clean, solid fill. (d) All new commercial establishments and/or structures, as defined in this chapter, shall pro- vide a garbage and/or trash room as required and provided for in Ordinance No. 11000, the zoning ordinance of the city. Any existing structure, le- Supp. No. 1 CD22:6 L.. GARBAGE AND OTHER SOLID WASTE Any waste containers which do not conform to the provisions of this chapter or which contain other defect:, likely to hamper the collection of or injure the person collecting the contents thereof are illegal. Such containers shall be promptly replaced by tfuv owner or user of the container upon receipt of written notice of said defect. All containers shall cont;un identification of the pri- vate haulint; company providing the sen.-ice, and must be clean, kept closed, and free of graffiti. At no time will the department sei-vice any such illegal containers. Portable containers declared a public nuisance or to be unserviceable with no identif%ing marks visible to the code enforcement inspectors shall be removed at the discretion of the director. (g) Newspapers and other salvageable materi- als defined as aluminum cans, glass and plastic bottles shall be separated from all other solid waste material; shall be separately bundled by being placed in shopping or other krafi bags, cardboard boxes, and any other container as deemed appropriate by the director; or tied se- curely with rope or cord in bundles not exceeding 50 pounds. (Ord. No. 10128. § 1, 7-10-86; Ord. No. 10535, § 1, 1-12-89; Ord. No. 10654, § 1, 10-12.89; Ord. No. 11122, § 2, 2-17-94; Ord. No. 11184, § 3, 10-27-94; Code 1980, § 22-2; Ord. No. 11352, § 2, 4-25-96) Sec. 22-3. Accumulation of waste; proof. The fact that any residential unit or any com- mercial establishment located in the city is occu- pied shall be proof that garbage or other refuse is being produced or accumulated upon such prem- ises. However, a temporary residential vacancy, regardless of duration, shall not authorize a re- fund or excuse the nonpayment of any waste fee. Waste fees shall be chargeable on a pro rata basis on new residential units immediately following the Manning, building and zoning department's issuance of a temporary or final certificate of occupancy, or whenever the first waste is picked up from such unit by the city, w hiehc•wr ; hsll occur first. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-3) Sec. 22-4. flans for waste storage on cer- tain premises to be approved be- fore issuance of building permit. Before building permits may be issued for con- struction of commercial establishments, as de- § 22.5 fined in this chapter, plans for storage of refuse must be approved by the director as to location, accessibility, and number or adequacy. No certif- icate of occupancy shall be issued for said prem- ises until the director has made a finding of compliance with the terms of this chapter. (Ord. No. 10128, § 1, 7-10-86; Code 1980. § 22-4) Sec. 22-5. Duty to dispose of trash and pre- vent accumulations. (a) It shall be unlawful for the owner, manager, occupant, lessee of, or other person responsible for any lot, parcel or tract of land on which residen- tial units or commercial establishments are lo- cated within the city to deposit, store, keep, or maintain, or permit to be deposited, stored, kept or maintained bulky or industrial waste, refuse attending the care of lawns, shrubbery, vines, and trees, except for the purpose of composting; rub- bish including uncontainerized garbage, beer and soft drink containers, empty or broken bottles, and metal containers; and any other uncontainer- ized solid waste whatsoever upon such property, adjoining rights -of -way, easements or alleys, ex- cept as specifically authorized in this chapter. Property owners of unimproved property or own- ers, occupants, tenants and lessees of improved property shall be responsible for keeping the area around the dumpsteris) or container(s) in a clean and presentable condition as well as keeping the sidewalk, side parkway and swale area and other public rights -of -way clear of all trash and litter, and shall maintain their property in a clean, mowed, cut and litter -free manner, including side- walks, grass strips, swale area or rights -of -way up to the edge of the pavement of any public street. Every merchant, storekeeper or operator of a business in the city shall sweep or cause to be swept the sidewalks adjoining his respective place of business before 10:00 a,m. every morning, or as often as necessary to keep the area clean, on each day that such business shall be operated. Said sweepings shall be picked up and not swept in the gutter. Failure to comply with the provisions of this section shall constitute a violation of this chapter: such failure may also serve as the basis for assessment of an administrative fee. CD22:7 S9- 920 4 22.3 MIAMI CODE (b) Whenever it is evident that there is a v-io- Iation of this section, the code enforcement inspec- tor shall do one or more of the following: Serve a notice of noncompliance, in a form prescribed by the director and approved by the city cortimission, o1wil the owner. manager, occupant, resident, lessee or other responsible person by personal ;et -vice, mail or by posting a copy in a conspicuous place on the premises where the violation exists. The notice shall specify a reasonable time, not to exceed 24 hours, in which the noncompliance shall be rectified or stopped, commensurate with the circumstances. In the event said notice is not complied with in the specified time the sanita- tion inspector may proceed with direct removal as outlined below. The sanitation inspector may: (1) Cause a notice of noncompliance to be issued, in a form prescribed by the director and approved by the city manager, upon the owner, manager, occupant, resident, lessee or other responsible person by per- sonal service, certified mail, or by posting a copy in a conspicuous place on the premises where the noncompliance exists. If said noncompliance has been found to exist by the city manager, or the city manager's designee, such finding and determination shall result in an administrative service fee being assessed for such noncompliance in the amount set, forth in section 22-93 hereof, with said fee being assessable for each day the noncompliance exists until the condi- tion or conditions resulting in such noncom- pliance no longer exist. (2) Direct the department to remove, remedy or eliminate the noncompliance and charge the property owner for a special collection service in accordance with the provisions of this chapter. (Ord. No. 10128, 5 1, ;-10-86; Code 1980, 5 22-5; Ord. No. 11352, § 3, 4-25-96) Sec. 22-6. Littering and dumping prohib- ited; dumping or burying waste without proper authorization; il. legal dumping in area bulky waste transfer stations; engaging in busi- ness of solid waste collection with- out permit; declared public nui- sance; presumption. (a) Intent. It is the intent of the city commis- sion of Miami, Dade County, Florida, to prevent, in whatever way possible, the abuse of the envi- ronment of the city through acts of any persons that are generally classified under the headings of "dumping" and "littering," which acts severely burden the taxpayers of the city and adversely affect the attractiveness, public health, safety and welfare of the community for its residents and visitors. (b) The city will provide sufficient litter con- tainers to be placed in strategic locations through- out the city, with special consideration to be given to high density populations and heavily traveled areas, to be used for the deposit of litter by pedestrians only and not by abutting store owners or vendors. (c) Prohibited act(s)• The following shall be unlawful: (1) Dumping litter and/or refuse in any man- ner or amount whatsoever in or on any public highway, road, street, alley, thorough- fare or any other public lands, except in containers or areas lawfully provided there- for. The provisions of F.S. ch. 339 shall apply to all public rights -of -way within the city. (2) Dumping litter and/or refuse in or on any freshwater lakes, canals, rivers or streams or tidal or coastal waters of the city. (3) Dumping litter and/or refuse and bur3zng waste in any manner or amount whatso- ever on any private property, unless prior written consent of the owner has been given, and such disposal has been autho- rized via permit by the county health de- partment, provided said litter and/or refuse will not cause a public nuisance or be in violation of any other state or local laws or regulations. CD22:8 99- 720 GAR13AGE A.VD OTHER SOLID WASTE § 22.7 (4) Sweeping, blowing by mechanical means or dumping litter and/or refuse including stag- nant water or dead animals into, upon or along the drain, gutter, alley, lane, side- walk, street or vacant lot, or in any public or private premises within the municipal limits of the city. (5) Causing, maintaining, permitting or allow- ing the accumulation of any litter or refuse on any construction or building site before, during or after, completion of said construc- tion or building.. It shall be the duty of the owner, or the owner's agent, of the property in question to make adequate provisions for the disposing of debris and litter and to have on the construction or building site adequate facilities for the disposing of said litter and refuse and to make appropriate arrangements for the collection thereof. Said arrangements and/or methods for dis- posing litter and debris shall be approved by the director prior to the issuance of a building permit. (6) Disposing of the carcass of any dead ani- mal, domestic or otherwise, by the throw- ing, discarding, placing or depositing of said carcass in or on any of the locations noted in subsections (c)(1) through (3) of this section. (7) Discarding of garbage, fruit, or other mat- ter subject to putrefaction, rotting or decay at minidumps shall constitute a violation of this chapter. Minidumps are restricted to use by residents of the city for the deposit of bulky waste from residential properties. The method of transporting this waste shall be as prescribed in section 22-7 herein. (8) Obstructing use of public facility, salvaging or vandalism by any person on the prem- ises at which minidumps are located con- stitutes a violation of this chapter. (d) It shall be unlawful for any owner, occu- pant, lessee, employee or other person from any commercial establishment to dump or cause to be dumped any material whatsoever from such com- mercial establishment at any minidumps. (e) It shall be unlawful for any person, firm, corporation or other legal entity to collect, remove or transport any solid waste material for compen- sation from any location or premises within the city without first having been granted a permit by the department. M Declared public nuisance. In addition to, and not in limitation upon any enforcement ac- tion for violation of this section, it is the intent of the city commission to declare the dumping of litter and/or refuse in the city, as hereinbefore described and prohibited. a public nuisance and to subject violators of this section, to the provi- sions of this chapter calling for removal of such a public nuisance through notice, hearing and a lien enforcement procedure if the city so chooses to remedy the prohibited condition. Any action taken pursuant to this section in enforcing the provisions of this chapter shall be considered cumulative and in addition to penalties and other remedies provided elsewhere in this chapter. (g) Applicability of state and county laws. In addition to, and not in limitation of the provisions of this section, the provisions of F.S. § 403.413, also known as the "Florida Litter Law," and chapter 15 of the Code of Metropolitan Dade County, as amended from time to time, are hereby added to this Code of Ordinances and incorpo- rated by reference herein. The city commission also respectfully suggests to any court finding persons guilty of violations of the "Florida Litter Law" that the provisions of F.S. ch. 948, "Proba- tion," be utilized liberally in order to require such persons to expend appropriate amounts of time and effort gathering up litter and refuse at places within the city as may be designated by the court. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-6) Sec. 22-7. Method of transporting waste. It shall be unlawful for any person to haul, convey, or cause to be hauled or conveyed, any solid waste including discarded building matter or discarded furniture upon or along public streets. roads or alleys except when the material trans- ported is adequately secured in such manner as to prevent the material from falling or being blown from the transporting vehicles. No person shalt drive or move any vehicle or truck within the city, the wheels or tires of which carry onto or deposit in any street, alley or other public place, mud, CD22:9 L. 4 22.7 M1A U COM irt, sticky substances, waste or foreign matter of any kind. It shall be a violation of' this chapter for any person, firm or corporation not holding a valid permit 'issued pursuant to the provisions of article If of this chapter to haul for hire any garbage or rabbi: h as defined herein within any area of the city. (Ord. No. 1.0125, a 1, 7-10-86; Code 1980, § 22-7� Sec. 22-8. Manner of handling garbage and trash; placing dangerous materi- als in waste containers prohib- ited. Proper handling shall mean the following (1) Garbage shall be drained of excess liquid and well -wrapped before being deposited in an approved container. (2) All paper cartons and boxes shall be torn or broken down and flattened out by the de- positor. (3) All dangerous material such as broken glass, lightbulbs, razor blades, fluorescent tubes and all other hazardous material shall be considered as causing or likely to cause personal injury to collectors, and all such material shall be kept separate from other garbage and trash and deposited in a card- board container and placed alongside the approved containers. (4) It shall be a violation of this chapter to place or cause to be placed in any regula- tion garbage or refuse container for collec- tion any acid, explosive material, inflam- mable liquids, hot ashes, tar, grease, chemicals, poisons or other hazardous, in- fectious or any other dangerous or highly corrosive material of any kind. The city will not be responsible for the collection or disposal of any such materials. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-8) Sec. 22-9. Responsibility of persons other than owners of premises for vio- lations and for noncompliance. The owners or agents, management firms, man- agers, superisors, janitors, rental agents, ten- ants or lessees of all residential homes, rental units and commercial establishments shall be responsible under the law for complying with the provisions of this chapter. In every multiple dwell- ing occupied by three or more families, in which the owner does not reside, there shall be a respon- sible person designated in writing as such by the owner-. These persons: the management firm, man- ager, supervisor, janitor, rental agent or the owner shy ll be severally and jointly responsible for see- ing that the entire premises as well as the yards, sidewalks, grass strips, Swale areas or rights -of - way up to the edge of the pavement of any public street, and one-half of the alley or easement adjoining such dwelling are free from garbage, trash, litter, overgrowth, or any foreign material which constitutes a violation of this chapter. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-9; Ord. No. 11352, § 4, 4-25-96) Sec. 22-10. Operation of business where - wind regularly carries solid waste into street; fencing requirements. It shall be unlawful for the owner, tenant, or occupant of any parcel of land to operate or permit the operation of any business upon such parcel of land when and where, by reason of the combined effect of the prevailing winds and the location, configuration, and size of the structures thereon, solid waste generated by the operation of the business or the customers or patrons thereof is regularly driven, carried, or conveyed by such winds in appreciable quantities into or upon any public street, unless and until such owner, occu- pant, or tenant shall have erected on each bound- ary of such parcel of land a proper fence to retain such material with only such openings for ingress and egress of a size and number as shall be necessary. (Ord. No. 10128, § 1, 7-10-86, Code 1980, § 22-10) Sec. 22-11. Thumping on public right-of-way prohibited. (a) It shall be unlawful for any person to dump or cause to be dumped or place or cause to be placed any refuse or rubbish of any kind whatso- ever along the rights -of -way of the public streets, highways and roads of the city, regardless of C D22:10 B9 — )^; c (IARBAGE AND OT14ER SOLID WASTE s; 22-12 whether such dumping is from a dolly, wagon, wheelbarrow. noncommercial flatbed, truck. van. car or any commvrci.il v"llick. (b) The provisions of F S ch :339 shall apply to I all public within the city. I 1 (Ord. No. 10128, ti 1, 7-10-SG; Code 1980, § 22-11) { Sec. 22.12. Waste fees. (a' An annual fee of $1 titi.00 is hereby assessed upon all residential units as defined in section 22-1. These fees shall apply to residential units within the city not serviced by private sanitation i companies and shall serve to defray the cost of waste collection and disposal. One-half of said ' annual fee amount, ",9.1.00, shall be due and collectible on January 1 and on July 1 of each calendar year. Effective July 1, 1998, only, the a amount due and collectible shall be $108.00, all (` semi-annual amounts thereafter shall be at the } $94.00 rate. (b) Al] fees billed shall be due and collectible , 1 upon receipt. The fact that any residential unit or „ any commercial establishment located in the city is occupied shall be prima facie e-ddence that garbage and other refuse is being accumulated or j produced upon such premises; and temporary vacancy shall not authorize a refund or excuse the { nonpayment of the applicable fee. (c) Notwithstanding any Code provision to the contrary, commencing effective October 1, 1987, said date reflecting the date when the city was fully performing the services set forth below, an S annual fee is hereby assessed against all pro4•i- j Sion of public right-of.wav cleaning services by f the city in accordance with the following schedule of services set forth below. "Daily" as used in this s subsection means wc-ckdays, Monday through Fri day. 1 j (1) Scheduled, once -a -week trash collection. 9} (2i Main thoroughfares. in the city will be i swept on a daily basis. (3) All litter containers will be serviced and cleaned on a daily basis. { s (4) Sidewalks in the city will be cleaned on a daily basis and pressure cleaned as needed. k Supp. No. 3 C D22:11 -� 720 GAR13AGE AND OTHER SOLID WASTE i § 22.13 Usage Code C1'10 Description Theater, Units Up To 100 Unit Seats Base Rate $152 00 Rate Per Unit $0 00 CL'10 Theater, 50 SSeats $212 00 So 00 CL'10 CL711 Theaters Hospitals 999,999 100 Spats Beds $212 00 $254 00 S•500 V $0 00 CC 11 Hospitals 999.999 _ Beds 5354 00 $3 00 Ct'l2 PriNate schools - 10.000 _sq R S)4.100 _ S000 CL'12 Private schools 50.0001^ Sq it , $21200 $0.00 CU12 Private schkwls 999.9991 Sq. R $254,00 $0.00 CU13 _ A C L F non-profit 85 Fixed fee S144.00 $0.00 CL'14 A C 1. F profit 125 Fixed fee $212 00 $0 00 CL'15 ^ C.B R F non-profit 85 Fixed fee $144.00 S0.00 CL'16 C.B.R F profit 125 Fixed fee $212.00 S0.00 CL'17 S A F non-profit SS Fixed fee $144 00 S0.00 CL.18 S.A F profit 125 Fixed fee $212 00 $0.00 CU19 Day care centers and nursery schools (non- profit) 85 Fixed fee S144 00 _ $0.00 CU20 Day care centers and nursery schools (profit+ 125 Fixed fee $212.00 $0.00 CU22 Miscellaneous 500 Sq. ft. $85.00 $0.00 CU22 Miscellaneous 2.500 Sq. R. $102.00 $0.00 CU22 Miscellaneous 5.000 Sq. R. 5127.00 $0.00 CL'22 I.NfiscellameouF 15,000 Sq ft $152.00 $0.00 CU22 Miscellaneous 25.000 Sq. R. 5203.00 $0.00 CU22 Miscellaneous 50,000 Sq. ft. $229.00 $0.00 CU22 Miscellaneous 999.999 Sq. ft. $254.00 $0.00 CU23 Marinas 3 Boat slip $0.00 $0.00 CU23 Marinas 12 Boat slip $93.00 $0.00 CU23 Marinas 50 Boat slip $203.00 $0.00 CU23 Marinas 999,999 Boat slip $203.00 $5.00 CU24 Restaurants. lounges, bars 50 Seats S135.00 $0.00 CU24 Restaurants lounges. bars 100 Seats S203.00 S0.00 CU24 Restaurants. lounges, bars 200 Seats $254.00 $0.00 CU24 Restaurants. lounges, bars 999.999 Seats $254.00+ $3.00 CU25 I Pawn shops 1,000 Sq. ft. $135.00 $0.00 Ci:25 Pawn shops 5.000 Sq ft. $203 00 S0.00_ CL:25 I Pawn shops 999,999 Sq. R. S212 00 $0.00 CU26 I Convenience stores 0 Fixed fee $127.00 $0.00 CU27 jDade County public schools 0 Fixed fee $127.00 $0.00 (Code 1967, § 20-13; Ord. No. 9065, § 1, 1-24-80; Ord. No. 9208, § 1, 11-26-80; Ord. No. 9529, § I(K), 12-9-82; Ord. No. 9862. § 1. 6-28-84; Ord. No. 9932, § 1, 11-8-84; Ord. No. 10128, § 1, 7-10-86- Ord. No. 10136, v 1, 7-24-86; Ord. No. 10214, § 1, 2.12-87; Ord. No. 10371, § 2, 1-14-S9; Ord. No. 10600. § 1. 7-13-89; Ord. No. 11184, § 4, 10-27-94; Code 1980, § 22-12; Ord. No. 11233, § 1, 3-9-95; Ord. No. 11631, § 1, 3-31-98; Ord. No. 11632, § 2, 3-31-98) Sec. 22-13. Emergency powers of the direc- the Charter, the director, with the concurrence of tor, the city manager, shall have the authority to In the event of a state of emergency declared by suspend, modify or expand services provided by the mayor, in accordance with the provisions of the department, as enumerated herein, in such Supp. No. 3 CD22:12.1 �-" ,��6 0 r k 22.12 MIAMI CODE y, IdI The following annual fees are hereby as- services and are to be billed annually in advance } sensed against all commercial establishments. in accordance with the fee schedule as set forth which fees are in addition to all existing fees below: contained in this chapter f'()r the above cleaning, Usage Code Description L'nits Up To Unit Base Rate Rate Per Unit CU01 Apartment: v 2 units S0 00 S0 00 CU01 Apartments V 121 Unlls 5102 00 i Sow CUO1 Apartments _ 50 Units $144 00 50.00 C1,01 Apartms•ntt, 999.999 Units $144 00 $5.00 _ CU02 Hotel. motel and rooming houses 2 Units SO 00 $0.00 CU02 Hotel. motel and rooming houses 12 Units S102 00 50.00 CU02 Hotel, motel and rooming houses 50 Units $152.00 $0.00 CU02 Hotel, motel and rooming houses 999.999 Units 515200 $5.00 CU03 Retail V 500 _ Sq R $7600 _$0.00 CU03 Retail 2.500 Sq. ft. $102.00 $0.00 CU03 Retail 5.000 Sq. R. $127.00 $O.00 CU03 Retail 15.000 Sq. ft. $152.00 $0.00 CU03 Retail 25,000 Sq. ft. 5203.00 $0.00 CU03 Retail 50.000 Sq It. $229 00 $0.00 CU03 Retail 999.999 Sq ft. $254.00 $0.00 CL'04 Wholesale and storage 500 Sq. R $76 00 $0.00 CU04 Wholesale and storage 2.500 Sq ft. 5102.00 $0.00 CU04 Wholesale and storage 5.000 Sq ft. $127.00 $0.00 CU04 Wholesale and storage 15,000 Sq. ft. $152.00 $0.00 CU04 Wholesale and storage 25,000 Sq. ft. $203.00 $0.00 CU04 Wholesale and storage 50.000 Sq. R. $229.00 $0.00 CU04 Wholesale and storage 999.999 Sq ft $254.00 $0.00 CL705 Manufacturing 500 Sq ft. $76.00 $0.00 CU05 Manufacturing 2.500 Sq R. 5102.00 50.00 CU05 Manufacturing 5,000 Sq. ft. $127.00 50.00 0005 Manufacturing 15.000 Sq. ft. $152.00 $0.00 CUOS Manufacturing 25,000 Sq, ft. $203.00 $0.00 CU05 'Manufacturing 50.000 Sq ft $229.00 $0.00 CU05 Manufacturing 999,999 j Sq R $254 00 50.00 CU06 I Office buildings 500 Sq, R. S76.00 S0 00 CU06 Office buildings 2,500 Sq. ft. $IO2.00 _$0.00 CU06 Office buildings 5.000 Sq ft- $127.00 $0.00 CU06 Office buildings 15.000 Sq ft.^ $152.00 $0.00 CU06 Office buiId rng, 2a.000 Sq ft $203 00 $0 00 CU06 Office buildings f 50,000 &. R. $229.00 $0,00 ))ffu,• t . 'C';•" • 999999, Sq R �''r' i 0f, S0 00 CUO; ' 0lx•n Are:1, Parking lots, garages. auto sales 20.0001 Sq ft S1U2 00 S0 00 CU07 j0penAreas Parking lots, garages auto sales) 50,000 Sq f $127 00 50.00 SDI ft c254 01, $0 90 CUOr i.%ow­[w.nt perks dog tracks fro;)ton- 300 Foxed fee 5505 00 S0.00 C'U09 'Arenas dance halls 1x)nl halls, bowling lanes 20,000 Sq ft. $127.00 $000 CU09 Arenas. dance halls. fx)ol halls. bo%%ling lanes 50.000 Sq 11 $203.00 $0.00 CL'09 Aror,a- d:sttce halls. Ix)ol halls. buwl)ng lanes 999,999 Sq R $254,00 50.00 Cupp No 3 CD22:12 GARBAGE A.ND OTHER SOLID WASTE $ 2246 annual basis by the city commission in the same for by this section. The finance manner provided director, or designee, shall make financial reports regarding the status of such fund to the city commission, at its request. The city commission may authorize the city administration to estab 22.13 MIAMI CODE emergency circumstances as national disasters, civil disorders or other, circumstances as directed by the city manager. (Ord. No 10128§ 1, 7-10-SG: Code 1980, § 22- 12.1; Ord. No I1;ifi•1, § 10. 10-28-97, Sea 22-14. City collection of solid waste. i,o 1t ,s the f inctiom exclusively of the depart- ment to collect and dispose of all wastes in the city except as a1,1010�.ed by the director and/or by law. The director- shall have the power to establish the type. frequency and amount of solid waste collec- tion service needed and to be rendered to all areas of the city and to promulgate rules and regula- tions not inconsistent herewith. (b) The director may authorize the collection of solid waste by private collectors if it is a commer- cial account as such is defined by this chapter. If private collection is authorized, the contract with the private collector shall include garbage, trash and bulky waste collection. In addition, the con- tract must specify a container or containers of sufficient capacity so as to avoid overflowing conditions «•ith a minimum size of containers being two cubic yards required for each four units or on a pro rata basis with a minimum twice per week collection; two true and accurate copies of said contract shall be furnished to the director. The container must be capable of holding a min- imum of one week's collection of solid waste for the number of units being served. All equipment utilized by a licensed and permitted private hauler shall comply with the requirements and proYi- sions of this chapter. All containers shall be screened from the direct view of the adjacent properly owner. The department reserves exclu- sively the right to collectsolid waste from any city governmental facility, or any facility constructed or erected on city -owned or -leased property, re- gardless of" lucation. !c) The director and the director's designated representatives are assigned the responsibility for enforcement of solid waste collection proce- dures enumerated herein. (d) 'newspapers or other salvageable materials defined as aluminum cans, glass and plastic bot- tles which shall be separated from all other solid waste materials as provided for herein shall be placed at the curb next to domestic trash and collected by the department atthe same time and schedule as domestic: trash, unless otherwise des- ignated by the director. It shall be unlawful for any person, firm or corporation not licensed there- for, other than the owner, lessee, or occupant of that residential building, except city personnel to collect or othenvise remove any newspapers or other salvageable materials which have been spe- cifically placed for collection in the recycling col- lection program. The penalty as contained in Code section 1-13 is hereby applicable to viola- tions of this section. (Ord. No. 10128, § 1, 7-10-86; Ord. No. 10440, § 1, 5-19-88: Ord. No. 10654, § 2, 10-12-89: Code 1980, § 22-13) Sec. 22-15. Educational trust fund estab- lished from recycling program for scholarships to children of certain city employees; condi- tions for implementation. The moneys received by the city from the recycling of newspapers and other salvageable materials shall be separately received, main- tained and accounted for in an independent fund account to be held in the same manner as a trust account by the city for an educational fund hereby established upon the conditions as set forth in this section. The funds received, pursuant to the city's recycling program, shall be the subject of a separate appropriations ordinance to be adopted by the city commission and separately adminis- tered by appropriate personnel of the city. Upon the accumulation of $1,000,000.00 in funds re- ceived through this recycling collection program, all interest, as it accrues upon such principal amount, shall be utilized, subject to the sufficient accrual of interest, to pay ten full scholarships to college level educational institutions to be awarded annually by the city commission to children of city general services administration department, a� determined by the city commission to have the greatest need for such scholarships. In the event the interust accrued upon the $1.000.000.00 in this fund is insufficient to pay for ten full schol- arships, on an annual basis, a lesser amount of full scholarships, which can be funded by the accumulated interest, will be awarded on an Supp No s CD22:12.2 S 9 - )20 7 i GARBAGE AND OTHER SOLID WASTE 22.18 lish additional criteria for selecting eligible qual- ified recipients from among children of depart- ment employees. (Ord. No. 10654, § 3, 10-12-89; Code 1980, § 22-13.1) Sec. 22-16. Special collections, fees, extra charges. (a) Spacial collections by the department or waste services not expressly provided for in this chapter may be performed upon payment of rea- sonable fees and pursuant to such conditions as may be specified by the director, such fees to be reviewed annually by the city commission. When- ever noncompliance of this chapter occurs, which necessitates the department to remove, rectify or remedy said noncompliance, the fee for such ser- vices, as indicated in section 22-93, shall be as- sessed upon the person responsible for the condi- tions which give rise to and cause the noncompliance. (b) Refusal or delay in rendering payment for any special collection performed as outlined in this chapter shall constitute the basis fcr adding such unpaid charges to the regular waste fee assessment accruing against the property where such special collections are made, and are hereby imposed as special assessment liens against the real property aforesaid, and until fully paid and discharged, or barred by law, shall remain liens equal in rank and dignity with the lien of ad valorem taxes and superior in rank and dignity to all other liens, encumbrances, titles and claims in, to or against the real property involved, and when delinquent shall bear interest and may be enforced and collected together with reasonable attorney's fees for such collection pursuant to the provisions of section 22-89 herein, when applica- ble. (c) Free service. There shall be no free service rendered by the department for the collection, transportation, or disposal of solid waste. (d) Governmental agencies. For any premises owned, leased or occupied by the United States of America or any agency thereof, the State of Flor- ida or any political subdivision thereof, including any body politic and corporate created under the laws of the United States of America or of the State of Florida, the city may enter into contracts, negotiated by the city manager and approved by the city commission, with any such body or agency for the collection, transportation and disposal of solid waste, prescribing rates and charges to be paid by such body or agency in lieu of the rates herein prescribed; provided, however, that the charges to be paid by such body or agency shall not be less than an amount which is fair and equitable taking into account the cost to the city of such collection, transportation and disposal. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-14) Sec. 22-17. Private disposal of waste. Any person may be issued a permit by the Dade County health department to dispose of garbage or solid waste materials accumulated upon his or her own premises by burial, provided that such method meets all specifications of the director of the Dade County health department and evidence is presented of compliance with zoning regula- tions, but such permit and the disposal thereby authorized shall not relieve the owner or occupant of the premises from payment of regular waste fees. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-15) Sec. 22-18- Responsibility for removal of cer- tain waste; collection and dis- posal of furniture, appliances, etc. (a) Industrial waste, hazardous waste, and non- combustible waste shall be disposed of in the manner and at such locations as are prescribed by the director of the county public works depart- ment. Removal of industrial waste, hazardous waste and noncombustible waste shall be the responsibility of the owner, occupant, operator or contractor creating or causing the accumulation of such material. Upon approval of the director, collection of the aforementioned waste may be undertaken by the department at the expense of the owner, occupant, operator or contractor, pro- vided that such collection and disposal does not interfere with other A aste collection operations. The department shall not be responsible for col- lection or hauling of discarded building material, dirt or rock, nor shall it be responsible for collec- tion or hauling of trees, bushes or other vegeta- GARBAGE AND OTHER SOLID WASTE 22.18 lish additional criteria for selecting eligible qual- ified recipients from among children of depart- ment employees. (Ord. No. 10654, § 3, 10-12-89; Code 1980, § 22-13.1) Sec. 22-16. Special collections, fees, extra charges. (a) Spacial collections by the department or waste services not expressly provided for in this chapter may be performed upon payment of rea- sonable fees and pursuant to such conditions as may be specified by the director, such fees to be reviewed annually by the city commission. When- ever noncompliance of this chapter occurs, which necessitates the department to remove, rectify or remedy said noncompliance, the fee for such ser- vices, as indicated in section 22-93, shall be as- sessed upon the person responsible for the condi- tions which give rise to and cause the noncompliance. (b) Refusal or delay in rendering payment for any special collection performed as outlined in this chapter shall constitute the basis fcr adding such unpaid charges to the regular waste fee assessment accruing against the property where such special collections are made, and are hereby imposed as special assessment liens against the real property aforesaid, and until fully paid and discharged, or barred by law, shall remain liens equal in rank and dignity with the lien of ad valorem taxes and superior in rank and dignity to all other liens, encumbrances, titles and claims in, to or against the real property involved, and when delinquent shall bear interest and may be enforced and collected together with reasonable attorney's fees for such collection pursuant to the provisions of section 22-89 herein, when applica- ble. (c) Free service. There shall be no free service rendered by the department for the collection, transportation, or disposal of solid waste. (d) Governmental agencies. For any premises owned, leased or occupied by the United States of America or any agency thereof, the State of Flor- ida or any political subdivision thereof, including any body politic and corporate created under the laws of the United States of America or of the State of Florida, the city may enter into contracts, negotiated by the city manager and approved by the city commission, with any such body or agency for the collection, transportation and disposal of solid waste, prescribing rates and charges to be paid by such body or agency in lieu of the rates herein prescribed; provided, however, that the charges to be paid by such body or agency shall not be less than an amount which is fair and equitable taking into account the cost to the city of such collection, transportation and disposal. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-14) Sec. 22-17. Private disposal of waste. Any person may be issued a permit by the Dade County health department to dispose of garbage or solid waste materials accumulated upon his or her own premises by burial, provided that such method meets all specifications of the director of the Dade County health department and evidence is presented of compliance with zoning regula- tions, but such permit and the disposal thereby authorized shall not relieve the owner or occupant of the premises from payment of regular waste fees. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-15) Sec. 22-18- Responsibility for removal of cer- tain waste; collection and dis- posal of furniture, appliances, etc. (a) Industrial waste, hazardous waste, and non- combustible waste shall be disposed of in the manner and at such locations as are prescribed by the director of the county public works depart- ment. Removal of industrial waste, hazardous waste and noncombustible waste shall be the responsibility of the owner, occupant, operator or contractor creating or causing the accumulation of such material. Upon approval of the director, collection of the aforementioned waste may be undertaken by the department at the expense of the owner, occupant, operator or contractor, pro- vided that such collection and disposal does not interfere with other A aste collection operations. The department shall not be responsible for col- lection or hauling of discarded building material, dirt or rock, nor shall it be responsible for collec- tion or hauling of trees, bushes or other vegeta- 4 22.18 M1ANt) CODE to cut on private property before a certificate of occupancy is issued, except as otherwise prov�ided for in this chapter. (b) Bulky waste shall not be permitted at curbside until advance arrangements have been made with the department for its removal. Each residential property shall be entitled to four bulky waste collections lx,r calendar `•ear as scheduled by the department in response to the property owner's request. The bulky waste pickup shall be limited to a single 25-cubic-yard truckload per pickup. The cost of any additional bulky waste collection is 5100.00 per 25-cubic-yard truckload per pickup and shall be charged to the property from which the additional collection is made. The cost of any additional bulky waste collections shall be charged to the property from which the additional collection is made. During the week of, and prior to the scheduled collection date, all trash and bulky waste shall be placed on the parkway between the sidewalk and the street pavernent or along the curbline when it is immediately adjacent to the sidewalk in front of the property from which the trash originates where it will be easily accessible to the trash collection trucks of the city, but not in the traveled way on the street, road or alley. Bulky waste shall not be placed in any alley without the approval of the director. The director shall have full authority to designate the location or time of placement of trash other than as described in this section, whenever unusua! circumstances arise or, in the director's discretion, it is believed that additional or alternate areas or times are necessary. Trash or bulky waste shall not be placed adjacent to or within five feet of buildings, fences, utility, telephone or electric poles, fire hydrants, or in any other area that, would make it inaccessible to trash collection equipment. Homeowners, occu- pants, lessees or, tenants of residences are encour- aged to take trash, refuse, bulky waste and for- eign material !excluding garbage to designated trash collection sites where the material will be picked up on a regnularly scheduled basis. (c) ill property owners or occupants serviced by the city shall have two options for disposal of their garden trash and tree and shrubbery trash. Owners or occupants of property may either containerize garden trash or bundle tree and shrubbery trash for city collection or the owner or occupants may transport such material to minidumps. Material which is containerized or bundled shall be placed at curbside no sooner than the evening prior to the scheduled collection day. td) City pickup procedures for garden trash or tree and shrubbery trash are as follows: (1) Garden trash as defined herein shall be placed into garbage cans, plastic bags or other weatherproof containers strong enough to support the weight of the material but not to exceed 50 pounds, which are to be placed curbside for the city to pick up on regular collection day. (2) Tree and shrubbery trash as defined herein shall be tied in bundles with material strong enough to support weight of bundle, such bundle not to exceed 50 pounds and to be left at curbside for the city to pick up on the regular collection day. (e) City pickup procedure for special handling trash: Special handling trash as defined herein will be collected by the department only from city-sendced accounts scheduled on a mutually agreed date with the account and in accordance with paragraph (fx`4) below. (f) Use of minidumps by property owners, oc- cupants or landscape firms: (1) minidumps are restricted to use by prop- erty owners or occupants and their land- scape firms doing business within the city boundaries holding a city dumping permit. (2) Dumping of any material other than gar- den trash and tree and shrubbery trash in city minidumps is prohibited. (3) Loitering, salvaging and vandalism by any person at minidumps is prohibited. (4) Special handling trash is prohibited from being dumped at minidumps. Special han- dling trash generated by property owners or occupants will be scheduled for pickup by the department. Special handling trash generated by landscape firms shall not be disposed of by such firm at a minidump. CD22:14 SC 7 J GARBAGE A.`v-D OTHER SOLID WASTE ✓; 22-47 (5) Any single dumping of garden trash and tree and shrubber' trash at a minidump in excess of five cubic yards is prohibited. (6) A dumping permit is required by any land- scape firm utilizing minidumps. Applica- tion for dumping permit is to be made to the department. Decal permits will be is- sued free of charge on a quarterly basis. The decal jwrrnits shall be conspicuously affixed to all vehicles used by landscape firms in transporting trimmings and cut- tings to minidumps. Landscape firms shall register quarterly with the department for completion and updating of permit applica- tion which will require: number of city accounts, identification of accounts, aver- age numbe.r of loads dumped per month and applicable occupational license. Tem- porary one-time permits for dumping at minidumps shall be issued to those firms doing occasional business in the city. Per- mits shall be revocable by the director for violations of ordinances and policies gov- erning minidump use. Penalties shall range from temporary to permanent suspension of dumping privileges dependent on the nature and frequency of violations. (7) Landscape firms are required to dispose of all garden and related trash generated by them while doing business in the city at an approved disposal or transfer site. (g) It shall be unlawful for any person to place discarded household furniture or furnishings, stoves, refrigerators and like articles at any place visible from the street, on either publicly or pri- vately owned property, at any time under any conditions other than as set forth above. (Ord. No. 10128, § 1, 7-10-86; Ord. No. 10371, § 3, 1-14-88; Code 1980, § 22-16) Secs. 22-19-22-45. Reserved. ARTICLE 11. REGULATION OF PERSONS ENGAGED IN CO NMERCIAL V4', STE COLLECTION Sec. 22-46. Engaging in business of solid waste collection and disposal; is- suance of permit to private solid waste collectors. No person, firm or corporation shall remove or transport any solid waste material over the streets or public rights -of -way of the city or its real property for hire or salvage without first applying for and receiving a permit from the department to carry on such a business. The permit required by this section shall be in addition to any occupa- tional license which otherwise may be required by law. A permit will not be granted to a commercial establishment for the sole purpose of hauling the solid waste material of its own tenants or occu- pants. (Ord. No. 10128, § 1, 7-10.86; Code 1980, § 22-18) Sec. 22-47. Application for regulatory per- mit. Applications for a regulatory permit shall be made to the department upon such form and in such manner as shall be prescribed by the direc- tor, said form to elicit the following information and to be accompanied by supporting documents and such other information as may be required by the department from time to time: (1) Name of applicant. If the applicant is a partnership or corporation, the names and business addresses of the principal officers and stockholders and other persons having any financial or controlling interest in the partnership or corporation. Provided, how- ever, that if the corporation is a publicly owned corporation having more than 25 shareholders, then only the names and business addresses of the local managing officers shall be required. (2) Character of applicant. The applicant for a permit under this section, if an individual, or in the case of a firm, corporation, part- nership, association or organization, any person having any financial, controlling or managerial interest therein, shall be of good moral character. In making such de- termination the following information, which shall be submitted by applicant, shall be considered: a. Penal history. If the applicant is an individual, a record of all convictions and the reasons therefor shall be pro- vided by the applicant. If the applicant is other than an individual, then the record of all convictions and the rea- CD22:15 8 22-47 NUAMI CODE sons therefor of the principal control- ling officers of applicant shall be pro- vided. Provided, however, that in the case of a publicly held corporation hav- ing 25 or more shareholders, then only the aforementioned information appli- cable to its local managing otlicers shall be required. b. Fingerprints. The fingerprints of the persons mentioned in this subsection, a full set of which, for each of such persons shall accomp;inN. y the applica- tion. Such :service holy be obtained from the cite police, department. c. Business histon•. Whether such appli- cant has operated a solid waste collec- tion removal business in this or an- other state under a franchise, permit or license and if so, where and whether such franchise, permit or license has ever been revoked or suspended and the reasons therefor. d. Existence of business entity. If the ap- plicant is a corporation, applicant shall submit proof of incorporation in good standing in the state of incorporation and, if a foreign corporation, applicant shall provide information certif}ing that applicant is qualified to do business in the State of Florida. If applicant is other than a corporation and is operat- ing under a fictitious name, applicant shall be required to submit informa- tion that such fictitious name is regis- tered and 'held by applicant. (3) Equipment and method of operation. The applicant for a permit shall possess equip- ment capable of providing safe and efficient service. In making such a determination and approving the method of operation for each applicant, the department shall re- quire the following information: a. The type, number and complete descrip- tion of all equipin nt to be used by the applicant for providing service pursu- ant to this chapter. b. A statement that applicant will use only city- and/or county -approved dis- CD22:16 posal sites for disposing of all garbage, garden trash, industrial waste, and solid waste material which applicant collects and removes, except those sites which heretofore havr_ been approved by the State of Florida department of environmental protection. c. The names of customers, the addresses of each location served and schedule of rates of the company. (4) Insurance requirements. The applicant for a permit shall maintain insurance as spec- ified herein and shall furnish a public lia- bility police to the department and also file with the department a certificate of insur- ance for the policy written in the applicant's name. The certificate shall provide that the policy contain an endorsement requiring that the department shall be furnished with ten days' notice by registered mail prior to cancellation or material changes in the policies. The applicant shall carry in the applicant's own name an automobile liability insurance policy covering the applicant's operations with a combined sin- gle limit of $300,000,00 per occurrence for bodily injury and property damage liability. (5) Liability of the city and the department. The above insurance requirements shall not be construed as imposing upon the city or the department or any official or em- ployee thereof any liability or responsibil- ity for injury to any person or damage to any property by the insured, the insured's agents or employees. (6) Limitation on hours of operation. Private waste collection operators licensed by the city shall service their accounts only be- tween the hours of 6:00 a.m. and 11:00 p.m., except as determined by the director or defined below: a. Central downtown business district: Beginning at the intersection of Biscayne Bay and the :Miami River and following the Miami River in a west- erly direction to the easterly right-of- way line of Interstate Highway 95, and thence northerly along said right-of- S9- f 20 L_ GARBAGE AND OTHER SOLID WASTE. 6 22.52 way line c)f' Interstate Highway q5. and thence norther] '• along said right- of-way line of Interstate Highway 95 to the centerline of Northwest Fifth Street. and thence easterl' along said centcrhne of' Northwest and Northeast Fifth Street, as projected to Northwest First Avenue. and thence northerly ilonti Northwest First Avenue to Northwest 17 Street and then easterly along Northwest 17 Street to the Biscayne Bay. and thence along the westerly shoreline of Biscayne Bay in a southerly direc- tion to the point of' beginning. b. Other commercial corridors as deter- mined by the director. (7) Application form. Each application for a permit shall be made on a standard form promulgated by the director and shall include an affirmation that the applicant will comply with this chapter in all re- spects. (8) Review and issuance. The completed ap- plication shall be submitted to the depart- ment. Upon receipt of a completed appli- cation, the director or the director's designated representative shall re% iew said application and, if satisfactory in all re- spects, shall issue the required permit. (Ord. No. 10128, § 1, '7-10-86; Ord. No. 10440, § 2, 5-19-88; Ord. No. 11184, § 5, 10-27-94; Code 1980, § 22-18.1) Sec. 22-48. Denial of permit. Should the director deny an application for a Permit, the applicant shall be notified of such denial by certified mail not later than 14 days after the director takes such action. The notice of denial shall contain a statement of the reasons why the application was denied. )Ord. No. 10128, § 1. 7-10-86: Code 1980. § 22- 18.2 ) Sec. 22-49. Appeal from the departmental denial of permit; appeal from re- vocation of permit. (a) The denial or revocation of a permit by the director may be appealed to the city manager or the city manager's designee. The notice of appeal shall be filed in writing with the director no later than 14 days after the receipt of the certified letter advising applicant of the denial or revoca. tion. (bi The director shall fix the date and time for hearing the appeal. Said hearing shall be held not less than 14 nor more than 60 days after receipt of the notice of appeal. The city manager or the city manager's designee shall either affirm the deci- sion of the director or direct the director to issue or reinstate the permit. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22- 18.3 ) Sec. 22-50. Vehicle registration fees. Each and every permittee shall pay, in addition to the fees imposed by this article, an annual vehicle registration fee which shall be in the amount of $25.00 for each vehicle shown on the list required to be submitted as part of the appli- cation. This fee shall apply to renewals of regis- tration as well. (Ord. No. 10128. § 1, 7-10-86; Ord. No. 10440, § 3, 5-19-88; Code 1980, § 22-18.4) Sec. 22-51, Renewal of permit. A permit may be renewed from year to year by the department. Any such renewal shall be sub- ject to the same terms and conditions applicable to the issuance of the original permit and pay- ment of vehicle registration fee as set forth in section 22-50. (Ord. No. 10128, § 1, 7-10-86; Ord. No. 10440, § 5, 5-19-88; Code 1980, § 22-18.6) Sec. 22-52. Identification of equipment. All equipment utilized to collect and transport solid waste in the city must be conspicuously marked on both sides of the automotive unit with the name of the hauler, city permit numbers if a permitted hauler, vehicle number, tare weight and cubic yard capacity. Identification informa- tion must also be marked on all trailer and container units. All markings must be in letters and numerals at least two inches in height. (Ord. No. 10128, § 1, 7-10-86; CodA 1980, § 22- 18.8) Supp. No. 3 CD22:17 § 22-53 IN11Ah11 CODE Sec. 22-53. information required of permit - tees. At least annually, but not more frequently than quarterly, as determined by the director. each permittee shall Supply the following information on a form and in the manner prescribed by the director (1) A listinl-, as of the reporting date. of the names and addresses of customers, the addresses of each location served, and schedule of rates charged by the permit - tee. (2) A summary of the number of cubic yards of solid waste collected weekly based on scheduled service, as of the reporting date, by United States Postal Service zone im- provement plan code (zip code) or other geographic subdivisions of the city as de- termined by the director. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22- 18.9 ) Sec. 22-54. Change in rates. Each permittee shall file any change in its schedule of charges with the director in writing on a form prescribed by the director prior to becom- ing effective. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22- 18.10 ) Sec. 22-55. Disposal required at city- and/or county -approved facilities. (a) Any and all solid waste material collected by a permittee within the city shall be disposed of only at the solid waste disposal facilities provided, operated and designated or approved by the de- partment and/or the county public works depart- ment and at no other location or facility except those which have heretofore been approved by the State of Florida department of environmental protection. (b) All permittees shall comply with the provi- sions of this chapter and all implementing reso- lutions of the city commission. The city shall use Supp. No 3 the reports required in this chapter and other information available to determine compliance of permit holders. (Ord. No. 10128. § 1, 7-10-86; Code 1980, § 22- 18.11) Sec. 22-56. Regulatory permit fee require- ment; rnonthly regulatory per- mit fee payment; approval by di- rector as a prerequisite to issuance; financial statements, list of accounts. (a) No person shall engage in the business of removing or disposing of garbage. trash, or waste from any premises in the city or transport gar- bage, trash or waste through the public rights -of - way of the city without first having secured a regulatory permit for such activities. All persons shall be required to obtain a regulatory permit from the city in order to engage in commercial solid waste collection and disposal from any streets. public rights -of -way or property in the city. This fee shall be in addition to the occupational permit tax ordinance of the city. The term "gross receipts" for purposes of this chapter is defined to mean the entire amount of the fees collected by the permit - tees, exclusive of state sales taxes provided by law from any person within the city for garbage, hazardous, industrial, biomedical, biological or solid waste; construction and demolition debris, trash, litter, refuse and/or rubbish collection, re- moval and disposal within the city. (b) Effective October 1, 1994, all city -permit- ted commercial solid waste haulers will be re- quired to pay to the city a regulatory permit fee of eight percent of the permittee's total gross monthly receipts. Said regulatory permit fee shall be in- creased to 12 percent effective October 1, 1995, and to 15 percent effective October 1, 1996. Said regulatory permit fee shall be further increased to 20 percent, effective May 1, 1998. The per-mittee shall, on or before the last day of each month. deliver to the city finance department a tnie and correct statement of gross receipts generated dur- ing the previous month from its services rendered within the city on or before the last day of each month. Payments of said fee shall be made on a monthly basis to the city finance department, on or before the last day of each month, representing CD22:18 GARBAGE AND OTIiER SOLID WASTE : 22.57 gross receipts collected the previous month. The permittee shall on or before 30 days following the close of each fiscal year deliver to the director a statement of its annual g7w;s receipts generated from accounts %% ithin the city prepared by an independent certified public accountant reflecting gross receipts within the city for the preceding fiscal year_ The permittees will allow city audi- tors, during regular business hours after reason- able notice, to audit, inspect and examine the permitted' fiscal books and records and tax re- turns. insofar as the relate to city accounts, to confirm the permittees' compliance with this sec- tion. In the event the permittee fails to pay the full franchise fee percentage of the permittee's total monthly gross receipts, the fee shall bear interest at the rate of one percent per month on the outstanding balance until paid and addition- ally the permittee shalt have to pay all expenses of collection, including court costs and reasonable attorneys fees. (c) In order to effectively provide for the collec- tion of said retuiatory fee by the permittees to the city, any person seeking to renew his annual occupational license pursuant to the provisions of chapter 31 of this Code shall, in addition to the requirements set forth therein, provide the city finance department with evidence of all fees im- posed by the provisions of this chapter as a condition to reissuance or renewal of said busi- ness permit. (d) Issuance of a permit shall require comple- tion of an application form for the permit refer- enced in section 22-47 of this chapter. (e) The director is authorized to suspend, re- voke, or cancel any such permit for failure to comply with any of the terms hereof, in accor- dance with the same practice and procedures as are set forth in section 22-45 of this chapter; providing, however, that the director shall afford an existing permittee a written notice reasonably specifying the reason(-,) for the proposed revoca- tion or suspension of an existing permit, and the permittee shall be afforded five business days to cure the noncompliance stated in such notice. M Any decision of the director under the terms of this section may be reviewed, upon written request of the aggrieved permittee made to the Supp. No. 3 city manager in accordance with the same time period and procedure as are set forth by section 22-49, city Code. ( Ord. No. 10440. § 7, 5.19-88; Ord. No. 11184, ` 6. 10-27.94; Code 19S0. § 22-18 12; Ord. No, 11444. 2, 2-20-97; Ord. No. 11634. § 1, 4-14-98) Sec. 22-57. List of qualifications for per- mits; term; nontransferability; rules and regulations. (a) After June 1, 19SS. the city shall permit persons to provide service to commercial estab- lishments as set forth in this article. The permits issued, however, shall not limit the right to renew occupational licenses prior to the effective date of this amendment and, further, will not impair existing written contracts between a permittee and thatof a commercial establishment which are in full force and effect on the effective date hereof and said contract does not exceed the effective date of the permit. Each applicant for the permit shall submit, in writing, a list of its qualifications. Each list of qualifications shall include, as mini- mum qualifications to be considered in the grant- ing of such permit: (1) Certification that the applicant has satis- fied all requirements of chapter 22 of the Code of the City of Miami. (2) Certification that the applicant has never defaulted on any governmental franchises, contracts, permits or bid awards. (3) Certification that no subsidiary affiliate, or parent corporation or business entity of the applicant already has, or has applied for, an existing permit. Permits will not be issued to a subsidiary, affiliate or parent company of an existing permittee. (4) Certification that the applicant (or, if re- newal, the permittee) is not and will not be, throughout the term that it has a permit, affiliated with an affiliated entity of any existing permittee, or any appli- cant for a permit under this article, as a parent. or subsidiary, or by virtue of an interlocking directorate or otherwise. (b) Term. Said permits shall be valid for a period of one year from date of issuance and, at the expiration or earlier cancellation or revoca- CD22:19 P� GAPAGE AND OTHER SOLID WASTE the provisions of F.S. ch. 197. Other special col- lection billings Will be billed as authorized by the city commission. (Ord. No. 10128, § 1, 7-10-86; Ord. No. 11184, § 7, 10-27-94; Code 1980, § 22.23) Sec. 22-87. Schedule of waste collection and disposal fees; records to be kept. (a) Any and all bulky Waste collections in ex- cess of four collections during, any calendar near shall be charged a fee of $100.00 per additional collection. ; (b) The department shall maintain complete and accurate records of the costs and expendi- tures for prov�iding Waste collection services, and I { S t 22-5 , MIAMI CODE t tion thereof, the director may choose to accept applications for new permits conditioned and lim- ited :is netired abovt� or, in the :dternatrve, renew the permit issued for an additional one-year pe- riod. In deciding to Issue new permit,; and/or accepting applications from applicants for per- mits. the director will consider the following fac- tors (1! The permittees' full and faithful comph- ante with the terms of this chapter, (2) The permittees and/or applicants who best meet the qualifications established by this section for the issuance of the permit; and (3) The current garbage, trash and waste disposal needs of the city, including. with- out limitation, population, demographic and geographic needs. (c) Nontransferability. The permits granted pur- suant to this section shall not be transferable by way of assignment, sale, pledge, or other convey- ance. Upon change of ownership, including trans- ference of a majority (51 percent or more) of stock and/or partnership shares, of any company to which a permit has been issued, a new permit will be granted by the director if the new owner satisfies the requirements of this article. (d) The regulatory permitting provided for by this article is to ensure and facilitate a minimum standard of municipal regulation of commercial waste collection within the city, to provide unifor- mity and quality of service from the permits granted hereunder, and to assure that the citizens of Miami have safe, efficient, sanitary, permitted and qualified solid %waste, garbage and trash disposal contractors. (Orel. No. 10440, § 7, 5-19-88; Code 1980, § 22- 18.13) Sec. 22-58. Revocation of permit. The violation of any of the term44 and conditions of this Code which endanger the public health, safety and welfare or the violation of any of the terms and conditwn> of the [wrrnit shall be c•au ze for revocation of a permit. The director may revoke a permit for a violation or violations as aforementioned and may immediately declare such permit null and void. and upon such declaration, Supp No 3 permittee shall immediately cease all operations. and shall be considered to have forfeited said permit and the rights acquired thereunder. Should the director decide to revoke a permit, he shall provide the permittee with notice of such revoca• tion and the reasons therefor. Upon receipt of such notice, the permittee may appeal said revo- cation to the city manager or the city manager's designee and the appeal and hearing thereon shall be conducted in accordance with the proce- dures set forth in section 22-49. (Ord. No. 10128, § 1, 7.10-86: Code 1980, § 22- 18.14) Sec. 22-59. Procedure upon violation of sec- tions 2246 through 22-58. Any violation of sections 22-46 through 22-58 herein may result in action taken by the director pursuant to section 22-93 herein, and such action shall be cumulative in nature and not the exclu- sive action available to the director. (Ord. No. 10128, § 1, 7.10-86; Code 1980, § 22- 18.15) Secs. 22-60-22-85. Reserved. ARTICLE M. ENFORCEMENT AND ADMINISTRATION Sec. 22-86. Waste fees; implementation. (a) It shall be the duty of the owner of each lot, tract or parcel of land in the city having a resi- dential unit situated thereon, except as may other- wise be provided herein. to pay or cause to be paid the waste fee or fees due for each residential unit or commercial establishment, as the case may be, as provided for in section 22-12 and section 22-87 herein, and failure on the part of such owner to make such payment shall constitute a violation of this chapter. (b) Each person, firm, corporation, partner- ship or other entity who is the owner of each lot, tract or parcel of land in any area in the city shall pay for residential waste collection service as billed directly by the city or, at the discretion of the city, on the tax bill to and in accordance with CD22:20 e20 GARBAGE &SM OTHER SOLID WASTE 4 22.89 shall provide the city manager and the city com- mission with periodic statements and reports showing such costs and expenditures. The city commission shall make periodic adjustment of the fees, assessments and charges for waste collection and disposal services in accordance with the cost. analysis of providing such sen•ices. (Ord. No. 1012R, 1, 7-;0-86; Ord. No. 1I184, § 8, 10-2 7 -94; Code M)SO, ti 22.24 ) Sec. 22-88. Iayrnent of 'A'aste fees. (a) All payment of waste fees shall he payable in advance on or before the due date annually based on the method deemed most appropriate and cost effective by the city manager. In the event that payment of said waste fees is by check made payable to the city and said check is re- turned by the bank due to insufficient funds or any other reason not the fault of the bank or the city, a charge ofS20.00 shall be added to the waste fee due to cover administrative costs incurred by the city. In addition, late charges and interest on past due accounts shall be charged as provided in this chapter. (b) The finance director shall give notice to the owner of the property at the owner's last known mailing address, as disclosed by city records or by the county tax rolls, or at the property's address, or upon any occupant thereof. If the address of the owner is unknown to the finance director, and if the property is unoccupied and the owner thereof has no agent or employee available for ser-6ce of such notice, the posting of a notice upon such property by the finance director shall constitute and be sufficient notice to the owner thereof. All methods of giving notice as provided for herein are cumulative and independent of the other, and the finance director may use one or all of the same as the finance director may deem necessary. (Ord. No. 10128, § 1, 7-10-86; Ord. No. 11184, § 9, 1.0-27-94; Code 1980, § 22-26; Ord. No. 11276, § 2, 7-13-95) Sec. 22-89. Waste and right-of-way cleaning fees shall constitute special as- sessment liens against all im- proved real property. (a) Except as othem•ise provided by this chap- ter, all owners of improved real property in the city are required to have accumulations of gar- bage, bulky waste, and solid waste removed by the department, and for such governmental ser- vice of garbage, bulky waste and solid waste collection, or the availability of such service, all such improved real property shall be liable for the payment of the waste and right-of-way cleaning fees set forth in this chapter. All such fees becorn- ing due and payable on and after January 1, 1983, shall constitute, and are hereby imposed as, spe- cial assessment liens against the real property aforesaid, and until fully paid and discharged, or barred by law, shall remain liens equal in rank and dignity with the lien of city and county ad valorem taxes and superior in rank and dignity to all other liens, encumbrances, titles and claims in, to or against the real property involved. Such fees shall become delinquent if not fully paid within 60 days after the due date. Total outstand- ing balance for delinquent fees and related charges shall bear an interest charge of one percent per month, on any and all of the outstanding balance of such fees due, and if not fully paid with all accrued interest by the due date of the next succeeding waste fee payment, will continue to accrue interest at the rate of one percent per month. Unpaid and delinquent fees, together with accrued interest, shall remain and constitute spe- cial assessment liens against the real property involved. Such special assessment liens for waste and right-of-way cleaning fees and interest and costs may be enforced by any of the methods pro«ded in F.S. ch. 85, or in the aft.ernative, foreclosure proceedings may be instituted and prosecuted under the provisions of F.S. ch. 173, or the collection and enforcement of pay-ment thereof may be accomplished by any other method autho- rized by law. The owner and/or operator shall pay all costs of collection, including reasonable attor- ney fees, court costs, and abstracting and related lien expenses imposed by virtue of this chapter. CD22:21 (b) (1) Except as otherwise pro%,�Jded by this chapter, all waste fees due and unpaid for the period from January 1, 1981, until December 31, 1982, shall constitute special assessment liens against all improved real property for which waste collection and disposal services were provided or made available. 4 22.89 MAIM CODE (2) Except as otherwise provided by this chap- ter, all waste fees due and unpaid for the period from March 1, 19!?0, until January 1, 1981, shall constitute special assessment liens against all improved real property for which waste collection and disposal ser- vices were provided or made available, un- less the present owner and r(Tord title holder of the particular real property in- volved shall fully pay all waste fees matur- ing since such owner acquired title, includ- ing current waste fees, and shall file with the finance department a verified state- ment showing that the property involved was purchased in good faith for valuable consideration and that a transfer of title was not accomplished for the purpose of avoiding payment of delinquent waste fees, on a date subsequent to March 1, 1980, and giving the full and correct legal description and street address of the property involved, and the name and address of the former owner, if known, and such other informa- tion as may be reasonably required by the finance department. Thereupon, such present owners shall be required to pay such waste fees for the period from March 1, 1980, until January 1, 1981, during which period they were the record title holders of the property involved, and cur- rent waste fees. Provided further, that waste fees becoming due and unpaid prior to January 1, 1981, shall constitute special assessment liens only if the finance depart- ment shall cause to be filed in the office of the clerk of the circuit court of Dade County, Florida, on or before December 31, 1983, a notice of lien or statement showing a legal description of the real property against which the lien is claimed and its location by street and number, and the name of the owner as reflected by the records of the finance department, and an accurate state- ment of the total amount of unpaid and delinquent waste fees claimed to be due as of January 1, 1981, and a copy of such notice of lien shall be mailed to the owner of the property involved, as shown by the records of the finance department. Such notices of liens shall be filed in a special CD22:22 waste lien docket book maintained by the clerk of the circuit court for such purpose, which shall contain such liens as have been filed. In the event the department fails to file a notice of lien as aforesaid on or before December 31, 1983, no special assessment lien shall exist for any waste fees becoming due prior to January 1, 1981. Such liens, if filed, may be discharged and satisfied by payment to the city of the aggregate amounts specified in the notice of liens together with interest thereon from the date of filing of the lien computed at the rate of 18 percent per annum, together with the administra- tive costs, filing and recording fees. When any such lien has been fully paid or dis- charged, the finance department shall promptly cause evidence of the satisfaction and discharge of such lien to be entered in said waste lien docket book. Delinquent waste fees accruing during the period from March 1, 1980, until January 1, 1981, shall not in any event become special assess- ment liens against improved real property unless the finance department shall com- ply with the requirements of this para- graph (2), subsection (b). Where the record title to improved real property was ac- quired after March 1, 1980, and prior to January 1, 1981, in good faith for good and valuable consideration and not for the pur- pose of avoiding payment of delinquent waste fees, the present owner and record title holder of the involved property shall be liable only for waste fees due for the time period within which the record title was acquired and subsequent periods. Where the record title is so acquired after January 1, 1981, and prior to the filing of the notice of lien or statement required under the provisions of this paragraph (2) of subsec- tion (b), the property shall not be liable for any delinquent waste fees accruing to Jan- uary 1, 1981. In such instances, the former record title holder shall be personally liable for the delinquent waste fees, and not the property. (c) (1) Where property owners have paid de- linquent waste fees for which they are not liable, a refund or credit, if presented within L_ GARBAGE .4.\D OTHER SOLID WASTE the time period permitted by Florida Stat- utes, shall he given for such payments in accordance with the provisions of this sub- section upon %written request and delivery of all receipts evidencing payment of the delinquent waste fees for which a refund or credit is sought. It shall be the duty and responsibility of the record title holder to furnish the finance department with the information required 1.», this subsection in order to release the property from liability foi such delinquent waste fees. (2) Any person, firm, corporation or legal en- tity, other than the present owner of the property involved, who pays any herein listed special assessment liens shall be entitled to receive an assignment of the lien held by the city and shall be. subrogated to the rights of the city in respect to the enforcement of such lien. (3) The finance department is authorized and directed to execute and deliver, upon re- quest, written certificates certifying the amount of waste fees due upon any parcel of real property subject to payment of waste fees, or certifying that no waste fees are due, which certificates shall be binding upon the city. The finance department shall make rules and regulations prescribing pro- cedures governing the administration of the provisions of this chapter and pro,,id- ing procedures for the payment of waste liens in periodic installments and the can- cellation of waste liens, which rules and regulations when approved by resolution of the city commission and filed in accordance with the requirements of this chapter shall have the force and effect of law. (Ord. No. 10128, § 1, 7-10-86; Ord. No. 10371, § 4, 1-14-88; Ord. No. 10475, � 1, 9-8-88; Ord. No. 10600, § 1, 7-13-89; Code 1980,.§ 22-28) Sec. 22-90. Waste fee receipts. Receipts evidencing the payment of waste fees, in such form as may be approved by the finance director, shall be retained by the occupant of the premises covered thereby, and shall be exhibited upon demand of any employees of the finance 0 22.93 department. Failure to exhibit such receipt upon demand shall constitute a violation of this chap- ter. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-29) Sec. 22-91. multiple occupancy of premises. A commercial establishment and a residential establishment under the same ownership located in separate buildings on the same parcel of prop- erty in which the owner has a separate collection point for residential and commercial solid waste shall have the option of having separate collection points, in which case the refuse for the residential portion may be billed as a residential account. The commercial refuse shall be the responsibility of a private hauler commercial account. Cans must be separated on multiple occupancy proper- ties and placed in separate locations. Cans must be marked for separate identification. (Ord. No. 10128, § 1, 7-10-86; Ord. No. 11184, § 10, 10-27-94; Code 1980, § 22-30) Sec. 22-92. Certain exemptions from pay- ment of waste fees. Commercial establishments actually employing and using the services of a private waste collector holding a valid permit provided for in article II of this chapter shall not be liable for the payment of waste fees otherwise required to be paid hereun- der so long as such employment and use contin- ues. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-31) Sec. 22-93. Enforcement and administrative fees. (a) Any person who has not strictly complied with the proNisions of this chapter shall be subject to the enforcement procedures as set forth herein: (1) If noncompliance with this chapter is found, the sanitation inspector shall notify the noncompliant person in writing and give him a reasonable time to correct the non- compliance. Should the noncompliance con- tinue beyond the time specified for correc- tion, the sanitation inspector shall request a hearing in writing with the city manager or the city manager's designee. CD22:23 09 i'20 $ 22.93 MIAMI CODE (2) Upon receipt of said request, the city man- ager or the city manager's designee shall schedule a hearing not less than ten days from, but within 20 days of, the date of such request. The cite manager or the city manager's designee shall notify the noncompliant 1wrsort and the city attorney in writing, at least five days in advance, of the date, time and place of said hearing and the specific condition of noncompliance with this chapter. The city manager or designee thereof shall give the notice to the noncompliant person or owner of the prop- erty at tite owner's last known mailing address, as disclosed by the city records or by Metropolitan Dade County tax rolls, or at the property's street address, or upon any occupant thereof, or upon any agent or employee of the owner thereof. If the ad- dress of the owner is unknown, and if the property be unoccupied and the owner thereof has no agent or employee available for sence of such notice, the posting of the notice upon such property shall constitute and be sufficient notice. All methods of giving notice as provided for herein are cumulative and independent of the owner, and the city manager, or designee thereof, may use one or all of the same as may be deemed necessary. (3) The proceedings shall be as informal as is compatible with the essential require- ments of the law. At said hearing, the noncompliant person shall be given the opportunity to be represented by an attor- ney, to make a record of the hearing by the use of a court reporter, to call witnesses, to present documentary evidence, and to other- wise properly present his position of de- fense. The admission of ev�idence shall be governed by the city manager or the city manager's designee with the advice of legal counsel, if such be available. Strict rules of evidence, as in courts of law, shall not apply. Evidence is to be admitted at the discretion of the city manager or the city manager's designee consistent with gener- ally accepted legal principles governing the admission of evidence in administrative proceedings. (4) Within ten days of the close of the hearing, the city manager or the city manager's designee shall render his decision, in writ- ing, determining whether or not an admin- istrative fee shall be imposed, The decision must be based on a preponderance of the evidence and otherwise consistent with gen- erally accepted principles of administrative I aw. (5) Upon rendition of his determination in any hearing, the city manager or the city manager's designed shall file his findings with the city clerk and shall cause a true and correct copy of his order to be sent by registered mail, return receipt requested, to the last known address of the noncompli- ant person. Notice of said findings may also be transmitted and served in accordance with the city manager, with the provisions of paragraph (2) of subsection (a) of this section. (6) Any final determination of the city man- ager or his designee may be appealed within 30 days to the circuit court of the 11th Judicial Circuit of Florida in accordance with the Florida Rules of Appellate Proce- dure. (b) Appointment and qualifications of sanita- tion inspectors, powers and duties. (1) The city manager is hereby authorized to designate and appoint, as sanitation inspec- tors, certain city employee(s), normally trained and assigned to inspection func- tions for the purpose of enforcing this chap- ter and the rules and regulations pertain- ing thereto. (2) Sanitation inspectors shall have the follow- ing qualifications: a. A high school diploma or its equiva- lent. b. Satisfactory completion of a course of at least 40 hours' duration pertaining to the duties of sanitation inspectors, which course shall be jointly given by the directors of the city police depart- ment, department of general services administration, department of public works, law department and other rel- evant departments. CD22:24 s20 L J GARBAGE AID OTHER SOLID WASTE. e. Approval and certification by the cite police chief as persons of good moral character and standing; in the commu- nity suited by temperament and learn- ing to N>, sanitation inspectors of the city. (3) Sanitation inspectors shall, while on duty: a. Issue notices of noncompliance and per- form such other acts pursuant to sec- tion 22-5(b) for enforcement of this chapter. b. Perform such additional duties as may be prescribed by ordinance or by ad- ministrative orders, regulations and directives as may be issued by the city manager. (4) Sanitation inspectors shall be identified either by special uniform or badge or both. Sanitation inspectors shall not carry fire- arms. (c) Obstructing sanitation inspector in the per- formance of duties. (1) Whoever opposes, obstructs, or resists the sanitation inspector or other person autho- rized by the sanitation inspector, in the discharge of his or her duty, as provided in this section, shall be guilty of a violation of this chapter, and, upon conviction thereof, shall be punished as provided in section 1-13, (2) Sanitation inspectors shall notify the city police department immediately when in their judgment an arrest or forcible re- straint becomes the appropriate response to a situation. (d) If the findings of the city manager or his designee indicate that an administrative service fee shall be imposed upon the noncompliant per- son under this chapter, said administrative ser- vice fee shall be assessed in accordance with the minimum administrative fee schedule as set forth below: 4 22-03 Section Acts/ Con&tinns oforrcomphance Fee (Subsection) The placement of containers, gar- bage, trash, bulky and/or indus- trial waste on public right.,; -of -way i 75.00 22.2ir) Dumpster(s) not kept in approved garbage facility 150.00 22-2(f) Failure of commercial esunbhsh- ment to have in ell('ct an agree- ment with a waste hauler for the collectiun and removal of solid %vastelgarbage from the premises 250-00 22.2ia) Failure to inform 1 E'T service cen- ter of intent to discontinue service 50.00 22-2(a) Failure to screen container 50.00 22-2(b) Failure to remove raw or pro- cessed organic waste matter from food sen-ice establishment 75.00 22-2(b) Failure to maintain property, side- walk, alley, and/or public right -of- 22-5, way 50.00 22.9 Commercial container mlataon 50.00 22-2(f) Insufficient number of approved garbage receptacles 50.00 22.2tf) Uncontainerized garbage or mis- cellaneous trash in receptacle area 75.00 22-5 Unauthorized disposal of garbage or trash or other waste materials consisting of industrial and bulky waste or other waste material 500.00 22-6 Disposal of trash or other waste materials placed in right-of-way at other than authorized time 75.00 22-19(b) Illegal dumping from a nonmotor- ized vehicle or unknown entity (i.e., dolly, wagon, or wheelbar- row) 75.00 22.11 Illegal dumping from an automo- bile 75.00 22-11 Illegal dumping from a noncom- mercial vehicle 250.00 22.11 Illegal dumping from any commer- cial vehicle 500A0 22.11 Garbage deposited at minidump site for bulky waste 150.00 22-6(cK7) Use or neighborhood bulky waste transfer station by commercial es- tablishment 500.00 22.6(c)(7) Impeding, salvaging and vandal- ism of bulky waste minidump site 250.00 22-6(c)(8) CD22:25 a -- 14 0 1 22.93 NTTANU CODE Section Acts lConditionsoffonromptionce Fee (Subsection) Trash not containerized or bun- dled 75.00 22-5 Unauthorized bulky waste on right- of-way 75.00 22-18(b) Garbagr not containerized 75.00 22-8(1) Titter on prcmiscs 50.00 22-9 Sunken cvnumners 100.00 22-2(c)(4) All other violauons 75.00 ch. 22 The fees as stated herein are payable and due by the noncompliant person within ten days of said per-son's receipt of the findings of the city man- ager, or the city manager's designee, imposing such fees. (e) If the owner, agent, or occupant of any property within the city shall fail to comply with any determination of the city manager, or his designee, the director shall cause such work to be done and shall keep an accurate accounting of the costs thereof, whereupon the amount of such costs and the interest thereon shall constitute and is hereby imposed as a lien against the subject property with equal rank and dignity of any other special assessment liens. An aggrieved party may appeal both the fees and costs imposed under this section to a court of competent jurisdiction in accordance with the Florida Rules of Appellate Procedure. (0 Failure by an occupant of any commercial property other than multifamily residential prop- erty to comply with the regulations set forth in this chapter shall cause the city to revoke the certificate of use and occupational license for said business. (g) In addition to any other remedies provided by this chapter or any other city ordinance, the director and the director of the department of public works shall have judicial remedies avail- able to them for violations of this chapter or any other lawful rule or regulation promulgated here- under as enumerated below but not limited to: (1) They may institute a civil action in a court of competent jurisdiction to establish liabil- ity and to recover damage for any costs incurred by the city in conjunction with the abatement of any condition prohibited by the provisions of this chapter. (2) They may institute a civil action in a court of competent jurisdiction to seek injunctive relief to enforce compliance with the terms of this chapter or any rule or regulation promulgated hereunder, to enjoin and pro- hibit said violation or to compel the perfor- mance of actions which will result in com- pliance with the terms of this chapter. (h) These remedies are cumulative and the use of any appropriate remedy shall not constitute an election of remedies by the departments. The use of one remedy shall not preclude the use of any others. (i) All violations of this chapter may be brought before the code enforcement board or may be prosecuted in the county court. (Ord. No. 10128, § 1, 7-10-86; Ord. No. 10535, § 2, 1-12-89; Ord. No. 11184, § 11, 10-27-94; Code 1980, § 22-32; Ord. No. 11352, § 5, 4-25-96) Secs. 22-94-22-115. Reserved. ARTICLE IV. LOT CLEARING Sec. 22-116. Accumulations of debris, rub- bish, etc., and dense growth of trees, vines, etc., as nuisances. The allowing of debris, rubbish, trash, tin cans, papers or stagnant water to accumulate, or a dense growth of trees, vines and underbrush to develop, on any lot, tract or parcel of land within the city to such an extent that it constitutes a menace to life, property, the public health, and public welfare or creates a fire hazard is hereby prohibited and declared to be a public nuisance, and any owner, lessee, or occupant or any person having legal or beneficial ownership of any lot, tract or parcel of land in the city who permits such a nuisance to develop thereon shall, upon convic- tion thereof, be punished as provided by law. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-36) CD22:26 SO - t 2V ti ,1� GARBAGE AND OTHER SOLID WASTE Sea. 22.117. Lot clearance. (a) The owners or agents of all rental units, including multiple apartments, and the owners of all structures, either residential or commercial, shall be responsible at all times for keeping their premises clean and free from all trash and litter, including the sidewalks on which the buildings or lands front. It shall be the duty of all owners of lots, parcels and tracts of land within the city to keep such property in a safe, clean and present- able condition, and to remove therefrom all gar- bage, surplus grass, saplings, weeds and other growths, and all trash, and to fill in all excava- tions and depressions thereon. (b) It shall be unlawful for the owner or any other persons in possession of any lot, tract, or other parcel of land in the city, improved or unimproved, to permit the accumulation of trash, garbage or debris, or to allow a growth of weeds or bushes over one foot in height, and the location of same upon said property shall be proof of a violation of this section. (c) In the event the owners of lots, tracts or parcels of land within the city fail or refuse to keep such property in a safe, clean and present- able condition, it shall be the duty of the code inspector as defined in section 2-811 to give notice to the owner of such property to comply with the requirements of this chapter within ten days after the sen.ice of such notice. (d) The code inspector, as defined in section 2-811, shall give the notice to the owner of the property at the owner's last known mailing ad- dress, as disclosed by the city records or by county tax rolls, or at the property's street address, or upon any occupant thereof, or upon any agent or employee of the owner thereof. If the address of the owner is unknown to the code inspector, as defined in section 2-811, and if the property be unoccupied and the owner thereof has no agent or employee available for service of such notice, the posting of a notice upon such property by the code inspector, as defined in section 2-811, shall con- stitute, and be sufficient notice to the owner thereof. Ali methods of giving notice as provided for herein are cumulative and independent of the other, and the code inspector, as defined in section 2-811, may use one or all of the same as may be § 22.146 deemed necessary. The notice shall include an opportunity for a hearing as proNided in section 22-93. (e) In the event the owner of any lot, parcel or tract of land shall fail to remove therefrom all surplus grass, saplings, weeds, trash and garbage and to fill in all excavaticns and depressions thereon after notice has been given by the code inspector, as defined in section 2-811, or fails to request a hearing within such ten days, the city may clean or cause to be cleaned such lot, tract or parcel of land and place it in a safe and sanitary condition. (f) In case the work is done or caused to be done by the city, the code inspector, as defined in section 2-811, shall keep an itemized accounting of expenses of the work done and the cost thereof and mail the statement to the owner of the property. If the statement is not paid within ten days from the date the request for payment has been served upon the person from whom payment is due, the amount shall bear interest at the rate of 18 percent per annum until paid. Such amounts, together with all penalties imposed thereon, shall constitute, and are hereby imposed as special assessment liens against the real property afore- said, and until fully paid and discharged, or barred by law, shall remain liens equal in rank and dignity with the lien of city and county ad valorem taxes and superior in rank and dignity to all other liens, encumbrances, titles and claims in, to or against the real property involved. The payment of all costs of collection, including rea- sonable attorney's fees, penalties and lien amounts is required before said lien shall be discharged or satisfied. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-37) Secs. 22-118-22-145. Reserved. ARTICLE V. REMOVAL. OF ABANDONrED PROPERTT* Sec. 22-146. Removal from private property. (a) It shall be unlawful to park, place, store or leave any abandoned property on private prop - "State taw reference Junket,', abandoned property on public property, F.S. to 705.101 et seq. CD22:27 ,20 4 22-146 M1011 CODE erty in the city, unless it is in connection with a purpose or business enterprise lawfully situated and licensed; any article of abandoned property parked and/or stored in connection with a legiti- mate business enterprise shall be parked and/or stored in complete compliance with the city's zoning ordinance (b) Whenever the code inspector, as defined in section 2-811, shall ascertain that an article or articles of abandoned property are present on private property within tire limits of the city in violation of the zoning ordinance or regulation, the antilitter ordinance or regulation, or other similar ordinance or regulation of the city, the enforcement officer shall cause a notice to be placed upon such article in substantially the following form: NOTICE TO THE OWNER AND ALI, PER- SONS INTERESTED IN THE ATTACHED PROPERTY. This property, to wit: (setting forth brief description) located at (setting forth brief description of location) is improperly stored and is in violation of (setting forth ordinance or regulation violated) and must be removed within ten days or, if the property is a boat, 30 days from date of this notice; otherwise it shall be presumed to be abandoned property and will be removed and destroyed by order of (enforcement officer) un- less a request for hearing as provided in Code of the City of Miami section 22-93 is filed by owner with the enforcement officer within the specified timeframe for removal of the property as set forth herein, thereby sta}�ing the enforce- ment officer's action pending the outcome of the hearing. if no hearing is requested the property will be removed and destroyed. If the property is a motor vehicle or boat, the owner will be linable for the costs of removal and destruction. Dated this: isetting forth date of posting of notice). Signed: (setting forth name, title, ad- dress and telephone number of enforcement officer). (c) Such notice shall not be less than eight inches by ten inches and shall be sufficiently weatherproof to withstand normal exposure to the elements for a period of ten days. In addition to posting the notice, and on or before the date of posting, the enforcement officer shall make a reasonable effort to ascertain the name and ad- dress of the owner. If such is reasonably available to the officer, he shall mail a copy of such notice to the owner on or before the date of posting. If the property is a motor vehicle as defined in F.S. § 320.010) or a vessel as defined in F.S. § 327.02(27), the law enforcement agency shall contact the state department of highway safety and motor vehicles or the state department of environmental protection, respectively, in order to determine the name and address of the owner and any person who has fried a lien on the vehicle or vessel as provided in F.S. § 319.27(2) or (3) or F.S. § 328.150). On receipt of this information, the enforcement agency shall mail a copy of the notice by certified mail, return receipt requested, to the owner and to the lienholder, if any. (d) If, at the end often days or if the property is a boat, at the end of 30 days after posting such notice, the owner or any person interested in the abandoned article described in such notice has not removed the article and has not requested a hearing in compliance with the ordinance or reg- ulation cited in the notice, the enforcement officer may cause the article of abandoned property to be removed and destroyed. The salvage value, if any, of such article shall be retained by the city to be applied against the cost of removal and destruc- tion thereof, unless the costs of removal and destruction are paid by the owner as provided in section 22-147 hereof, in which case the salvage value may be deposited in the city's general fund. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 2240) Sec. 22-147. Owner responsible for costs of removing abandoned property. The owner of any abandoned motor vehicle or boat who, after notice as provided in this section, does not remove the vehicle or boat within the specified period shall be liable to the city for all costs of removal and destruction of such property, less any salvage value received by the city. Upon such removal and destruction, the enforcement officer shall notify the owner of the amount owed and of the penalty provisions of this section. In the case of an abandoned boat, any person who neglects or refuses to pay such amount shall not be entitled to be issued a certificate of registration for any boat until such costs have been paid. The CD22:28 S9-- 720 GARBAGE AND OTHER SOLID WASTE enforcement officer shall supply the state depart- ment of environmental protection with a list of persons whose boat registration privileges have been revoked under this section. In the case of an abandoned motor vehicle, any person who ne- glects or refuses to pay such amount shall be subject to a fine of $100.00. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-41 ) Sec. 22-148, Obstruction of enforcement of- ficer. Whoever opposes, obstructs, or resists any en- forcement officer, or any person authorized by the enforcement officer, in the discharge of his duties as provided in this section, upon conviction, shall be punished as provided by law. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-42) Sec. 22-149. Enforcement officer immune from prosecution. Any enforcement officer, or any person autho- rized by the enforcement officer, shall be immune from prosecution, civil or criminal, for reasonable, good faith trespass upon real property while in the discharge of duties imposed by this chapter. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-43) Sec. 22-150. Enforcement officers desig- nated. The designated enforcement officers for the purpose of enforcing the provisions of this article are the city manager, the chief of police, the director of the department of general senlices administration and the director of the depart- ment of planning, building and zoning or their designees and the code inspectors as defined in section 2-811. (Ord. No. 10128, § 1, 7-10-86; Code 1980, § 22-44) Secs. 22-151-22-16 0. Reserved. ARTICLE VI. DONATION COLLECTION BINS Sec. 22.161. Donation bins prohibited. (a) Generally. It shall be unlawful to deposit, store, keep or maintain or to permit to be depos- ited, stored, kept or maintained a donation collec- Supp. No. 2 22-161 tion bin in or on any lot, parcel or tract of land or body of water in any zoning district. A donation collection bin is hereby defined as a receptacle designed with a door, slot or other opening and which is intended to accept and store donated items; provided, however, the definition of dona- tion collection bins shall not include trailers, where personnel are present to accept donations. (b) Designation of enforcement officer. The di- rector shall designate an enforcement officer who shall be responsible for the removal of donation collection boxes. (c) Notification. "'henever the enforcement of- ficer ascertains that a donation collection bin is present on any property within unincorporated Dade County, the officer shall cause a notice to be placed on such bin in substantially the following form: NOTICE This donation collection bin is unlawfully upon property known as (setting forth brief description of location) and must be removed within 72 hours from the time of this notice. Failure to remove the bin shall result in the removal and destruction of the bin by order of the City of Miami. Date this: (setting forth the date, time of posting of the notice) Signed: (setting forth name, with the address and telephone number of the enforce- ment officer). Such notice shall be not less than eight inches by ten inches and shall be sufficiently weatherproof to withstand normal exposure to the elements. (d) Removal of donation collection bin. If at the end of 72 hours after posting of such notice, the donation collection bin has not been removed from the property, the enforcement officer shall cause the bin to be removed. (e) Assistance of city police department. If the enforcement officer is unable to successfully re- move a donation collection bin subject to seizure under this section, the enforcement officer or his designated representatives may secure the assis- tance of the City of Miami police department to effect the removal of said bin. CD22:29 19-- 1210 I— 1 22-161 MIAMI CODE (n Obstructing an enforcement officer in the r performance of duties. Whoever opposes, ob- structs or resists the enforcement officer in the discharge of duties as provided in this section, upon conviction, shall be t,Tuilty of a misderneanor of the second degree and shall be subject to punishment as provided by law. (g) Destruction of donation collection bin. Mien ever a donation collection bin remains unclaimed as prodded in subsection (d) above, it shall be destroyed by order of Dade County. The contents of the bin may be destroyed or donated to charity. (h) Recovery of costs. All costs incurred pursu- ant to this section shall be paid by the owner of the donation collection bin. The enforcement of- ficer may institute a suit to recover such expenses against the bin owner. (i) Responsibility for compliance. The owner of the donation collection bin and the tenant and/or owner of the property on which the bin is main- tained shall be responsible for compliance with " this chapter. (Ord. No. 11531, § 2, 7-24-97) 1 J-88-408 5/19/88 ORDINANCE NO. 1044Q' AN EMERGENCY ORDINANCE AMENDING CHAPTER 22, ' ENTITLED "GARBAGE AND TRASH", OF THE CODE OF THE CITY OF MIAMI, FLORIDA. AS AMENDED, TO PROVIDE FOR: THE ISSUANCE OF A REGULATORY PERMIT REQUIRED FOR ALL PERSONS ENGAGED IN SOLID WASTE COLLECTION AND DISPOSAL IN THE CITY, THE PAYMENT OF A REGULATORY PERMIT FEE, THE SUBMISSION OF CERTAIN FINANCIAL STATEMENTS AND DOCUMENTS, AND THE AUTHORIZATION OF THE DIRECTOR OF THE SOLID WASTE DEPARTMENT TO PROMULGATE RULES AND REGULATIONS IN REGARD TO THE ISSUANCE AND ADMINISTRATION OF SUCH PERMIT AND FEE; MORE PARTICULARLY, BY AMENDING PARAGRAPH (1) AND REPEALING PARAGRAPH (2) OF SUBSECTION (a) OF SECTION 22-13, REPEALING SECTIONS 22-18.8 AND 22-18.7 IN THEIR ENTIRETY; AMENDING SUBSECTIONS (g) AND (h) OF SECTION 22-18.1. AMENDING SECTION 22-18.4, AMENDING SECTION 22-18.6. AND ADDING NEW SECTIONS 22 18.12 AND 22-18.13 TO SAID CHAPTER 22; CONTAINING A REPEALER PROVISION AND SEVERABILITY CLAUSE. BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Seotion 1. Seotion 22-13 of the Code of the City of _. Miami, Florida, as amended, is hereby amended in the following partioulars:l/ "Chapter 22 GARBAGE AND TRASH • • • Sao. 22-13. City oolleotion of solid waste. (a) (Generally. cottaotton ta Cev litstrtat) (1) It is the function exclusively of, the department to collect and dispose of all waste in the oity except as authorized by the director azdLor by lgg. The direotoz shal have the power to establish the type, frequenoy and amount of solid waste collection service needed and to be rendered to all areas of the oity and to promulgate rules and regulations not inoonsis,;ent herewith. Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effeot and remain unob.s.nged. Asterisks indioato omitted and unchanged material. .r i ExCept as yurjuttted by the dtleotux Whan sexftce ta not adequt%ts vi avatlabtu, theirs -h-it be Lau colluotton of 19ottLt WaS tts by p1tvate acitteritolu iri the x1rit (CCLJ3, Idat- —1-10t being heit5by-iftrfirted U"W puj:pkj ts seattall au fol-1-UW-8-- -at -ff-� --Buy rq�tmniTtT --tt Aavv� if aynu ire--tti8m 1-Inver t" a Wes L'Y- E�g"t'Uf way tine CL"U Ulullu tMe -o-f 1. " tur tj ta to Ifiltrway--90 to the veirt-ert-i-n-a—arf Northwest Ottr 0,44VOU, td rientulline of —Northwest- Nol tht3UM meted-to-t2ra-w�vatarty-stays tae of ats pi a Btsawyns nay aild --- ab atong the shonyttile [if B±s a Bay- tri W—bouttlel-ly dtlerition to the potnt of tMgtrMt11g- (b) The direotor may authorize the oolleotion of solid waste by private ooll6otors if it is a commercial account as such is or riontat"13 never, (T� ox ajoits couttgaaas recjtdeattQt Uritts. if private oolleotion Is authorized, the oontraot with the private oolleotor shall inolude garbage, trash and bulky waste collection. In addition, the contract must specify a container or containers of sufficient capacity so as to avoid overflowing conditions with a minimum size of containers being two (2) cubic yards required for eaoh four (4) units or on a prorata basis with a minimum twice per week oolleotion; two (2) true and accurate copies of said oontraot shall be furnished to the director. The container must be oap&ble of holding a minimum of one (1) week's collection of solid waste for the number of units being served. All equipment utilized by a licensed and permitted private hauler shall comply with the requirements and provisions of this chapter. All containers shall be screened from the direct view of the adjacent property owner. The department reserves exclusively the right to oolleot solid waste from any city governmental facility, or any facility oonstruoted or erected on city owned gZ_jg&aja-d property, regardless of location W1:thtL1 the Otty. (o) The director and the director's designated representatives are &ssigned the responsibility for enforcement of solid waste collection procedures enumerated herein.' is Section 2. subsections (g) and (h) of Section 22-18.1 of the Code of the City of Miami, Florida, as amended, are hereby amended in the following partioulare: Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in affect and remain unchanged. Asterisks indicate omitted and unchanged material. -2- 40 U) cJ 1,20 "Sec. 22-18.1 Application for x2�ulatory permit. Applications for a xeg latory permit shall be made to the department upon suoh form and in such manner as shall be presoribed by the director, said form to elicit the following information and to be a000mpaniedby supporting documents and such other information as may be required from the department from time to time: (g) Application fee Lm• Each application for a pgrmi,t shall be axvompszrx made On a standard, form promulgated by the director and pjlell inoluda an Af f irmatlon t at tha ann loan will comRiy with thjB--hanter in all resnaata, (h) The completed application shall be submitted to the department. Upon reoeipt of a completed application, the director or the director's designated representative shall review said application and, if satisfactory in all rapvrts respects, amd aftex payment;of reqatzed faun, shall issue the required permit." Section 3. Section 22-18.4 of the Code of the City of Miami. Florida, as amended, is hereby amended in the following particulars: a/ "Sec. 22-18.4. Vehicle registration fees. Each and every permittee shall pay in addition to the tuttlat—app.taativu feed-, imposed by this artiole an annual, vehicle registration fee which shall be in the amount of twenty-five dollars ($28.00) for each vehicle shown on the list required to be submitted as part of the application. This fee shall apply to renewals of registration as well." Section 4. Section 22-18.8 of the Code of the City of Miami. Florida, as amended, is hereby repealed in its entirety. / Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. -3- 1 Seotion 0. Section 22-18.6 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following partioulars:4/ "Sec. 22-18.6 Renewal of permit, A permit may be renewed from year to year by the department. Any such renewal shall be subject to the same terms and conditions applicable to the issuance of the original permit except sYand payz2At of vehiole registration feed as set forth in section 22-18.4.• Section 8. Section 22-18.7 of the Code of the City of Miami, Florida, as amended, is hereby repealed in its entirety. Section 7. New Beotions 22-18.12 and 22-18.13 are hereby added to the Code of the City of Miami, Florida, as amended, reading as follows: "Sec. 22-18.12 Regulatory permit fee requirement; monthly regulatory permittee fee payment; approval by director as a prerequisite to issuance; financial statements, list of accounts. (a) Regulatory permit required - no person as defined by this Chapter, shall engage in the business of removing or disposing of garbage, trash, or waste from any premises in the City or transport garbage, trash or waste through the public rights -of -way of the City without first having secured a regulatory permit for such activities. All persons, shall be required to obtain a regulatory permittee fee from the City in order to engage in oommeroial solid waste oolleotion and disposal from any streets, public rights -of -way or property in the oity, without first having secured a permit from the director for such activities after payment to the city of a regulatory permittee fee of six percent of (6%) of the permittee's total gross monthly receipts. This fee shall be in addition to the oocupational permit tax ordinance of the City. The term "gross receipts' for purposes of this chapter is defined to mean the entire amount of the fees collected by the permittees, exolusive of state of Florida sales taxes provided by law to any person, as defined by this chapter, within the City for garbage, h.&zardous, industrial or solid waste, trash, litter, refuse and/or Tubb-16h collection, removal and disposal, within the City. g/ Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effeot and remain rt unohanged. Asterisks indicate omitted and unchanged material. -4- ►-; 4.1 / ,11 t The permittee shall, on or before the last day of each month, deliver to the City finance department a true and correct statement of gross receipts generated during the previous month from its' services rendered within the City on or before the last day of each month. payments of said fee shall be made on a monthly basis to the City finance department, on or before the last day of each month. representing gross receipts collected the previous month. The permittee shall on or before thirty days following the oloee of each fiscal year deliver to the director a statement of its' annual gross receipts generated from accounts within the City prepared by an independent certified public accountant reflecting gross receipts within the City for the preceding fiscal year. The permittees will allow city auditors during regular business hours after reasonable notice, to audit, inspect and examine the permittees fiscal books and records, and tax returns insofar as they relate to city accounts, to confirm the permittees compliance with this section. In the event the permittee fails to pay the full six percent (8%) of the permittee's total monthly gross receipts, the fee shall bear interest at the rate of one per oent (1%) per month on the outstanding balance until paid and additionally shall have to pay all expenses of collection, including court costs and reasonable attorneys fees. In order to effectively provide for the collection of said regulatory fee by the permittees to the city any person seeking to renew their annual occupational license pursuant to the provisions of Chapter 31 of this Code shall in addition to the requirements set forth herein, provide the City Finance Department with evidence of all fees imposed by the provisions of this Chapter as a condition to reissuanoe or renewal of said business permit. Issuance of a permit she.11 require completion of an application form for the permit referenced in Section 22-18.1 of this Chapter. The director is authorized to suspend, revoke, or cancel any such permit for failure to comply with any of the terms hereof, in accordance with the same practice and procedure as is set forth in Section 22-18.2 of this Chapter; providing, however, that the director shall afford an existing permittee a written notloe reasonably specifying the reason(s) for the proposed revocation or suspension of an existing permit and the permittee shall be afforded five (e) business days to cure the non-oomplianoe stated in such notice. Any decision of the director under the terme of this section may be reviewed, upon written request of the aggrieved permittee, made to the City Manager in accordance with the sane time period and procedure as is set forth by Sootion 22-18.3, City Code. Sec. 22-18.13. List of qualifications for permits; terse; non-tr::+isferability; rules and regulations. (a) After June 1, 1988, the City of Miami shall permit persons) as defined by this chapter to provide service to commercial establishments as set forth in this article. The permits issued, however, shall not limit the right to renew occupational licenses prior to the effeotive date of this "andment and, further, will -e- not impair existing written contracts between a permittee and that of a commercial establishment which are in full force and effect on the effective date hereof and said contract does not exceed the effective date of the permit. Each permittee for the permittee shall submit, in writing, a list Of its qualifications. Each list of qualifications shall include, as minimum qualifications to be considered in the granting of such permit: (i) Certification that the applicant has satisfied all requirements of Chapter 22 of the Code of the City of miami. (11) Certification that the applicant has never defaulted on any governmental franchises, contracts, permits or bid awards. (iii) Certification that no subsidiary affiliate, or parent corporation or business entity of the applicant already has, or has applied for an existing permit. Permits will not be issued to subsidiary, affiliate or parent company of an existing permit. (iv) Certification that the applicant Is not and will not be throughout the term that it has a permit affiliated with as a parent subsidiary by virtue of an interlocking directorate or otherwise an affiliated entity of any existing permittee or any applicant for a permit under this article. (b) Term. Said permits shall be valid for a period of one year from date of issuance and at the expiration or earlier cancellation or revocation thereof, the director may choose to aooept applications for new permits conditioned and limited as noticed above or, In the alternative, renew the permit issued for an additional one (1) year period. In deciding to issue new permits and/or accepting applications from applicants for permits, the director will consider the following factors: (1) The permittees' full and faithful compliance with the terms of this chapter; (11) The permittees and/or applicants who best meet the qualifications established by this section for the isauanoe of the permit; and (111) The current garbage, trash and waste disposal needs of the city, including, without limitation, population, demographic and geographic needs, (o) Non -Transferability. The permits granted pursut.it to this section shall not be transferablo by way of assignment, sale, pledge, or other conveyance. Upon change of ownership, including transference of a ma.ority (5!% or more) of stook and/or partnership shares, of any company to whom a permit has been issued, a new permit will be granted by the director if the new owner satisfies the requirements of this article. a r20 R } The regulatory permitting provided for by this article is to insure and facilitate a minimum standard w, of municipal regulation of oommeroial waste collection within the City of Miami, to provide uniformity and quality of servioe from the permits hereunder, and to assure that the citizens of Miami have safe, efficient, sanitary, permitted and qualified solid waste, garbage and trash disposal oontractors." Section 8. All ordinances or parts of ordinanoes insofar as they are inoonsistent or in conflict with the provisions of this Ordinance are hereby repealed. Seation 9. If any section, part of section, paragraph, clause, phrase, or word of this Ordinance shall be held to be invalid, the remaining provisions of this Ordinanoe shall not be affected. Section 10. This Ordinance is hereby declared to be an emergenoy measure on the grounds of urgent publio need for the preservation of peace, health, safety, and property of the City of Miami and upon the further grounds of the necessity to make required and necessary pruchases and payments, and to generally oarry out the funotione and duties of municipal affairs. Section 11. The requirements of reading this Ordinance on two separate days is hereby dispensed with by a vote of not less than four -fifths of the members of the Commission. PASSED AND ADOPTED this 19th day of 1988. r ATT XAVIER L. SUA MAYOR HAT HIRAI CITY CLERK PREPARED AND APPROVED BY: RAFAEL H. SUAR Z-RIVAS ASSISTANT CITY ATTORNEY RSR/wpo/pb/bss/M318 OtC APPROVED AS TO FORM AND CORR CTxsss: LUCIA A. DOUGHERTY CITY ATTORNEY J-96-1388 1/16/97 ORDINANCE NO. 11444 AN ORDINANCE RELATED TO CHAPTER 22 OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, ENTITLED: "GARBAGE AND TRASH"; AMENDING SECTION 22-1 TO DEFINE AND OR CLARIFY THE DEFINITIONS OF "BIOLOGICAL WASTE", "BIOMEDICAL WASTE", AND "CONSTRUCTION AND DEMOLITION DEBRIS"; FURTHER AMENDING SECTION 22-18.12(a; TO INCLUDE THE DEFINITIONS OF "BIOLOGICAL WASTE", "BIOMEDICAL WASTE", AND "CONSTRUCTION AND DEMOLITION DEBRIS"; CONTAINING A REPEALER PROVISION AND A SEVERABILITY" CLAUSE. BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. Chapter 22, Section 22-1., of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:l/ "Chapter 22 GARBAGE AND TRASH ARTICLE I. IN GENERAL �I Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. Sec. 22-1. Definitions. For the purpose of this chapter, the definitions contained in this section shall apply unless otherwise specifically stated. idl Q1-a9-LCaI--Wa=2-- ThP word —!• sqAr_al or has -the _ infpr,t* to, hi nmeriiral waslLe�rlispaspd _QX_cjparj animals, and nthpr wa S. trans M' aunians or animals_ rpmain cane P- d under chapL er• 20- .illy. Biom�d cal cvasYP The words "hinMpdir Wa.s-Lall shal 1 aeaa-any--solid wasteorlimijej waste which may present a t- h r Pa t7 of irtfecrion to humans. The hut- i s not- 1-imlit-Pd tn. nonlicnjid I-Ijjman H.Cusue and bnrALQry And vp t P r i aax:y waste which contain humans diaease-causing agents: discarded disposable sha,s,s human hl nod,and-human blood body f1IIjd(;: ;;Tid other mat-Prials which in the opinion - of the Department of Heal and -Rt-habi1jt-atiy Spivic-P-S of the --tate of a significant risk of infPctico ____par LD _Sons outside thp aenerat-incy far-iliry Bulky waste. (bd) Bundled garden trash. Commercial establishments. Condominiums. (eg) Containerized waste. 2 (€h) Construction and demolition debris. —The words "construction and demolition debris" fig-a- x material es' s demo s s s -et41eT—­t­yPeO­&f—se1id waste will eause= inCluding.. but • • 11 . ' • • matprial, pipe, qvpr-,= wiillboard, and clestrurtion of part al a • • • nr dpmnlitinn • • • • • ot:her vegetativematter-which n1a.r_Mally results from land •!_ • R• deyai,op11ent• • • • • • • • • • ect, iric- I udi • • surh • • • If •/ A •/ • • -ll• - o11 the coustructiDn-ar demolition project site- Mixing of rnnrtructin� -and demoli ion • • .• other typpsof • } •• •• or demolitionwhich not •N the actual}/truction or • •/ of to -be -• • •- •.• r• •1 •• and r3 molition Phrig- Construction dumpster or • r Department. Director. 3 9." 1 4v t}n) Garbage. (MO) Garbage can. (R1) Garden trash. (e�) Hazardous waste. . (�z) Industrial wastes. (eta) Landscape firm. i (mot) Litter. (en) Mini -dump. t 4 (fix) Noncombustible refuse. (met) Permit tee. i (X) Person. (WY) Plastic bag. # # # # # # () Portable container. I - 4 - (Yaa) Refuse. ($bb) Residential unit. (9--4r..c) Rooming houses; boarding houses (aadd) Rubbish. (bbee) Service unit. (eeff) Special handling trash. (fig) Solid waste. (eehh) Solid waste disposal and resource recovery facility. Tree and shrubbery trash. Section 2. Subsection (a) of Section 22-18.12 is hereby amended to read as follows:l/. "Sec. 22-18.12. Regulatory permit fee requirement; monthly regulatory permit fee payment; approval by director as a prerequisite to issuance; financial statements, list of accounts. (a) No person as defined by this chapter shall engage in the business of removing or disposing of garbage, trash, or waste from any premises in the city or transport garbage, trash or waste through the - 5 - public rights -of -way of the city without first, having secured a regulatory permit for such activities. All persons shall be required to obtain a regulatory { permit from the city in order to engage in commercial i solid waste collection and disposal from any streets, public rights -of -way or property in the city. This fee shall be in addition tot he occupational permit tax ordinance of the city. The term "gross receipts" for purposes of this chapter is defined to mean the i entire amount of the fees collected by the permittees, exclusive of state sales taxes provided by law from any person, as defined by this chapter, within the city for garbage, hazardous, industrial, 1 hinmesii ra 1, hi olsgi ral or solid waste; cons rii • ion and dpi3iolition d b i s, trash, litter, refuse and/or rubbish collection, removal and disposal within the city. Section 3. All ordinances or parts of ordinances insofar as they are inconsistent or in conflict with the provisions of this Ordinance are hereby repealed. r� Section 4. If any section, part of section, paragraph, clause, phrase, or word, of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected. Section 5. This Ordinance shall become effective thirty (30) days after final reading and adoption thereof. PASSED ON FIRST READING BY TITLE ONLY this 16th day of January , 1997, � F" l 40 6 - *44.0 PASSED AND ADOPTED ON SECOND AND FINAL READING BY TITLE ONLY this 20th day of February 1997. i CAROLLO, MAYOR ATTEST: j , { WAITER FQSMAN CITY CLERK f PREPARED AND APPROVED BY: RAFAEL, 0. DIAZ DEPUTY CITY ATTO i APPROVED AS TO FORM AND CORRECTNESS. - A! Q I=OXES/ III CITY Y # W225:ROD: :bv f l 4 I i 1 7 4 r w •� 10/19/94 11184 ORDINANCE NO. AN EMERGENCY ORDINANCE AMENDING CHAPTER 22, ENTITLED "GARBAGE AND TRASH," OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, HY PROVIDING FOR ELIMINATION OF COMMERCIAL SOLID WASTE COLLECTION BY THE CITY OF MIAMI, REDEFINING RESIDENTIAL UNITS TO INCLUDE TRIPLEX AND QUADRUPLEX RESIDENCES, AND INCREASING THE REGULATORY PERMIT FEE OF ENTITIES ENGAGED IN COMMERCIAL SOLID WASTE COLLECTIONS AND DISPOSAL FROM ANY STREET, PUBLIC RIGHTS -OF -WAY OR PROPERTY IN THE CITY OVER A THREE-YEAR PERIOD; MORE PARTICULARLY BY AMENDING SECTIONS 22-1, 22-2, 22-12, 22-18 , 22-23 , 22--24 , 22-•26 , 22-30, AND 22-32 OF THE CITY CODE; CONTAINING A REPEALER PROVISION, A SEVERABILITY CLAUSE, AND PROVISION FOR AN EFFECTIVE DATE. WHEREAS, pursuant Resolution No., 94-547, adopted July 20, 1994, the City Commission directed the City Manager to notify all commercial solid waste accounts serviced by the City that the City would discontinue commercial accounts effective October 1, 1994; and WHEREAS, the City Commission on September 22, 1994, in response to concerns by owners of triplex and quadruplex residential buildings, modified its policy statement of July 26, 1994, and will offer owners of triplex and quadruplex residential buildings the option of City or privately offered solid waste services to these units; and WHEREAS, the City informed the account holders that pursuant to the City of Miami Code, Chapter 22, Garbage and Trash, they are required to secure the services of a City -permitted private hauler and to notify the City of same; and WHEREAS, the City met with City -permitted private haulers and negotiated a graduated regulatory permit fee increase from six percent (6%) to fifteen percent (15%) over a three-year period rased upon the City's cessation of commercial solid waste services; and WHEREAS, sufficient notice and information has been'given to City of Miami's commercial accounts and the City Manager recommends the negotiated graduated increase in the private hauler regulatory permit fees and the inclusion of triplex and quadruplex residences as residential units for solid waste { service; and WHEREAS, the implementation of this policy requires an t immediate action to protect the health and safety of the citizens of the City of Miami. NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Ordinance are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. Section 22-1 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:l/ J �I Words and/or figures stricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. t. � -2- . ! r'w I • "Seo. 22-1. Definitions. W Residential unit. The words "residential unit" shall mean any structure used, or constructed, or modified or adopted for use, as a single-family dwelling, duplex, cluster housing, townhouse or multiple -family apartment building or other similar structure containing tvtT—{I} four L41 or fewer residential units, and which is located on a single lot, parcel or tract of land. Each dwelling unit of a duplex, cluster housing, townhouse, or multiple -family building or other similar structure shall be deemed a separate residence. Section 3. Section 22-2 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following partioulars:l/ "Sec. 22-2. Collection services, container usage, condition and requirements for placement location. (a) Every commercial establishment shall utilize the waste collection services of a licensed waste hauler authorized to perform such services by the director of the department. Each residence or commercial establishment in the city shall have a sufficient number of garbage cans, plastic bags, plastic bags or portable containers to accommodate all garbage, bundled garden trash or rubbish to be removed by the city or other, approved contractors. All bundled garden trash, containerized waste, and garbage to be removed by the city shall be placed at curbside In front of the property, for removal by the city as scheduled by the director of the department of solid waste, in such a manner as not to obstruct pedestrian passage. The director of the department of solid waste may make exceptions to these rules to accommodate disabled and elderly persons. Section 4. Section 22-12 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:�`r *I-toT4o r , 7 0 0 -3- "Sec. 22-12. Waste fees. (a) An annual fee of one hundred sixty dollars ($100.00) per residential unit is hereby assessed upon all residential units as defined in section 2 2 -1 . Of--the--assessed---teLr- 3larz f 54-9 :-dfT j�siii Y-�-Bgres�eitt-SL a 1� Dadt�--Uu�i ty - u1zd--tin- 2ruzid dtTl i:3rs---`{� 12 9 :-t1t3�---shai 2x-��-erzt•--' garbag8 crr3,tier�--fames:—fihe utty by Thin fees shall not apply to residential residential units within the city irot serviced by private sanitation companies, and these fees shall serve to defray the cost of said scale fees, waste collection and disposal. One half of said annual fee amount, eighty -U-o-�s per . ential unit;,.. shall be due and collectible on the first day of January and on the first day of July of each calendar year. • wom, •• i. • s • ,499 • • • • • i ii 01ZEMMIksmizamr. •• • • • • •' •. •s • •' • •Da• • - • . hriety asses d— U CT vMtMg—houzes v the 6)`-Sha ]:t re c-al e-f e es-vlra-rged-to--t -C'Ornty ght; cis%3ars—��28-f3{3)�-slra}i--rcgreseirt g -,rS"bragr---aait- F--Ct7i-atr--fenc-lra3 f--- at"th�e—annu 1 -f rae enty—tivb l rs--(i fl-flfl j-; �slrab-l�be—due-�and e�c�i2--ezt—thy£%rst _day___n�Ja7tttzz,ry—arri_____n:r�ire f-i�st-dsy-U f'—Ju-?y-crf'-�aclr-ca l�:',dar�ea i :- -- f od 3 cwi ng--fees re - lie by--assesse� ►�sers--rsf�-t kre-- � rr3�i-d---�t�zste- , garbage---svrv-.tcL=s,—e�-cegt--as—ilr�ted � - se�: t i.-on--E ti }--he-rei r�bglr�w-,--t;o—be�i-l-reti--senri-= azzrtua�-ly-�xr—J�.zxuary�-arccj--J-�. i're fvl-l-ovt-ng -assess ed--f ee--repz- SacYe' evulfty and gwr-33ag e--cTj!-t e 1.a.4-& Co �) - 7 � 0 -4- aFa l�tzrg-s—wtJ. en tcilk ; or*Fe�'at v aFartnre con- nr b� —fli did—smi�nmzar�y—vzr--� �r a- C0mmez-cta- e�ch—iTtzi-:- Scale fees -- -- . Per-mVnt}r b- Cyr f or each ptakaji per t. Scam -A.'ee 15 Garbage colt ——g'8—�@ . • R qtg&*AZILQ POW 0• . • • • • (e]2) All fees billed shall be due and collectible upon receipt. The fact that any residential unit or any commercial establishment located in the city is occupied shall be prima facie evidence that garbage and other refuse is being accumulated or produced upon such premises, and temporary vacancy shall not authorize a refund or excuse the nonpayment of the applicable fee. (fQ) Notwithstanding any City Code provision to the .;.xF contrary, commencing effective Ootober 1, 1987, said date refleoting the date when the city was fully performing the services set forth below, an annual fee _ �, c .�.� /0 -6- is hereby assessed against all provision of public right-of-way cleaning services by the city in accordance with the following schedule of services set forth below (Note: "Daily" as used in this subsection means weekdays, Monday through Friday): (1) Scheduled, once -a. -week trash collection; (2) Main thoroughfares in the city will be swept on a daily basis; (3) All litter containers will be serviced and cleaned on a daily basin; (4) Sidewalks in the city will be cleaned on a daily basis and pressure -cleaned as needed. (g$)`The following annual fees are hereby assessed against all commercial establishments except trailer parks, apartment buildings with rental apartments, cooperative apartments, and residential condominium units as defined in section 713.10(19), Florida Statutes (1985), as may be amended, which fees are in addition to all existing fees contained in this chapter for the above cleaning services and are to be billed annually in advance: (1) A forty dollar ($40.00) minimum fee for prop- erties less than five hundred (500) square feet; (2) A fee of eight cents ($0.08) per square foot for properties between five hundred (500) square feet up to and including fifty thousand (50;000) square feet; (3) A four thousand dollar ($4,000.00) maximum fee for properties exceeding fifty thousand (50,000) square feet." Section 5. Section 22-18.12 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:.Il "Seo. 22-18.12. Application for regulatory permit. Applications for a regulatory permit shall be made to the department upon such form and in such manner as shall be prescribed by the director, said form to elicit the following information and to be accompanied by supporting documents and such other information as may be required by the department from time to time. -7- �j e3 — i, 21.9 (6) Limitation on hours of operation. Private waste oolleotion operators licensed by the city shall service their accounts only between the hours of 6:00 a.m. and 11:00 p.m.. excent__as determined by he dire or or, slefine'„3 belp� '• 3 �•1 •.1 • I"• a 1 Y t 11 t / • • • , 1 ' / Y 14 W. I • 1 / / • / • / • ! • • / 1 • f • I I ,k, Other commercial corridors as determined y the Director. ! R R R ! Seotion 8. Section 22-18.12 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following partioulars:I/ "Seo. 22-18.12. Regulatory permit fee requirement; monthly regulatory permit fee payment; approval by director as a prerequisite to issuance; financial statements, list of accounts. (a) No person as defined by this chapter shall engage in the business of removing or disposing of garbage, trash, or waste from any premises in the city or transport garbage, trash or waste through the public rights -of -way of the city without first having secured a regulatory permit for such. activities. All persons shall be required to obtain a regulatory permit from the city in order to engage in commercial solid waste collection and disposal from any streets, public rights -of -way or property in the city tlTn 20 ;- "r20 1 1 i f 4t4 1 pellatt fee of`- -j ± —(0) p ez'ic�m-rt-o-f-tile Penn! tee'S to - grvss--mvrrtirl yt-s. This fee shall be in addition to the occupational permit tax ordinance of the city. The term "gross receipts" for purposes of this chapter is defined to mean the entire amount of the fees collected by the permittees, exclusive of state sales taxer provided by law from any person, as defined by this chapter, within the city for garbage, hazardous, industrial or solid waste; trash, litter, refuse and/or rubbish collection, removal and disposal within the city. R R R R R [b) effective October 1. city -permitted commeroial soli,.. waste haulers will be rpani Q to pay, o the oity� latory uermm fee Qf �.i Qht perS;ert (8%) of the_p��litee's -total gross M!h].y receiutB.,. Said rUry permittee shall be inc asAd to twelve percent (122%) effective October 1�. 1995 and to fiftean percent (15%) effectiye Oct4b_er 1. 1096, The permittee f shall, on or before the last day of each month, deliver to the city finance department a true and correct statement of gross receipts generated during the previous month from its services rendered within the city on or before the last day of each month. Payments of said fee shall be made on a monthly basis to the city finance department, on or before the last day of t each month, representing gross receipts collected the previous month. The permittee shall on or before thirty (30) days following the close of each fiscal E year deliver to the director a statement of its annual gross receipts generated from accounts within the city prepared by an independent certified public accountant f reflecting gross receipts within the city for the preceding fiscal year. The permittees will allow city auditors during regular business hours after reasonable notice, to audit, inspect and examine the permittees' fiscal books and records, and tax returns insofar as { they ' relate to city accounts, to confirm the permittees' compliance with this section. In the event the permittee fails to pay the .full sip-( -)--Percent-Uf t•he franchise fee_V=Q_e_ _C_ of the permittee's total monthly gross receipts, the fee shall bear interest at the rate of one (1) percent per month on the outstanding balance until paid and additionally (the permittee] shall have to pay all expenses of collection, including court costs and reasonable attorneys fees. i t Seotion 7. Section 22-23 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:I/ "Sec. 22-23. Waste fees; implementation. (a) It shall be the duty of the owner of each lot, tract or parcel of land in the city having a residential unit situated thereon, except as may otherwise be provided herein, to pay or cause to be paid the waste fee or fees due for each residential unit or commercial establishment, as the case may be, as provided for in section 22-12 and section 22-24 herein and failure on the part of such owner to make such payment shall constitute a violation of this chapter. (b) Each person, firm, corporation, partnership or other entity who is the owner of each lot, tract or parcel of land in any area in the city, shall pay for residential waste collection service as billed directly by the city or, at the discretion of the city, on the tax bill to and in accordance with the provisions of Chapter 19, Florida Statutes as amended. Commerat a7rid vQther special collection billings will be billed as authorized by the city commission." Section 8. Section 22-24 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars: "Sea. 22-24. Schedule of waste collection and disposal fees; records to be kept. gL- -of-.. - tto . mra1 -z--e g u 1 a imz rp r vm each There s'hat �#)- ad co n ta~trre rs--permi-t-ted-' {ba) An and all bulky waste collections in excess of four (4 collections during any calendar earshall be charged a fee of one hundred dollars N5100.00) per additional collection. {oh) The department shall maintain complete and accurate records of the costs and expenditures for providing waste collection services, and shall provide the city manager and the city commission with periodic statements . and reports showing such costs and -10- r`20 expenditures. The city commission shall make periodic i adjustment of the fees, assessments and charges for waste collection and disposal services in accordance i with the cost analysis of providing such services." Section c. Section 22-26 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars: "Section 22-26. Payment of waste fees. (a) All payment of waste fees shall be payable in advance on or before the due date on a semiannual basis. In the event that payment of said waste fees is by check made payable to the city and said check is returned by the bank due to insufficient funds or any other reason not the fault of the bank or the city, a charge of t-en twenty dollars ($tZO.00) shall be added to the waste fee due to cover administrative costs incurred by the city. In addition, late charges and interest on past due accounts shall be charged as provided in this chapter. i 1 Section 10. Section 22-30 of the Code of the City of f Miami, Florida, as amended, is hereby amended in the following particulars:�`� "Sec. 22-30. Multiple occupancy of premises. i h ment-trnd-e tJwirers _U lie -C-0--te c t t U 1T-P-otiTt -­s2ra-1.1-btj �1 � �s5-'�c 'L'r�tmttt�x'rt2cl--aCCIIti1r� {tb&) A commercial establishment and a residential establishment under the same ownership located in epmate_ taro-but%dtTg--ur buildings on the same parcel of property in which the owner has a separate collection point for residential and commeroial solid waste shall have the option of-r., sr!tdattng alft-Zefuse I ect-tr iris --bttY'i� I'I sha J d as a cominerctal--account ira3d ritinue or-bays of having separate collection points, in which case the refuse for the residential portion ma,y shall be billed as a residential account.,, a d The commercial refuse shall be bt-t� h6 reason ibi_lity U 1 r,R ivate hauler S a Separate commercial account. 1 1 2 0 Cans must be separated on multiple occupancy properties and placed in separate locations. Cans must be marked for separate identification." Section 11. Seotion 22-32 (d) of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:/ Seo. 22-32. Enforcement and administrative fees. (d) If the findings of the city manager or his designee indicate that an administrative service fee shall be imposed upon the noncompliant person under this chapter, said administrative service fee shall be assessed in accordance with the minimum administrative fee schedule as set forth below: s Section Aots/Conditions of Noncompliance Fee (Subsection) The placement of containers, garbage, trash, bulky and/or industrial waste on public rights -of -way $ 75.00 Dumpster(s) not kept in approved garbage facility $150.00 Failure of commercial estab- lishment to have in effect an agreement with a waste hauler for the collection and removal of solid waste/garbage from the premises $250.00 Insufficient number of approved garbage reoeptaoles $ 50.00 Uneontainerized garbage or miscellaneous trash in receptacle area $ 75.00 Unauthorized disposal of garbage, or trash or other waste materials consisting of industrial and bulky waste or other waste material $500.00 Disposal of trash or other waste materials placed in right-of-way at other than authorized time $75.00 -12- 22-2(f ) 22-2(f ) 22-2(a) 22-2(f) 22-8 22-8 22-18(b) a Section Acts/Conditions of Noncompliance Fee (Subsection) ` Illegal dumping from a nonmotorized vehicle or unknown entity (i.e., dolly, wagon, or wheelbarrow) $75.00 22-11 Illegal dumping from an automobile $75.00 22-11 Illegal dumping from a noncommercial flatbed truck, pickup, or van $100.00 22-11 Illegal dumping from any commercial vehicle $500.00 22-11 Garbage deposited at mini -dump site for bulky waste $150.00 22-8(0)(7) Use of neighborhood bulky waste transfer station by commercial establishment $500.00 22-6(c)(8) Impeding, salvaging and vandalism of bulky waste mini -dump site $250.00 22-6(o)(9) Trash not containerized or bundled $ 75.00 22-5 Unauthorized bulky waste on jj right-of-way $ 75.00 22-16(b) Garbage not containerized $ 75.00 22-8(a) e ( Litter on premises $ 50.00 22-9(a) I i a Sunken containers $100.00 22-2(o)(4) r t t s t t w j Section 12. All ordinances or parts of ordinances insofar as they are inconsistent or in conflict with the provisions of this Ordinance are hereby repealed. Section 13. If any section, part of section, paragraph, d clause, phrase, or word of this Ordinance is declared invalid, i ; the remaining provisions of this Ordinance shall not be affected. j Section 14. This Ordinance is hereby declared to be an emergency measure on the grounds of urgent public need for the ems o 13_ _ preservation of peace, health, safety, and property of the City of Miami, and upon the further grounds of the necessity to make the required and necessary payments to its employees and officers, payment of its debts, necessary and required purchases of goods and supplies, and to generally carry on the functions and duties of municipal affairs. Section 15. The requirement of reading this Ordinance on two separate days is hereby dispensed with by an affirmative vote of not less than four -fifths of the members of the Commission. Section 16. This Ordinance shall become effective immediately upon its adoption. PASSED AND ADOPTED this 27th day of October 1994. STE AT WS HEN P. CLAR9, MAYOR MA TY HIRAI CITY CLERK ?AZW?'AxRED AND APPROVED BY: RAMON IKZAMW;'- ASSIST,XNT CI Y ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: 011 . QVtNN ES, I I CITY ATTO EY RI:bf:bssLM2072 4 L J-97-406 7/3/97 RESOLUTION NO. 9 7— 447 A RESOLUTION, WITH ATTACHMENTS, APPROVING,• SETTING FORTH AND SUBMITTING TO 77TE ELECTORATE A PROPOSED CHARTER AMENDMENT, AMENDING THE CHARTER OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, KNOWN AS CHARTER AMENDMENT NO. 1, TO PROVIDE, COMMENCING IN NOVEMBER, 1997, FOR A NON -VOTING EXECUTIVE MAYOR ELECTED CITY-WIDE WHO WILL NOT BE A MEMBER OF THE CITY COMMISSION, AND FIVE (5) COMMISSIONERS FROM FIVE (5) DISTRICTS WITH BOUNDARIES DELINEATED BY THE COMMISSION, AND AUTHORIZING THE MAYOR TO: (1) EXERCISE VETO POWER, SUBJECT TO COMMISSION OVERRIDE; (2) APPOINT AND REMOVE THE CITY MANAGER, SUBJECT TO COMMISSION REVIEW AND VETO OVERRIDE; (3) APPOINT COMMITTEES; AND (4) DELIVER AN ANNUAL BUDGET ADDRESS; MORE PARTICULARLY BY AMENDING SECTIONS 4, 7, 8, 9, 10, 12, 14, 15, 16, 21 AND 42 OF SAID CHARTER; CALLING AND PROVIDING FOR A SPECIAL MUNICIPAL ELECTION TO BE HELD THE 4TH 1'DAY OF SEPTEMBER, 1997, FOR THE PURPOSE% OF SUBMITTING CHARTER AMENDMENT NO. 1 TO , !�iE ELECTORATE AT SAID ELECTION; DESIGNATING AND APPOINTING THE CITY CLERK AS THE OFFICIAL REPRESENTATIVE OF THE CITY COMMISSION WITH RESPECT TO THE USE OF VOTER ` REGISTRATION BOORS AND RECORDS; FURTHER Ic DIRECTING THE CITY CLERK TO CAUSE A CERTIFIED COPY OF THE HEREIN RESOLUTION TO BE DELIVERED TO THE SUPERVISOR OF ELECTIONS OF METROPOLITAN DADE COUNTY, FLORIDA, NOT LESS THAN 45 DAYS PRIOR TO THE DATE OF SUCH SPECIAL MUNICIPAL ELECTION. WHEREAS, on July 1, 1997, by its adoption of Resolution No. 97-444, the City Coninission directed the City Attorney to prepare the herein proposed Charter Amendment; and er'Y COMMISSION ATTACHMENT (S)I CONTAINED bMET NG OF. J U L 0 3 1997 Resolution No. 1 WHEREAS, the City Attorney's draft of the proposed Charter amendment is set forth in its final form in this Resolution, said draft being submitted to the electors of the City this date by means of the herein Resolution; and WHEREAS, the proposed amendment shall be submitted to the electorate at a special municipal election on September 4, 1997, as called for and provided herein, and shall become effective upon approval by the electors; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. (a) Sections 4, 7, 8, 9, 10, 12, 14, 15, 16, 21 and 42 of the Charter of the City of Miami, Florida (Chapter 10847, Laws of Florida, as amended), are hereby proposed to be amended in the following particulars:z/ l� Words and/or figures 6tricken through shall be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. Asterisks indicate omitted and unchanged material. - Z - L "Sec. 4. Form of government. (a) General description. Comm n ina with the el prr i nn of the aav_dr in 1997, Tt.he form of government of the City of Miami, Florida, provided for under this charter shall be known as the "mayar--commissioner- RkInilge* plan and the commission shall consist of five citizens, who are qualified voters of the city and who shall be elected at-1-aL-g-e frLm--dj-stx-j2=a in the manner hereinafter provided. The Commission shall constitute the governing body with powers (as hereinafter provided) to pass ordinancesr adopt regulations and exercise all powers conferred upon the city except as hereinafter providedr_-anThe may4z �h �, a c; se a t p_nwpra Conferred herein and shall appoint a chief administrative officer to be known as the "city manager". •Election of MAYOr . • • commission, u. • s1-921..- TtbPre shall •- Plprt7pd by •- •1 -� Plprt •1•. • R - • - • • • • . • P• • •• • .• •p citv at leaRt•/- a • t • . / • • 11 . 11 • • • - • n U • . The commission shall consist of five members who shall be elected from d;strirts within the city at- laEge—in-g*-Aipa numbered -; _1_ through V _5. Gne-ef- eleetems -1 y rahe peeple--from p`-to--%:;—ni-M-bered -1 and all persens desiring IEe as mate—€er peweE €eh ate-ehe`rte -she-ef a=e-CeUnty,- :;2'pr as. All persons desiring to qualify for commissioners shall file in greupe di_sztr; nta numbered 44 -1._ through V _S. WMis.sinner in district _ni=bje _ - shall hP Plpt -d at the general alesr; on to hp- held in the year i937 and .,shall serve. for a twn year tei _ Commissioners in g-roupe districts numbered 1 3 and 144 Sshall be elected at the general elections to be held in the year 1-14� 1.SZ and at each general election each four years thereafter. Commissioners in g-ri G dj3 ; a numbered -1-V 1 V _ 2 and_ 4 _ shall be elected at the general elections to be held in the year 1957 1999 and at each general election each four years thereafter. The mayor shall be'elected at the general election in the year 1989 1992 and at each general election each four years thereafter and shall hold office for a term of four years. 3 2 01 L -., The mayor and all commissioners (are] to hold office until their successors are elected and qualified from twelve o'clock noon of the day after the canvass of the vote and the declaration of the result of the election. The mayor and all other, members of the commission shall be subject to recall. Vacancies shall be filled as provided in section 12 of the charter of the City of Miami. If a candidate for office of mayor or commissioner receives a majority of votes in the primary election in his group, he shall be considered elected upon and after the canvass of the vote and the declaration of the result of the election as hereinafter provided. If there be no majority, two candidates for nomination to the office of mayor or commissioner who receive the greatest vote in the primary election in each group shall be placed on the ballot at the next regular municipal election following the primary as provided in section 7 of this charter. The candidate for nomination receiving the greatest vote in the regular municipal election following the primary election, if otherwise qualified, shall be elected to office from the group in which he is qualified. Any incumbent commissioner desiring to run for the office of mayor shall present an irrevocable resignation of his office of city commissioner to the city commission not less than ninety days prior to the date of election, whether primary or general, and said resignation shall become effective on the date of the election. Upon receipt of said resignation the commission shall make public announcement of the resignation and instruct the clerk to accept qualified candidates to run for election for the unexpired term of the commissioner resigning for the purpose of running for mayor. If any mayor or commissioner elected under the provisions of this act desires to run for some elective office other than the mayor or city commissioner, then under such circumstances he shall not be required to resign his city office unless and until he has been elected to such other elective office. In the event that such mayor or commissioner is elected to such other elective office other than that of mayor or commissioner, he shall iminediately resign his office as mayor or commissioner and upon his failure or refusal to do so he shall be discharged and ousted from his office and said office declared vacant by a majority vote of the remaining members of the city commission. 0 — Il i-w - 4 - (c) Qualifications of mayor and commission; mpL, commissioners, and other officers and employees not to be interested in contracts, etc.; franks, free tickets, passes or service. CcmmenCi ag With the aj,''on of MaynX i n 1997. Tthn ma,yo-Land WaeMLIers of the commission shall be residents of the city for &L 1 a-sone s 1 j year. r� ar to cnza 1 jy i nor and sha- 1, have the qualifications of electors therein- Ft r hpr-,., membe _S of the commission shall have rea_i_'t in „hE rii a ri c-r- at- lea nna (i } year heforp--Mial i fir, qg_, and ,hallMai nte1,n an .�ttial and real real deuce for the d11 =i nn of thetr`tp= of off i rp,+ Pxrpnt for the 1 997 el err i nn Those comznj_ssioneraPl eCLP in 1997 ..-must re8i rip in the di gr_ri theyare elected roreprpaPnt wi t- i n three (1) mn_A,thn after the PleCtioa, and Ma; ntai n f an acrila l and real residence for the duration nzf the,j riterm a of f is _ The mayor £-a i agiQmera, and other officers and employees shall not be interested in the profits or emoluments of any contract, job, work or service for the municipality. PAy The mayor or any commissioner who shall cease to possess any of the qualifications herein required shall forthwith forfeit his office, and any such contract in which any member is or may become interested may be declared void by the commission. } No mays commissioner, or other officer or employee of said city shall accept any frank, free ticket, pass or service directly or indirectly, from any person, firm or corporation upon terms more favorable than are granted to the public generally. Any violation of the provisions of this section shall be a misdemeanor. Such prohibition of free service shall not apply to policemen or firemen in uniform or wearing their official badges, where same is provided by ordinance. (d) Commission to be judge of its own election; not to dictate appointments by or interferewith city manager. C'onmmencing wi th_ rha election of the_ mayor in 1997, Tthe commission shall be the judge of the election and qualification of the ma-yor_._and of its own members, subject to review by the courts. Neither the may -or, coff nission.,-. nor any of its committees or members shall dictate the appointment of any person to office or employment by the city manager, or in any manner interfere with the city manager or prevent him from exercising his own judgment in the appointment of officers and employees in the administrative service. Except for the purpose of inquiry, the mayor, the commission,- and its members shall deal with the administrative service solely through the city manager, and neither the mayor nor the commission,. nor any member thereof shall give orders to any of the - 5 - 0. ►01; C� il cI 4.l 4 4 V �_ r subordinates of the city manager, either publicly or privately. Any such dictation, prevention, orders or other interference on the part of r_he -may-r or a member of the commission with the administration of the city shall be deemed to be violation of the charter, and upon conviction before the- Teilt-•-z a rnurt of romp P_t en L_jar i nChi a i nn any F2 eipber i nd1Y_idual. so convicted shall be subject to a fine not exceeding five hundred dollars ($500.00) or imprisonment for a term of not exceeding sixty days or both, and in the discretion of the court shall forfeit his office. (e) Election of officers by commission; rules of commission; quorum. ommQ rT ring with thp P1Pct,J_an__(af the mayor in 1997, Tthe commission shall elect a city der,- a clerk— and a city attorneys vil se-ryi— but no member of the commission or the may= shall be chosen as manager or as a member of the civil service ee sa+en board or appointed to any other city office or employment. The commission may determine its own rules of procedure, may punish its own members for misconduct and may compel attendance of members. A majority of all the members of the commission shall constitute a quorum to do business, but a smaller number may adjourn from time to time. (f) Meetings of commission; to act by ordinance or resolution; form of, manner of passage and publication of ordinances. Commencing with thp electijaa of thP ma.Xnr _—I-g2Z, A&t, twelve o'clock noon on the day the mayar ar commissioners take office, they shall meet at the city hall.. Thereafter the commission shall meet at such time and place as may be prescribed by ordinance or resolution. The meetings of the commission and all sessions of committees of the commission shall be public. the commission shall act only by ordinance or written resolution; and all ordinances and resolutions, except ordinances making appropriations, shall be confined to one subject which shall be clearly expressed in the title. The ordinances making appropriations shall be confined to the subject of appropriations, No ordinance shall be passed until it has been read on two separate days or the requirement of readings on two separate days has been dispensed with by a four -fifths vote of the members of the cormniesion, ordinances shall be read by title only. Copies of proposed ordinances shall be furnished to the —mayor and each commissioner, and shall be made available to all interested persons. The ayes and noes shall be taken upon the passage of all ordinances or resolutions and entered upon the journal of proceedings of the commission, and every ordinance or resolution shall require on final passage, the 6 - al 1 affirmative vote of a majority of all the members. No member shall be excused from voting except on matters involving the consideration of his own official conduct, or when his financial interests are involved. • Powers and duties of •r. Commencing wit• • - • the • •• - • -cifir F•• •r • -LlJ- The mayor ehaI4 may eft a�-av- - — #e—eeffiffir s i e ft be the presiding officer of the commission with the authority to designate another member of the cormtission to serve as presiding officer. -Ul He shall be recognized as the official head of the city for all ceremonial purposes, by the courts for the purpose of serving civil process, and by the governor for military purposes. �`1 13l In time of public danger or emergency, he may, with the consent of the commissioners, take command of the police and maintain order and enforce the laws. H� During his absence or disability duties shall be performed by It • _dARI-suep who shall he a.,mpmhpr- of the c' • } •! 11.L ..• • • • •19 M. •' •1/•/i •• • • •� • • • • • • . •M.19 a MMS 110 • 11 -•. • '.••-••so•u • •' 11' • - • ur •. a :• •' •-• 0.0 • - • 11•lt • • 11 . • ' •1. - 7 - •- • • ••• • •`• 1. • • •• • ' ♦ • • •US• . • 11 . • • • •Ta • X • F. V Z F WU i W 11 P. YA •Solo- 11 • ' 11 : ! • • • •• •• •11 l/ •• • • y•' �•• • 11.11 11 ' • • + • • - • • 2 • 11 • • • • If 4-115PIZIP401411=01191 I.W.TV • r • + •• ' � � • • ! .: _L_U The mayor shal_1pr-aparP and del i-yer a bi idcx P tame dr Rs annually r.n tl]e pnr'p-1 e Of rhg ry betL���rL—siuly___l and September 30. �_•rg�-,nrr gha 1 1 he �X��13LP..L�. a f'r C s u l.ta ion with the an !g_er.. (h) Salaries of rP ma„vnr__a_nd cammi ssion , There shall be paid to the commissioners of the City of Miami, Florida, by the City of Miami as compensation, the sum of five thousand dollars ($5,000.00) per year for each commissioner, payable monthly in twelve equal installments. C:oM Pnc_i_ng with the_ P? Per i ntn Q 7g47 the nnnmensation of . the mays shall bP determined hyy �l p rr^,mmi s s i on . -r- , there shall i ty o f Miami 1• ., --e @f3 n:r— an -additional-9'ufa —a � - 8 - '-ff6aT9 eRmmi6sie'ner- rzeeever - nt-e xpen s e e a€ -- the —e €€ i e e e€ o €- Miami, 1or-id3- The--said -eempeneariien - e€- f-i -}j-rno n - u e pi vyz�Lvded c---;� e ee Fier--1-- _ ding Pee p--_—! 9 4 9 , tom-t the three -e . , t-e d i3 - -- -- ---- emsgael eel 'on te-be-held 3zr ;everber 19491 --and --tea tdr- n of f thouGan� 1951, ^ €e r the o�=er t we �.:�.n„=a a who , , , ,-he e t-ed -ate the ' i u` i �iroa , - , e b q �. z}'rcSrfi ii� November ---it,—i- iinderetevb9 - z'� he additiona-1- eel -e€--twe—thettaagtd five Mtn ed--Q^ id -te the ffy®=-eieeieeq preyid- shall be -p- i d heta ... , �e_eff03e r 1,1949. " "Sec. 7. regular and primary elections of commissioners. A regular municipal election for the election of -. thp mayor anti the commissioners shall be held on the second Tuesday after the first Monday in November in odd -numbered years. A nonpartisan primary election for the nomination of candidates for the mayar and rh commission shall be held on the first 'Tuesday after the first Monday in November in odd -numbered years. Any person who shall possess the qualifications requisite to an elector at the general state election and shall have resided in the City of Miami for six months next preceding the city election at which he offers to vote, and shall have been registered by the city registration books that have been prescribed by ordinance, shall be a qualified elector of the city, and all elections held in said city shall be conducted and held according to the provisions of the general election lags of the State of Florida, except as otherwise provided for in the charter of the City of Miami, and except that the city commission shall be substituted for a board of county commdssioners. The name of any elector of the city shall be printed upon the primary ballot as a candidate for nomination to the office of mayor and commissioner upon paying to the City of Miami the sum of one hundred dollars ($100.00) to be deposited with the city clerk as a qualifying fee not less than forty- five days prior to the' date of such primary election, and said elector shall submit concurrently therewith a sworn statement of his or her name, address, occupation and willingness to serve, if elected. - 9 - L All such qualifying fees shall be deposited with the said city clerk no later than 6:00 p.m. on the forty-fifth day prior to the election." "Sec. 9. Form of ballots: what candidates in primary election for ffiayer and commissioners placed on ballot, wh-ei� -.°rz " . All ballots used in any primary election or general election held under authority of this charter shall be without party mark or designation and without any insignia or mark of any association or organization thereon, and shall be substantially in the same form as the election ballot used in all general state elections. The candidates for nomination to the office of commissioner who shall receive the greatest vote in the primary election shall be placed on the ballot at the next regular municipal election in number not to exceed double the number of commissioners to be elected, but where not more than six candidates have been nominated and legally qualified for the office of commissioner as required under this charter, e held, as pEeyided herein, all' --he said eaiidida a shall per; —89 •' - ••1 • • •• -!� •1 • • •' • • tl . • •/ • • • / t . "sec. 9 . a -- ��—'ated-- neclaration of a1aati.ont how tia vote decided. At any regular municipal election held under the provisions of this charter, the candidates for the office of comaniesioner, in number equal to the number of commiesioners to be elected, who shall have received the greatest number of votes cast, shall be declared elected. A tie between two or more candidates for the office of commissioner shall be decided by lot-unde-r rimemer---io of t-h'—e"j'--3ud9_- a our of Cnmnptent luriadi^_ion. - 10 - 7 h tP w Pn the randi ates fnr thpoffice of maynr Shall ho dpnid d by acollr�j- Of competent iur'adir inn." "Sec. 10. Distinction between general and special municipal. election. All elections held for the election of mayor and commissioners shall be known as general municipal elections. All other elections held under the provisions of this charter shall be known as special municipal elections." "Sac. 12. Filling vacancies maynr and commission. A vacancy on the commission or in the office of may= caused by death, resignation, or other causes shall be filled within ten days after such vacancy occurs by a majority of the remaining commissioners and the term of office of the person so appointed shall be until his successorlsl.. in office i.a.Lare elected and qualified at either (1) the odd -year first general election for mayor and commissioners held pursuant to section 4 of the charter of the City of Miami, or (2) the even -year State of Florida general election, at which election national, state and county offices are filled, whichever occurs first. In the event that the remaining commissioners shall fail or refuse to fill such vacancy within ten days after it occurs, as provided herein, then, and in that event, the city commission shall call a special election to be held at a date not less than thirty or more than forty-five days after the expiration of the said ten-day period, for the purpose of the electors selecting sum the ma�:_3 connissioner_ or commissioners. The person who receives the greatest number of votes in said special election is elected and shall be the maysir andlar city commissioner and his teas of office shall be until his or her successor in office is elected and qualified at the first general election for mayor andlor commissioners held pursuant to section 4 of the charter the City of Miami subsequent to the special election held to fill such vacancy. Should there be more than one such vacancy the commission, then, and in that event, the person or persons receiving the highest number of votes in such election shall be the city commissioner or commissioners. In the evert the commissioners shall fail to comply with their duties as set forth herein, then, and in that event, the court- is hereby empowered and authorized to enforce compliance with this act or to call an election itself to fill such vacancy or vacancies on the commission." "Sec. 14. Commission may investigate official transactions, acts and conduct. The may -or, commission or any committee thereof, -hedam}---acre'.len ——te de, may investigate the financial transactions of any office or department of the city government and the official acts and conduct of any city official, and by similar i investigations may secure information upon any matter. In conducting such investigations the mayor, ! commission, or any committee thereof, may require the attendance of witnesses and the production of books, papers and other evidence, and for that purpose may issue subpoenas which shall be signed by the presiding i officer of the commission or the chairman of such I committee, as the case may be, which may be served and j executed by any policeman. "Sec. 15. City manager- ; { term; salary) sickness or absence; removal. The e e Aeien--shall --,*&i: t h thirts--days at ► .,r vra l l be the a i i 9 t �r3c ii+2— ea-d of . nmei1 a and ---%ei-c-iati�a dM:j n j; 8 r= ram-ie R eE all ]'t'�C.-1 .� 4 .�b/i�.,.�ryLp�_vrt[YlilL.I-T�J �� V++—l�+�f� V Z•�1iY��yZ�]��.. �`` `�pZZ�/p��`,�.�C�-�:.j iS��eZ2VvL17-aZfZ.i1 i �+ rf��.,��... 10�1�1 CLYSC2 iszQef the � .�.� V •_--��� �� i L 1 �R1TT7�-t71�y C-3-I� �- A a --e' a4-1�'-app e,±-n t-ed �- - ic} gg - --H e �-3 ha la-i [L�i cdz f3 z s�e�-L� �-� az ` w ; 11 e F r }, o fixed by th-e mieeie� ease --off t� c abeenee-- of Oie— ei le-y Ge F e .- him ... fi — 3, rferm -. 7 l hi ..d t i e B irsd li---e u e h -cic ir-v-"e f yy,,valid ae r; C)''ll 4 fr V - 12 - a 47 --_- ^ *a+ . ' . _ ••. • 1-i • u• • • r -ul• •ypeq jn thp • off" -0-f r1 • nrnvidpri iia—aecli-on he rnavnr and Cnmmi ss 3 ••er--, shall R' • t7 •- . •111 • • • • ' manaapr and ordprq tn any 11r.• • • of •- 11. •• her • • I Any • aiiCIn of •' • • _ • '• C�f this• •' f mayor • or • y. • 11 11 • - • • - arminciR forhiiq or her - 11 • from r . • articin brought i• thp• Same -Powers • duties. be: The powers and duties of the city manager shall (a) To see that the laws and ordinances are enforced. (b) To appoint and remove, except as herein provided, all directors of the departments and all subordinate officers and employees in the departments in both the classified and unclassified service; all appointments to be upon merit and fitness alone, and in the classified service all appointments and removals to be subject to the civil service provisions of this charter. (c) To exercise control over all departments and divisions created herein or that may be hereafter created by the commission. (d) To attend all meetings of the commission with the right to take part in the discussion but having no vote. (e) To recommend to the mayor and commission for adoption such measures as he may deem necessary or expedient. (f) To keep the mayor and commission fully advised as to the financial condition and needs of the city; and (g) To perform such other duties as may be prescribed by this charter or be required e4 V fk ?"i c)(� •� 1 d 400 - 14 - I�F� Mm by t'ha maynr ar ordinance or resolution of the commission. n "Sae. 21. Department of Law. The ma ynr-,- commission, the city manager, the director of any department, or any officer or board not included within a department, may require the opinion of the city attorney upon question of law involving their respective powers and duties. Sec. 42. Power to appoint boards or commissions of citizens. The commission may, at the request of the mayor = the city manager, appoint boards or commissions, to be composed of such number of citizens as the commission may deem expedient to act in an advisory capacity in conjunction with any one or more of the departments `j created or authorized hereby. The members of all such boards and commissions shall service without compensation, and may be removed at any time by a majority vote of the commission. Section 3. In accordance with the provisions of the City Charter (Chapter 10847, Laws of Florida, 1925, as amended), and § 5.03 of the Metropolitan Home Rule Charter, a special municipal election is hereby called and directed to be held in the City of Miami, Florida, from 7:00 A.M. until 7:00 P.M. on Thursday, September 4, 1997, for the purpose of submitting to the qualified electors of the City of Miami for their approval or disapproval the measure known as Charter Amendment No. 1. Section 4. The special municipal election shall be held at the voting places in the precincts designated, all as shown on the list attached hereto and made a part hereof and referred to as Exhibit No. 1 or as may be designated by the Supervisor of Elections of Metropolitan Dade County, Florida, in conformity with the provisions of the general laws of the State. The Precinct 3lection Clerks and Inspectors to serve at said polling places on said election date shall be those designated by the Supervisor of Elections of Metropolitan. Dade County, Florida, for such purpose in accordance with the general laws of the State. A description of the registration books and records which pertain to election precincts wholly or partly within the City and which the City is hereby adopting and desires to use for holding such special municipal election is as follows: all registration cards, books, records and certificates pertaining to electors of the City of Miami and established and maintained as official by the Supervisor of Elections of Metropolitan Dade County, Florida, in conformity with the provisions of the general laws of the State of Florida, are hereby adopted and declared to be, and shall hereafter be recognized and accepted as, official registration cards, books, records and certificates of the City of Miami. Section 5. In compliance with Section 100.342, Florida Statutes (1995), the City Clerk is hereby authorized and directed to publish notice of the adoption of the herein resolution and of the provisions hereof, at least twice, once in the fifth week and once in the third week prior to the week in which the aforesaid special municipal election is to be held, in 1 newspaper(s) of general circulation in the City of Miami, Florida, which notice shall be substantially in the following form: "NOTICE OF SPECIAL MUNICIPAL ELECTION TO AB HELD ON THURSDAY, SEPTEMBER 4, 1997 IN THE CITY OF MIAMI, FLORIDA PURSUANT TO RESOLUTION NO. 97-447 A special municipal election will be held on Thursday, September 4, 1997, from 7:00 A.M. until 7:00 F.M. in the City of Miami, Florida, at the polling places in the several election precincts designated by the Board of County Commissioners of Dade County, Florida, as set forth herein, unless otherwise provided by law, for the purpose of submitting to the qualified electors of the City of Miami, Florida, the following question: "Shall Charter Amendment No. 1 be adopted to provide, commencing in November, 1997, for a non -voting executive mayor elected City-wide who will not be a member of the City Commission, and five commissioners from five districts with boundaries delineated by the Commission, and authorizing the mayor to: (1) exercise veto power, subject to Commission override; (2) appoint and remove the city manager, subject to Commission review; (3) appoint committees; and (4) deliver an. annual budget address?" Charter Amendment No. 1 provides, commencing in November, 1997, for a non -voting executive mayor elected City-wide who will not be a member of the City Commission and five commissioners from five districts with boundaries delineated by the Commission, and authorizing the mayor to: (1) exercise veto power, subject to Commission override; (2) appoint and remove the city manager, subject to Commission review; (3) appoint committees; and (4) deliver an annual budget address? By order of the Commission of the City of Miami, Florida. CITY CLERK A list of City of Miami polling places follows: (Attach list of City of Miami polling Places.)" - 17 - J � 20 Section 6-. The offi.ciai ballot to be used at said election shall be in full compliance with the laws of the State of Florida with respect to absentee ballots and to the use of the mechanical voting machines or the Computer Election System (hereinafter "CBS"), and shall be in substantially the following form, to wit: "OFFICIAL BALLOT SPECIAL MUNICIPAL ELECTION THURSDAY, SEPTEMBER 4, 1997 FOR APPROVAL OR DISAPPROVAL OF THE FOLLOWING (,QUESTION: ------------------------------------------------------- Charter Amendment to provide for non -voting executive mayor and single member districts. "Shall Charter Amendment No. 1 be adopted to YES provide, commencing in (For the Measure) November, 1997, for a non -voting executive mayor elected City-wide who will not be a member of the City Commission and five commissioners NO from five districts with (Against the Measure) boundaries delineated by the Commission, and authorizing the mayor to: (1) exercise veto power, subject to Commission override; (2) appoint and remove the city manager, subject to Commission review; (3) appoint committees; and (4) deliver an annual budget address?" Section 7. Electors' desiring to vote in approval of .,,...5.; said Question described above, shall be instructed to punch straight down with the stylus through the hole next to the word 18 - "YES" within the ballot frame containing the statement relating to said Question. Electors desiring to vote in disapproval of said Question, shall be instructed to punch straight down with the stylus through the hole next to the word "NO" within the ballot frame containing the statement relating to said Question. Section 8. The City Clerk shall cause to be prepared absentee ballots containing the Question set forth in Section 6 above for the use of absentee electors entitled to cast such ballots in said election. Section 9. All qualified electors of said City shall be permitted to vote in said special municipal election and the Supervisor of Election of Metropolitan, Dade County, Florida, is hereby requested, authorized, and directed to furnish, at cost and expense of the City of Miami, a list of all qualified electors residing in the City of Miami as shown by the registration books and records of the Office of said Supervisor of Elections and duly certify the same for delivery to and for use by the election officials designated to serve at the respective polling places in said election precincts. Section 10. For the purpose of enabling persons to register who are qualified to vote in said special municipal election to be held on September 4, 1997, and who have not registered under the provisions of the general laws of Florida and Chapter 16 of the Code of the City of Miami, Florida, or who 19 - L .i� have transferred their legal residence from one voting precinct to another in the City, they may register Monday through Friday, from 8:00 A.M. to 5.00 P.M. at the Metropolitan Dade County Elections Department located at 13.1 N.W. 1st Street, Miami, Florida, within such period of time as may be designated by the Supervisor of Elections of Metropolitan Dade County, Florida. In addition to the above place and times, qualified persons may register at such branch offices and may also use any mobile registration van for the purpose of registration in order to vote in the herein described election during such times and on such dates as may be designated by the Supervisor of Elections of Metropolitan Dade County, Florida. Section il. WALTER J. FOEMAN, the City Clerk of the City of Miami, Florida, or his duly appointed successor, is hereby designated and appointed as the official representative of the Commission of the City of Miami, Florida, in all transactions with the Supervisor of Election of Metropolitan Dade County, Florida, in relation to matters pertaining to the use of the registration books and the holding of said special municipal election. Section 12. The City Clerk shall deliver a certified copy of this Resolution to the Supervisor of Elections of Metropolitan Dade County, Florida, not less than forty-five (45) days prior to the date of the herein special municipal election. -20- L J-97-751 10/22/97 4:05 PM ORDINANCE NO. 11564 AN EMERGENCY ORDINANCE RELATING TO IMPLEMENTATION OF CHARTER AMENDMENT NO. 1, BY AMENDING SECTIONS OF THE CODE OF THE CITY OF MIAMI, FLORIDA, AS AMENDED, TO EFFF.=ATE THE PROVISIONS REGARDING THE EXE=IVE MAYOR AND SINGLE MEMBER DISTRICI'Sf MORE PARTICULARLY BY AMENDING CHAPTERS11, 2, 4, 11, 14, 16, 18, 22, 23, 29, 35, 38, 40, 45, AND 46 OF SAID CODE; CONTAINING A REPEALER PROVISION AND A SEVERABILITY CLAUSE; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on September 4, 1997, Charter Amendment No. 1 was approved by the electorate of the City of Miami, Florida; and WHEREAS, Charter Amendment No. 1 created for the position of Executive Mayor and five single member districts on the City ' Commission; and WHEREAS, it is now necessary to amend the City Code to conform to the provisions of Charter Amendment No. 1; NOW, THEREFORE, BE IT ORDAINED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Ordinance are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. By the adoption of this Ordinance, it is hereby intended that all sections of the Code of the City of Miami, Florida, as amended, affected by the adoption of Charter Amendment No. 1, shall be amended to conform to the provisions of said Charter Amendment. ,Any City Code Sections inadvertently omitted from this Ordinance shall be formally amended by Ordinance at a later date. Section 3. Chapter 1 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:l/ "Chapter 1 GENERAL PROVISIONS Sec. 1-2. Definitions and rules of construction. The following rules of construction shall be observed for this Code and every other city ordinance, unless inconsistent with the manifest intent of the city commission or the context of this Code or other ordinance: Mayor Whenev r the term "Mayor" is us i shaI 1 hp conshru d t mean the Mayor of the City of Miami_ Section 4. Chapter 2 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:2/ 1' Words and/or figures stricken through shall. be deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain unchanged. i Asterisks indicate omitted and unchanged material. 2! Ibid. 2 - "Chapter 2 ADMINISTRATION � + t ARTICLE II. MaTcr and City Commission Sec. 2-31. Election and general powers. + The _m3}r_or and city commission shall be elected as provided in section 4 of the city Charter and shall exercise the powers and duties prescribed in section 3 and other sections of the Charter. Sec. 2-33. Order of business and rules of procedure. (b) The first order of business shall be the approval of the minutes of the previous meeting. A copy of said minutes shall be distributed to the mayor and each of the commissioners prior to the meeting to enable the mayor and each commissioner to review the contents thereof. (c) After approval of the minutes of the previous meeting(s), all business that shall come before the city commission shall be taken up in the order as such items of business appear on the city commission agenda in accordance with the following provisions: (1) The agenda shall be prepared by the city manager in an appropriate form approved, from time to time, by the city commission. Matters may be placed on the agenda by the mayor, any member of the city commission, the city manager, the city attorney and the city clerk. (2) Any citizen shall be entitled to be placed on the agenda of a regular meeting of the city commission for presentation of information and material to be considered by -lie commission. Only the mayor.. members of the city commission and the city manager may place a citizen on the agenda. Any citizen shall be entitled to speak on any matter appearing on the agenda under the agenda portions entitled "consent agenda," "public hearings," and "public discussion." 3 i E (3) No citizen shall be entitled as a matter of right to address the city commission on any matter appearing on the agenda which is not scheduled for public hearing or public discussion or which does net appear thereon as a result of hlS or her placement, as described in paragraph (c)(2) hereof; citizens so desiring to speak shall be allowed to speak only if permitted to do so by the chair -ems pzasid; ng oLfic_er of the city commission and if such permission is not withdrawn by a majority of the commission members present-. (d) A copy of requests, petitions and applications shall be placed before thpmavnr and each member of the city commission, supported by departmental memorandum and such information as may be necessary to enable the city commission to reach a decision. All such requests, petitions and i applications, except in cases of extreme emergency, shall be in the hands of the city manager for a period of five days prior to a regular meeting, to enable the } heads of the departments affected to prepare necessary memoranda, data or reports. (e) A copy of each resolution and ordinance shall be furnished the mayor and members of the city commission five days before meeting, withthe exception of upto items- to enable the heads of the departments affected to prepare necessary memoranda, data or reports. In the event a copy of each resolution or ordinance is not furnished within the required five days, the proposed resolution or ordinance may be heard by the city commission provided that the city commission unanimously deems such resolution or ordinance to be of an emergency nature. The number of nonscheduled items is limited to two that each commissioner and the mayor may introduce for consideration by the city commission at any city ccmmission meeting and 8:00 p.m. or at the conclusion of the regular scheduled agenda, whichever occurs first, is designated as the time that such nonscheduled items shall be introduced. (f) All notices of all intentions to ask questions, together with a copy of such questions, shall be given to the city manager five days before each regular meeting. In all questions of policy presented to the city commission by the the ras, the city manager or any departmental head, notice -thereof, f together with a copy of questions supported by memorandum setting forth the rules of action by the(_ - - � city commission, shall be filed three days before the meeting and given to the mayor and each member of the city commission. (g) All ordinances shall be read by title only j prior to passage. All resolutions shall be briefly described upon a printed agenda, which agenda shall. be furnished the mayor members of the city commission five days before each city conanissi.on meeting. (h) Unless further time to speak is granted by the ehair-Pereen pre, 5 i di nQ of f i der of the city } commission, any person addressing the commission shall s limit his or her address to two minutes. Sec. 2-34. Viee Presi ina !e -(a) -A member --of the -ei•ty-eemmissiate-shall b t a -an eE--€iee-he ruby Aviee-mayor. t' The eleerzian-of a--vi.ee Mayor --shall- j be- a d-- bC- he 1d a t tie—regu 1;r e i t--y meetings en r--he November. Theterm-o€--ef€-iee-fe 1 f v ie e-Ayer—i o e ie-e-z s- r.r weer ^ t- h g .i = r - .. _ - _ a�i F�•—���E�� 6�—crrc---iTcac �'-vi�--i�iaer rho, nh ; czrc-�r=c =,Cede—o et -her e`rdinanee6—v�f the 1 a s F { (aj 7n arrordanr_P with sartiQn 4 (g) M ofcir_�v charter the mayor_ may be the erg; i d__nagf f i cer of i the city commission with the au-hri t-y to dee,i=late anarnPr- memhPz,--at_ the city rommi ss i_on to SErve as presiding o -f i _er (h) The mayor as presidino of i Pr, Shall n� move. �cond, what e or vote Ifrt.he prpsidincr c, .l.i.cer is a member of the city commission the. residing e f r,infL _3"e1 i - ii Shi ng the chair, may move, - second, debate and vnr s Derr oi71y to such li mi a inns as ar,- imp gfQSLnn A l- men1tar.� Sec. 2 -35 . Terms of cc3nurtiei3� e1ecL�d�ff_? c?a� G as members of any authority, board or committee; annual review. (a) In accordance with the provisions of law and with the provisions of this section, the appointment of the mays and/or any eacl3 city coaanissioner currently serving as a member of any authority, board or committee created by resolution or ordinance shall be subject to the review of the city commission on an annual basis commencing June 1, 1990, such review to - 5 I take place on or before the anniversary date of such appointment. It is the intent of the city commission that tha--m?yoz_and each commissioner be considered for appointment to an authority, board or committee before the mayor or any one commissioner shall have served a consecutive term; however, there shall be no prohibition against Lhe__[rYvQ-�—Qr any commissioner from being reappointed to serve consecutive terms. (b) The city cleric is hereby directed to take necessary steps to implement the provisions of paragraph (a) hereof by forthwith providing the mayor, city commission and city manager with information concerning the affected authority, boards or committees in regard to the length of past service by tbp mayor or those city commissioners so serving thereon. In each succeeding year and not later than 60 days before the first day of the month set forth in paragraph (a) above, the city manager shall present the mayor and city commission with a report on this subject for commission review and consideration at a city commission meeting scheduled to take place no later than 30 days before the first day of the month set forth in paragraph (a) above. SPC -16 Mayoral veto and commisginn nvarl-i dp_ u_ • •• • •BMW Z419ORIMISTO sum •• • •- •- -6- •p�1 i •- i • • .". t i• i •- it f• `• • - •{I _• •• Wei 0 ARTICLE III. Officers DIVISION 4. City Clerk Sec. 2-143. City archives and records management program. + + + + + + (c) Custodianship of public records. Custodianship of public records shall be the responsibility of the city clerk, and in this regard, the maintenance of such records shall be in the care of the city departments, mayor and city commission offices or the city clerk's office, depending on the life cycle of each document. Outgoing city officials or employees shall deliver all public records in their custody to their successors. Records not in current use shall be transferred to the city archives, and, upon acceptance, the archives shall be considered the legal custodial site of such records. (d) Duties of city officials and employees. It shall be the responsibility of a city employee, under the direct supervision of the city clerk, to administer the city archives and records management program. In this regard, the city clerk, among all other functions required for the proper and efficient management of the x public records of the city, shall: - 8 - 'r w �/ M tk t t t t t (3) Advise and assist city departments the mayor and city commission offices in the preparation of records inventory and destruction schedules. * t t t t + (e) Duties of city departments, t7he maz nr and city commission offices. (1) Each city department, the mayor and city commission offices shall create and maintain all of its records with adequate and proper documentation of its organization, policies, decisions, procedures, and essential transactions. (2) Each city department. the mayor and city commission offices, with the advice of the city clerk's office, shall establish and maintain_ an active, continuing program for the economical and efficient management of the records of the department. Such programs shall provide for: ARTICLE IV. DEPARTMENTS DIVISION 2. Planning, Building and Zoning .Department t * t t t t Sec. 2-205. Divisions of department; directors. t t t t t t (b) Under the supervision of the city manager, the director of the planning and zoning division shall be responsible for, among other things: * « t t t t (4) Conducting special surveys and studies and reporting thereon, at the direction of the mayor, city commission and the city manager. 9 - DIVISION 12. Management and Budget Department Sec. 2-497. Same --Budget management section. Subject to the supervision and control of the director of the management and budget department, the assistant department director in charge of budget services shall provide the services of a budget office, which shall include the formulation, preparation and evaluation of the city }budget; the provision of budgetary control through constant monitoring of current fiscal operations, and the forecasting of future fiscal operations for all funds; and the functions which shall include: expenditure control of the financial management information system; citywide position control; monitoring all legislation authorizing appropriations through its verification of the availability of funds; undertaking special fiscal management studies as requested by the mayor. city con nission and/or by the city manager; and performing such allied duties and functions as the department director may specify. ARTICLE VI. Lobbyists Sec. 2-653. Definitions. As used in this article: "Lobbyist" does not mean a person who merely appears before the mayar— city commission, city board or committee, the city manager or city staff in an individual capacity for the purpose of self - representation to express support for or opposition to any ordinance, resolution, decision or action of the city commission; or any resolution, action, recommendation or decision of any city board or committee; or any action, decision or recommendation of the mayar-, city manager or city staff. "Lobbyist" does not mean a person appearing solely to provide factual information requested by the ayor. a member of the city commission or a city board. - 10 - 1 Sec. 2-654. Registration; fee; disclosure requirements; log of registered lobbyists; exemptions from payment of fee. (c) In addition, every registrant shall be required to state under oath the existence of any direct or indirect business association, partnership, or financial relationship with t_ma�tnr• any member of the city commission, any mebmber of a city board, the city manager or a member of the city staff before whom he lobbies, or intends to lobby. (d) The city clerk shall maintain a log, which shall be updated on a quarterly basis by April 15, July 15, October 15 and January 15 of each year, reflecting the lobbyist registrations filed in accordance with this section and shall be distributed to the mayor and city commission. (e) The mayor, all members of the city commission, of city boards, the city manager and city staff shall be diligent to ascertain that persons required to register pursuant to this section have complied, by requesting city boards the city manager and city staff may not knowingly permit a person who is not registered pursuant to this section to lobby.record of compliance from the city clerk. The mayormembers of the city commission, of city boards, the city manager and city staff may not knowingly permit a person who is not registered pursuant to this section to lobby. ARTICLE VII. Affirmative Action Policy Sec. 2-694. Duties and powers of officer. The duties, functions, powers, and responsibilities of the head of the affirmative action division of the department of internal audits and reviews shall include the following: 0, - IAO (7) Responsibility to make annual reports to the NdvQr. city manager and commission concerning the status of the affirmative action program, the enforcement of the provisions of this article and recommendations concerning methods by which to improve the affirmative action program. i ARTICLE IX. City -owned Property i i Sec. 2-779. Property and asset review committee. (a) Establishment. There is hereby established a board to be known as the "City of Miami property and asset review committee" for the purpose of reviewing all properties and assets of the city and making i specific recommendations and proposals to the May= and city commission with respect to the current or future use and development of the city's properties and assets. y�y I I ARTICLE XI. Boards, Committees, Commissions i + * * * i DIVISION 3. International Trade Board Sec. 2-922. Membership. l (b) The board shall be constituted as follows: (1) Sixteen members for terms of office as provided herein. Such members may be reappointed for seven additional terms. One member of the city commission shall be the chairperson of the board and the 15th member thereof. The chairperson of the board shall f have the power to appoint all members serving on the various committees which the board shall establish from time to time. The mayer i aiad neh Each city commissioner shall each have the right to nominate three persons to serve as board members. Members shall be eligible for reappointment as provided s . 12 herein. The terms of office for these members shall be for periods of one year or until the nominating commissioner leaves office, whichever occurs first. No member shall be eligible for reappointment if such reappointment results in the member serving for more than eight consecutive years. DIVISION 4. Audit Advisory Committee Sec. 2-946. Created; number of members; function. A Miami audit advisory committee is hereby created consisting of five persons. The basic function of the committee is to assist the ma Dr. city commission and the city manager in fulfilling their fiduciary responsibilities relating to accounting, auditing and financial reporting. The committee shall: Sec. 2-948. Organization (b) The committee shall elect its own chairperson who shall: (3) Be responsible that the notes of all meetings are forwarded to the maynr,--Ljje city commission and the city manager in a timely fashion. Sec. 2-950. Duties. The duties of the committee shall include but not be limited to: (1) Recommending to the mayor and city commission specifications and performance standards to be utilized in issuing invitations to qualified independent auditors to perform annual independent audit services for the city. - 13 - DIVISION 5. Affirmative Action Advisory Board Sec. 2-982. Duties generally. The board shall provide advice and recommendations regarding affirmative action. The director or his or her designee shall represent the city manager in all matters of affirmative action and shall provide all staff support to the board. with the assistance of the director, the board shall perform the following duties and functions: (1) Review and recommend to the ma4mzand the city commission the adoption of amendments and revisions to the city's affirmative action program plan, for meeting present and possible future requirements. (4) Recommend to the may_r—and city commission ordinances, resolutions, and other proposals relating to the affirmative action program. (5) Serve with the director and the personnel management department as an instrument for informing the mayar, city commission, city departments and agencies and the public of the continuing affirmative action program and its purposes. (6) Make recommendations or reports to the may= and city commission directly as deemed appropriate by the board. DIVISION 6. Sports and Exhibition Authority Sec. 2-1013. Governing body. (a) Composition. The authority shall consist of five (5) voting members to be appointed by the city commission, one of whom shall be a city commissioner appointed by the city commission as an ex officio member and the chairperson thereof. each city commissioner, except for the city commissioner appointed as chairperson, shall nominate one (1) member. q 4 U 14 rr`1 Sec. 2-1015. General powers and responsibilities of the director. (b) Subject to the policy directives of the authority, the director shall have general supervision over and be responsible for the operation and maintenance of all authority properties, activities, and facilities. The director shall attend all meetings of the authority, shall furnish the authority, the mdyr and the city commission a monthly report with respect to the operation, maintenance and financial condition of the authority, and shall from time to time have prepared and shall furnish such reports, audits and other information relating to said authority as may be required by the authority. In the event that the director shall for any reason be temporarily incapable of exercising the powers and performing the duties and functions of this office, the deputy director of the authority as so designated by the director shall perform as acting director and shall exercise such w powers and perform such functions and duties of the director until such incapacity of the director shall be terminated. Section 5. Chapter 4 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars31: "Chapter 4 ALCOHOLIC BEVERAGES ARTICLE I. In General Sec. 4-5. Prohibiting sales, etc., during emergency. Whenever, in the opinion and judgment of the e4-t-y wanaje-r mayor, a public emergency shall be created or exist in the city, causing or tending to cause public disorder, lawbreaking and confusion, the city manager is hereby authorized and empowered to prohibit, by and 3/ Ibid . - 15 - L through the issuance of his official decree, the sale, serving or consumption of beer, wine, spirituous and other intoxicating liquors and beverages for and during a period of 24 hours or such longer period of time as may be described in such decree, at. all coinnercial establishments and at all other places in the city where such beer, wine, spirituous and all other intoxicating liquors and beverages are licensed to be sold, served or otherwise dispensed. In the issuance of such decree, the city rnanager shall have the fact of the issuance and the contents of such decree broadcast by police and by commercial radio stations and otherwise given publicity as quickly and as widely as shall be feasible. It is hereby declared to be illegal for any person operating, employed at or otherwise controlling any of the commercial establishments or other places described in this section to sell, serve or permit the consumption on the premises of beer, wine, spirituous and all other intoxicating liquors and beverages during the period described in the decree of the city manager provided for in this section. Each violation of, or noncompliance with, any of the provisions of this section shall constitute a separate offense, and shall subject every person guilty thereof to the penalty prescribed in section 1-13. Section 6. Chapter 11 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars&/: "Chapter 11 CABLE TELEVISION ARTICLE I. In General Sec. 11-2. Definitions. For the purposes of this chapter, the following terms, phrases, words and their derivations shall have the meaning given herein, unless the context clearly indicates that another meaning is intended. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in a 4/ Ibid. of Tt'e 4 L singular number include the plural number. The word "shall" is always mandatory and not merely directory. _M,,yar. Whin v r the nn "Mayor" ; G ,L_-,c-cj.it Gha] b one rud_ro mean the Mayor of hP i v of Miami_ ARTICLE II. Licenture Sec. 11-61. Procedure to consider license renewals. (a) Not less than 36 months before the expiration of any cable television license, the city commission may, itself or through the may_(=_nr -Lba city manager, review the performance of a licensee and the content of the cable television ordinance. (b) After giving public notice, the mayor. the city commission or city manager shall proceed to determine whether the licensee has satisfactorily performed its obligations under the license. To determine satisfactory performance, the city commission or city manager shall look at the technical developments and performance of the system, programming, other services offered, cost of service, and any other particular requirement set forth in the ordinance, such as the availability of programming equipment and personnel to aid access channel users. The mayor the city commission or city manager shall also consider the licensee's annual reports made to the city or the FCC. Provision shall be made for community comment on all areas of performance by the licensee. (c) A four -month period shall be provided to determine the licensee's eligibility for renewal. (d) The - r. and the city manager shall prepare any proposed amendments to the license ordinance. (e) The mayoIL-an_d_the city manager shall submit recommendations to the city commission in regard to: (1) Renewal of the license; (2) Changes to the license; and (3) Amendments to the license ordinance. (f) If the city commission finds the licensee's performance satisfactory, a new license may be granted. 17 - L (g) In the event a licensee is determined by the city commission to have performed unsatisfactorily, new applicants may be sought and these applicants evaluated by the_m,ayor. the city manager and a license award made by the city commission according to cable television licensing procedures adopted by the city commission. Section 7. Chapter 14 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars/: "Chapter 14 DOWNTOWN DEVELOPMENT ARTICLE II. Downtown District DIVISION 2. Downtown Development Authority Sec. 14-52. Downtown development authority board -- Composition; appointment and terms of office of members and executive board; filling of vacancies. (b) The board shall be constituted as follows: (2) The 1 the city commissioners shall each nominate two members. (7) In the event a nominee provided for under subsection (b)(4) or (5) above is rejected by the city commission, or in the event the board of county commissioners or cabinet of the state fails to nominate such member within 30 days from the effective date of this section, 1* the mayor board shall recommend additional nominees until one is approved and appointed by the city commission to fill such vacancy, in the case of the two Ibid. - 18 - w' C r��� b a additional original nominees only; thereafter, after the appointment of the first two additional members, the board shall nominate a successor, in the manner provided in this sect ion -� �- ti he-ev et�e tea; yr €aijf3 fie- r eeer� e - —��e rk 33a t o--e u e h- e r within. ten n J a y e f i ei ►- 3�-date -} ecz--cc. -o v , tie Until one ised--iced - by the Sec. 14-57. Same --Additional powers and duties. In addition and supplemental to the powers provided in section 14-56, the authority acting through its board, subject to the approval of the commission of the city as hereinafter set forth, shall have the right, power and authority to: (3) Improve land, construct, reconstruct, equip, improve, maintain, repair and operate office buildings and any necessary or desirable appurtenances thereto, within the boundaries of the authority for the housing in whole or in part of federal, state, county or municipal governmental entities or any agencies thereof or any other person or corporation or any combination of the foregoing (each such office building being herein called a "project"), subject to the need and plan therefor being first presented to the mayor and commission of the city and its approval evidenced by the adoption of an appropriate resolution. (4) Fix, charge and collect fees, rents and charges for the use of any project or any part thereof or any facilities furnished thereby, or property under its control and to pledge such revenue to the payment of revenue bonds issued by it, subject to the need and plan therefor being first presented to the mayar and commission of the city and its approval evidenced by the adoption of an appropriate resolution. (5) Lease as lessor any project, projects or property under its control or any part thereof and charge rentals for the use thereof sufficient with any other available - 19 - 03 1Kv0 revenues to pay the principal of and the interest on the revenue bonds issued to pay the cost of any such project or projects, subject to the need and plan therefor being first presented to the Mawr and, commission of the city and .its approval evidenced by the adoption of an appropriate resolution. Sec. 14-58. Employees generally. The board shall employ and fix the compensation, subject to the approval of the city commission, of the following- who shall serve at the pleasure of the board: (1) A director, who shall be a person of good moral character and possessed of a reputation for integrity, responsibility and business ability. No member of the board shall be eligible to hold the position of director. Before entering upon the duties of his office, the director shall take and subscribe to the oath and furnish bond as required of members of the board. He shall be the chief executive officer of the downtown development authority and shall devote his entire time and attention to the duties of his office. He shall not while serving as director engage in any other business or profession. Subject to the approval of the board, and direction by it when necessary, he shall have general supervision over and be responsible for the preparation of plans and the performance of the functions of the authority in the manner authorized in this article. He shall attend all meetings of the board and shall render to the board, Lhe _ma_y_o :. and to the city commission a monthly report covering the activities and financial condition of the authority. In the absence or disability of the director, the board may designate a qualified person to perform the duties of the office as acting director. The director shall furnish the board with such information or reports governing the operation of the authority as the board may from time to time require. 20 - ARTICLE III. Gusman Center for the Performing Arts Sec. 14-91. Administration. (b) Administration of said facility shall include, but not be limited to, the following: + + + + + + (6) Make periodic reports to the mayor and city commission which shall reflect the financial condition of the operation of the facility. Section 8. Chapter 16 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:fi/ "Chapter 16 ELECTIONS Sec, 16-2. Same --Holding of city elections; straw ballot. (a) The city commission shall, not less than 45 days prior to the proposed date of any municipal election, adopt a resolution setting forth the following: (1) The date upon which such election is to be held. (2) The purpose of such election. (3) The list of polling places in the several precincts. (4) The names of those persons designated and assigned to serve as clerks of election and as inspectors of election; provided that the city commission may omit such names from such resolution and include them in a resolution to be adopted later in accordance with the general election laws of the state. Ibid . - 21 - (5) The form of ballot to be used in such election (except absentee ballots), prepared in compliance with all statutory requirements relating to the use of mechanical voting machines. The city commission shall further authorize and direct the city clerk to give notice of the adoption of such resolution and of the provisions thereof, by and through the publication of an appropriate advertisement in two daily newspapers of general circulation in the city at least 15 days before the day upon which such municipal election is to be held. In the event that any polling place designated in the resolution shall become unavailable for use as such, the city clerk shall designate another polling place within the same precinct for holding the election and shall thereafter report his action tO--the e t en at-the next regular city co mtiS-sion meeting by filing a certificate with the mayor and city commission setting forth the details of the change and the reasons therefor. Sec. 15-5. Candidate qualifications; affidavit, and form thereof, required of candidates for office of commissioner or mayor; finding candidate unqualified; failure to submit affidavit; authorization for city clerk to pursue judicial declaration. (a) A candidate for the office of mayor shall 1 .1 possess the qualifications requisite to an elector at a general state election,, u1 have resided wi-thin the city fez--e RienehB *t—p eet 4 i3g- -I e—e i - - y e a _ _ t _ e . 3 a-,al3ie- he atleast an e —qualifying f o r 1• he of f is r he _ re ii rP-iLa maintain an actual an rea_ 7 regi den _P for t hP duration of his term of office .j_n the ci v: and shall IAA have been registered by the city registration books that have been Y prescribed by ordinance-r,.L and shall - 22 - be a qualified elector of the city as set forth in section B of, the Charter of the city. (b) A commis. -,inner shall- . (1) OSfiP_SS _ ?' _Qllc3� �1 �3�1 QII ei�ll� Giteto an elector at�a general—s-tate elecljon: (2) have resided within the city for' at 1 g one (� I )_year prior to q]la.i_tfy!ng_- (1) ti av� resided_�tit h u—the istrict they wish to pr Pnt-fc2r -al- least one (1) �',-kr-prior --to—rill 1 iy i ng—; (4) be rem I Lt�maintain xn actual _and residence fnr`the du *. n Qf_rhp ir tp_= in the.r i tt y�nd in their_ di sr c't () have he,Pn registers ___LhP iry r gi s "t? on hooks that have heen p-r grri hrj hy C) di nance-and r of --the city ag se r for h in sec--' Qn f) of the ChartPr of t7he ri ty N Id*thstanding_the f g0illg, these co i4s'.oners Pl ac-rAd in N not recpd red ro passes the residency reC ii r men._1- se r fnrrh in__subSeCriQn C31 ahnve, hilt must_reside in the district- ham[ a el_ectPd to _r,eppresent_ wit in three___ _3L.one after the elpr-rion - (br.) Candidates for nomination and election to the office of commissioner or mayor shall file with the city clerk, on a form submitted by the clerk, a sworn statement in the following form containing the following information: AFFIDAVIT OF CANDIDATE CITY OF MIAMI , FLORIDA STATE OF FLORIDA COUNTY OF DADE ) CITY OF MIAMI ) (hereinafter "affiant"), being first duly sworn, deposes and says: L_ 1 1. My name is 2. I am offering myself as a candidate for the office of of the City of Miami, Florida, in group 3. I have resided in the City of Miami for a minimum of aim men a next preeeding thedateof the _--elee-t-i-&n one_y P;ar before if for in g1131 iLy n__g app yi nq _Mavor and orP�r_P_a_r thP for rommi scion and I am a registered voter and a' duly qualified elector of the City of Miami, Florida, presently registered to vote in precinct no. I presently reside at the following address (muses include zip code): which is my legal address, and I have resided continually at said address from the day of to the day of 4. Immediately prior to residing at the above -stated address, I have resided at the hereinbelow listed addresses for the cited periods of time: (List hereinbelow all addresses at which you have resided for the past five years, as well as the length of time at each address.) p i car F_ or the PQrind 'i s i f S. In addition to the residence I have listed as my present address I also reside at the following listed addresses on a temporary basis as a secondary domicile or domiciles. 6. Affiant's spouse resides at the following address: (Must include city, state and zip code.) - 24 - 1 7. Affiant's minor children reside at the following address: (Must include city, state and zip code.) 8. At the present time, affiant (is) (is not) registered to vote in any city, county or state other than as stipulated in subparagraph 3, above. i 9. Name and business address of affiant's employer: 10. y Affiant's occupation: i Affiant's business telephone number(s): 11. s Affiant has been employed in the above -cited capacity for the following period of time: i (Note: In the event the occupation of affiant has been for a period of less than one year, or the employment period with the same employer has been for a period of less than one year, affiant shall i give the name(s) and addresses) of his/her employer(s) and occupation(s) for the period of one year prior to the date of this affidavit.) i 12. Affiant represents that he/she (is) (is not) currently holding another elective or appointive office --whether city, county or municipal --the term of which or any part thereof runs concurrently with that of the office he/she seeks, and that he/she has resigned from any office from which he/she is required to resign pursuant to P.S. § 99.012 and/or the City of Miami Charter. 13. Affiant represents that, as of this date, he/she y (is) (is not) an employee of the City of Miami, J Florida. i "64 - 25 o I '4 V 1 1 (Note: If affiant is an employee (other than city manager, city attorney or city clerk), affiant shall rake a leave of absence, without pay, from 1 his/her employment durin the g period in which r affiant is seeking election to public office.) i 14. Affiant's campaign headquarters address and { telephone number: i Affiant's campaign treasurer's name: Affiant's campaign treasurer's address: i Telephone nos.: (work) (home) i 15. Affiant represents that, if elected, he/she shall serve in the elective office to which he/she seeks election. Ham! 16. Following is the exact way in which affiant would s like to have his/her name printed on the official ballot: SIGNED THIS day of 19 , in Miami, Florida. Affiant BEFORE ME, the undersigned authority, personally appeared , who, after first being duly sworn, deposes and states that executed the foregoing to the best of knowledge and belief. CITY CLERK., CITY OF MIAMI, FLORIDA (SEAL) Did take an oath Produced identification Type of identification produced: " J."" ,6.0 - 26 - '6 err + (ed) In the event the commission finds that any candidate for the office of mayor or commissioner does not meet the qualifications of an elector as required under the Charter of the city or of this section, the commission may adopt a resolution so finding and directing the city clerk to refrain from placing the name of the candidate for mayor or commissioner, as the case may be, on the ensuing ballot for such office. In the event the name of the candidate has already been placed on the ballot, then the clerk shall be instructed to take the necessary action to either remove the name from the ballot or lock the key for that particular candidate in order that the electorate shall not be permitted to vote on an unqualified candidate for the office of mayor or commissioner. Nothing herein contained shall prohibit the candidate who is found to be unqualified for the office of mayor or commissioner from appealing the decision of the commission to a court of appropriate jurisdiction. (4e) The city clerk shall not accept a qualifying fee from any candidate who fails to submit to the clerk, either prior to or simultaneously with the submission of the qualifying fee, the affidavit fully completed as required by subsection (b) hereof. (ef) If the city clerk finds: (1) That the qualification papers of a candidate, on their face, are not in compliance with the applicable elections laws of the State of Florida and in compliance with the applicable municipal charter or laws or. ordinances; (2) That the qualification papers of any candidate, on their face, are incomplete or defective, and are .incomplete or defective at the end of the qualifying period; (3) That the qualification fee has not been paid in accordance with law; (4) That a sworn written statement is or has been filed by a qualified elector residing within the municipality challenging the qualifications of a candidate for municipal office; or (5) That the city clerk has received written notification from the Dade County Supervisor of Elections that a candidate is not an C! .1. elector of the City of Miami; c> �. J - 27 - the city clerk is hereby authorized and directed to file and prosecute an appropriate action in the circuit court for Lade County, in the name of the city clerk, solely for the purpose of receiving a judicial determination with regard to the qualifications of the candidate. In the event the circuit court rules for the city clerk, the city clerk is directed to take the necessary action to remove the name from the ballot or notify the voting public of the candidate's invalidity if such removal is impracticable." Section 9. Chapter. 18 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars :l/ "Chapter 18 FINANCE ARTICLE I. In General Sec. 18-5. Budget and finances review committee. (a) Establishment. There is hereby established a board to be known as the "City of Miami budget and finances review committee" for the purpose of providing an independent assessment concerning the city's budget and finances and making recommendations to the mayor, city manager and the city commission on all issues related to the city's budget, cost effectiveness, productivity and efficiency. ARTICLE III. Purchasing and Contracts Generally t t * + t # Sec. 18-72. Chief procurement officer. The city manager shall designate a chief procurement officer who shall have central authority over implementation of policies, procedures, regulations and fonyis governing city contracting methods and procedures; types of contracts; qualifications and duties; inspections and audits; disputes and remedies; ethics; and public access and information as set forth in articles III, regarding Ibid. 28 -' 4.� atracts, and V, regarding sale of ipter. procurement officer shall submit an sport on the operation of the city's !nt system to the mayor and city together with recommendations for rvement. )ter 22 of the Code of the City of Miami, is hereby amended in the following "Chapter 22 �� 2 Eh�% j 116''^` rL4 3E AND OTHER SOLID WASTE TILL$ I. In General i # a t t =gency powers of the director. of a grate of m rgpnsy declared by 4 grdance with he provi si cans cif the ector, with the concurrence of the 11 have the authority to suspend, services provided by the department, i in, in such emergency circumstances i .sters, civil disorders or other :rested by the city manager. * f # to iter 23 of the Code of the City of Miami, is hereby amended in the following "Chapter 23 1 ESTORIC PRESERVATION i i I - 29 L Sec. 23-4. Designation of historic sites, historic districts, and archeological zones. (b) Procedures for designation. Properties which meet the criteria set forth in subsection (a) may be designated as historic sites, historic districts, and archeological zones according to the following procedures: (1) Proposals and preliminary evaluation. Proposals for designation may be made to the board by any one of its members, the mayor, the city commission, the planning, building and zoning department, any other city department, agency, or board, the Metropolitan Dade County historic preservation board, or any interested citizen. The board shall conduct a preliminary evaluation of the data provided in the proposal. for conformance with criteria set forth in subsection (a); and shall, if appropriate, direct the planning, building and zoning department to prepare a designation report. The board may require the party initiating such proposal to provide any necessary documentation, and to pay any applicable fees. Section 12. Chapter 29 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:12/ "Chapter 29 LANDFILLS AND WATERFRONT IMPROVEMENTS ARTICLE IV. Waterfront Advisory Board Sec. 29-123. Composition; terms; appointment; removal. (c) 'fie--m-y commissioner shall each make two nominations of individuals to serve members of the board. t,.rfi lII Ibid. - 30 - 141 Section 13. Chapter 35 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following part icular. s :11/ "Chapter 35 MOTOR VEHICLES AND TRAFFIC ARTICLE V. Coconut Grove Parking Improvement Trust Fund Sec. 35-223. Coconut Grove parking advisory committee established; membership terms. (a) A Coconut Grove parking advisory committee of nine members shall be established by the city commission to advise and recommend appropriate expenditures from the Trust Fund to the director of the off-street parking department. The department of off- street parking shall provide staff services as required. Appointments shall be made as follows: list-e•z--a•t- east -Be ve-prepeBed by (.a1,) Four members recommended by the Coconut Grove village council; (42) One member recommended by the off-street parking authority; and (+I) Epylr One members appointed by the city commission. Section 14. Chapter 38 of the Code of the City of Miami, i Florida, as amended, is hereby amended in the following i particulars:12j uJ Ibid. Ibid. - 31 - I— "Chapter 38 PARKS AND RECREATION 1 ARTICLE III. Bayfront Park Management Trust Sec. 38-103. Governing body. (a) Composition; appointments; term of office. (1) The trust shall consist of nine members appointed by the city commission. A member of l the city commission shall be the chairperson of the trust and the ninth member thereof; i five members shall be nominated individually, ene--by—-mayed one each by the city commissioners and four members shall be i appointed at large by the city commission. Each member of the trust shall reside, work, ! own real property or own a business in the ' city and shall be an individual of outstanding reputation for integrity, responsibility and commitment to serving the community. The chairperson of the trust shall have the power to appoint all members serving ! on the various committees which the trust shall establish from time to time. i j S Sec. 38-111. Annual report and audit. (a) The trust shall submit to the mayor and city coninission an annual report and an annual audit. The audit shall be performed by an external auditor who is a certified public accountant. Section 15. Chapter 40 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following ' particulars�f: I "Chapter 40 PERSONNEL + + + + ARTICLE IV. Pension and Retirement Plan 1�1 Ibid. 0 f 0 � "" ' - 32 L DIVISION 2. City of Miami Firefighters' and Police Officers' Retirement Trust + + + + + + Sec. 40-193. Board of trustees. (a) Selection. (1) The board of trustees of the retirement system shall consist of nine persons selected as follows: a. One trustee selected by the city manager, which trustee shall not be .the mayor_ a city commissioner, the city manager, the city finance director, or an assistant finance director; DIVISION 3. City of Miami General Employees' and i Sanitation Employees' Retirement Trust { 1 Sec. 40-243. Board of trustees. (a) Selection. (1) The board of trustees of the retirement system shall consist of nine persons selected as follows: a. One trustee selected by the city manager, which trustee shall not be tlia mayor- a city commissioner, the city manager, the city finance director, or { an assistant finance director.; DIVISION 4. City of Miami Elected Officers' Retirement Trust Sec. 40-291. Definitions. Unless a different meaning is plainly required by the context, the following words and phrases as used in this division shall have the following meaning: J� IJ20 - 33 - 44 L x t * t Elected officer shall mean r h P ma:nr ar a commissioner as elected in accordance with section 4(b) of the Charter of the city as it now exists or as it may hereafter be amended. Retirement shall mean ar__ ind;v1siLLa1 who no longer serves--ae---a---e r in_—jhP rapacity of aA_F�prrerZOff��er. Service shall mean an 'e eeted effieer individual who has 'ieen a sexrv_d €er a total peri-ed of ten years or more in rhpaapacit-y of f an .ter- d Off_. Sec. 40-296. Benefits. Any Elected Officer as here -in defined—, who has been a asiener an Elected Officer for a period of ten years or more and who no longer serves as a--e4-t-y Doer an E1 rtt-d offr.r shall be entitled during the remainder of his/her natural life to a sum equal to one-half of his/her W-2 wages for the highest of the last three years of service of his/her term of office and a single sum death benefit fully vested at date of death. Upon vesting and each year thereafter of service as a—ei. an Elected Off i r, the retirement allowance shall increase by five percent for each year of service to a maximum of 100 percent of the highest W-2 wages. t et t t t * n Section 16. Chapter 45 of the Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:IA/ l Ibid. "Chapter 45 PUBLIC ORDER - 34 - QQ ��a�is i Sec. 45-2. Declaration of state of emergency by the mays= . Whenever the e4-y---- ia� ma_y_ z determines that there has been an act of violence or a flagrant and substantial defiance of or resistance to a lawful exercise of public authority, and that, partly on account thereof, there is reason to believe that there exists a clear and present danger of a riot or other general public disorder, widespread disobedience of the law, and substantial injury to persons or to health, safety, welfare or, protection of persons, or damage to property, all of which constitutes a threat to public peace or order and to the general welfare of the city or a part or parts thereof, he may declare that a state of emergency exists within the city or any part or parts thereof in accordance with the provi si an- af_the city Charter. Sec. 45-3. Emergency measures --Effect of declaration of emergency. Whenever the eity manage ma = declares that a state of emergency exists. in a ar ancP with the provisions of the city S'har 2I:, the emergency measures provided in section 45-4 shall thereupon be in effect during the period of such emergency and throughout the city, and the city manager may order and promulgate all or any of the emergency measures provided in section 45-4, in whole or in part, and with such limitations and conditions as he may deem appropriate, and any such emergency measure so ordered and promulgated shall thereupon be in effect during the period of such emergency, and in the area or areas for which the emergency has been declared. Upon the declaration of an emergency by the city manager, as soon as practicable, the commission shall immediately convene for the purpose of determining whether or not an emergency does exist. Their finding in the matter shall be conclusive. Upon finding that no emergency does in fact exist, this chapter shall not be operative. Sec. 45-6. Duration and termination of state of emergency. A state of emergency established under this chapter shall commence upon the declaration thereof by the manager maynx as set forth in section 45-2 and shall terminate at the end of 72 hours unless prior to the end of such 72-hour period the city commission shall, by resolution, terminate such state of emergency or shall declare an additional period of time for which - 35 - Sec. 45-2. Declaration of state of emergency by the mays= . Whenever the e4-y---- ia� ma_y_ z determines that there has been an act of violence or a flagrant and substantial defiance of or resistance to a lawful exercise of public authority, and that, partly on account thereof, there is reason to believe that there exists a clear and present danger of a riot or other general public disorder, widespread disobedience of the law, and substantial injury to persons or to health, safety, welfare or, protection of persons, or damage to property, all of which constitutes a threat to public peace or order and to the general welfare of the city or a part or parts thereof, he may declare that a state of emergency exists within the city or any part or parts thereof in accordance with the provi si an- af_the city Charter. Sec. 45-3. Emergency measures --Effect of declaration of emergency. Whenever the eity manage ma = declares that a state of emergency exists. in a ar ancP with the provisions of the city S'har 2I:, the emergency measures provided in section 45-4 shall thereupon be in effect during the period of such emergency and throughout the city, and the city manager may order and promulgate all or any of the emergency measures provided in section 45-4, in whole or in part, and with such limitations and conditions as he may deem appropriate, and any such emergency measure so ordered and promulgated shall thereupon be in effect during the period of such emergency, and in the area or areas for which the emergency has been declared. Upon the declaration of an emergency by the city manager, as soon as practicable, the commission shall immediately convene for the purpose of determining whether or not an emergency does exist. Their finding in the matter shall be conclusive. Upon finding that no emergency does in fact exist, this chapter shall not be operative. Sec. 45-6. Duration and termination of state of emergency. A state of emergency established under this chapter shall commence upon the declaration thereof by the manager maynx as set forth in section 45-2 and shall terminate at the end of 72 hours unless prior to the end of such 72-hour period the city commission shall, by resolution, terminate such state of emergency or shall declare an additional period of time for which - 35 - the state of emergency shall exist. If the city commission fails to extend the state of emergency, the state of emergency is terminated." Section 17, Chapter 46 of uhe Code of the City of Miami, Florida, as amended, is hereby amended in the following particulars:/ "Chapter 46 PUBLIC NUISANCE Sec. 46-2. Nuisance abatement board. (a) Created, membership; terms; vacancies, compensation. (1) The nuisance abatement board of the city is hereby created to serve as a quasijudicial forum in which controversies over the existence of public nuisances may be resolved in the public interest with due process of law. This board shall consist of five individuals who reside, own real property or maintain a business office within the City of Miami and who are appointed by the city commission. All members shall serve a term of one year or until the nominating commissioner leaves office, whichever occurs first. The maw— and --2Rach city commissioner shall eae nominate one member for appointment to the board. Any member may be reappointed by the city commission for not more than six consecutive terms. Appointments to fill a vacancy shall be for the remainder of the unexpired term. Section 16. All ordinances or parts of ordinances insofar as they are inconsistent or in conflict with the provisions of this Ordinance are hereby repealed. .-1 Section 19. If any section, part of section, paragraph, clause, phrase or word of this Ordinance is declared invalid, the remaining provisions of this Ordinance shall not be affected. Section 20. This Ordinance is hereby declared to be an emergency measure on the grounds. of urgent public need for the preservation of peace, health, safety, and property of the City of Miami, and upon the further grounds of the necessity to make the required and necessary payments to its employees and officers, payment of its debts, necessary and required purchases of goods and supplies and to generally carry on the functions and duties of municipal affairs. .� Section. 21. The requirement of reading this Ordinance on two separate days is hereby dispensed with by an affirmative vote of not less than four -fifths of the members of the Commission. Section 22. This Ordinance shall become effective immediately upon its adoption. PASSED AND ADOPTED BY TITLE ONLY this 28th day of October 1997. r � � ZJOE CAROL MAYOR ATTBS WALTER J : --FOEMAN CITY CLERK :3- 4'20 - 37 - 034' Mr. Joel E. Maxwell, Esq. (Interim City Attorney): Or... Vice Chairman Plummer: That's what I was trying to recommend. Mr. Maxwell: ... you may want to leave yourself a little room, in case you finish earlier. Vice Chairman Plummer: What? Mr. Maxwell: You don't want to have to sit around 'tll seven, should you finish the agenda early. Vice Chairman Plummer: I said, unless we finish earlier. Mr. Maxwell: OK. That would be the P&Z (Planning and Zoning) agenda. Vice Chairman Plummer: After the P&Z... Commissioner Teele: Mr. Manager, I will agree to... Mr. Chairman, I will agree to whatever you want to do as the Chairman of this meeting, in the context of the order of the day and how you move the agenda. Vice Chairman Plummer: Sir, the... Commissioner Teele: But, just so... Just, so that the Commission is on record, and the Manager, I would very much like to have a discussion about bringing back the fire fee with a procedure that the fire fee be used strictly to address the capital needs of the Fire Department coming up with an emergency ordinance today to address the fire fee, so that the fire fee is used only to address the. capital needs of the Fire Department. Before, it was 51 or 52 percent, which was the total budget. The capital needs were about two to ten million dollars ($10,000,000) or whatever it is. I would propose that we take up today, an emergency ordinance to fund the fire fee, limit it to capital items. And, I need to know exactly how much the capital backlog is. But, I can tell you where you are going. You getting ready to start trying to raid the CDBG (Community Development Block Grant) Eo buy fire trucks. And, that ain't happen, guys. So, you know, we may as well start trying to figure out how to work through this thing together, or we need to agree that we are going to all go separate ways. I also would like an ordinance this evening, an emergency ordinance, a companion ordinance that will address, with Commissioner Gort's permission, the need to bring some sanity to the commercial accounts of garbage. Because, I can tell you what's going to happen. we are all going to vote to put the fee on the homeowner. And, that's not right. And, there is no reason why we allow a half a million dollars ($500,000) of garbage diversion to take place. We have got some 21 accounts, and today when we bring this up, Mr. Manager, I want to know exactly how many accounts. And, who is paying and who is yd-Tapes 1 & 2 8 March 24, 1998 L not paying? But, there are some 21 people who have permits. And, what I would like, Mr. Attorney, is for the ordinance to transfer this from an open permit to a "true franchise." Ten, twenty, year franchise kind of concept that allows for a major fee to be paid. Initiation fee, like a quarter of a million i dollars ($250,000) one time. And, let's start about getting real money in here. And, I can tell you this. I have talked to three of the five people that are paying, they don't have a problem paying up a quarter of a million dollars ($250,000) each on an initial fee. And, we need to talk in terms of a transition rule for those people who have not been paying that provides that if they are going to come currently, they have got to pay treble damages. Because, let me tell you something, it's 21 people that are getting permits that... And, of the 21, 15 are not remitting one dollar ($1). Not one dollar ($1) are they remitting each year. The industry acknowledges that, Mr. Manager, that there is probably as much as a half a million dollars ($500,000) of garbage being diverted out of the City of Miami in net dollars to the City. So, I think there are some things that we need to start talking about in a serious way that we do. The fire union has got some ideas. I know that Commissioner Gort has been looking at some specific ideas. But, I think, you know, we don't need to wait any longer to start having a serious discussion about whether or not we are going to come up with the revenues to run this City. And, I am particularly concerned about the Fire Department. And, I think... I have had to drive through i downtown, today. That fire today, was a serious fire. And, it involved a response from Miami Beach and Metro -Dade, or at least Metro -Dade. And, two hours later, the fire was out of control in downtown Miami. If that's not a warning, if that's not a clear message that we need to take care of the business of the City of I Miami, then I think, you know, we have... we really are missing the boat. And, so, I don't want at all to belabor this point, Mr. Chairman, as it relates to the ordinance. But, I am here to day to you, and to my colleagues, like the Tallahassee legislature, there is nothing we do more important than item number nine. And, I just would respectfully urge the Commissioners... Commissioner Gort: Mr. Chairman. Commissioner Teele: to look at this item seriously and let's just don't wait around until the Manager feeds us up something. And, Commissioner Gort, I apologize. Vice Chairman Plummer: Mr. Gort. I Commissioner Gort: Commissioner Teele, well, I'll bring my discussion later on when we discuss the item. I agree with you 100 percent. I think we should agree and discuss the revenues that we are going to do. And, I think the Manager, at the least, I have received instructions from me. In approving this budget when it was first presented to me, I had the full understanding what the budget was, and I made my motion based on that. And, RJ e 1 e 2 U r yd-Tapes 1 & 2 9 March 24, 1998 _ z nrst slatutes Mir sow slolal'Mu peorlelwckcr antitrusU%tatutes hrn,i Antitrust Iloniepa-gc, Summary Indexes Alphabetical, Area Of_l_a\k_, Chronological, Product References Statutes, Search, Poi traits_ United States Code 'The text of the U.S. Code is on the U.S. House of Representatives Gopher system. Title 15 deals with "Commerce and Trade." Click to I,;o there i Antitrust Statutes 1 Below are references on this system to various sections of the antitrust acts. 1. The Sherman Antitrust Act 1890 2. The Clayton Antitrust Act ( 19 14) 3. The Federal Trade Commission Act 1914) A»/hwiv D. Becket becka r Lvtolnf rchu) i L her-hatndtonI hour ..A uwndc title 15 wOOI Gopher Menu Itopher" thon1.houac.gov:70iIIJ°e3Auscodc/titic15�wxt0l TITLE 15 - COMMERCE AND TRADE CHAPTER 1 MONOPOLIES AND COMBINATIONS IN RESTRAINT OF TRADE Sec. 1. Trusts, et,--., in restraint of trade illegal; penalty Se,::. 2. Monopolizing trade a felony; penaly Sec. 3. sts in :sr es or D,-stri.:t of Colurbia illegal; Sec. 4. Jurisdiction of courts; duty of United States attorneys; Sec. 5. Bringing in additional parties Sec. 6. Forfeiture of pro in transit Sec. ca. Conduct involving trade or commerce with foreign nations Sec. 7. ''Person'' cr ''persons'' defined Sec. 8. Trusts .in restraint of import trade illegal; penalty Sec. 9. Jurisdiction of r.ourts; duty of United States attorneys; Sec. 10. Bringing in additional parties Sec. 11. Forfeiture of property in transit Sec. 12. Definitions; short title Sec. 13. Discrimination in price, services, or facilities Sec. 13a. Discrimination in rebates, discounts, or advertising Sec. 13b. Cooperative association; return of net earnings or Sec. 13c. Exemption of non-profit institutions from price Sec. 14. Sale, etc., on agreement not to use goods of competitor Sec. 15. Suits by persons injured Sec. 15a. Suits by United States; amount of recovery; prejudgment Sec. 15b. Limitation of actions Sec. 15c. Actions by State attorneys general Sec. 15d. Measurement of damages Sec. 15e. Distribution of damages _Sec. 15f. Actions by Attorney_�,jeneral Sec. 15g. Definitions Sec. 15h. Applicability of parens patriae actions Sec. 16. Judgments Sec. 17. Antitrust laws not applicable to labor organizations Sec. 18. Acquisition by one corporation of stock of another Sec. 18a. Premergzr notification and waiting period Sep_. 1.9. Interlocking directorates and officers 1 0 0 P2 1197 IT21:11 ,her humshon) hou% ... A uscode hile15 %cOOI gorher,,O ton l.houwe.gov:70/I Id'&WuscodemitleISixctoI Sec. 19a. Pe eP aled, Aug. 23, 1935, ch. 614, Sec. 329, 49 Stat. 717 Sec. 20. Repealed. Pub. L. 101-588, Sec. 3, Nov. 16, 1990, 104 Sec. 2I. Enforcement provisions Sec. 21a. Actions and proceedings pending prior to June 19, 1936; Sec. 22. District in which to sue corporation Sec. 23. Suits by United States; subpoenas for witnesses Se,_. 24. :_.ability of directors and agents of corporation Sec. 25 Restraining violations; procedure Sec. 26. Injunc.tive relief for private parties; exception; costs Sec. 26a. Restrictions on the purchase of gasohol and synthetic Sec. 27. Effect of partial invalidity Sec. 28. Repealed. Pub. L. 98-620, title IV, Sec. 402(11), Nov. 8, Sec. 29. Appeals Sec. 30. Depositions for use in suits in equity; proceedings open Sec. 31. Panama Canal closed to violators of antitrust laws Sec. 32, 33. Repealed. Pub. L. 91--452, title II, Sec. 209, 210, Sec. 34. Definitions applicable to sections 34 to 36 Sec. 35. Recovery of damages, etc., for antitrust violations from Sec. 36. Recovery of damages, etc., for antitrust violations on CHAPTER 2 - FEDERAL TRADE COMMISSION; PROMOTION OF EXPORT TRADE AND - SUBCHAPTER I - FEDERAL TRADE COMMISSION Sec. 41. Federal Trade Commission established; membership; Sec. 42. Employees; expenses Sec. 43. Office and place of meeting Sec. 44. Definitions Sec. 45. Unfair methods of competition unlawful; prevention by Sec. 45a. Labels on products Sec. 46. Additional powers of Commission Sec. 46a. Concurrent resolution essential to authorize Sec. 47. Reference of suits under antitrust statutes to Commission Sec. 48. Information and assistance from departments Sec. 49. Documentary evidence; depositions; witnesses Sec. 50, offenses and penalties j Sec. 51. Effect on other statutory provisions Sec. 52. Dissemination of false advertisements Sec. 53. False advertisements; injunctions and restraining orders of 1 01:21,97 17:21:12 ttr::'hnmiltonl.houv... A.useMe,title 15-wct01 gopher:!: lion I-houxe.goa:7oilldoOtvuscoddti11eI5!sectoI Sec. 54. False advertisements; penalties Sep_. 55. Additional definitions Sec. 56. Commencement, defense, intervention and supervision of Sec. 57. Seoarability clause Sec.. 57a. Unfair or deceptive acts or practices rulemaking Sec. 57a-1. Omitted Se c-i, C:✓.'_ a.tio;,s for violations of rules and cease and Sec. 57b-i. Civil investigative demands Sec. 57b Confidentiality Sec. 57b-3. Rulemaking process Sec. 57b-4. Good faith reliance on actions of Board of Governors Sec. 57b-5. Agricultural cooperatives Sec. 57c. Authorization of appropriations Sec. 58. Short title i SUBCHAPTER Ii - PROMOTION OF EXPORT TRADE Sec. 61. Export trade; definitions Sec. 62.�Export trade and antitrust legislation Sec. 63. Acquisition of stock of export trade corporation + Sec. 64. Unfair methods of competition in export trade Sec. 65. Information required from export trade corporation; powers • j Sec. 66. Short title SUBCHAPTER III - LABELING OF WOOL PRODUCTS Sec. 66. Definitions Sec. 68a. Misbranding declared unlawful Sec. 68b. Misbranded wool products Sec. 68c. Stamp, tag, label, or other identification Sec. 68d. Enforcement of subchapter Sec. 68e. Condemnation and injunction proceedings Sec. 66f.. Exclusion of misbranded wool products Sec. 68g. Guarantor } �aV- 640 0l'3 01.21 97 17:21:12 L_ - lla%ttat Ad � hit; ilv.stolafeduipecipic�becker�antitrusticleyton.him) Antitrust HOIIIC DaL�e, Summary Indexes Alphabetical, _ nr c of- Law. Chronological Product; References. Statutes, Search Portra+t_s_ The Clayton Antitrust Act (1914) The Clayton Antitrust Act is comprised of §§ 12, 13, 14-19, 20, 21, 22-27 of Title 15. Some sections have been edited or eliminated because of space concerns. Note also that § § 13a, 0b, and 21 a comprise the "Robinson-Patman Price Discrimination Act (1936). Sections 1 Sc- 15h, and I Sa compromise part of the "Hart-Scott-Rodino Antitrust Improvements Act of 1976." Sec. 13. Discrimination in price, services, or facilities (§ 2 of the Clayton Act) (a) Price; selection of customers It shall be unlawful for any person engaged in commerce, in the course of such commercex 'either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, and where the effect of such discrimination may be substantially to lessen competition or teyp 0 create a monopoly in any line of commerce, or to injure, destroy, or prevent competition witfi aiiy erson who either grants or knowingly receives the benefit of such discrimination, or with customers of eithef of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery_ resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered: Provided, however, That the Federal Trade Commission may, after due investigation and hearing to all interested parties, fix and establish quantity limits, and revise the same as it finds necessary, as to particular commodities or classes of commodities, e-,here it finds that available purchasers in greater quantities are so few as to render differentials on account thereof unjustly discriminatory or promotive of monopoly in any line of commerce, and the loregoing shall then not be construed to permit differentials based on differences in quantities greater than those so fixed and established. And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona tide transactions and not in restraint of trade. And provided further, That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned. O eJ "" 1' V 01.121,-07 17:19:41 L C:la%um Act hlqkw. stolal'.cduipcoplotxcket,ant ittust/davton.hlml a 1 rb) Burden of rebutting prima -facie case of discrimination Upon proof being made, at any hearing on a complaint under this section, that there has been discrimination in price or services or facilities furnished, the but -den of rebutting the prima -facie case thus made by shcm ing justification shall be upon the person charged %0th a violation of this section, and unless Justification shall be affirmatively shown, the Commission is authorized to issue an order terminating the discrimination provided, ho%4'L'�Cr, That nothing herein contained shall prevent a seller rebutting the prima -facie, case thus made by showing that his lower price or the furnishing of services or facilities to any purchaser or purchasers xias made in good faith to meet an equally low price of a competitor, or the services or facilities lurnished by a competitor (c) Payment or acceptance of commission, brokerage, or other compensation It shall be unlawful for any person engaged in commerce, in the course of such commerce, to pay or grant, or to receive or accept, anything of value as a commission, brokerage, or other compensation, or any allowance or discount in lieu thereof; except for services rendered in connection with the sale or - pt.irchase of goods, wares, or merchandise, either to the other party to such transaction or to an agent, representative, or other intermediary therein where such intermediary is acting in fact fbr or in behalf, or is subject to the direct or indirect control, of any party to such transaction other than the person by whom such compensation is so granted or paid (d) Payment for services or facilities for processing or sale It shall be unlawful for any person engaged in commerce to pay or contact for the payment of anything of value to or for the benefit of a customer of such person in the course of such commerce as compensation or in consideration for any services or facilities furnished by or through such customer in connection with the processing, handling, sale, or offering for sale of any products or commodities manufactured, sold, or offered for sale by such person, unless such payment or consideration is available on proportionally equal terms to all other customers competing in the distribution of such products or commodities. (e) Furnishing services or facilities for processing, handling, etc. It shall be unlawful for any person to discriminate in favor of one purchaser against another purchaser or purchasers of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of, any services or facilities connected with the processing, handling, sale, or offering for sale of such commodity so purchased upon terms not accorded to all purchasers on proportionally equal terms. (f) Knowingly inducing or receiving discriminatory price It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section. Sec. 13a. Discrimination in rebates, discounts, or advertising service charges; underselling in particular localities; penalties It shall be unlawful for any person engaged in commerce, in the course of such commerce, to be a party to, or assist in, any transaction of sale, or contract to sell, which discriminates to his knowledge against C •>~ J a U 20 x �rN"tj'-y -�,it1 01/21M 17:19:43 Claatutt Pict hit aw Mo1at*e4wr+eople-ixxkerant itntst=Clayton. html competitors of the purchaser, in that, any discount, rebate, allowance, or advertising service charge is ,ranted to the purchaser over and above any discount, rebate, allowance, or advertising service charge available at the time of such transaction to said competitors in respect of a sale of goods of like grade, duality, and quantity, to sell, or contract to sell, goods in any part of -tie United States at prices lower than those eyacted by said person elseMicre in the United States for the purpose ofdestroying competition, or clir�tinating a competitor in such part of the ! .'rtited States, or, to sell, or contract to sell, goods at unreasonably low prices for the purpose of destroying competition or eliminating a competitor Any person violating any ofthe provisions ofthis section shall, upon conviction thereof, be fined not more than S5.000 or imprisoned not more than one year, or both Sec. 13b. Cooperative association; return of net earnings or surplus Nothing in this Act shall prevent a cooperative association from returning to its members, producers, or consumers the whole, or any part of, the net earnings or surplus resulting from its trading operations, in proportion to their purchases or sales from, to, or through the association. Sec. 13c. Exemption of non-profit institutions from price discrimination provisions Nothing in the Act approved June 19, 1936, known as the Robinson-P'atman Antidiscrimination Act, shall apply to purchases of their supplies for their own use by schools, colleges, universities, public libraries, churches, hospitals, and charitable institutions not operated for profit. Sec. 14. Sale, etc., on agreement not to use goods of competitor (§ 3 of the Clayton Act) It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States or s any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the woods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, aureement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce. Sec. 15. Suits by persons injured (§ 4 of the Clayton Act) (a) Amount of recovery; prejudgment interest Except as provided in subsection (b) of this section, any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to of s O l i 21197 17:19:43 C1n%lon Act ht ww stolar'.cdwpcople bcckcr,amitruyUclaylon.himI the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, ncludin , a reasonable attorney's fee The court may award under this section, pursuant to a motion by such person promptly made, simple interest on actual damages for the period beginning on the date of service of such person's pleading setting forth a claim under the antitrust ia%tis and ending on the date of judgment, or for am shorter period therein, ifthc court finds that the awward of such interest for such period isjust In the circumstances In detcrmining whether an award of interest under this section for any period is just in the circumstances, the court shall consider only - ( I ) whether such person or the opposing party, or either party's representative, made motions or asserted claims or defenses so lacking in merit as to show that such party or representative acted intentionally for delay, or otherwise acted in bad faith, (2) whether, in the course of the action involved, such person or the opposing party, or either party's representative, violated any applicable rule, statute, or court order providing for sanctions for dilatory behavior or otherwise providing for expeditious proceedings; and (3) whether such person or the opposing party, or either party's representative, engaged in conduct primarily for the purpose of delaying the litigation or increasing the cost thereof. (b) Amount of damages payable to foreign states and instrumentalities of foreign states ( l ) Except as provided in paragraph (2), any person who is a foreign state may not recover under subsection (a) of this section an amount in excess of the actual damages sustained by it and the cost of suit, including a reasonable attorney's fee. (2) Paragraph (1) shall not apply to a foreign state if - (A) such foreign state would be denied, under section 1605(a)(2) of title 28, immunity in a case in which the action is based upon a commercial activity, or an act, that is the subject matter of its claim under this section-, (B) such foreign state waives all defenses based upon or arising out of its status as a foreign state, to any claims brought against it in the same action; (C) such foreign state engages primarily in commercial activities, and (D) such foreign state does not function, with respect to the commercial activity, or the act, that is the subject matter of its claim under this section as a procurement entity for itself or for another foreign state. Sec. 15a. Suits by United States; amount of recovery; prejudgment interest (§ 4a of the Clayton Act) f Whenever the United States is hereafter injured in its business or property by reason of anything forbidden in the antitrust laws it may sue therefor in the United States district court for the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by it sustained and the cost of suit. The court may award under this section, pursuant to a motion by the United States promptly made, simple interest on actual damages 0 O 1 /21 /97 17:19:44 ClallonAct ht im.stolor.cdu:people:bcckcrant itrustfclayion.htmI for the period beginning on the date of service of the pleading of the United States setting forth a claim under the antitrust laws and ending on the date of judgment, or for any shorter period therein, if the court finds that the award of'such interest for such period is just in the circumstances In determining whether an award of interest under this section for any period is just in the circumstances, the court shall consider only - ( I ) whether the United States or the opposing party, or either parry's representative, made motions or asserted claims or defenses so lacking in mcrit as to show that such party or representative acted intentionally for delay or otherwise acted in bad faith, (2) whether, in the course of the action in,,olved, the United States or the opposing party, or either party's representative, violated any applicable rule, statute, or court order providing for sanctions for dilatory behavior or otherwise providing for expeditious proceedings; (3) whether the United States or the opposing party, or either party's representative, engaged in conduct primarily for the purpose of delaying the litigation or increasing the cost thereof; and (4) whether the award of such interest is necessary to compensate the United States adequately for the injury sustained by the United States Sec. 15b. Limitation of actions (§ 4b. of the Clayton Act) Any action to enforce any cause of action under section 15, 15a, or 15c of this title shall be forever barred unless commenced within four years after the cause of action accrued. No cause of action barred under existing law on the effective date of this Act shall be revived by this Act. Sec. 15c. Actions by State attorneys general (§ 4c of the Clayton Act) (a) Parens patriae; monetary relief; damages; prejudgment interest (I ) Any attorney general of a State may bring a civil action in the name of such State, as parens patriae on behalf of natural persons residing in such State, in any district court of the United States having jurisdiction of the defendant, to secure monetary relief as provided in this section for injury sustained by such natural persons to their property by reason of any violation of sections I to 7 of this title.... (2) The court shall award the State as monetary relief threefold the total damage sustained as described in paragraph ( I ) of this subsection, and the cost of suit, including a reasonable attorney's fee. The court may award under this paragraph, pursuant to a motion by such State promptly made, simple interest on the total damage for the period beginning on the date of service of such State's pleading setting forth a claim under the antitrust laws and ending on the date of judgment, or for any shorter period therein, if the court finds that the award of such interest for such period is just in the circumstances. In determining whether an award of interest under this paragraph for any period is just in the circumstances, the court shall consider only - (A) whether such State or the opposing party, or either party's representative, made motions or asserted claims or defenses so lacking in merit as to show that such party or representative acted intentionally for delay or otherwise acted in bad faith, SO-- 1'�U 01.21,97 17:19:44 Cla}ion Act htt stolaredu: people:bLukcr antitrust,,clayton.html B) whether, in the course of the action involved, such State or the opposing party, or either party's representative, violated any applicable vale, statute, or court order providing for sanctions for dilatory behavior or other wise providing for expeditious proceedings, and (C) whether such State or the opposing party, or either parry's representative, engaged in conduct primarily for the purpose ofdelaying the litigation or increasing the cost thereof Sec. 15d. Measurement of damages (§ 4d of the Clayton Act) In any action under section i 5c(a)( i ) of this title, in kthich there has been a determination that a defendant agreed to fix prices in violation of sections 1 to 7 of this title, damages may be proved and assessed in the at'regate by statistical or sampling methods, by the computation of illegal overcharges, or by such other reasonable system of estimating aggregate damages as the court in its discretion may permit without the necessity of separately proving the individual claim of, or amount of damage to, persons on whose behalf the suit was brought Sec. 17. Antitrust lades not applicable to labor organizations (§ G of the Clayton Act) The labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for the purposes of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof'. nor shall such organizations, or the members thereof, be held or construed to be illegal combinations or conspiracies in restraint of trade, under the antitrust laws. Sec. 18. Acquisition by one corporation of stock of another (§ 7 of the Clayton Act) No person engaged in commerce or in any activity affecting commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of another person engaged also in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly. No person shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no person subject to the jurisdiction of the Federal Trade Commission shall acquire the whole or any part of the assets of one or more persons engaged in commerce or in any activity affecting commerce, where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition, of'such stocks or assets, or of the use of such stock by the voting or granting of proxies or otherwise, may be substantially to lessen competition, or to tend to create a monopoly. ! This section shall not apply to persons purchasing such stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition Nor shall anything contained in tills section prevent a corporation engaged in commerce or in any activity affecting commerce from causing the formation of subsidiary corporations for the actual i carrying on of their immediate lawful business, or the natural and legitimate branches or extensions 01,21t97 17:19:44 L i Clavton Act ht• nAv xrntar'edu pcople1vcker amitrusvclevian.html thereof, or from owning and holding all or a part of the stock of such subsidiary corporations, when the !ffect of such formation is not to substantially lessen competition Nor shall an�thlrlg herein contained be construed to prohibit any common carrier subject to the laws to regulate commerce from aiding in the construction of branches or short lines so located as to become feeders to the main line oi'the company so aiding: in such construction or from acquiring or owning all or any part ofthe stock ofsuch branch lines, not to prevent any such common carrier from acquiring and owning all or any part of the stock of a branch or short line constructed by an independent company where there is no substantial competition between the company owning the branch line so constructed and the company ownini; the main line acquiring the property or an interest therein, nor to prevent such common carrier t om extending any of its lines through the medium of the acquisition of stock or otherwise of any other common carrier where there is no substantial competition between the company extending its lines and the con;pany whose stock, property, or an interest therein is so acquired. Sec. 25. Restraining violations; procedure (§ 15 of the Clayton Act) The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of this Act, and it shall be the duty of the several United States attorneys, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. Such proceedings may be by way of petition setting forth the case and praying that such violation shall be enjoined or otherwise prohibited. When the parties complained of shall have been duty notified of such petition, the court shall proceed, as soon as may be, to the hearing and determination of the case, and pending such petition, and before final decree, the court may at any time make such temporary restraining order or prohibition as shall be deemed just in the premises. Whenever it shall appear to the court before which any such proceeding may be pending that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned whether they reside in the district in which the court is held or not, and subpoenas to that end may be served in any district by the marshal thereof. Sec. 26. Injunctive relief for -private parties; exception; costs (§ 16 of the Clayton Act) Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws, including sections 13, 14, 18, and 19 of this title, when and under the same conditions and principles as injunctive relief against threatened conduct that will cause loss or damage is --ranted by courts of equity, under the rules governing such proceedings, and upon the execution of proper bond against damages for an injunction improvidently granted and a showing that the danger of irreparable loss or damage is immediate, a preliminary injunction may issue. Provided, That nothing herein contained shall be construed to entitle any person, firm, corporation, or association, except the United States, to bring suit in equity for injunctive relief against any common carrier subject to the i provisions of subtitle IV of title 49, in respect of any matter subject to the regulation, supervision, or other jurisdiction of the Interstate Commerce Commission. In any action under this section in which the plaintiff substantially prevails, the court shall award the cost of suit, including a reasonable attorney's fee, f to such plaintiff of 8 01121r97 17:19:45 >. 1997 166.011 166.021 166.031 166.032 166.041 166.0415 166.042 166.0425 166.043 196.0435 ..044 166.0443 166.0445 166.045 166.046 166.047 166.048 166.049 r 166.049s MUNICIPALMES Ch. 166 CHAPTER 166 MUNICIPALITIES PART 1 GENERAL PROVISIONS (ss. 166.011-166.0495) PART II MUNICIPAL BORROWING (ss. 166.101-166.141) PART III MUNICIPAL FINANCE AND TAXATION (ss. 166.201-166.261) PART IV EMINENT DOMAIN (ss. 166.401, 166.411) PART GENERAL PROVISIONS Short title. Powers. Charter amendments. Electors. Procedures for adoption of ordinances and resolutions. Enforcement by code inspectors; citations. Legislative intent. Sign ordinances. Ordinances and rules imposing price con- trols; findings required; procedures. Amateur radio antennas; construction in conformance with federal requirements. Ordinances relating to possession or sale of ammunition. Certain local employment registration pro- hibited. Family day care homes; local zoning regu- lation. Proposed purchase of real property by municipality; confidentiality of records; procedure. Definitions; minimum standards for cable television franchises imposed upon counties and municipalities. Telecommunications services. Conservation of water, Xenscape. Municipal law enforcement agencies; com- munications and assistance. Interlocal agreements to provide law enforcement services. ,, 166.011 Short title. —This chapter shall be known Wnd may be cited as the 'Municipal Home Rule Powers Act* rmuRy. s + cr, '166.021 Powers— °(1) As provided in s. 2(b), Art. VIII of the State Con- VALrbon, municipalities shall have the governmental, *xporate, and proprietary powers to enable them to Conduct municipal government, perform municipal klinctions, and render municipal services, and may 4z8rcise any power for municipal purposes, except expressly prohibited by law. 'Municipal purpose' means any activity or 1. .er which may be exercised by the state or its politi- N subdivisions. (3) The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any sub- ject matter upon which the state Legislature may act, except: (a) The subjects of annexation, merger, and exer- cise of extraterritorial power, which require general or special law pursuant to s. 2(c), Art. VIII of the State Constitution; (b) Any subject expressly prohibited by the consti- tution; (c) Any subject expressly preempted to state or county government by the constitution or by general law; and (d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1(g), 3, and 6(e), Art. VIII of the State Constitution. (4) The provisions of this section shall be so con- strued as to secure for municipalities the broad exer- cise of home rule powers granted by the constitution. It is the further intent of the Legislature to extend to municipalities the exercise of powers for municipal gov- ernmental, corporate, or proprietary purposes not expressly prohibited by the constitution, general or spe- cial law, or county charter and to remove any limita- tions, judicially imposed or otherwise, on the exercise of home rule powers other than those so expressly pro- hibited. However, nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect the exercise of extraterritorial pow- ers or which affect an area which includes lands within and without a municipality or any changes in a special law or municipal charter which affect the creation or existence of a municipality, the terms of elected officers and the mariner of their election except for the selection of election dates and qualifying periods for candidates and for changes in terms of office necessitated by such changes in election dates, the distribution of powers among elected officers, matters prescribed by the char- ter relating to appointive boards, any change in the form of government, or any rights of municipal employ- ees, without approval by referendum of the electors as provided in s. 166.031. Any other limitation of power upon any municipality contained in any municipal char- ter enacted or adopted prior to July 1, 1973. is hereby nullified and repealed. (5) All existing special acts pertaining exclusively to the power or jurisdiction of a particular municipality except as otherwise provided in subsection (4) shall 1295 Ch. 166 MUNICIPALITIES become an ordinance of that municipality on the effec- tive date of this act. subject to modification or repeal as other ordinances. (6) The governing body of a municipality may require that any person within the municipality demon- strate the existence of some arrangement or contract by which such person will dispose of solid waste in a manner consistent with the ordinances of the county or municipality or state or federal law. For any person who will produce special wastes or biomedical waste, as the same may be defined by state or federal law or county or city ordinance, the municipality may require satisfac- tory proof of a contract or similar arrangement by which special or biomedical wastes will be collected by a qual- ified and duly licensed collector and disposed of in accordance with the iaws of Florida or the Federal Gov- ernment. (7) Notwithstanding the prohibition against extra compensation set forth in s. 215.425, the goveming body of a municipality may provide for an extra com- pensation program, including a lump -sum bonus pay- ment program, to reward outstanding employees whose performance exceeds standards, if the program provides that a bonus payment may not be included in an employee's regular base rate of pay and may not be carried forward in subsequent years. (8) Entities that are funded wholly or in part by the municipality, at the discretion of the municipality, may be required by the municipality to conduct a perform- ance audit paid for by the municipality. An entity shall not be considered as funded by the municipality by vir- tue of the fact that such entity utilizes the municipality to collect taxes, assessments, fees, or other revenue. If an independent special district receives municipal funds pursuant to a contract or interlocal agreement for the purposes of funding, in whole or in part, a discrete program of the district, only that program may be required by the municipality to undergo a performance audit. Wnory.—s. 1. C, 73-IN. s. 1. C'M 77.174. s 2. c1 X-IV: s. 2. cn 42-W.. s 2. a+ 91207. s 2. ch 9a.3U: s 1. cn 95 178 166.031 Charter amendments.— (1) The goveming body of a municipality may, by ordinance, or the electors of a municipality may, by petition signed by 10 percent of the registered electors as of the last preceding municipal general election, submit to the electors of said municipality a proposed amendment to its charter, which amendment may be to any part or to all of said charter except that part descnb- ing the boundaries of such municipality. The governing body of the municipality shall place the proposed amendment contained in the ordinance or petition to a vote of the electors at the next general election held within the municipality or at a special election called for such purNse. (2) Upon adoption of an amendment to the charter of a municipality by a majority of the electors voting in a referendum upon such amendment, the governing body of said municipality shall have the amendment incorporated into the charter and shall file the revised charter with the Department of State. All such amend- ments are effective on the date specified therein or as otherwise provided in the charter. 129 F.S. 1997 (3) A municipality may amend its charter, pursuant to this section notwithstanding any charter provisions to the contrary. This section shall be supplemental to the provisions of all other laws relating to the amendment of municipal charters and is not intended to diminish any substantive or procedural power vested in any municipality by present law. A municipality may, by ordinance and without referendum, redefine its bound- anes to include only those lands previously annexed and shall file said redefinition with the Depariment of State pursuant to the provisions of subsection (2). (4) There shall be no restnctions by the municipal- ity on any employee's or employee group's political activity, while not working, in any referendum changing employee rights. (5) A municipality may, by unanimous vote of the governing body, abolish municipal departments pro- vided for in the municipal charter and amend provisions or language out of the charter which has been judicially construed, either by judgment or by binding legal pre- cedent from a decision of a court of last resort, to be contrary to either the Slate Constitution or Federal Con- stitution. (6) Each municipality shall, by ordinance or charier provision, provide procedures for filling a vacancy in office caused by death, resignation, or removal from office. Such ordinance or charter provision shall also provide procedures for filling a vacancy in candidacy caused by death, withdrawal, or removal from the ballot of a qualified candidate following the end of the quaVy- ing period which leaves fewer than two candidates for an office. History.—i 1. �:n 73-129,. s. 1. ctn 8695, s. 1. m 90.106. s. 43, c1 XC 315. s4sV1,94IJ6 166.032 Electors. —Any person who is a resident of a municipality, who has qualified as an elector of this state, and who registers in the manner prescribed by general law and ordinance of the municipality shall be a qualified elector of the municipality. Hlltory.--s. 1, d1 73-129 '166.041 Procedures for adoption of ordinances and resolutions.— (1) As used in this section, the following words and terms shall have the following meanings unless some other meaning is plainly indicated: (a) "Ordinance" means an official legislative action of a governing body, which action is a regulation of a general and permanent nature and enforceable as a local law. (b) 'Resolution" means an expression of a govern- ing body concerning matters of administration, an expression of a temporary character, or a provision for the disposition of a particular item of the administrative business of the governing body. (2) Each ordinance or resolution shall be intro- duced in writing and shall embrace but one subject and matters properly connected therewith. The subject shall be clearly stated in the title. No ordinance shall be revised or amended by reference to its title only. Or& nances to revise or amend shall set out in full the revised or amended act or section or subsection or paragraph of a section or subsection. 9 Ch. 180 MUNICIPAL PUBLIC WORKS F.S. 1997 j pose and the territory to be included, correcting any errors, remedying any sustained objections, authoriz- ing the issuance of mortgage revenue certificates or debentures to pay for the construction and all other costs of the said utility, and containing all other neces- sary provisions. All other legislative and administrative functions and proceedings shall be the same as pro- vided for the government of the municipality. The city council or other legislative body, by whatever name known. of the municipality, may adopt and provide for the enforcement of all resolutions and ordinances that may be required for the accomplishment of the pur- poses of this chapter, and its decision shall be final in determining to construct the utility, or any extension thereof as and where proposed, to prornote the public health, safety, and welfare by the accomplishment of the purposes of this chapter; provided, that where any mortgage revenue certificates, debentures, or other evidences of indebtedness shall come within the pur- view of s. 12, Art. VII of the State Constitution, the same shall be issued only after having been approved by a majority of the votes east in an election in which a majority of the owners of freeholds not wholly exempt from taxation who are qualified eiectors residing in such municipality shall participate, pursuant to the provisions of ss. 100.201.100.221, 100.241, 100.261-100.341, and 100.351. History.—s 1,Ch. 17ue.1935.CCL1936Supp 31M6).s.15•ch 69-216.5 64. C1. 77-175 180.05 Definition of term "private company." —A "private company' shall mean any company or corpora- tion duly authorized under the laws of the state to con- struct or operate water works systems, sewerage sys- tems, sewage treatment works, garbage collection and garbage disposal plants. Hltttory.—s 2. ch. 17 112 1935. CGL 1936 Supp 3100(7) 180.06 Activities authorized by municipalities and private companies. —Any municipality or private com- pany organized for the purposes contained in this chapter, is authorized: (1) To clean and improve street channels or other bodies of water for sanitary purposes; (2) To provide means for the regulation of the flow of streams for sanitary purposes; (3) To provide water and alternative water supplies, including, but not limited to, reclaimed water, and water from aquifer storage and recovery and desalination systems for domestic, municipal or industrial uses; (4) To provide for the collection and disposal of sewage, including wastewater reuse, and other liquid wastes; (5) To provide for the collection and disposal of gar- bage; (6) And incidental to such purposes and to enable the accomplishment of the same, to construct reser- voirs, sewerage systems, trunk sewers, intercepting sewers, pumping stations, wells, siphons, intakes, pipelines, distribution systems, purification works, col- lection systems, treatment and disposal works; (7) To construct airports, hospitals, jails and golf courses, to maintain, operate and repair the same, and to construct and operate in addition thereto all machin- ery and equipment; (8) To construct, operate and maintain gas plants and distribution systems for domestic, municipal and industrial uses; and (gl To construct such other buildings and facilities as may be required to properly and economically oper- ate and maintain said works necessary for the fulfill- ment of the purposes of this chapter. However, a private company or municipality shall not construct any system, work, project or utility authorized to be constructed hereunder in the event that a system, work, project or utility of a similar character is being actually operated by a municipality or private company in the municipality or territory immediately adjacent thereto, unless such municipality or private company consents to such construction. Hletory.—s 3. ch 1, 118. 19.35, s 1. Ch. 17119. 1935. CGL 1936 Supp 31 tiJ151. s 5. ch 93-51. s 5. ch 95-323 180.07 Public utilities; combination of plants or systems; pledge of revenues.— (1) All such reservoirs, sewerage systems, trunk sewers, intercepting sewers, pumping stations, wells, intakes, pipelines, distribution systems, purification works, collecting systems, treatment and disposal works, airports, hospitals, jails and golf courses, and gas plants and distribution systems, whether hereto- fore or hereafter constructed or operated, are consid- ered a public utility within the meaning of any constitu- tional or statutory provision for the purpose of acquir- ing, purchasing, owning, operating, constructing, equipping and maintaining such works. (2) Whenever any municipality shall decide to avail itself of the provisions of this chapter for the extension or improvement of any existing utility plant or system, any then -existing plant or system may be included as a part of a whole plant or system and any two or more util- ities may be included in one project hereunder. The revenues of all or any part of any existing plants or sys- tems or any plants or systems constructed hereunder may be pledged to secure moneys advanced for the construction or improvement of any utility plant or sys- tem or any part thereof or any combination thereof. Hletory.-5 4, ch 17118, 1935. s 2. eh 17119. 1935, CGL 1936 Suco 3100t9) 180.08 Revenue certificates; terms; price and interest; three -fifths vote of governing body required. (1) Any municipality which acquires, constructs or extends any of the public utilities authorized by this chapter and desires to raise money for such purpose, may issue mortgage revenue certificates or debentures therefor without regard to the limitations of municipal indebtedness as prescribed by any statute now in effect or hereafter enacted; provided, however, that such mortgage revenue certificates or debentures shal not impose any tax liability upon any real or persoruil properly in such municipality nor constitute a debt against the municipality issuing the same, but shall be a lien only against or upon the property and revenues of such utility, including a franchise setting forth the terms upon which, in the event of foreclosure, the W' chaser may operate the same, which said franchise shall in no event extend for a period longer than 30 years from the date of the sale of such utility and frarr chise under foreclosure proceedings. 1358 Ch. 180 MUNICIPAL PUBLIC WORKS and provided further, that If the charges so fixed are not paid when due, such sums may be recovered by the said municipality by suit in a court having jurisdiction of said cause or by discontinuance of service of such util- ity until delinquent charges for services thereof are paid, including charge covering any reasonable expense for reconnecting such service after such delin- quencies are paid, or any other lawful method of enforcement of the payment of such delinquencies. His tory.—s 7 ch 171 :B. 1915, CGL 14$ SUpp 31(11112) 180.135 Utility services; refusal or discontinuance of services for nonpayment of service charges by for- mer occupant of rental unit prohibited; unpaid service charges of former occupant not to be basis for lien against rental property, exception.-- (1)(a) Any other provision of law to the contrary not- withstanding, no municipality may refuse services or discontinue utility, water, or sewer services to the owner of any rental unit or to a tenant or prospective tenant of such rental unit for nonpayment of service charges incurred by a former occupant of the rental unit; any such unpaid service charges incurred by a for- mer occupant will not be the basis for any lien against the rental property or legai action against the present tenant or owner to recover such charges except to the extent that the present tenant or owner has benefited directly from the service provided to the former occu- pant. (b) This section applies only if the former occupant of the rental unit contracted for such services with the municipality or it the municipality provided services with knowledge of the former occupant's name and the period the occupant was provided the services. (2) The provisions of this section may not be waived through any contractual arrangement between a municipality and a landlord whereby the landlord agrees to be responsible for a tenant's or future ten- ant's payment of service charges. (3) Any other provision of law to the contrary not- withstanding, any municipality may adopt an ordinance authorizing the municipality to withdraw and expend any security deposit collected by the municipality from any occupant or tenant for the provision of utility, water, or sewer services for the nonpayment of service charges by the occupant or tenant. (4) In any rase where a tenant subject to part II of chapter 83 does not make payment for service charges to a municipality for the provision of utility, water, or sewer services, the landlord may thereupon com- mence eviction proceedings. Nothing in this section shall be construed to prohibit a municipality from dis- continuing service to a tenant who is in arrears 30 days or more, or as required by bond covenant. H19fory.—s I, ch 84 2J2 s t, ch 88 332, s 1, ch 89272 180.14 Franchise for private companies; rate fix- ing, —A private company or corporation organized under the laws of the state for any of the purposes recited in this chapter, may construct, operate and maintain such works provided for in this chapter, within or without the corporate limits of any municipality, upon application by such company or corporation to the city F.S. 1 %7 council, or other legislative body of the municipality, by whatever name known, and the said municipality may grant to said private company or corporation the privi loge or franchise of exercising its corporate powers for such terms of years and upon such conditions and limi- tations as may be deemed expedient and for the best interest of said municipality for the accomplishment of the purposes set forth in this chapter; said franchise, however, to be for a period of not longer than 30 years; provided further, that the rates or charges to be made by the private company or corporation to the individual users of the utility constructed or operated under authority of this chapter shall be fixed by the city coun- cil, or other legislative body of the municipality, by what- ever name known, upon proper hearing had for that purpose. Hletory.—s. 8, ch 17118. 1935. CGL 1936 Supp 3100(13). 180.15 Liability of private companies. —Any pri- vate company or corporation constructing or operating any of the works provided for in this chapter, within or without the corporate limits of any municipality, shall be liable for all damages occasioned by the acts, negli- gence or injury to the rights of other persons, firms or corporations in the same manner and with the same limitations as any other private corporation chartered under the laws of the state. History.—s. 9, ch. 17118, 1935; CGL 1936 Supp 3100(14) 180.16 Acquisition by municipality of property of private company. —When a municipality has granted to a private company or corporation a privilege or fran- chise, as set forth in s. 180.14, if at the expiration of the term of the privilege or franchise and after petition of the private company or corporation, the municipality fails or refuses to renew the privilege or franchise, then upon further petition of the private company or corpora- tion, its property, consisting of all the works constricted and used in the operation and use of the utility, together with the appurtenances, materials, fixtures, machinery, and real estate appertaining thereto, which is on hand at the time of the expiration of said privilege or fran- chise, shall be purchased by the said municipality at a price to be mutually agreed upon; provided, however, if the price for same cannot be agreed upon, the price shall be determined by an arbitration board consisting of three persons, one of whom shall be selected by the city council or other legislative body, one shall be appointed by the private company or corporation, and the two persons so selected shall select a third member of said board; and provided further, that in the event said board cannot agree as to the price to be paid by the said municipality, then the municipality shall file appropriate condemnation proceedings under chapter 73, within 6 months after the date of filing the original petition. History.—s 10. ch 17118. 1935. CGL 1936 Supp 3100(151 180.17 Contracts with private companies. —Any municipality may contract by and through its duty authorized olficers with any private company or corpo- ration which is organized for any purpose related to the provisions of this chapter, and may contract with said 1360 Ch. 180 MUNICIPAL PUBLIC WORKS Nothing in this subsection shall be construed to require eligible municipalities to so exempt themselves from county rate regufation or to subject municipal water of sewer utility rates, fops, and charges for services rorr- dered within, the boundaries of a municipality to regula- tion by a county agency, and any such rates, foes, and charges shaft remain a matter of municipal determina- tion in accordanco with law. (6) In any action commenced pursuant to !his sec- tion, the court in its discretion may allow the prevailing party treble damages and, in addition, a reasonable attorney's fee as part of the cost. Mstory.--ts. A. 2. 3, 4, S, ct. 70997, s- 1, ch. W301. Y 1. Ch 92.1a 1. 180.20 Regulations by private companies; rates; contracts. —Whenever any private company or corpo- ration organized for the accomplishment of the -pur- poses of this chapter is granted a privilege or franchise by a municipality, it may preschbe the terms upon which owners and o c-bpants of houses, buildings or lots may obtain the use of the utility constructed and operated by the said private company or corporation, and the rate charged for such use, and also the rate and terms upon which the municipality may use such utility for public purposes; such rates, however, shall be subject to the approval of the city council, or other legis- lative body of the municipality, by whatever name known; provided, however, that the municipality may contract with the said private company or corporation to pay the said company or corporation a flat or fixed rate for such service and use of the utility and may pay out of the general revenue or any special revenue such rate as agreed. nVory-4- 14, ct�. 171 tg- IZ5. CGL 1936 SLAW 3100(19) 180.21 Powers granted deemed additional. —The authority and powers granted by this chapter to munici- palities shall be in addition to but not in limitation of any of the powers heretofore or hereafter granted to munici- palities now existing or hereafter created. 1lslory.-4 15. oh. 17119, 1n$5 CGL 1105 seyp. 310 .10). 18022 Power of eminent domain.— (1) Any municipality or private company or corpora- tion authorized to carry into effect any or all of the pur- poses defined in this chapter may exercise the power of eminent domain over railroads, traction and streetcar lines, telephone and telegraph lines, all public and pri- vate streets and highways, drainage districts, bridge districts, school districts, and any other public or private lands or property whatsoever necessary to enable the accomplishment of the purposes of this chapter. (2) Any municipality which exercises its power under this section outside of its corporate boundaries for the accomplishment of the purposes of this chapter may finance such extraterritorial project in any mannor in which it is presently authorized by law to finance a like project within its corporate boundaries. Httory.—t. 18, U 17118, 1015. CGL 1-fB Ajw 3t0p21). 4 1. Ch. 79 106 180.23 Contracts with engineers, attorneys and others; boards. —Any municipality desiring to con- struct, maintain or operate any of the utilities described in this chapter, may contract with engineors and after- F.S. 1997 neys for professional services required tot the accom, plishment of any or all of the purposes of this chapter, provided, however, that such employment is to be bvi- denced-by wntten agreement setting forth the temle and cond'itions of the employment; provided further, that such municipality may also create such othr offices and boards as may be necessary and expedient for carrying out cite purposes of this chapter and shall provide suitable and fit compensation for the same. ry Arte.-9. 17, Cf1I't 19.1935 CGL 1'3M- S,,Tv 3100iu) CiA 180.24 Contracts for construction; bond; pubiir*- tion of notice; bids.— CI (1) Any municipality desiring the accomplishment of any or all of the purposes of this chapter may make contracts for the construction- of any of the utilities mere tio6ed in This chapler,-or, any extension or extensions to any previously constructed utility, which said coriirgN shall be in writing, and the contractor shaft be requirt d to give bond,.which said bond shall be executed by s surety company authorized to do business in the state; provided, however, construction contracts in excess'61 $25,000 shall be advertised by the publication of a notice in a newspaper of general circulation in dw county in which said municipality is located at !seal once each week for 2 consecutive weeks, or by post three notices in three conspicuous places in said municipality, one of which shall be on the door of time city hall; and that at least 10 days shall elapse betweep the date of the first publication or posting of such notice and the date of receiving bids and the execution of such contract documents. For municipal construction pro} ects identified in s. 255.0525, the notice provision of that section supersedes and replaces the notice provi- sions in this section. (2) All contracts for the purchase, lease, or renting of materials or equipment to be used in the accompGsil; ment of any or all of the purposes of this chapter by tits municipality, shall be in writing; provided, however, that where said contract for the purchase, lease, or renting pf such materials or equipment is in'excess of $10 000, Notice or advertisement for bids on the same SKAV-68 2pblished in accordance with the provisions of subsec- n (1). 11 Hstory.—s. 19, ct; 1711a. IA1S. CGL 1936 SoM 310C{23), 1 3. CrL 73-129; . 19, �. 90,279: a. 27 �- 180.25 Contents of notice of Issuance of certtfl- cates.—The form of the notice for advertising the pri>; posed issuance of mortgage revenue certificates of debentures shall contain the amount of the eortifieateA to be soki and the rate of interest thereon; a description in general terms of the utility to be constructed; 66. I ime, place and date where bids for the sale of the sarM are to be received; and such other pertinent informatloi as may be deemed necessary. Nstory.—t. 19, d1 17119. 1935, Ca 1936 S m 31000C, 180.26 Form of certificates.—Tho certificate of indebtedness to be issued under the temu and condi- tions of this chapter shall contain a description of the utility, the revenue of which is pledged, together with the terms of payment of the same, as is established by 1 F.S. 1993 COMMERCIAL DISCRIMINATION CHAPTER 540 COMMERCIAL DISCRIMINATION 540.01 Unfair discrimination and compel,t.on pronib ited; definition of commodity. 54002 Duty of state attorneys. 540.03 Complaints made to Department of State, dt;ty 54004 Department of State to re';cF:a pr;r:- ,t of corac,. ralion found guilty of drsrr'n,tl;l!,,n. 540.05 Ouster of corporation found gu)Fiy 540.06 Unfair commercial discrimination ;,rohlblled penalty. 540.08 Unauthorized puhllcation of n.an,e cr Ilkentrss 5,10.09 Unautronzed publication of photcgraphs or pictures of areas to which admission is charged. 540,10 Exemption of news med,a from haL,!hly. 540.11 Unauthorized copying of phon0grach ,ecords disk, wire, Lice, film, of other ar I,,:' on wricf, sounds are reccrd,,d 540.01 Unfair discrimination and competition pro- hibited; definition of commodity.— (1) Any person doing business in the state, and engaged in the produrt!on, manufacture, sa'u or drsU1 button of any commodity in general use, that shall, for the purpose of destroying the business of a compel.lor in any locality, discriminate between dlileren; secl,vn ;, communities. or cities c t this state by sellrr)g ;:rch Cu11) modify at a lower rate In one section, commi.! Ily or oily than is charged for said commodity by sa.•I party in another section, community or city. after n,lkulti clue allowance for the difference, if any, 'n tt e ofa !e or qual Ity and in the actual cost of transportation iron! the pr.lr!l of oreductlon, it a raw producl, or from the pc:nt of ni M ulacture, if a manufactured product, stall be deemed guilty of unfair discrimination, which is dec ar., unl;!w ova e owevhr, that r.othlnrg here,n contained shall prevent discrimination ,n prices In the sr:rne or ,tit ferent sections, communities, cr cities of Inis :,sale made in good faith in an amount ncos;ary to n:t;e1 comp,111 tion (2) As used !n this cnapler file vrt)rd 'commodity" stall include any art!c!e_ prc,lt;ct, :hmr,, r,f va!,.e, service or output of a service trade it +S 540.02 Duty of state attorneys. —Tit,• sale allor neys and the Department of Legal Affairs shall enforce the provisions of s. 540 01 by appropnalt? tr;l!nns in (curls of competent lur,sd)cllcn IUtiury.-s .f .r 0u5 t41.S ' i5 � :1 .it r-Na ,. •, ,7 P !a) lit. ; A ' ) JJA 540.03 Complaints made to Department of State; duly. --If con oj,wii ;h,lll btr nlado to the 0,11) .flrnenl of Stale that .ln; Corooratio n atiihori, ed to rt : t:-us!ness In this slate ,s jui;ly of unfair dlscnnun,tricn :'nlrlul the !erns of Ili:•; chapter, Iho Departm!?mt of Slue ;hall refer the matter to the Dep.4 tme.nl of Ler)al Affair; wiwh in;,)(. .f the (acts )ustlfy It, Instilule proceedings In [tie courts against such corporation. Iftlory. -: •i -'h 6945 1715. fi,,S ;51-J r:lt 7}31 ss it) 11 '., , if t59 Of; - _ — Ch. 540 540.04 Department of State to revoke permit of cor- poration found guilly of discrimination, -11 airy corpora• I orl iore,rIn or d( lne' tic, '.!th.:,rl-t•rf to do !)us!ness in It•:s :,rate, is ((unit 91,1!ly of ,wla r r;lscr,m;n,,t:cn within tr,e !,;rms Of ih,s chapter, tr.a Department of State shall nunrdraluFr Iavok,? 1h1; permit of such corporation to do bus,-tess in tl.ii; stale ,r', _.. • ,,,. T, t.? .. 1p cn 69 !:,u 540.05 Ouster of corporation found guilty., -it after re':ct 3(t ! l i,l 11 : h,ifniil, such corporal mn, or any other corps;rate n nut ha ,if ig a permit .and found guilty of hav- ing �iolal,:d an; cf the pfov!slulis cl this chapter, shall conl nue ;.r art,?ni;a L� di-) !ws!n,ass in this slate, the f !if of I ar;.tl A Ialr�, by a pfr,per >u11 in the nafne i it stal,a, shall c• ):;I .ur,h cnrV oration trnrn ;ill t LISIr.eSS f e::ry F lid i:)rl cha 3ctar In Ihly state Hnfcry.--, , n ,.NS �� ",1,:5.'1 r 't .r,!3 :, 11 35 r.P 111).1cr, 540.06 Unfair commercial discrimination prohib- ited; penalty.--Ary fr, rrr)n, lirm, rc,npany, association ;r r: rpor,rrr,n ; ,l;ainr).any r:( nio prt,nsb,ns Gf S. 5•10.01, and -:fly e lflydr arj,?nt t)r raC, n,;r of any fern, company, ;alit ;n ur t:or).Gfa! on, r.r 7rcf m,;!nhcr el tha same, ur ;a:,v if %1 tat Shall t,e !)iully r,l :) nusd,:n!r:!nor of the List ;:egrc'e. (.u: !:,rr.t't,' :t,; r,r id,)fl fit s. 775.082 or s. 775 t,,�?;3 540.08 Unatithorizod publication of name or like- ness. — (i I No tier=;nn ;h;Uf put,lnsh I wd. di -;play or other se iluhll(•.ly w-,? t,;r ). upn':es fit trade fir for any com- r,ercl,,l or :advertising ).urpose the n,me, porira!l, photo- graph, or other likone,'s of :any nalural person without tt'a FY press wrll ran or , rril , m:ierIt W,, such n)s:i given by: (it) Su"ll pwt ;on; t l (h) Any otht;r f ars,.n, Inn) or corporaton authorized 1, w,'acag try 51u to 1".1 n It, ilutlr..,! (tits coin)etc!al (ISO t,l tic, !tart,,? or LF.i,ly ni ((-.t If such t)t?r:,on : ;tilt_, e:e.atl, any flors:m, firm or c,,rp t.,al!on at.)IhUn.'ert ,n :v,.lnug i') {' •.t=ns th,? (.simmer C-Al u:,e of tits n.un,? In hear:t!S :, t;r It no parson, firm or C'*41%, radon 1; 1.o will ;)rl.', if, Ihtin by .illy or,e Ifom :,nor! ) a t:l3ss rurt,p;hur/ ,+I ill:; ;lnvr,ulr) si;Ouse and sl.r'.r,'ng chodfcn (2) In the ev,:nl Itw consent requirod in suhsection (I ) is not ,lbl:nred. It.,; person M),)Se name?, porirart, photr,lrapn. or r.thcr IIF en<)ss Is so w;ed, or arty oerson. 111:11. r.r cnrnor.1tiun .1t!Ilnlrl, , t! by sAwh person In writing to 11,'t•n:w ;tic c.t nwxn. 1:11 l!"O (tl fit!: 11,111le !,r Ilkoness, x. !1 1t t: art I:UIn .1(111:;;,•'d.Cilt ;;; K; u;;cd is doccasod, any 111111. or rurl,or,:non Ilavin;g Ilw right to give sut 11 ct,nu,;r!l. a t-,m)�'ulutt i•un?u),11,uvu, may hrinq in acltorl on1t,I11 such tlr),il)III(w/ed i ublicilll, en, prtl111110, display or other public u:;e, and to rocovhr ,damages for any loss Lit Irllury s1,15ldlned by reasOn lhereul, 111Cluding an ainciml which would have been a reasonable royalty, and ptintli%e or cxerinpl.iry d:inaatgos 1-1 1.139 till 6`, 4 9 Ch. 540 COMMERCIAL DISCRIMINATION (3) i?•i+ futrvr ton : i,l thi-, ';r,,,t n ,ra;l riot apply to (.if lhr, jnibin;ttie:n, f,nnlnHg, t!I;pl,lf, ur u;e of fhe I l;lit it., or I4 `t!+:n, , II ,aI I Iter'3uti in a'iy n,?.Y,paf if?I. Inol;,t +utr, hr,r,k n(.a : br ;u;t:,t .I ar Ir . (, :I nr oillot nt rig„f,t:nt (;r f I.t u..tio tl t f .Iet (,1 t 1:(!(, 1 rr l' ,r1 r r oW then 1 .i.i'ur :1 t :r-.+i ( ;Ind Irt)ilnn.tt" f,ta •tit; 'ntw „ I .. '.(. ; , f: usi^d for £h1:r"ir'ntl I`L'i; 54 , (h) the r e ..f st,ch nan:•, pr^list?, f iiutcgraf;h, or other hkenosS in xxunec!ittn :.,Ih 11'e rr--sale or other di; tnbution of ftl2t,uy, rnu';ical, or artistic productions or other article; of merchandise or property where such pCr;rn ha; c(,nsented to the use ?f 1tis o,1n1C• portrait, phuluyr.l})t., ,,t L> e?nt ;; t,n Ott in c: nriect:cn with the inr tial Sale or di, IWL,:Urn I'I+ r, ,:f, or (c) Any nhol,, t}rat+h it :i 1v?rsr'n ,c,;,,ly ,as a rtgnit er of the public and -,here such 1 erscn is ,!o( named or olh- erwise Irfentillod n or to ,;oenr?ction ',YIt1 the ice of surh phctogrtph (4) No acti In sha!l be bruuyht i,ndet lots section by reason of any put hcalion, prnling, display or other pub - tic use of the name or likeness of a person uccurnng alter the expiration of 40 years front and alter the death of such person. (5) As used in WiS Seclicn, a person's 'surviving spouse" is (he person's surviv rig spouse under the la:Y of his domicile at the line of his c!?ath, whether or riot the spouse hay; fa'i�r rr:marrled and i orrson's'chtldren' are his immed,We ollspr ^q and .iny children legally adopted by hnn Any ;.on;ent j rc:I !^_d ler in subseclien (1) shall be given on !,ei,a;f of a m.ricr by the guardian of his ,.erscn or t.,y either parent. (61 The rorned,es;:rovided for in this section shall he in addition to and not in limitation of the remedies and rights of any pi?rloil unv :r the con.tncn iaw against the invasion of tits oft�acv History.-'s I ci, ,. 540.09 Unauthorized publication of photographs or pictures of areas to whil;h admission is cltarged.— (1) Any person wt:o stia!l soil an/ photograph, dray :rig, or other vi,ua' vet tcserit:ation Ci an/ area, building. or structure, it e (itry r)r 2(!rtut1anc,, to :.h!ch is subject to an cF,nrq ; or fee or of any real or personal property ;ocated therein, •-)r svho sha it use any such phc- lograph, draiYl:;g '_,r CIher vlsittl fC'rife,etl!at1Un in con nection with the sale cr ad:erticmg of any other product, property or scrvicu, w• thuut the express wr,tlen or oral consent of it:(, ov,ner or uf,Cr;tior (A the area, budding, sIructute, or other prop ily so depicted, shall be liabb> to such uwnr,r it ttt,Cr:aOr I(,r ar r/ fug dania,,e, or in)ury sustainr:d by rea ,r,n thereof trwludL: 1 an amount which would have i,, tln t m.i;C`n.ir;!I' roy:t'ty..ancl for punitive Cr eY�;rTpia/'. cfannel^ �•+,f s ,Ch t,naul",an.-Crl sale cr use may i,e (2) The f ro,,•c ins .,f II..;-,ocia-:i shall n,,l Ippl" iv (a) Plic;tit;r.tf;i: ,. dr.av: rig or ul!:r_r isu,rl rt prCs,en tatiuns in art: novi,,ral cr. +il3 jii.:rot', t)4ti.�'r,, IL]:.,'i h(vad cast or lele,:.isl. or plt:+ r i tov, ; median cr puhitcation a"; tart of any bnnl fife rn".Y ::epurl or we5er"I'tion havin(j a current and I. (]it tnnt'i putjliG inler.?sl and .there Such fitttiA+t)r tllh t lr:n;mO;. cr other vi ual representaliom, are nil U,X'! Iry ad'innrlr;r.nl nti ipo'', : ;r F.S. ' (h) ('holographs, drawings, or other visual reGrr I;jh+m ; in which Ihr: depichnn of such property s Joi,fai in thn pr,nctpal subject or subjects iheret,t Ct tat+;d r-r hFely to ;ead th+3 viewer to ass. i nn,f e(!y rr th Ihr: ;ale. Mitering for sale cr ac . (A ;inr r,ropi:rt/. j:rr,&,rt Jr service ?r A iy uer,on :,no Ur means 31 a lower cr ;!r ,(:: Ir" to 'lihirh da4r;t;y r:r ,ndirectly adrnis5 t rharri ,d ;hTi permit an/ other parson or persons t•: nto cr rcw any previously established tourist aura:• the er;lry or admission to nhich for the purpose of . Ing the same is subject to an admission charge Gr :Y,1hoi,1 the expr+?ss written or oral consent of the ,;r upi:ralur of such previously established tourist al'' lion• s`lall be liable to the owner or operator of the c• nu <,IY estlblished tourist attraction for any loss, dar­- ur rnji,ry su°;lamed by reason Rtereot and punit ,•; 0,.,mt ltry darnagis, and the use of a lower or c IrI;(;rure for such unauthorized viewing ma/ Cnp,tnt:d (4) The rerttedies provided for in this section sha.1 if) add -lion to and not in limitation of the remedies a rights of any person under the common law against unauthonzed sale or use for purposes of trade or ad:- lising of photographs, drawings, or other visual re;:( senlat,ons of his property. History. -, I ,r•. 6, 5' s I,,ih 69-243 540.10 Exemption of news media from liability, - No rel;al may be obtained under s. 540,08 or s. W ' against any broadcaster, publisher or distributor brCc castmy, publishing or distributing paid advertising as ter by radio or television or in a newspaper, magazir<- or similar periodical without knowledge or notice tr.. any consent required by s. 540.08 or s. 540.09, in ccr nection with such advertising matter has not be_ obtained, except an injunction against the presentat:c of such advertising matter in future broadcasts cr future issues of such newspaper, magazine, or s;rn,:.t periodical. History.-s I " 67-31 540.11 Unauthorized copying of phonograph rec ords, disk, wire, tape, film, or other article on whicr sounds are recorded.— (1) As used in this section, unless the context of"er wise requires. (a) 'Owner" means the person who owns the origire- sounds ernoodied in the master phonograph record master disk, master tape, master film, or other device used fur repraiur.ing sounds on phonograph recc{ds. disks, tapes, film,;, or other articles upon which Scum: is recorded, and from 'nhich the transferred reccrccN sourds arc d,reclly or indirectly derived, or the Fear ':.ho owns (tie rights fo record or aulhot,Ze the recCrcN of a hve porformance ib) 'Performer' means Ine person or Ferscr.5 :tppearniy in the performance ;c) '%Iaster recording' means the original fi%a!ond sounds upon an article front which copies can be made. (d) 'Person' means any individual. partnersNp, car• poration, association, or other legal entity (e) "Ancclo' nwans the lanyibfe mediurn upon whet sc.und, or iin,uges are recorded or any ong,nal phcm 1.140 C w •`I { ; o 0 F_5.-1993 COMMERCIAL DISCRIMINATION Ch. 540 Graph record, disk, tape, audio or viriuo ,:a ,>r;llf; rnrr:. W(n, or other medium now known or later cfevefol , d on witch sounds or images are or can he recotdetl or c.lher w•se stored• or any copy or reproduc lion v,t,t(:n cafes. in whole or in part, the original (2)(3) It is unlawlul: 1. Knowingly and willfully and without the consent of the owner, to transfer or cause to be transferred, Caectly or indirectly, any sounds recorded on a `.nono- graph record, disk, wire, tape, film, or other article on which sounds are recorded, w1h the intent to sell, or cause to be sold, or use or cause to be used for prolll through public performance, such article on which sounds are so transferred without consent of the owner 2. Knowingly to manufacture, distribute, wholesale or transport within the state or cause to be transported within the state for commercial advantage or private financial gain any article on which sounds are recorded vrth knowledge that the sounds thereon are transferred without consent of the owner. 3. Knowingly and willfully and without the consent of the performer, to transfer to or cause to be transferred to any phonograph record, disk, wire, tape, film, or other irticle any performance, whether Ave before an audi- ence or transmitted by wire or through the air by radio or television, with the intent to sell, or cause to be sold, or to use or cause to be used for profit through public performance or to be used to promote the sale of any product or such article onto which such performance Is so transferred. 4. Knowingly to manufacture, distribute, wholesale or transport within this state or cause to be transpurled wRhin this state for commercial advantage or p:rrlale financial gam any article embodying a performance, whether live before an audience or transmitted by was or through the air by radio or television, recorded. v+ilh the knowledge that the performance is so transferred without consent of the owner. Scbparagraphs 1 and 2, apply only to sound recordings ln.ed prior to February 15, 1972, (b)1 A person who violates paragraph (a) conurnl , a felony of the third degree, punishable as provided in s 775 062, by a fine of up to $250.Oii0, or hnth :1 the offense iw olvcs at [cast 1.0G0 uraulhun,,;d :Irl:Ues efnbody:ng sound or at least 65 unauthon.•ed audio- sual articles during any 160-day period or is a second or subsequent conviction under wither this suhpara graph or subparagraph 2. 2 A person who violates paragraph (a) cefumits a (e!ony of the third degree, punishable as provided in s. 775082. by a fine of up to $150.000, or bolh if the ofrense +evolves more than 100 but less than 1,000 unau thcnzed artic!es embodying sound or more than 7 but !ess than 65 unauthorized audio-viSual articles during �ny180-day period 3 A person who otherwise violates parag(af•h (a) ccmmtts a misdemeanor of the first degree, punishable as provided in s 7 /5 082, by a fine of up Io '52!),0 0 or both (c) For purposes of this subsection, a pe ;on who is authorized to maintain custody and contrui over bust ness records which reliect whether or not the owner of l Irv: l-ftoffti;ln' r: r,,at ., nl•!,1 li) ii;ivirig lft" h•rr per mrmance rec:onled rr hKod Shatl Le a prcl er witness in any l-.rt;i. •,t!mq re );,r(Lnrj fl•.r: i ; ;•n; of r: msont (.3)(3) 1 is unlawful 1 Ti sell or offer I(,r s,:i.; or fv,•;a!e, advertise, cause We 1_c,'0 .;r resilr. „ t, rent. Ir,in,_port cr cause to be ronled Cr lfansl'orted, )r r;ses, Icr lny of these pur- pose5 am .article wilh the knowledge. or with r-�asonable (;r:Itculs !) knr;;v, !lt,it it,(, ,ni;;u1; thereon have been tl`Xls(erre,l will-tll the Consent of the owner. - 2. T3 sell or ollor ((IT sa:e or resale, advertise, cause the sale c.r resale of, rent, transport or cause to be rented cr !ransf.orfod, t.r p :.;sc r; Ior any of lhesC put - poses an( arlic!o enlbodymy any performance, whether Aye before an audience ,it IT :nsnutted by wire or through the a^ byt�radio or leleviswn, recorded without the con- sent of :,> performer 3 Kr;w,ngly, lot comu,ere:al advantage or private futancia r a:rl to still fir n : • iI, offer for sale or resale, advertise :.ause the s�'t, -,r r,ssa!e of, rent, transport or cause to re Tooled or transport.,(!, er possess for such purposes any phonotgr.lph record, dsk. wire, tape, film, or other article on which s(,unds are recorded, unless it ouls:(;e cov,,r, bor, or 1,cka1 clearly and conspicu- ously dcrloses thir actual naive and address of the manulactc,rer thereof, and the name of the actual per- loriner (,f group (t)) 1 A person who violates parngrar'h (a) commits a Vony ':I the third degree. punishable as crowded in s 775C82, by a line of up to $250.000, or both if the offense irr;oly^ at least I,000 un:iuthun; cd articles c:nbu dy n j so(:nd (ir it least 65 unautl,onzed audio- v•Sual ar1,, es dunnri any 111;) day punad or is a second or suW!,n;cent cunva:hun ,intloy eilhof this st,hpara- gr,-iph Cr _�ubparagiaph 2 (A lhl!s sul)e,�(:Wn 2 A t,erson who v(olal ;s paragwph (a) comin)ts a felony of the third degree, punishable as provided in s. 775062, try a fine of up to $150.000, or both if the rllense ;n elves more than 100 but tees than 1.000 unau- Itc i7od articles enibo(lyin!_; sound or m,Irc than 7 but If! .s tha' %5 un WttIon,•••'i nil-u-vtar.II ,irlicles during a, 180 : iy i o thissubsoction C�.innul', i 'ni5d•inc,in,.r �,I !hu I�r;I •_leyt;(1, l,urbaltdbld pro-!-- i in S 1,'i 0t; 1, a fine! (.I i;p to $25,000• or b',Ih (•I) At, J re,(;oftled ,1111CIC' f ru(itiCO l A) ,'e)1,11iJn Of Sub - sr ctn,ns I,)) and (3), of ,any e,lwpmtlnt ur components ucr:d in Ira pro(!uclton Ih,:r;ol, shall be �;ublect to sei- zj.re and I )(fel(We and du•.ifucbcn by the Seizing law er,ford:emunt agt:ncy (5) Thr; section shall n, tliw onlartgu not diminish Ifttr Tit jhl .it paves in pnv.(D• !ilnl.ilio(i (6) Tl,r; sok:I un ,lu, ; ri,.l ,ippiy (a) in•y hroodca .fur :.hug in axutachrn with, or W. part CI, a (;idol, lol,!`islt rig of %Ilfo br,)adc7ist frans- mr; •r I- thr I,uifnr, : of arch(::tl pre•;ervalion, If.ne;h•r•; ;vly su, 11 -.bond:; rx',v,lud un ,I :;ound record, In,) (b) To .iny person who Ihutsh s :such sounclS in the hrmle for pefsunat use and will ut e.ompensalion for ... such lr w;ter 14.11 1 t a- L. 46 Q 17 1W; 1.0 dK. a$,Nuar& ... .i:. 3 Ch. 540 COMMERCIAL DISCRIMINATION F.S. 199' (c) To any nut -lvr-profit rdur_ ltional inslitufinn nr 3 Prior to the transfer of the sounds, the inshtuhcr miy federal rr SI,11R j wrin rngt t71 r nhly tl ;lll 11 e IoNr w or enti!y has made a good faith effort to ident:!y Y : ing ronrfil�on•; r,<r;t 1 tho ptim.Ty pi ipw ^ rl the r tlili.l!on or eribly ,S the advancrrnent c,I R'r ptA*c' ; and th,� dv; semination of :nfr.r�nnlinn 2. Stich lnitt •,'. ', I. ",itt., set ftulh in Ili., in,;!ilo t IIOn�'1 t.)r rtllll j' ; L, i,9f i"f. t) jl;l':, ;, rer tlfR:,ill'. ,/1 -I:Cprl,gf 1 lion, or rimilar dor:Urrl^ril 'caste the owner or owners of the articles to be L3 terred 4 Desp to good faith eltcrts, the owner or c:. c haw, nol been !ocaled. History. - .. t +A V 7 r +q2. 1 2 t, 7, 44') ; 221 ct, 79 AM e Ffl t�, Hole. 543v11 i fj� LIy� 1442 0 of !l r.f Ci F.S. 1993 COMBINATIONS RESTRICTING TRADE OR CO N.Mi FICE Cit. 542 CHAPTER 542 - rl, . -G •.- / Yam. r <) / 9 �G COMBINATIONS RESTRICTING TRADE OR COMMERCE 542 15 Sf crt t:Ge. 542.16 Purpose. 542.17 Deflnll:ons. 542.18 Restraint of trade or commerce. 542.19 Monopolization. attempts, combinations. or conspiracies to monopolize. 542.20 Exemptions. 542.21 Penalties for violation. 542.22 Suits for damages. 542.23 Equitable remedies. 542.235 Limitations of actions and penalties against local governments and their officials and employees. 54224 Consent decrees and settlement agreements 54225 Judgrren! In favor of slate a'1 pnrrla I.tcu:' e.I deice 542.26 Llmltat:on of actions. 54227 Enfcrcement authonty. 542.28 Civil investigative demand. 54229 Duty of public officers. ,42.30 Jurisdiction and venue. a2.31 Action not barred as affecting or involv,ng Interstate or foreign commerce. 542.32 Rule of conslructlon and coverage. 542.33 Contracts In restraint of trade valid. 542.34 Discriminatory trade practices. 542.35 Remedies cumulative 542.36 Continuing violations. 542.15 Short title. —This act shall be known and may be cited as the 'Florida Antitrust Act of 1980.' H:sto,y —s I ct, �0-1-li 542.16 Purpose. —The Legislature declares it to be the purpose of this act to complement the body of fed era! law prohibiting restraints of trade or commerce in order to foster effective competition. It is the intent of the Legislature that this act be liberally construed to accom- plish its beneficial purpose. 542.17 Definitions.—t_inil:ss a dllft:rer,l meruut?g Is c'early Indlca!�d L'y tic collie 0, Inn the purposes of this c.^apler. P! e !,;rill; rJe! rw'-d in thl; stir,! r;n have !hl: I1.1 or. ^1J mea'',inys is :r bed lu it-1c m (1) 'Ccrnmud,ly' means ,iny gur(! ntercharnllalr. 'Hares. produce. ChuSe It! ill.tlOo, land. 3rlH:le ,11 rr.erce, or other tangible or Intangible pr,)prrty, real, per senal. or ml�ed, for use cons,,mpl ,n. prodlrc!ion, enjoyment, or resale. (2) *Service* means any kind of activity performed in wh a o(In part for economic benefit. (3) 'Persgn, means any nldi'.'dr:;ti, 1 orl oratlt,n, lion, -arinershlp. limi!rtd p3rin,:rship. Inr.url,or.,led or :ucn lorperated 35 :OI: aherl, proles•trorlai as ;ociallon, or :I^er 'eglt, CJnl:lic•r,'lal, of (JOVernnl,:nt.il ,'slily, MOM,. - the State of Florida, its departments, a encies, f it sir rvistons, an u s o ove nmo ra e r merce means any economic artiv' o any ype whalsOevOf inv ving any commodity or .ce whatsoever. (:JJ unu::ll .I., I:,, . . ,1 n:L,u,.:d,talaor Inlormaticn 1n 'r,hal r'✓t r f„nn (6) 'A!'oroey G,•nera!''I:. !u!1,: not only tho Attorney Guner"al vt Fhlnd.l (,tit ,ittifl ,:ny dt:'uclnet: , II Ih,: Attorney General or any a%sislaril .litornny ,yirteral or spPCial assislnnl ;Ittofll!.y !funeral (7) 'Slate attorney" includes not only the state Allor- neys id FI(,rida hilt ,flso any , Iesi(Jnre of a stattr allorney or any as,'Ostarll ;Lill J111)rllr7y Ci speed! assl!Aanl slate altornoy (8) 'L„cal gos'2rllmt:r:l' nl,:arts a nninicipaltly. roomy, school disiricl. or ;u,y other ctenetal-func:lcon or �I:ecwl-fc.ncllon g1 until oslablished Lly the a ;vs of the shtle NlstoN ' I A...^i . t . 1, 542.18 Restraint of trade or commerce. —Every contra';t. n. or cr.nspiracy it rc:;trai:,l of trade or Conim.-ice :n Ihr, sl atil Is urll,i'.vftll Nslory - . 0, HI) .Ti 542.19 Monopolization; attempts, combinations, or conspiracies to monopolize. —It is unlawful fotanv Der son to monopoli. e, allempt to monopolize, or combine or conspire with any other person or persons to monopo- line any part nt Ir. (de or corlimerce in this stale. , 542.20 Exemptions. Noy ,i::tl':li; or G11•IILCI L.tllni:t Wider I I, l:,:I .IaI'll„ry u! ,'iHnrnt'.s 11.1;1 or e'-INPI t It .Ill Iht; pl r:; Of I:.e d1lIWI—lo-1 h,:c; (,f the t)lllll:il ! Ifl,l.: Ila:;lrU'. ,Uli nl Ilhs t:hup ter History , o :r 'tl 542.21 Penaltic; for virlation. - ( I) An, nalur.11 I ei-;on :.no vit lal, s cloy of the provi sions 0 s 542 Ili ut s 5.12 11) sh.l'I t„) ;ubir:cl to a C!vli prnalty of not n.or(th.-In 1.1Cilj1(X) Any oil),or p,,rson who .,Irla!„s any (J if e 1'I „I:;:,'rl:; ;I 5•L' 1ft or S. 542 19 t:d' hr' s_hl :Cl l.i a /:I I :nuk i )I nor no;rt. than =,I'LM0I (,c l.'1-I•, Fiur...11 :,1 I.tt: , ..ly ..I [lie [ r,,:',1 ill , ,I ., .L1: I. I•r �rl. I'l. r :.' li st'; nu;lY Ili'. llll,• II 1 1'•, .. :hi ,,A .li II :I ,: I', 1.44.1 In:n, nl, II :n'✓ ! •1 !'. r•. 1. ..;1 .li';I ri(,l h''Ll ..:,l t'uI,I:J IIWI:is I,3) Ih . Conwie, ctrn,:ni al II',II .: 'I kmj C,.II I. on.11 kw, vli Irtwil .:r, L:1 Ihr; ,:t II it I :.I( a'ty 111junt , tall'n.11 Ill.)s, C:.Ilvn .I Jain ,I lllo "11110 1 Orst,n Wr t ; fi.l' 1t :'. ',' ' I!'t f':1: ',I'11-oil !h,: •11.1e , xnul, n, nl:.rli II a vI .. 1 7:1r,111.11 pr -i .00LI- In 11 L'I ih.n ,I I.' : ,.I - 'i: ' It) •41,0l l,,r: 'llry, ,al•L,'l I',I ,1 1 at lit Ii.I.J.,,nJt li '. .i, 1'11,:I ,:1';t''It 101 I,a:,l;t'ry ,.I :v,l J.. All , I: I. . It . 1. 11 I'.. -I 1;, q1 Intl '„Hui: , 1< 0111 `.i .16 ,.. 11'.tl .1.1 :-1111 lot lihil a,ju:; 01 nr Inch.,: r ;1,:; 1,1l' 'I wd -)4'_I''3 (•I; Na.:CIH;n1ln,lur Ili;!, ocil,rllol ti. 51.").i -01,01 Ile c�llnnit nt:,:A by lilt! • kJIli, (;moral :ly,inlsl any por- sort who, if the hlno is a dviorid.utt Ili a sutl Mod L'y the Limited Slalos lot vHd,il:.m r,r ,illltrp:O vioL'illon ul (tit) fed• V. S9— 7 2 1.143 :Sr . rA r . 1 Ch. 542 _ COMBINATIONS RESTRICTING TRADE OR COMMERCE F.S. 15 eral antitrust law'; invelvrr-g substantially the sarne sub ject matter and ,aekinrj !;ubstant;, lly Ilse same relief History.- : + ch fir) `i 542.22 Suits for damages.— (1) Any wt!o shall tu! ll.jurn,) in III,; hU,uu'o;s or tirnni'rty by +r.tinn IA in,,vlola'Icn of ; 5'12 18 or s 5'12 19 may si.e II`erninr ui the circt,it rai�ris of thts slate and shnll rrr >ver thrr,7fi A the r",11a)e , by hun S"Is lalnoO. inrl ill t c-r I •11 ;n', wclud;( <g a reaasrnable ail,;r ney's leo [tic c,wt! st,&l t,v ud a !trts;nabic allorney's fee to a defendant tire,:,] ing in any action under this rhapfor for re!rf in which the ble issue Ul u�thur ia,v or lai:t raised by the plaintiff. (2) the Allonu,, l,t`r.:r,,l, or a ,tale attorney after reccrvir•; ,r,l' !n 1'_rr7, ,. 'n'r;,rn ilio Attorney Ocher I;. may bring a i:Ivll act, al ,n the mime of we state, as parens palimo 0tl heh.7!f +f :talura: persons residing in this stale, to iecu:er cn t ehnlf of those persons three told the actual damages slisfained by reason of any vio- lation cf ;- 54 1C ur ;4:' t!I, and line ;ost ul such still, irc!t:d,ntj a rClst.naLlu a,ttiuluy', !cc lne cutat shall exclude from the amount Df 'nonelary reilel 3,,varded In such action an'y nrnc,unt i.f n',oneLuy l-�I;ef much. (a) Lit.,plic:-te,; amc unit '.vfuch "avl2 been a.`,arded for the ,ante injury. (1)) Is ie .`.ire jrl('.h (3i(b). c' (c) Is ptop.,rl; "ib ^ fo any i t'n n,t� ss entlty. (3) In ariy 7ct cn u:;,1 s,b,,ec` in (2) (a) The Attorney G,:nera' or s!.i!e attorney shall, at such hmo, tit such manner, and .vitl such content as the court may dinlcl, cause +',ctice to be given to the pro- posed ;lass b✓ pl;rAc.allcn It the court finds that notice given solely by pubiication v,ould deny due process of law to any person or p`!rsi.'ns, the court shall direct fur ther notir;e to pers:ra :iccordino 10 1l e Girt'.uni,lance`' of ui,' car,. (h) Any pr±t ,en on,,tine behall an action is brought sander I,bs ?cthon (2: ma; elrct to !Kcl Ide from adjudi- cahon Ili,) rothon of the claim for nionetavy relief altribul- able to hurt by ldur_; niece ?f such e'cclun :'gilt the court within such time its specif ed in the notice given pursu• ant to paragraph (a). Tne milt judenneril in such action ,hall big res )uiJic;ita ,Is Ii any claitn under this secllun by In,/ person on of who;n s,,ch action was brought and who fa4s to give sut;h nonce within the period specified in the nonce given pursuant to para graph (a). (c) No ctlslnlssal or curnpromi se shall be entered w0,,;ul live ,ipi rc-al of Ih,� Court, and notice, if any, of the hrotw,-ed cl,nu;'.,71 cr :crrttprG mise sh,0 be given ,n Such aat::u`r a, i'r� C.a.r! d'•'Cl; (d) Mon,21ar; t­, dist• ;)ut"ri n sic!i man. her as the Court lh Its d15C'elj ;n r11,1, al;lnrr , i', ;uhlei:I to the uequirement Until any dis!,Ibulion prrcedui, adoplRd shall AVO'd eai.h Iverson 3 r'.asun.lbh oGpurhr nihy to W.Cure his appri,pnale, portion cf the net mono. llry rellef (e) In an, a•:Imn un,rler sunseclion (2l In .vhlch there ha,, heen f;,al <I d'_f•:ncf;u 1 I, fl . ;l ces :I ;Ic' il,•:rt ;I 12 18 dam,I',}es wwi be pru✓e'1 and a:'.se sled in the aggregate by statistical or same m(ANAs, by the compulation of Illegal overcharges by ,ur-h other r!asonable system of estimating ay•: gal' darriages as the court :n Its dlscreticn may re, .vllhoul the necr:sslty of separalel•y proving the arc_ ual claims of, or amounts of damage to. perscrs bi�half Iht! Suit was brought History. - : t :n EC :8 542.23 Equitable remedies.• —In addition to cr remedies provided by this chapter, any person shad entitled to sue for and have Injunctive or other equita: relief In thn i:!rrutt courts of this state ag;l!rst 1`re7t9' 'i. � , - irr.zl3" `;, a ,,„ aLC" rl tt•ts cr.apler ,r. _ acLon under this section in which the plaintiff subst haily prevails, ttte court shall award the cost of s . nc:,,d ny a reasonable attorney's fee, to the pia;nt,ll Histoy. -•, t .h 90 ;9 542.235 Limitations of actions and penaltic against local governments and their officials ar employees. - - ( 1) No cnminal action shall be brought pursuant 542 2!i2) against any local government. (2) No civil penalties, damages, interest on da age costs. or attorneys' fees shall be recovered ure s. 5,12.21t1) or s. 542.22 from any local government (;) Nu injunclive or other equitable relief pursuant s 5.12 23 shall be granted against a !ocal governmer! Its officials or employees acting wilhin the scope of t� lavr,'J 3who.:ty, if the o(f:cral conduct which forms ,- basis of the suit bears a reasonable relationship tc C health, safety, or welfare of the citizens of the local cc ernment, unless the court finds that the actual or pole, flat anticompetitive effects outweigh the public benefit of the challenged action. (4) No criminal action shall be maintained pursua- to s 5.12 21(2), and no civil penalties, damages, inte,e. on dailnac,-s, costs, or attorneys' tees shall be reco.ere pursuant to s. 542.21(i) or s. 542 22, against any loc- government official or employee for official condt.c within the scope of his lawful authority, unless the offic•a or erril,loyee has violated the provisions of this chapte• for the purpose of deriving personal financial or proles stonal gain or for the professional or financial gain of his immediate family cr of any principal by whom the ofrc:a is retained (5) Suosecticns (2) and (4) shall not apply to case commenced before June 19, 1985, unless the defendar establishes, and the court determines, in light of all tf cacurnslances, Including the stage of litigation and 1.1•: a:a.!abil.ity of alte.,n,atl`.a relief, inat it would be inegv.;_' ble, iol to apply ti;ese subsections to a pending cas? In cons.derat!cn iif Mis subseclon, the exister.Ce cf ' jury ve'dict or district court Judgment or any stage c( ii ga! or,thereto shall be deemed to be ^.r is:_ t! awdence ttiat subsections (2) and (4) sha',! rc 3pCYY I6slory. -Si .ih ;57 61 542.24 Consent decrees and settlement agree• ments.--in a civil actio i maintained Ender this chapte by the At!urrie'y Gur;urLi or a slate allirney, all, parry t: such action may petition tl`.c covet for entry of a conser, 0 k1l F_S.1993 a or sampi,^g f charges, or ating aggre- may perrrit : the oncivld- on toersons on to other -son shall be per equitable t threatened ,ter. In any 'Ml, substan- -ost of suit, e plaintiff. i penalties fficials and pursuant to :st — dam. :•r nder er nt, pursuant to vernment or :ope of their :h forms the 'tshlp to the -�e local gov- jai or poten• olic benefits ed pursuant ges, interest .e recovered -Ist any local vial conduct .s the official 'his chapter at or profes- al gain of his n the of!:cial ply to cases s defendant ,ht of all the an and the be inequita- nding case. stence of a stage of titi- to be prima 41 not lent agree - ;his chapter any party to; �f a consent: ti F.S. 1993 COMBINATIONS RESTRICTING TRADE OR COMMERCE J, cr?.e or for apf�roval of a settlement agreerrn:nt The prapcsed decree or agreement shall set out the alleged viclal:ons, the future obligations of the pxl,es, the d,im a."S :r olI Cc' r.',Let 1Jf1`ed c;_,uc 3"i1 :r ,r:r.; roc e-'er ^.q r,(j lie cun,;ent decree or Sell ement agree- rrenl "tory. — S 1 n 41 N, 542.25 Judgment in favor of state as prima facie evidence. —A final judgment or decree entered in any civil or criminal proceeding brought by the Attorney General or a state attorney under s. 5.12 21 or s 542 23 io'he effect that a defendant has vrolalod s 542 18 or s. 54219. or entered ;n any civil or criminal proceeding bf:ugnt by the United States Department of Justice unjer comparable federal laws, shall be prima facie evr de^ce against such defendant in any civn action or frto. ceed;ng under this chapter brought by an; ix,er per_un 3g"a:nst such defendant as to ail matla(s :.-Ili Ir: vie r 'O +, U1 SUCK lodgment or decree yr ,Oti t,� an o�;Iu ;oel as Cetween the parties thereto: however, tr. s sec! on does not apply to a consent lud,�rnent or entered ce'cre any testimony has been taken Nothing con- :aened in this section shall be construed Ie impose any ;,m;ta!ion on the application of col,atera! estopp,�1. WSIM.--S r !, aJ--28 s t cr` 34-146 542.26 Limitation of actions. —Whenever any civil or cnminal proceeding is instituted by the Attorney C,ereral cr a state attorney to prevent, restrain, or pc,nish any vio• at,on of this chapter, the running of the sl itute of hmoa- '.cns, with respect to every private right of a,:tion aric;ng .finder this chapter and based in whole or at part on any -natter complained of in said'proceeding, shwl he sus. ;ended during the pendency thereof and for t year thereafter Whenever the running of the st a(ute of limita• 'ions in respect of a cause of action arising undr r s 542 22(1) is suspended hereunder, any aclicn to enforce such cause of action shall be forever barred unless com- menced either within the period of suspen,;on or will -in the period of limitation Hittory.—s t Cr. a, :b } 542.27 Enforcement authority — Ili The-ttcrney General. or a slate attctney with I nr Pen permiss-on from the Attorney G+_•neral, acting t r c,nt'y Cr independent;y, may commence and Iry all cnrn- r• r rat prGsecut.ons und,=r !nis chapt,:r Crwinai crosecu. i Ions under this chapter shall be commenced uy ndict- t ^•ent. With respect to commencement and Inal of such i ;rosecul;ons, the Attorney General or a state attorney s^all have all the pov,er, and du!;e ; vesle,t by !a.v vv0h ,espect to cnin;nal prosecutions generally In,ad,;nt to eny nvesl,gation commenced und,�r this t-! atNt r, the Ai:crney Gen,:ral may participate in and of:pe;ir teefofe a grand luny to assistance of any slay, attorney, irrespo,:- ":e :it the provisions of chanter 905 (2) The Attorney General is authorzed to;nslitute ur I .r(ervene !n civil proCeed;ngs seeking the full range of reset afforded by this chapter or by federal laws pertain- t rg to antitrust or restraints of frade on behalf of the ii slate, its departments, agencies, and units of govern ment. In addition, the Attorney General, as chief state feral officer, rnay institute any action authorized under Ch_ 542 this r.hapt,,,r, fed(.-ral laws pertaining to antitrust or re•;tra;nis of Ir,3de, or similar laws of other states on ht:ha!f 0 n il,)ral r,er•,on,; in the Ial? uuluify c.r as a reSull of a complaint, suspects that a vio• lat.or of iris chapter or federal laws pertaining to re tlr,,cr,l;> of trade is irnni;nent, occurring, or nas oc-utr:d, he may investigate such suspected violation. iiisrory, . i r) ") 542.28 Civil investigative derriand.— (1) Whr-no.,r:r the Alt.:unuy General, or a state actor ney rr.t!'1 a{:pr::pr,at. lunsd;ct;on,and with the written consent of the Atlorriey General, has reason to believe that any person may he in possession, custody, or con- trol of any documentary material, or may have any infor rnalion. •:rhirh,lor urnentary material or information is rel- w.rnl I,i a :o. l aiditn;st ;nvQsl;gation authorized by s 54:'2'i,i , I''e general or Such stale atl0rney may, lines to of a civil or criminal proceed inc Ih•:r• nn ; in .-,nhrtg and cause to be served np„n •.i:rh t er:,t.n a ,a:i1 fnvei tig.illve demand requinng such I:ar;on to (.)) Produce such documenlary material for inspec. t;on and copying or reproduction, (h) Answer, under oath and in writing, written inter. rogatcries: (i-) give sworn oral testimony concerning the docu• iner,tivy material or information; or (,I) Furnish any combination of such material, anc,vers, or tue,!:nlony (:') rho Jer;mnd ;hall (,i) Do t.er%ed upon the person in the manner ref; ur d for se.r , ice of process in this state or by certified mai; sho,v;ng receipt by the addressee or by the author• ;_,ern agent i,i the dddressee. (11) State !fit' nature of the enriduct which constitutes the violation of this chapter or of the federal antitrust laws and witch is alleoorl to have occurred or to be imminent {r ) Desr::ibu We class or classes of documentary mat:cal to l a induced thereunder with such definite- 1-es-, aiid certainly as Io r ,r rmit such materials to be rea- son,tbl; uleritit,,id (d) Presr nLe a 11-ito and I,me at vvhx.h the pors.m nnr;l ar;)e3r to tC ,H', fuller r,„lth or 3ffirrnat'04l, ,;r by v.hii h Inc: :1,rSCf1 Wu_'; d;1da:Cr :vniten Intorrogatories of Produce lri,S ditci,mt:•ntary m3lerial lot inspection or crap;,ni), himever, sur-h d,ite shall not be earlier than 30 day,; frorn the data of serv!ca of the investigative (IuU Ia n,I (e) Specify a plate for t!te taking of testimony or for the .ubn is ; i'n of an5:•tarc tJ allorroig,itones and ,dentily tite Iverson who is to lake ctistody of any documentary 111a1t.na1 InSI ecf;ai and onpyutg uI dncun1ertt3fy male, n.il r.,t3i:lit: C.1fri0d Jul ,11 the place where the documen lary m,aenal !s IUCated c.r it sui:h other place as may t c thert2att0r atyaed to by the person and such designated custodiam. Upon written agreement between the person and the des;gnaled custodian, copies may be subsir filled for original documents. (3) Pilo such demand shall require the prodw-lion of any documentary malorial, file submission of any 1445 1 ,4 ♦. 1.' 4 Ch. 542 ... _- - -- .. �. ,1. - -� .y 2'i L'� 6 i• �r rrt as r.. � rr„ w .�-..�� — _ �...� COMBINATIONS RESTRICTING TRADE OR COMMERCE F.S. 1993 answer,; to Nnllr.n nttrfro {al' n+ or it"' •twill; of any oral leshtlrony d ,;ut h nsltf?n.11, .ul ;'..• r ;, Of it -&won/ W'!111t1 i,n Dh)Inrl r1 ht.rn • h': ' r ur4 .. uf•_' r.'i) (h,• tlaruLu,j; q �.,-,t i,. In •. , !� r; ,r •,1:1 {, e•n•1', ,1f: .. tr ill I . 1 Ii .. ;ill'. if a' ! t;l .! h'u it j ,l, v'. t till 1'n nr ;l•v•t! ?f ! ; t, I" It:.`hI, I,r a 1 _ ..cry ret.lues, unflr?t trio ('f,rt1.1 fill I , t.'1 I' u;+ r' ,r•e to It , n•ler`t 11 al Ili,? ,11,pI I; f)r iIrr! . to if,/ d•?riianfl 1, aptio ttrl If,! n",f . ,tile, a v. Ili the I;ro"t cl,)ns, still I.urptf• tr: •)I 1,. 11'I,?r i•1) `hill uirl ;n iI ., � •I .•�yt,�• .,r ;hail tfnul Ilse n!tTua«: the aLht u.rtt.? i ;;t, l _r Ivr dur,hur. if ducurnenls or ul'ler lanytblc e,idenco :,rat'-d outside (51 Within 70 cla —, .111-r il•c :;reryii t, of an Inveshga live 6-111,111d upon a ly ;,r' st:'1 ;•r at a::y Mini( before the return (late spocthed Wcr, :n, .%i :ctlev"r penut-I is lodger, the person servcd may fife w tl'e clrc'al court In and for Ire counly In :,ha:rt till?,;t rst ,ode . ,, •3,1cts ; u : ness, and serve uj.v!f li .e ,fit;.irney ;dotal ;r sf,3:c al,'orrle/. a poplin tc)r ,II, l;r k- t,l t! •- ,.' tilt mcdtfylr'g or sett rig aside Iho ell? 11;!rd i! e tit:,. ,:: ., xJ for Coln phance In whnlo ,it in ITnrt N ih rj—ia,id aS rin, hied �ircper and oUfeIfld by ill,? r^urt shall not run '.vhde file (,etillcn ; , i'en(!;:ig r,r;,,r It ,, tilt T hlton st'i- I ,CC;ly c,3,:h j'.-.:;n't " 1f'e' ; C.drf reln?s to ,Cekmlg ra:het at,, 1 rllnf:!lure')I the rlemar.ri to corm Iy ., tI it ., ;.r- . ,tin; :f chapter cr upon any Carsiilt:ltcrl:ll t,r 111`••r lt,gr: r ;;ill or I,nvllege (A such perst n 16) In rnr,', (-I 11 o L1:'t,rn ;)1 lily I')r,cn t') comply :n vY ule )r lr: p,Irt :.tt't :1 ..r tl, 'I t:,::gl,tai ? fit?mold anti vhen ;ul:!) prr al l has nl.i -rntlef subset lion (5). any clrcutt co':rt r)I fr r. stab! u(Dn appllcal:oa )I the All( moy r i•iner it •:r �tnl ' attorney. may issue an or'ler requirin•1 n I-)' It)) Ia;lu— to,.'b?'( the order it) the court shall h" r.:rb ;Yt, h„- as a i:(..n'efnpl 01 col:rl (7) 1IT, i e-,af"!n it !t r. -.)f I ., tr'es'•?s :rv!rr this SeC !tort s•hafl he ,:t' itlnet•:11 it,, A:t G"nrral, cr a ; ;l10 ;tot; ttIII-. ' ill! f • t t ;ur,'.t! ct uf,., t•,ttfr,re an ! I•i;.ttn'n'r,t:r .:alh:lit Ihi staff? Ttte 4eslnnony na:l i. ? .1 •?n ';I• rofj, iprtcally or by a Snw11l-rer.oroL,tr; tluinc At;; ocr')n cOmpefled lu :,ppe-tr unrlru :I told:+lttl (It, "'I'll le -.I n1,11, pwic-lu,lnt lu this ss�clon n,:ty I)e ar,r.r:rilprinied rel,re;enled, and arlw.<,er1 by rounsrl I fun.=_.!I may a rill,,? such person, in conhtlencr. Slit, requ: ,t of such person nr uf-on ilium:' I' u..n tr:;I;•r .,, Iu ariy c. xuisrl limi'•t'l".t r ( it I' . ,.ill It :N./tot: ..ptl ill :,I!-)lo fir it; f.,.!•()f for ,lr a -it t l.'t It I;CIIi' n U,o ::f- :Ill t't,rt 1•; ,)r: ,tr1t?t! : J •J ' „'It tl it 11 I�1 4V!,',r• It ,, I •.',tn'rt. t.t�Y 1 .!.1,. tit .•.1. il+e t)et sill ^Or:,!;t'I:tit, it , •+•:.' ;ha''• 'tllr.rl Illt? and colin',,�t :1 ;!n; a -o:? for .1I le oj•j„_,rlt,nll e to (1�anune To tram^ :f!f.l, !n!I"- 1:-,f ;,. (a Sl•a l !.•n f"ail to or t / If,r ,;Ili:, :S iota! s •;u 'h tl, miina!lort and real im) Is :r1•',rtf t ) I`if .,.,,i,:-.; r. r;1nr;�a In 1,-nn ,)r c,a Slarlt:t? :.tut'^ tilt, :. tn'".: ;In•': to foil,? :=hall b-? enttyoft arid dentilled upon the transcript by the office- 0 12 General, or a slate attorney. with a slate n tiro cl II-e reason ; q;vcn by the witness for makx I( -if r;flatgr ; The transrr,pl sha'! then be signed unl,: ,., thti '/ trill?SS ..a.vos the signing rir:t nf1 1 It, r,,wriol b,? Irl,nd, or refuses to sign II t'•. It, 1r;rnpl tS 'lot sinned by th'? wltress wlth:n :30 CJa',s ✓aun :lit )rd•'?d a reasunat)ie c(,roriunlh/ to exams; . J , 1,ef-3r n conducting the eramtnahon shall sign and state crf ire record the fact cif the waver, dire absence of the ,vttn,a , or refusal to sign. together w.'- f ariy. ,:t4r,n therefor Any person requlr•?,. ' , '• :: t r .... . t r-.... ,,.,ta. ,_ .i,, r•r-n � not ! ,: : (.d pa,munt of reason tole costs. to procure a copy arr, document f)roductid by such person and of his ov,". hisl.n:uny a; Ster,cyra;,nlca!y re(:ortd or, ;n the of a de?pos,l on, as reduced to writing by or under Ire duechun of trie person taking the deposition. (9) Notwithstanding s. 1 19.07(i ), it 1s the duty of tie Attorney General or a state attorney to maintain the secrecy of a'i evidence, testimony, documents, wct, wl,-Juct, or other results of such investigative demand liowever, the Atturne/ General or state attorney ma, disf-lose such Invesl,gative evidence to: (,1) Any court or lr:bunal to this state, or !,) Olhr,r tar: enforcement authonttes of the Federal or c!her state governments that ha-,e restrictions goverriing confidentiality similar to ihcse ronla ne-1 In tl1is subsection the exewpl;on frorn s. 119 07(1 ) specified in this Su^ section is subject to the Open Government Sunset Ro-re.v Act in accordance with s 119.14. 110'1 The Attorney General shall have the authority fc stirul:ale to crotective orders with respect to dccurren!s and information submitted In response to an lnvesl,ca Ilve demand under this section. l 1 1) Tne Attorney General or a state attorney may letluest Thal any natural person who refuses to comFly m!ri any provlslor,s of this section on the ground that Il•e tr sf rncny cr documents may incriminate him be ordered by tt,f' circuit court to provide the testimony or the docu- mums. Except ;n a prosecution for perjury, a natural per sun who cnrnpltes with a court order to provide les:r rnony or documents after asserting a privilege against self-,rlcraninatfon to whr-h tie Is enlitled by la,,v may cot be subject to a cnn»nal proceeding or to the civil penally of s 5,12 21(1). ',vlth respect to the transaction to which tie t , regt.,rCd to testify or produce dccurnents Any nal• ural per•.,un r.,,o f !ifs to corr.ply with such a court order I,-) Of 1xo(11:r,t1 dOcl,ments may be adjudged in :.r;b!rnr;l .ln(l lmf:n'oned ,;ntll W..e i;me re purges h.'rr Al e n tl,•' I .a.;c' 3t0'1 :f tr'•e cuslod.an, dot's ,.,terrc-atCnes, and Irani sCnt�ls if crag iestmwn, s:;ail ba a:a;!abye, unde' s:.ch real )n,:t;ie ii rd)s arc] condtlons as the Attorney Gel- ) -oral 3f ,t slats attorney shill prescribe, lot examlral on b; We (t;•scn n,ho produced suer) materials or answers, or till, (jtrly aulhonred representaltve (1.3) `lolnlnq conlarried In this section sha'I'TTP3;r the autrf:_nhi of the Attorney Genera: cr state attctney lc 1.11Fi C t.� f" ,.", r• ttl aJ — i ra/ i� 1993 -)ak.ng 'ed by : C.-e :3ys of am;ne sign it !Iness, er with ,wired -filled. 2py of s cwn case ,at the of the n tie work nand. r may f those 3 sub- -inset rity to meats •stiga- may Dmpty at the er�_d docU• ,i pr,r. Ies!i- ;ainst not :, hirh y nat- orde�r ed in , hinr d ocu• t ranii Strh- 1E. f tf� F.S. 1993 COMBINATIONS RESTRICTING MI DU OR COMMERCE ^Ch. 542 { inchh:le a c!.'I {.rc,,:erdu;g .u;1i,1r ', ;•1 ,';�. t l L1y hefure -1 r)r;in l p:ry (,il c.-rcerning a vt)Iat;(;n o1 this chaj;ler, (c) Invoke the powar of 1 c.uift hi Col,tpt?I lhr {,r,, ducl,on of ewdenciz belof a of hod 1•,rr of j. r rj a �rlolatlon of iflis Chapter (141(a) No person, knowing or having r!?ason to that a cemanll pursuant to this seclu.n Is per,,.1 Icg, shall 1 Alter, destroy, conceal, or remove any record, document, or thing wslh the purpose of imparnng its vet r+ ily or availability in such proceeding or investigation, of �r 2. ?Sake, present, or use any record, documenl, or a► thing, knowing It to be false ` (b) Any person',iho violates a pro•.-ision of this sub 1. Section is guilty 01 a felony of the third degree, punish- acre as provided ,n s 775 082. s 775 G83, or s 1 75 084 .W (15) When cnple s of doc_)rnenta, material rna e �y. a.al!ab!e pursuant to an demand are nG crger required for use u1 a pending proceeding or Y absent any pe•nd,ng nroceedmg, aril no longer requir,,? it connection v.,th the investigatton for vrhic:h Ihey wr7!a demanded, or at the end of 24 rncnlhs follows no the date v hen the material was made available, whichever is sooner, all copies of the material shall be elurn... to unless a request to extend the period beyond 24 months has been filed In the court in which a request icr an order 3r compelling compliance pursuant to SULsectlorl (f)) could be filed This subsection does not regt,ue the return of any copes of the documentary rnaterial ihat ha•,e r •� ,L gassed tofu the control of any court or grand jury flwy.—S . rn a- .h S 2cr 64136, S -4 542.29 Duty of public officers —in any In,,atlgaUc,n a �, any criminal or civil action commenced pursuanf to Ihls chapter, it shall be the duty of 311 public oillcer5 and their deputies, assistants, clerks, subordinates, ,)( employees to render and lufnish t,) the Attorney General or a state attorney, when so requested, assistance and ., aii information available in their official capacity. eo _a 542.30 Jurisdiction and venue.—`,' Ihcut regard to �r ire amot,nt ;n conlrc•rersy, if sort err proceeding Lroucgl:l under tr„s chaf;tt.r St•-31! bit Lr�)ur�hl ]rt the ,:Irr till c.01;rt �! ^.3f`d for any cowity ;n •.%hicn the ::3Ua1� ni aCti„n a!,)S1 n :." ch arty de!end in! r,.rar1• ; � I; Ic-l:nd. o, h; •; in aCdnf or n 'when any a; I it f;)!tl',?r3^. ,' of the con,fti,:! :. pfm;n,ted by tr,Is ch,mler (.,:currl;d • Y?, 542.31 Action not barred as affecting or involving interstate or foreign commerce.- ri,.) ,I ar)n uud,:i Ili;•. c'art,'r sha'i cf) I!ie c,n i:n(fs ni,11 Ih1' dch"ll i of eordui,t ,-ornpLun,.,) of v1 tnr v..1y .1{!•'.el; of ur:I,ivt); n!erst'ite cr fort!Ign cemm.t.,r,:e it c; the orient of the; L,)i t ISIatUr? !0 f'xe(Cf:,g ,IS iw:,d15 to lh,? fllllCS1 consistent with the Constitutions of thr; sL31e and Ih,: United States 542.32 Rule of construction and coverage,it I, the ntt:nt of the Letj(siotuie that, in construing tile; chilli I. i,,, tin itI,I ;r.,;it .%,eulht be given to the ,ri!•:f(;' :I:O, ,r'r; ,1 1, ,, ,, !,;r;ii ,ct;r L; r:,!alinf3 locompara- h6• 3ntliri, i .Lzl,;h: ; In (,xfwular, the failure to In, !utl, rrt it!!,; h„tltl r Ifn? '.ut',51.u11r.e provisions nt 5 3 I i'. 1, 1 I ) . `. 14 St,V n^t hi 1 In1 1 .1 ..;,. I .tut ;t 21',? ,'U[1' of ., 5.112.IS or s 5.1:! VJ 542.33 Contracts in restraint of trade valid. — to the contrary, each contracl by which any person is restrained (torn exorr:,mq a lawful prolession, trade, or busine,s (A in: k rlrl a,; prnvidi-,+f t;j subst,ctlons (2) and (3) heircf. is to that e`rtr`nt valid, anti all other con• ira,:ts rn wslralnt cif trade are void 12)(a; Or-- v.ho sills the goodwill of a business, or an,, sh,.ngtir)h lei of I corporation sall;ng or otherwise dls- pc_l,, rlrl If ,,il •.f !"s'.t} ire ; ,n s,u:1 ,.( rp1 ration, :nay agree lh•: Loy, r Intl %ro .s empleyed as an agent, rdonetident r,r;tr,,rh r, ,:r employee may ag«;e %,With his _'nc.ln,, �r, to r,]!r1 n trc)n, carr,,ing on rr engaging in a s'rt•.,I;lr t,uyn',,;ss anti from S,-)I!ctt!n9 rid customers of such cIn{:Ic,yar within a reasonably limited time and area. si, long as the buyer or any parson deriving title to ih.c goitivrdl Item t,utl, ancJ so !orig a!,, such employer, cot !�ntws to carry on a hko husiness th,:rein. Said agree. - meats 11$;Iy, ut 0 e If !.l:r•:tst,II of a cr,uft 0 coinpetwil jurisdiction, he enh)r ed hry In, ;nctinn FlciiAever, the court shall not enlei an inli;nclion contrary to the public heath, s,al(Ity, of velfare,)r :n any case 'where the Injunc- i;rn enf.)rces an inrOaSorlahle covenant not to compete �,r when: Ihcr,; Is no shovofig of Irrr;•parable injury. How. _ter. ir. ,;I ,pt cif Ira(!e st3crois, customer lists, or 1rrC,:f s•)lu:;tlui:n of axisl,nrg cu ,!on),vs -hail be pre- sun,a(J t() tit; an nil p;,rattle; Injury and may he specth cr,IIy on1 )tn•:ii in Ihr:- ,; rent the seCer of the goodmil of a bLStI1CiS. �if a '.rarer.,;ltfor selling or (Aherwise d)spoS- ing of ail hi:; shares n .1 corporation breaches an agree- mer,j to ralijili ff„m c;,rry;nr; on or eng iging in a similar DUS111t3Ss, Ifrejrar u1{ury Sh1fl Ir; I)rOSuried (t,l 1 he:+.:l;nit:e. �r any bier.;urt t:an,m�{ !Iil,� from the ace0S00, (Aih19 U>I� Of 1 tr.irlan);ire nr :.ir.n,a wank, :incl ,fie, !,U t`C.'S I„ff"IM !`,r 'Join detlliit"d h, lk.lt trado •Harr. or se; "t c. na.r.. m.ty .i<)fe1 :,i!I Ili,: twonSol to ,(,duim Ir, m :;w, -if GuSuiess Vic; :;ut_n iii 'nr;or tYlfllill 1 r•'? I +n .it,.r i,.;tll ;.1 Lr ,r I..,1 Art? -A. Sri 1''fig ,is the, Ilcd^ ,or. ,r If Iy I 1}f ,01. d, fr. rn_; t.!:1; If,)rrt the 4 011SCf. cuntin :Ie3 IJ ,,'Jffy un d Iktr th,•;1(10'9', 1110 .11 „lId '1glooment:; 1,1•f in Wo .11,l:r tI,'Ii 11 .1i:rl of COi y,elr;nl jurisdic huu, 11,! 1,Ill. (1't•ll by ltvtw, h, n I? f'.uti,, r ,riot; :It., .I r ri.utl�,'iti.Ikt•n,,I,I1h;;5,•lu r;n ;I It; { 11IIU r .tu,•,.;yr,•, Ih,it Xl of S,)it it! 01 thenl'Nd! •cil tiny ,.It ,t c,Iual;), t•,::•unr.;•a :v;lhu) ,t fe.i'-ionabty !1111 I�il 111111; Jn,f ,111:.1. (•t) 111c; so(,.h,in fh 11; Plot ;Ipt,l,y 1 ) any 111101tton hI,'n n 1,1y t "! {',inllu 1,{. " to .my cause of action %,Which !nay have arr-rua,i, fvu)t to %1,1y 27. 1953 N,SWry. +s , 4 d •n :•Y,lli ,•Y.i I .h ").17 .n till _^.toil I .'h NOW EM W,,.1M~ _ ,- K _ - - Ch. 542 COMBINATIONS RESTRICTING ..40E OR COMMERCE F.S. 1993 542.34 Discriminatory trade practices. - manufactured or did not originate, for the use of a fir (t) II is an unla:slut ►lust ants an +;nfac.lul restraint of eiyn country or its nationals or residents, in order toccri_ trade for any pttrsun wl:r) is Chanfere-1 bv. or authonzetd ply with. further• or support a foreign boycott orembar;c to do busino;s ill.'fic. ;tale Its t7npo,ed by a nation other than the United States. (a) C;r-int %it 3c, i•; I ;wv'oltw •;f , 1i!• tr iAlwr dnt; (?) The; ;ection shall not apply to foreign beycct r,rnrtit w iwh .•.hI,,tw.^; Its, it it ,12r ,I haid,; or credit. or embar,nr!s .ml_osrrd by the United States agar:: ur enl••r olo w ; _ntr.u;t It r wo rxc' arn;t• or purchase tiller mWor c; and sha!I not restrict or discourage a,-r of CUInR:Ut1 ;✓'.: :1! "n ;I lotivi Vf , wd l• tmniracl, or prersofl or entity chartered by, or authorized to do bt.', other •lu,:umtwril �.,; iiLun -w,, i co :glut.:h n'i.;tiiril ; rio ;s in. this stale from supporting, enforcing, furthec.-T surh tier ;on h7 •lr•• nrun.il" a,;-wi st ;t I.t cerlily Ihat it or rorm,lyiny w th a boyrolt or embargo against a'a has nut A :nil tv.t Itt.ii n'.!t• a' . t;thii person (in nu;n nali(;n irnposi2d by the government of the Uniled IN., b•tsr; of et•r, race, cttlor. reliwert ancestry. or Slale7' nalionat origin rr nu 11- ha, is of a p r cn s lawful bust (3) The prohibition against discrimination en ;'e 0125; n ;r!^r to , On•;". :.+11• h;r'.her Gr ha -,is, rf a C^r ;r;n `,i,^.,ress associations s' a! st:ppurt a lore .;n uu;c(tt it eutoa ;u b,i a mc!ude the requiring of association with part;c;. ar nation other 1!• ri !' t? Uri.le,1 Sl,!os eruploymen; or a particular group as a prerequis:le 'o (b) A,tfuse to ytarnl or at cot't an. t�lt�?r A rr.2(Jil. or )Wa;r-.ing group rates or discounts on insurance, rec:e- olner titx;urnent wl ich ?vidoncrs lh' transfer of funds ational activities, or other similar benefits. or credit. or rel, iso to ether inlu a,,,, G`nt:act for the Hntory.- -. . .. .1 9 . 222. d+ 79 400. s 2• ch 80-28. s 5. ch 9:•2'? exchanrjo of co: nrnt: lite^ • un the grc -^d' that it does not Note. -r• ••.5A7 .� contain such a di scr+rninatury pruvisiun or certification as is desuril,,ed in Sara ;nigh (a) in cider 't; coruply with. fur 542.35 Remedies cumulative. —The remedies pry ther, or support a bei•;co�t or ,mbar,;o imposed vided by this act are cumulative of each other and cf by a nation other than Ihi. i'niie•d Sl ties existing powers and remedies inherent in the courts (C) Request or Ii;rnish utlt;nnalion v,il't n2gard to. or History. — . 1. ch PC 28 reflective of. a person's rage, teltgi n, sei. ethnic or 542.36 Continuing violations. —Violations corn• national origin. or pr9sonce or ah;enc ^ on a blacklist, for menced prior to the effective date of this act and cont rr the us^ c1 a Ice.? gn ,cunlry •;r L; nat a .a ;:r residents, uing after the elfeclive date shall be actionable as pro - in order to comply v% th, further, or suc cor. a foreign boy vided in this chapter. The fact that any conduct occored cell cr embargo unposod by a natir.n other than the prior to the effective date of this act shall not affect ;s United Slates. relevance in proving that a violation of this chapter has (d) Request or furnish information v,ilh regard to, or occurred or is occurring. reflective of, the place .vhere commodities were not History.-s i. ch 8C-28 I ANNUAL REPORT OF THE ATTORNEY GENERAL General Opinion 075.94. If there is any doubt regarding the existence of a power wf, is being exercised, the further exercise of that power should be arrested. Edgerton. International Co., 89 So.2d 488 (Fla. 1956). Accordingly, I am of the view that a st. employee has a statutory right of access to public documents or records for persc inspection and examination which may not be preconditioned upon the approva; authorization of his or her superiors. Attorney General Opinion 07r50. 075.176--June 17, 1975 MUNICIPAL HOME RULE POWERS ACT ADOPTION OF ORDINANCE AMENDING CHARTER PROVISION GOVERNING PURCHASE OF SUPPLIES AND CONSTRUCTION OF PUBLIC WORKS To: Russell C. Smith, City .btanager. Daytona Beach Prepared by: Gerald L. Bright. Assistant Attorney General QUESTION: May the legislative and governing body of a municipality adopt an ordinance pursuant to s. 166.021. F. S., of the 'Municipal Home Rule Powers Act establishing a procedure for the letting of municipal contracts for the purchase of materials and supplies and for the construction of public works and public improvements which procedure is different from that contained in the municTal charter as that charter existed prior to the effective date of s. 166.021, SU NLNLARY: To the extent that the exercise of such power has not been expressly prohibited by law, the legislative and governing body of a municipality has the power under s. 166.021, F. S., to adopt an ordinance which amends the procedure contained in the municipal charter —as that charter existed on the effective date of s. 166.021—relating to the letting of municipal contracts for the purchase of materials and supplies and for the construction of public works and public improvements. Section 166.021(1), F. S., of the Municipal Home Rule Powers Act provides municipalities "may exercise any power for municipal purposes. except %?hen exores prohibited by law." See also s.'166.021(3), id.. providing that a municipality has authority to adopt legislation concerning any subject matter uoo❑ which the S:. Legislature may act, except, inter alia, "`ainy subject expressly preempted to state county government by the constitution or by general law." In order to implement broad grant of home rule power to municipalities, ss. 166.021(4) and (5), id., nullified repeaied. or converted into ordinances. many provisions of municipal charters wi'. constituted limitations on, or pertained exclusively to, the power or jurisdiction: :runicioalities. However, s. 166.021A4 states that nothing in Ch. 166. id.. is to corrsMaed as permitting any changes in a special law or municipal charter which a:: certain subject matters enumerated therein without approval by referendum: of eiectors as provided in s. 166.031. d. None of the subject matters enumerated in s. 166.021(4), F. S.. appear to relate w type of charter provisions to which you refer. Thus. I am of the opinion that provisions were nullified or repeated or converted into ordinances as of the effective .i ..)f :he Municipal Home Rule Powers .act: and, since it is not clear to me that s orovtsions were nullitied and repealed. I beiieve it is the safer course to assume that :. have become ordinances. As such. they are subject to modification or repeal as or. ordinances. See s. 166.021(5), id. In conclusion, therefore, to the extent that the exercise of such power has not expressly prohibited by law (see, e.g., s. 255.26, F. S.), the legislative and governing c t 306 ; r • Q s, .... hY (� ANUAL REPORT OF THE AT' 0KNE1" GENERAL 07.:_177 i a� of a municipaht. ^,as the power under s 166 021. F. S.. to adopt an ordinance which amends the procedure contained in the municipal charter —as that charter existed on the effective date of s 166.021—relating :o the ie:ang of municipal contracts for the purchase of materials anc supplies and for the construction of public works ant trublic improvements I: :ne municipal lepsia:n'e and governing body wishes to price such amended procedure in the municipal charter. it must amend the charter pursuant to S. 166.031, id. — 075-177—June 17. 1975 TAXATION UNRECORDED PURCHASE AGREEMENTS MAY BE CONSIDERED IN APPRAISING PROPERTY To. -John 9' Sea.. Fiagler Count; Prooe•n Appraiser. Bunnell t Prepared by: J. h•e^drick Tucker, A;s:s:cn: .,Horne;• General QUESTION: Is it lawful for a county property appraiser, when appraising subdi%ided lands for tax assessment purposes, to consider the cash equivalent or discounted value of unrecorded purchase agreements when such contracts do not pro%ide for possession of the property by the purchaser until all deferred payments are made and a warranty deed is recorded? SUMMARY: In appraising property for ad valorem taxation purposes, the property appraiser may consider unrecorded contracts for the purchase of such property. However, if the appraiser is to use such contracts as a basis for valuing the property, then he must make adjustments from the price of the property stated therein to reflect, inter alia, the costs of financing such sales and the costs attributable to the fact that a conveyance of the subject property may not be ultimately consummated under such circumstances. Your question s answered in the afarrna:ive Article VII, s 4. State Const., prot;des in pertinent part as follows: "By genera: law regulations steal: be prescribed which shall secure a just valuation of all proper:-.- for ad valorem taxation. . ... (Emphasis supoued.i In Walter v. S:.^uler, 176 Sold 81 iFia. 1965% the court determined that "fair market value" and "just valuation" are legali% synonymous and may be established b; :n_• classic formula that. is is the amount a purchaser willing but not obligated to buy would pay to one willing but no: obliged to sell. In an attempt to secure Just valuation or 100 percent valuation of real property for ad valorem taxation the Legislature enacted s 193.011, �• S.. which provides in pertinent parr In arriving at just valuation as required under s 4, Art. VII of the s-,.ate constitution, the tax assessor shall take inw consideration the following factors: (1) The present cash value of the property; (8) The net proceeds of the sale of the property, as received by the seller, after deduction o%all o%the usual and reasonable fees and costs o%the sale. including •ithe costs and expenses aj(tnancing. (Emphasis supplied.) I• 307 Page 3 7TH CASE of Level 1 printed in FULL format. OFFICE OF THE ATTORNEY GENERAL OF TH STATE OF FLORIDA 079-80 1979 Fla. AG LEXIS 35; 1979 Op. Atty Gen. Fla. 204 September 5, 1979 CORE TERMS: charter, municipal, electors, amend, referendum, municipality, election, clerk, revised, unilaterally, manager, supervision SYLLABUS: [*1] MUNICIPALITIES CHARTER AMENDMENT MUST BE SUBMITTED TO ELECTORS FOR APPROVAL AT GENERAL OR SPECIAL ELECTION SUMMARY: The Lake Wales City Commission may not unilaterally amend the municipal 1 charter but may only propose an amendment which must be submitted to the municipal electors for their approval at a referendum held for that purpose. REQUESTBY: To: Jeanette Blackmon, Mayor, Lake Wales QUESTION: QUESTION: May the City Commission of Lake Wales amend the city charter without submitting the amendment to the electors of the city for their approval? OPINIONBY: JIM SMITH, ATTORNEY GENERAL; Prepared by: Percy W. Mallison, Jr., Assistant Attorney General OPINION: Your question is answered in the negative. I am advised that the present Lake Wales City Charter was adopted by the city commission on April 6, 1976, and approved by the municipal electors in a referendum held on May 4, 1976. Section 5,03 of the city charter provides: The commission shall appoint an officer of the city who shall have the title of city clerk, and who shall serve during the pleasure of the commission. The city clerk shall serve under the supervision of the city manager and shall give notice of commission meetings to its members and to the public, [+21 keep the minutes of its proceedings, and perform such other duties as are assigned to L Page 4 1979 Fla. AG LE.XIS 35, *2; 1979 Op. Atty Gen. Fla. 204 I I } him by this charter or by the commission, or by the city manager. In your letter you ask whether the city commission, without seeking approval of the electors, may amend that section of the existing city charter set out above by placing the city clerk solely under the supervision of the city i commission. Subsection (1) of s. 166.031, F.S., provides the method for amending municipal charters. According to that subsection., the governing body of the municipality, by ordinance, or the electors of the municipality, by petition signed by 10 percent of the registered electors, may propose an amendment to any j section or, all of the municipal charter with the exception of that part setting out the municipal boundaries. The municipal governing body is directed to place the proposed amendment on the ballot at the next general election or at a special election called for that purpose. Section 166.031(2) provides that, if the proposed amendment receives the favorable vote of a majority of the 1 municipal electors voting in the referendum, the governing body shallincorporate the amendment into the charter and file (*3) a copy of the revised charter with the Department of State, at which time the revised charter shall become effectiJe. section 166.031(3) provides that a municipality may amend its charter as described above, even if the charter itself provides otherwise. I therefore conclude that the Lake Wales City Commission may not unilaterally 1 amend the municipal charter but may only propose an amendment which must be submitted to the municipal electors for their approval at a referendum held for that purpose. Page 46 1ST CASE of Level 1 printed in FULL format, OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA Number: AGO 97-57 1997 Fla. AG LEXIS 33 September 2, 1997 CORE TERMS: ordinance, franchise, enact, charter, waste, amend, unincorporated, solid, repealing, repeal, countywide, regulating, coordinated, five-year, franchisees, covering, expire, effective HEADNOTES: [*1) RE: COUNTIES --CHARTER COUNTIES--ORDINANCES--SPECIAL ACTS --SPECIAL DISTRICTS --authority of county to adopt ordinance that would conflict with special act. Ch. 75-473, Laws of Florida (1975). s. 1(c), Art. VIII, Fla. Const.; s. 1(g), Art. VIII, Fla. Const. SYLLABUS: County's authority to amend special act by ordinance REQUESTBY: Mr. Robert P. Diffenderfer 2000 Palm Beach Lakes Boulevard, Suite 900 West Palm Beach, Florida 33409 Mr. Lee A. Rosenthal 7501 North Jog Road West Palm Beach, Florida 33412 QUESTION: On behalf of the Palm Beach County Solid Waste Authority you have asked for my opinion on substantially the following question: Can Palm Beach County, a charter county, enact an ordinance that would conflict with provisions of a special act of the Legislature creating the Solid Waste Authority of Palm Beach County? OPINIONBY: Robert A. Butterworth, Attorney General OPINION: In sum: Palm Beach County is not authorized to enact an ordinance that would have the S9- 140V w� 1997 Fla. AG LEYIS 33, *1 Page 47 effect of amending or repealing a special act of the Legislature creating and regulating the affairs of the Palm Beach County Solid Waste Authority. Palm Beach County has joined in your request for this opinion. According to your letter, the Palm Beach County [*2] Solid Waste Authority (the authority) and Palm Beach County (the county) entered an interlocal agreement on September 20, 1988. The agreement assigns responsibility for administering county solid waste programs to the authority. Following promulgation of the agr.eement, the authority took over responsibility for solid waste collection services in unincorporated areas of the county, including the granting of hauling franchises to private franchisees. The current franchise agreements were granted on October 1, 1993, in accordance with provisions of Chapter 75-473, Laws of Florida, as amended, and the rules and reg-ulations of the authority. The franchise agreements provided for a five-year term and are due to expire on September 30, 1998. The current franchises were awarded through a competitive bid process and the current franchise holders want to have their franchise terms extended. It is their position that Palm Beach County may, by ordinance, provide for such an extension. The Solid Waste Authority Board, however, has previously determined that the five-year period of franchise limitation contained in its act applies cumulatively to the franchise term plus extensions, and (*3) therefore no extension is permissible. The authority is exploring options available when the current franchise contracts expire. The Palm Beach County Solid Waste Authority was created by a special act of the Legislature, Chapter 75-473, Laws of Florida, to provide a coordinated resource recovery and waste management program for Palm Beach County. nl The authority was originally created as an independent special district but was converted in 1991 to a dependent special district whose governing board consists of the seven members of the Palm Beach County Commission. n2 The solid waste authority district includes the incorporated and unincorporated areas of Palm Beach County. n3 - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n1 The act has been amended by the Legislature a number of times. See, Ch. 77-626, Laws of Florida (1977); Chs. 79-536, 79-539 and 79-542, Laws of Florida (1979); Chs. 84-501 and 84-502, Laws of Florida (1984); Ch. 86-433, Laws of Florida (1986); Ch. 88-544, Laws of Florida (1988); Ch. 91-334, Laws of Florida (1991); Ch. 93-345, Laws of Florida (1993); and Ch. 94-462, Laws of Florida i (1994). n2 Section 3, Ch. 91-334, Laws of Florida (1991). (*4] n3 See, e.g., s. 5, Ch. 75-473, Laws of Florida (1975) ("this act shall apply to both the incorporated and unincorporated areas of Palm Beach County); and s. 2, Ch. 77-626, Laws of Florida (1977), which states that it is the intent of the Legislature to "provide a coordinated resource recovery and waste management program for Palm Beach County . . . to form a countywide authority for the L 1997 Fla. AG LEX)S 33, w4 Page 4$ management of solid waste . . . -End Footnotes - The act provides that the authority has the general power to "conduct studies and contract, for such periods as may be agreed upon by the parties, with governmental agencies, public or private corporations, municipalities or any other person in carrying out the purposes of this act and the requirements of chapter 403, Florida Statutes, and other applicable law." n4 However, the legislation contains more specific limitations regarding franchises: "Section 10. Limitations on franchises. --The authority board shall adopt by resolution a procedure for granting exclusive franchises subject to the following limitations: (1) No franchise, contract or permit shall be granted [+5) or extended for a period of time exceeding 5 years. } t f (3) No exclusive franchise shall be granted except pursuant to a procedure adopted by the authority board which shall include the following minimum requirements: (b) The procedure shall encourage competition among potential franchisees.,, - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - n4 Section 3, Ch. 88-544, Laws of Florida (1988), amending subsection (9),Ch. 75-473, Laws of Florida (1975). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - It is a generally recognized rule of statutory construction that a statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. Such statute relating to the particular part of a general subject will operate as an exception to or qualification of the general terms of a more comprehensive statute to the extent only of the repugnancy. n5 Thus, employing the rule, the more specific provisions would apply to franchise agreements rather than those requirements describing the more general power to contract. - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n5 See, e.g., State v. McMillan., 45 So. 882 (Fla. 1908); American Bakeries Company v. Haines City, 180 So. 524 (Fla. 1938); Adams v. Culver, 111 So. 2d 665 (Fla. 1959). And, for the proposition that whether construing rules or statutes, the specific controls over the general, see, Pioneer oil Company, Inc. v. State, Department of Revenue, 381 So. 2d 263 (Fla. 1st DCA 1980), approved 401 So. 2d (' 1319 (Fla. 1981); Louisville and Nashville Railroad Company v. Speed -Parker, 137 So. 724 (Fla. 1931). a -- 720 0 1997 Fla. AG LEXIS 33. '5 Paige 49 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - (}61 This office has, on numerous occasions, considered the authority of charter counties to enact ordinances dealing with issues addressed in special acts. In Attorney General's Opinion 93-05, the Broward County Legislative Delegation asked whether the county could enact an anti -discrimination ordinance that would include provisions already existing in a special act and would encompass discrimination on the basis of sexual orientation. The opinion reiterates previous statements of this office that charter countieo have no authority to amend or alter the provisions of special acts passed by the state Legislature, but concluded that a charter county, such as Broward, has expansive powers and could adopt an ordinance including virtually all of the substantive provisions of the special act. n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - nG See, e.g., Ops. Att'y Gen. Fla. 90-27 (1990), 81-55 (1981), 81-7 (1981), and 74-121 (1974). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Attorney General's Opinion 90-27 was addressed to Alachua County, a charter county, and dealt with the power of the county to enact 1+'7) county' ordinances that may be inconsistent with special laws. In providing direction to the county, the opinion noted that if a county: "adopts a charter form of county government under s. 1(c), Art. VIII, State Const., its governing body will possess no constitutional authority to amend or repeal or supersede or alter by county ordinance any existing and effective special law relating to the county and the incorporated areas therein, except for those local and special laws relating only to the unincorporated area of the county in force and effect on the effective date of Art. VIII which, pursuant to s. 6(d), Art. VIII, may be amended or repealed by county ordinance." n7 - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n7 See, Op. Att'y Gen. Fla. 81-7 (1981). Cf., Op. Att'y Gen. Fla. 81-55 (1981) (a charter county government, established pursuant to s. 1(c), Art. VIII, Fla. Const., and implemental general law had no constitutional or statutory power to enact a county ordinance to amend or repeal any special act creating and establishing an independent special district that is separate from such charter county government, with countywide jurisdiction and whose enabling legislation is of countywide force and effect); Ops. Att'y Gen. Fla. 79-109 (1979) and 71-109 (1971). - - - - - - •• - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - (.8) As that opinion makes clear, the legislative power delegated by section 1(g), Article VIII, Florida Constitution, and the implementing legislation for this constitutional provision, Parts II and IV, Chapter 125, Florida Statutes, which authorizes counties to enact ordinances to conduct county government not inconsistent with general law, does not carry with it the authority to enact I— i Page So 1997 Fla. AG LFXIS 33, '8 { ordinances amending or repealing laws enacted by the Legislature or any part or parts of that legislation. n8 t - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - I , n8 See also, Op. Attly Gen. Fla. 81-7 (1981) (the power to amend or repeal the i statutory law is a legislative power belonging to the state which is, by the terms of s. 1, Art. III, Fla. Const., vested in the State Legislature). - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Thus, in light of this office's consistent position that charter counties possess no statutory or constitutional authority to enact ordinances amending or repealing laws enacted by the Legislature, it is my opinion that Palm Beach County is not authorized to enact an ordinance that would have the 1*91 effect of amending or repealing a special act creating and regulating the affairs of the Palm Beach County Solid waste Authority. 9 �' 0 ) 4d V 1 Page I t 2ND CASE of Level I printed in FULL format. OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA j 080-49 1980 Fla. AG LEXIS 56; 1980 Op. Atty Gen. Fla. 127 May 15, 1980 CORE TERMS: ordinance, charter, municipal, collection, competitive, disposal, municipality, garbage, bids, repealed, advertisement, converted, negotiation, enumerated, nullified, bidder, residential, contracting, relate, letting, advertising, prescribed, lowest, effective, contractor, avail, inhabitants, dollars f SYLLABUS: MUNICIPALITY MAY ESTABLISH PROCEDURE FOR DIRECT NEGOTIATION FOR GARBAGE COLLECTION AND DISPOSAL SERVICES WITHOUT COMPETITIVE BIDS SUMMARY: 4 s The City of Niceville may, by virtue of broad home rule powers implemented by ss. 166.021(4) and (5), 166.031, 166.042(1), and 167,06 and ch. 180, F.S., I establish a procedure for direct negotiation and contracting for residentail garbage collection and disposal services without competitive bids; this may be accomplished by ordinance or by amendment to the charter, ( REQUESTBY: To: Gillis E, Powell, Sr., City Attorney, City of Niceville i QUESTION: QUESTION: Can the City of Niceville negotiate and contract directly with an independent contractor to provide residential garbage collection and disposal serivices to i the city's inhabitants without advertisement and competitive bids? OPINIONBY: JIM SMITH, ATTORNNEY GENERAL; Prepared by: Anne Curtis, Assistant Attorney General f OPINION: Section 6 of the City Charter of Niceville provides: IJ Contract for public work. -- Any public work or improvement may be executed either by contract, or by direct labor, as may be determined by the council . Contracts for all such work or improvement of an estimated cost of one v � 1�4jV t_ 1980 Fla. AG LEXIS 56. * 1; 1980 Opp. Atty Gen. Fla. 127 Page 12 thousand (*2) ($ 1,000) dollars or more shall be awarded to the lowest responsible bidder, after public advertisement and competition as may be prescribed by ordinance . . . . All other contracts in excess of three hundred ($ 300.00) dollars . . . shall be awarded to the lowest responsible bidder after public advertising and competition as may be prescribed by ordinance with the city manager having the power to reject all bids and readvertising. The advertising as to these contracts shall also contain a reservaton of the rights set out in this section. (Emphasis supplied.) This charter provision was enacted (as an amendment to the then existing city charter) by ch. 59-1613, Laws of Florida, 14 years prior to passage of the Municipal Home Rule Powers Act cf 1973. The latter act, codified as ch. 166, F.S., was specifically enacted in recognition and implementation of the constitutional powers of home rule granted to municipal governments in Florida by s. 2(b), Art. VIII, State Const. See s. 166.021(1) and (3). See also s. 1.66.042(1); City of Miami Beach v. Forte Towers, Inc., 305 So.2d 764, 766 (Fla. 1975); and State v. City of Miami, 379 So.2d 651, 653-654 (Fla. 1980); [*3) cf. AGO 079-79. Under these laws and authorities, the city may exercise any power for municipal services except when expressly prohibited by law. The only other limitation on its powers is that they must be exercised for a valid municipal purpose. State v. City of Sunrise, 354 So.2d 1206, 1209 (Fla. 1978). This office has previously opined that such charter acts were either repealed or converted to ordinances on October 1, 1973, the effective date of ch. 166, F.S., except for certain subject matters enumerated in s. 166.021(4) which are neither repealed nor converted to ordinances. The subject matter and charter provisions involved in your question do not appear to be affected by or relate to the subject matters expressly and specifically enumerated in s. 166.021(4). In responding to a question of whether the governing body of a municipality might adopt an ordinance pursuant to s. 166.021, F.S., establishing a procedure for the letting of municipal contracts for the purchase of materials and supplies and for the construction of public works and public improvements that differed from that contained in the municipal charter, my predecessor in office stated that: In order to (*4) implement this broad grant of home -rule power to municipalities, ss. 166.021(4) and (5), id., nullified and repealed, or converted into ordinances, many provisions of municipal charters which constituted limitations on, or pertained exclusively to, the power or jurisdiction of municipalities . . . . None of the subject matters enumerated in s. 166.021(4), F.S., appear to relate to the type of charter provisions to which you refer. Thus, I am of the f opinion that such provisions were nullified or repealed or converted into 1 ordinances as of the effective date of the Municipal Home Rule Powers Act; and, since it is not clear to me that such provisions were nullified and repealed, I believe it is the safer course to assume that they have become ordinances. As such they are subject to modification or repeal as other ordinances. See s. 166.021(5), id. (Attorney General Opinion 075-176.) j Cf. State v. City of Miami, supra, at pp. 653-654. The rationale of the last -cited Attorney General Opinion and that of the J �- 20 L Page 13 1980 Fla. AG LEXIS 56, *a; 1980 Op. Avy Gen. Fla. 127 Supreme Court applies to and controls your question with equal force and effect. The same result is reached whether the provisions of the last sentence of S. 166.021(4), [•5) F.S., or the terms of subsection (5) of that section govern or are applied to the instant inquiry. attorney General Opinion 075•-176 concluded that the affected municipality had the power under s. 166.021 to adopt an ordinance amending the procedure contained in its charter (antedating ch. 166, F.S.), relating to the letting of contracts for the purchase of materials and supplies and for the construction of public works and public improvements. Furthermore, my research discloses no statutory provision which would prohibit the City of Niceville from directly negotiating and contracting with a private, independent contractor, without public advertisement and competitive bidding, to provide residential garbage collection, removal, and disposal services for the city's inhabitants. Such matters, and provisions for the regulation of collection rates and charges; delinquencies and recovery thereof: termination of garbage collection service on default of payment of duly imposed service charges or fees; and the fixing of such charges or fees by the governing body of the city, should be provided for by duly enacted ordinance. See ss. 166.041(1)(a) and i66.201, F.S. If the city prefers [*6) to amend its charter to provide for the direct negotiation of municipal service contracts of any type or character without advertisement and competitive bids, it must submit any such proposed amendment, contained in a duly enacted ordinance, to a vote of the electors in accordance j with s. 166.031. See AGO's 075-176 and 079-80. Alternatively, the city may avail itself of the supplemental powers granted by ch. 180, F.S., relating to the collection and disposal of garbage and contracts or franchises therefor with private companies or corporations. See ss. 180.14, 180.17, and 180.20. Or, pursuant to s. 166.042(1), F.S., it may avail itself of the powers set forth in s. 167.06, F.S. 1971, subject to such terms and conditions as the governing body in its discretion may determine and choose to prescribe by appropriate ordinance. S9- 1,110 Page 52 10TH CASE of Level 1 printed in FULL format. OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF FLORIDA 90-17 1990 Fla. AG LEXIS 4; 1990 Op. Atty Gen. Fla. 43 March 1, 1990 CORE TERMS: Sunshine Law, delegated, budget, garbage, contractor, delegation, manager, formally, sunshine, informally, negotiations, applicants, negotiate, prepare, interview, gathering, preparation, faculty, accomplished, lease, designated, delegate, screening, promulgation, cultural, referendum, performing, foreseeable, recommendation, facto REQUESTBY: 1*11 Mr. Jon M. Henning City Attorney City of Sunrise 10??0 West Oakland Park Boulevard Sunrise, Florida 33351 QUESTION: You have asked for my opinion on substantially the following questions: will a violation of the Government in the Sunshine Law, s. 286.011, F.S., occur: 1. If a city council member meets and negotiates in private with a garbage contractor where the city council has formally selected the council member to so act and where the council member has not been delegated final decision -making authority to reach an agreement but has specifically been instructed to bring back the results of his or her negotiations for discussion by the full council at a public meeting? 2. If the city council member meets and negotiates in private with a garbage contractor as in Question One but the council member acts informally for the city council where it is the consensus of the council members that he or she do so but no formal appointment or delegation has taken place? 3. If the city council member meets and negotiates in private with a garbage contractor as in Question One but acts on his or her own without being either formally or informally delegated to do so by the city council? OPINIONBY: Robert t*21 A. Butterworth, Attorney General OPINION: In sum: 1 and 2. It is not a violation of the Government in the Sunshine Law for a t Page 53 1990 Fla. AG LEXIS 4, *2; 1990 Op. Atty Gen. Fla. 43 city council member, either formally or with the informal approval of the council, to meet with a private garbage contractor if the purpose of such meeting is essentially information gathering and the council member has not been delegated a portion of the decision -making authority of the council itself. However, if the council member is authorized, either formally or informally, to exercise any decision -making authority on behalf of the council, i.e., to reject or approve certain contract provisions or terms, the council member would be acting on behalf of the council and any such meetings are subject to s. 286.011, F.S. 3. A city council member who acts on his or her own behalf in undertaking negotiations with a private garbage contractor does not possess any authority to bind the city council itself and does not act on behalf of the council. Therefore, such meetings or negotiations are not subject to the Government in the Sunshine Law. Your questions are interrelated and will be answered together. You have not advised me of the nature of the "negotiations" (*31 under consideration here, i.e., whether the purpose of such "negotiations" is merely discussion, and exploration of contract proposals and terms which will be related to the city council itself or whether acceptance or rejection of contractual terms on behalf of the council is being undertaken. In the absence of such information my comments will be of a general nature. The Florida Government in the Sunshine Law, s. 286.011, F.S., provides: All meetings of any board or commission . . of any agency or authority of any county, municipal corporation, or political subdivision . . . at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. Florida courts have repeatedly stated that it is the entire decision -making process to which the Sunshine Law applies and not merely to a formal assemblage of a public body at which voting to ratify an official decision is carried out. Thus, the statute extends to discussions and deliberations as well as to formal action taken by a public body. nl Therefore, the law is generally applicable (*41 to any gathering where two or more members of a public board or commission discuss some matter on which foreseeable action will be taken by the board or commission. - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n1 See, Board of Public Instruction of Broward Cour.cy v. Doran, 224 So.2d 693, 699 (Fla. 1969), in which the Court recognized the right of the public to be present and heard during all phases of enactments by public boards; Krause v. Reno, 366 So.2d 1244 (3 D.C.A. Fla., 1979). and see, Ti^es Publishing Company v. Williams, 222 So.2d 470, 473 (2 D.C.A. Fla., 1969), stating: (Ilt is the entire decision -making process that the legislature intended to } affect by the enactment of the statute before us. . . . Every step in the decision -making process, including the decision itself, is a necessary preliminary to formal action. It follows that each such step constitutes an el 1 fir IL Page 34 1990 Fla. AG LEXIS 4, *4; 1990 Op. Atty Geh. Fla. 43 "official act," an indispensable requisite to "formal action," within the meaning of the act. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - However, under certain circumstances, this office has expressed the view that the [*51 physical presence of two members of a board or commission is not always required in order for a violation of the Sunshine Law to occur. n2 - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n2 See, e.g., AGO 74-84 (an individual member of the Board of Dentistry or a member and the board's executive director who conduct a quasi-judicial hearing or an investigatory proceeding on behalf cf the entire board are required to hold it in the surishine); AGO 74-294 (a single member of a board or commission who has been delegated the authority to act on behalf of the board or commission in matters such as the lease of land is subject to the Sunshine Law and, therefore, cannot negotiate for such a lease in secret); AGO 87-34 (an individual city council member may meet privately with an individual member of the municipal planning and zoning board to discuss a recommendation made by the board as two or more members of either body would not be present, provided that no delegation of decision -making authority has been made to the city council member present and that such member is not acting as a liaison for the entire council or any smaller group of the members thereof in such discussions). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [*6) In AGO 84-54 this office stated that meetings between representatives of a private cultural arts organization and a city commissioner appointed by the city commission to meet with such representatives to propose a referendum concerning the construction and funding of a cultural. center and performing arts theater for city commission consideration were subject to s. 286.011, F.S. This conclusion was based on a determination that the city commission had delegated to the individual commissioner the authority to prepare and propose the referendum with the assistance of the private group. As that opinion makes clear, a delegate or single member of a board or commission who is authorized or directed or designated by such board to act for and on behalf of, or exercise authority in the name of, the entire board, stands in the place of the entire board and is thereby subject to the provisions of s. 286.011, F.S. Similarly, a line of Florida cases has expressed the position of the courts that governmental entities may not carry out decision -making functions outside the Sunshine Law by delegating such authority. In News -Press Publishing Company, Inc. v. Carlson, n3 the court considered [*7) whether the governing body of a public hospital had delegated its responsibility to prepare a budget to an internal budget committee specifically subjecting the committee to the provisions of the Sunshine Law. In reaching the conclusion that such a delegation had taken place, the court noted that the ad hoc, committee was created for the preparation of the proposed annual budget for the hospital. The budget requests of the various hospital departments were ..i 1 i - Page 55 1990 Fla. AG LEXIS 4. *7: 1990 Op. Any Grn. Fla. 43 t submitted to the committee and, when all of the requests were received by the committee and they had pro3ected their income, the matter was discussed at a budget committee meeting and a proposed budget was created. The proposed budget was then submitted to the finance committee of the hospital and was accepted - with very little discussion. Similarly, the board of directors of the hospital approved the budget with very little discussion. The court determined that a violation of the Sunshine Law had taken place when the committee met in private to prepare the proposed budget, and stated that: When public officials delegate de facto authority to act on their behalf in i the formulation, preparation, and promulgation of plans on which 1*8) foreseeable action will be taken by those public officials, those delegated that authority stand in the shoes of such public officials insofar as the application of the Government in the Sunshine Law is concerned. n4 - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - i f i n3 410 So.2d 546 (2 D.C.A. Fla., 1982). j n4 Id. all 547-548. And see, IDS Properties, Inc. v. Town of Palm Beach, 279 i So.2d 353 (4 D.C.A. Fla., 1973). t { ' - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Thus, the delegation by a public body of its authority to act in the formulation, preparation, and promulgation of plans or, in the instant case, contracts, on which the entire body itself may foreseeably act, will subject the a person or persons to whom such authority is delegated to the Sunshine Law. I f In Wood v. Marston, n5 The Supreme Court of Florida reversed a district court i holding that a faculty search committee charged with screening applications for the position of dean at the University of Florida College of Law was outside the jscope of the statute where the committee's recommendations were subject to a vote of the law faculty and 1*9) to the review and approval of the university i president. While the Court admitted that the search -and -screen committee had a "fact -gathering" role in soliciting and compiling applications, it recognized f j that the committee had a decision -making function in screening the applicants. r The committee decided which of the applicants to reject from further ' consideration and the Court determined that in performing this function the committee accomplished a policy -based, decision -making function which had been delegated to it by the president of the university through the faculty as a f whole. - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n5 442 So.2d 934, 941 (Fla. 1983). F - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - i Therefore, a person or committee who has been delegated the authority to reject certain options from further consideration by the entire public body performs a decision -making function which must be conducted at a public meeting.,' j While the foregoing cases deal with the delegation of authority to a group or E; t S' 1990 Fla. AG LEXIS 4, 19; 1990 Op. Atty Gen. Fla. 43 Page 56 collegial body rather than to an individual this •Mould not, in my opinion, alter the conclusion [•1.0) that an individual who has been delegated decision -making authority would be subject to s. 286.011, F.S. In addition, the delegation of authority may be accomplished formally or informally. For example, in Carlson, supra, the court found that a de facto delegation of authority to prepare a budget had occurred based on the fact that ratification and approval of the thirty-five million dollar budget which contained more than forty-seven hundred line items was accomplished summarily. Moreover, the courts have stated that the Sunshine Law should be construed to frustrate the use of all evasive devices. n6 - - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - n6 See, e.g., Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla. 1974); Wood v. Marston, supra, at 939. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - However, where the activities of the individual are limited to fact-finding or information gathering, the courts have reached a different conclusion. In Cape Publications, Inc. v. City of. Palm Bay, n7 the district court considered whether certain activities of the city and the city manager [till violated the Sunshine Law. The city charter placed sole responsibility for the selection of 1 a police chief in the city manager. However, when it became necessary to select a new chief of police, the city manager asked certain people to sit in on the interviews with him. The only function of this group was to assist the city s manager in acquiring information on the applicants he had chosen by asking questions during the interviews and then discussing the qualifications of each candidate with the city manager after the interview. The court stated that: i Because the record demonstrates that the committee selected by the city manager had the sole function of assisting him with "fact-finding," to supply him with the necessary information so that he could properly exercise his duties and responsibility in selecting a new chief of police, and because the committee had no decision -making function such as authority to screen, interview or recommend applicants to the city manager, the group was not a "board" within the contemplation of. the Sunshine Law and its meetings were not required to be open to the public. n8 i - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - f n') 473 So.2d 222 (5 D.C.A. Fla., 1985). S F i 's n8 Id. at 225. t - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - [}12l 4 Thus, when a person or group, on behalf of an entire public body, functions F e solely as a fact -finder with no decision -making authority, no "board or commission" subject to the Sunshine Law is created. s Based on the above, it is my opinion that a city council member who is i { authorized or directed or designated, either, formally or informally, by the city i a Page 57 1990 Fla. AG LEXIS 4, ' 12; 1990 Op. Atty Gen. Fla. 43 council to act for and on behalf of the entire board in a decision -making capacity stands in the place of the entire board and is thereby subject to the provisions of. s. 286.011, F.S., when negotiating a city contract with a private garbage contractor. If, however, the individual member is charged solely with fact-finding or as information gathering on behalf of the board and hbeen given no t j decision -making authority, meetings he or she may hold with a private garbage contractor are not subject to the Sunshine Law. A council member, acting in a personal capacity without being delegated any decision -making authority by the i city council, who meets with a private garbage contractor would not be subject to s. 286.011, F.S., as the member is not acting as a board or commission on i behalf of the city council. 408 So. 2d 642 printed in FULL format. WELLINGTON ROLLE, Appellant, v. CITY OF MIAMI, and BOARD OF CIT1' COMMISSIONERS OF THE CITI' OF MIAMI: MAURICE FERRE. Mayor of the City of Miami. J.L. PLUMMER. JOE CAROLLO, FATHER THEODORE GIBSON and ARMANDO LaCASA, as City Commissioners: MIAMI TELECOMMUNICATIONS, INC., and AMERICABLE OF GREATER MIAMI. LTD., Appel lees No. 81-2415 Court of Appeal of Florida, Third District 408 So. 2d 642; 1981 Fla. App. LEXIS 22015 December 22, 1981 SUBSEQUENT HISTORY: [**I] Rehearing Denied January 29, 1982. PRIOR HISTORY: An Appeal from the Circuit Court for Dade County, Joseph M. Nadler, Judge. CORE TERMS: lease, ordinance, charter provision, re- newal, referendum, municipal, Municipal Home Rule Powers Act, nullified, charter, leasing, right to vote, municipality, invalid, clerk, declaratory judgment, cable television, constituting, standing to bring, voter, fran- chises, borrowing, election, unauthorized COUNSEL: Ellis S. Rubin and Bernard R. Young, Miami, for appellant. George F. Knox, Jr., City Atty., and Mikele S. Carter and John J. Copclan, Jr., Asst. City Attys., Paul, Landy, Beilev, Harper & Metsch and Robert M. Sondak, Myers, Kaplan: Levinson, Kenin & Richards and Bruce J. Berman, Miami, for appellees. JUDGES: Before HUBBART, C.J., and SCHWARTZ and JORGENSON, JJ. OPINiONBY: PER CURIAM OPINION: [*6421 The plaintiff Wellington Rolle appeals a dismissal of his declaratory judgment and injunction action below wherein lie sought to have declared invalid and enjoin the enforcement of a Miami municipal ordinance grant- page 3 ing certain cable television rights in the City of Miami to two private companies. 11:6431 The gravamen of his action was that (lie ordinance herein was not submitted to a referendum as required by Section 74 of the City of Miami Charter Ell and was, therefore, invalid. It was further urged that he had standing to bring this action because the ordinance under attack deprived him of the right to vote on said ordinance, as a registered City of Miami voter, 1**21 guaranteed by Section 74 of the City of Miami Charter. nl. Section 74 of the City of Miami Charter pro- vides in relevant part as follows: "No ordinance granting, renewing or leasing the right to use the streets, alleys, public grounds, or buildings of the City of Mlianii to any private per- son, persons, firm or corporation shall become a law or effective in any way until the same has been ap- proved by a majority of the qualified voters of the City of Mianii, voting at an election held therefor and the question of its bcmg granted, rene:ved, or leased shall not be submitted to such vote except upon deposit wit}i the city Clerk of the expense of such Submission (to be determined by the cotnillis- sion) by the applicant for such grant, renewal or lease; and no such grant, renewal or lease shall be for a longer period tlian thirty (30) years and no such grant, renewal or lease shall be transferable except with the approval of the commission expressed by ordinance; and copies of all transfers and mortgages or other documents affecting the title or use of such grants, renewals or leases shall he filed with the city clerk within ten t 10) days after the execution thereof. 4, * * A. r'i C) a840 408 So, 2c1642, 1643, 1981 Ma. App. LIEXIS 22015, *'h2 [**31 We see no point in an extended discussion on the cen- tral issue briefed and argoted before this court, namely. whether the plaintiff Rolle did or did not have standing to brine his action, because, in anv event, his claim that he was denied the richt to vote on said ordinance in a referendum \\as entirely devoid of merit. The Florida Supreme Court in Starr v. Cin of Miami. 379 So.2d 651 (Fla. 19SO), has held that Section 74 of the City of' [Miami Charter -upon which the plaintiff Rolle asserts Iris right to vote here -is invalid under the ;Municipal Nome Rule Powers Act (s 166.021, Fla.Stat. (1979) ) as con- stituting an unauthorized restriction on the borrowing and leasing powers of the Cite of Miami. The Court in the above case states the applicable law as follows: "The state asserts that section 74 of the city (of Miatni) charter requires in election which has not been held and prohibits the lease of a portion of the facility for forty- five years. We reject these contentions and find these provisions constitute limitations on the borrowing and leasing powers of the City of Miami which have been nullified by section 166.021(4), Florida Statutes (1977). The Municipal Home Rule Powers 1**41 Act (Act) set forth in chapter 166, Florida Statutes, was intended to secure the grant of the broad home rule powers to mu- nicipalities as provided by article Vill, section 2 of the Florida Constitution, Municipalities are granted the au- thority to conduct municipal government, perform mu- nicipal functions, and render municipal services so long as the powers are exercised for municipal purposes. The Act not only fails to incorporate restrictions set forth in municipal charters, but also specifically provides that "(a)ny other limitation of power upon any municipality contained in any municipal charter enacted or adopted prior to July 1, 1973, is hereby nullified and repealed.' 166.021(4), Fla.Stat. Our decision is in accordance with an opinion rendered by the attorney general. See 1973 Op.Atty.Gen. Fla. 073-446 (November 29, 1973)." Id. at 653-54. It is clear from the reasoning of this decision that the sub - Page 4 LEXSEE jecl charter provision must also fall under the Municipal ironic Rule Powers Act is 166.021. Fla.Stat. (1979) ) as cons( itttina, an unauthorized restriction on the power of' the City of Miami to grant franchises on its property to private persons: such I'ranc•hises, like 1:1*51 leases of city property or the isstiance of revenue bonds, may be ap- proved by the city cotnnlissi<m without submitting same to a re1'crendum. In any event, it is clear beyond dispute that file snb;ect charter provision has been struck clown by the Florida Supreme Court as having been nullified by the Municipal Flonur Rule Powers Act (s 166.021, f=1a.Stat. (1979) ). 1 *6441 UVCll the adjudicated invalidity of Section 74 of the Cite of Miami Charter, it follows that tile plain- tiff Rollc was not entitled to a declaration of his rights thereunder as no one could acquire any rights -voting or otherwise -under this null and void charter provision. n2 No justiciable issue worthy of a declaratory judgment was presented in this case, and, accordingly, the trial court was correct in dismissing the action on that basis alone. See e.g., 1lhshington t: Independent Realq, Co., 99 .So.2d 613 (Fla.1958); Johns t: Townsend, 160 Fla. 213, 34 So.2d 565 (1948); 19 Fla.Jur.2d "Declaratory Judgments" § 49 (1980). n2. The parties to this appeal sharply divide as to whether Section 74 of the City of Miami Charter - even if valid -was applicable to the subject cable television ordinance so as to require a referendum. Much like the trial court, we have no occasion to discuss this issue or announce anyone's rights un- der the subject charter provision as it is plain that this charter provision is in legal contemplation of no force and effect whatever. **6 We have examined the retraining contentions raised by the plaintiff on appeal and find them to be without merit. See e.g., Hohenberg t: hirstein. 349 So.2d 765, 766-67 (Fla.11 DCA 1977). The final order under review is, therefore, Affirmed. am 66 F.3d 1272 printed in FULL format. USA RECYCLING, INC.; FRIENDLY CARTING. INC., JOSEPH CARiONE; ANGELO CARIONE, JEAN 1. CARIONE; LOUIS CARiONE, and CARL R. FUCCI, Plaintiffs -Appellees, �. TOWN OF BABYLON; TOWN OF BABYLON, NE-W YORE;. CON1,MERC1AL GARBAGE DISTRICT NO. 2; TOWN BOARD OF THE TOWN OF BABi'L.ON; RICHARD H. SCHAFFER, Supervisor; FRANCINE V. BROWN, Councilwoman; 1':\TR1CK HAUGEN. Councilman. ROBERT KAUFOLD. Councilman; ANTHONY TAFURI, Councilman; and BABYLON SOURCE SEPARATION CO.MMERCiAL, INC., Defendants -Appellants. and A. A. & SI. CARTING SERVICE, INC.: FARM INGDALE CARTING SERVICE, INC.; NATALE PEPE \\ASTE CORP.; PGS CARTING CO.. INC,; JOSEPH S. CELANO; MARIANNE CELANO; JC INDUSTRIES, INC.; C.B.S. RUBBISH CO., INC.: FARMINGDALE INDUSTRIAL PARK ASSOCIATION; MINERSFUEL COMPANY, INC.; RESOI, RCE CONSERVATION CORP., Plaintiffs -Appellees, v. TOWN OF BABYLON. NEW 1ORK, COMMERCIAL GARBAGE DISTRICT NO. 2, also known as Commercial Waste Collecting and Recycling Distnct; TOWN BOARD OF THE TOWN OF BABYLON; RIC14A,RD H. SCHAFFER: BABYLON SOURCE SEPARATION COMMERCiAL, INC.. Defendants -Appellants. Before: NEWMAN, Chief Judge, VAN GRAAFEiLAND and CABRANES, Circuit Judges. Docket Nos. 95-7129, 95-7131 UNITED STATES COURT OF APPEALS FOR T14E SECOND CiRCUIT 66 F.3d 1272. 1995 U.S. App. LEXIS 27011, 41 ERC (BNA) 1254, 25 ELR 21522 April 12, 1995, Argued September 19. 1995, Decided SUBSEQUENT HISTORY: [**I] As Amended October 3, 1995. Second Amendment October 16, 1995. Certiorari Denied April 15, 1996, Reported at: 1996 U.S. LEXIS 2432. Certiorari Denied April 15, 1996, Reported at: 1996 U.S. LEXIS 2645. PRIOR HISTORY: Appeal from an order of the United States District Court for the Eastern District of New York (Thomas C. Platt, Chief Judge), granting appellees' motions for preliminary injunction. Appellant Town of Babylon precluded businesses from individually hiring garbage haulers and instead hired a single hauler (co - appellant BSSCI) to collect all garbage within the town's newly created commercial garbage district. The Town permitted the hauler to dump garbage for free at a local incinerator, which the Town owned exclusive rights to use. To finance this system, the town assessed a flat tax on all commercial property and charged user fees to generators of commercial waste. Various plaintiffs chal- lenged this system in v.vo separate actions. In a consoli- dated ruling, the district court held that Babylon's waste management system violated the "dormant" Commerce Clause of the United States Constitution, and accord- ingly entered a preliminary injunction. We reverse Page 3 on several grounds. First, the town's assumption of garbage hauling duties neither discriminated against nor imposed any undue burden on interstate commerce, since all private garbage haulers -- both local and out-of-state -- %vere equally [**21 excluded from the local garbage market. Second, the To%%n's hiring of independent con- tractors to provide municipal services constitutes "mar- ket participation" that is free from the limitations of the Commerce Clause. Finally, preliminary injunctive relief was inappropriate in light of the district court's finding that plaintiffs %vould not suffer irreparable harm. DISPOSITION: Reversed. CORE TERMS: town, garbage. collection, hauler, in- terstate commerce, incinerator, disposal, waste, mu- nicipal, solid waste, regulation. dispose, out-of-state, discrlmtnate, commerce, waste management, license, dump. recycling, dormant. ordinance, hiring, contrac- tor, municipality, residents, user fees, commercial prop- erty, irreparable harm, parcel, waste disposal COUNSEL: FRANK L. AMOROSO, Nixon. Hargrave, Devans & Doyle, Garden City, N.Y., for municipal 66 F.3d 1272, *; 1995 U.S. App. LEXIS 27011, **2; 41 ERC (DNA) 1254 defendants-appel Iants. ANTHONY" E. CORE, Mincola, N.Y., for dcfendant- appellant BSSCi. BETTY JO CHRiSTIAN, Steproe & Johnson, Washington, D.C., for plaintiffs -appellees A. A. & M. Canine Service et al. FREDL-RICK EISENBUD, Cahn, Wishod & Lamb, Melville, N.Y., for plaintiffs -appellees USA Recycling, Inc., et al. (Gordon J. Johnson, Deputy Bureau Chief, Environmental Protection Bureau, John J. Sipos, Assistant Attorney General, Dennis C. Vacco, Attorney General of the State of New York, for Amicus Curiae State of ,New York). OPiNIONBY: JOSE A. CABRANES OPINION: (*12751 JOSE A. CABRANES, Circuit Judge: For ninety years, it has been settled law that garbage collection and disposal is a core function of local gov- ernment [**31 in the United States. At their option, cities may provide garbage pick-up to their citizens di- rectly (that is, through to,.vn employees or an indepen- dent contractor), or they may rely on a closely regu- lated private market to provide those services. In 1905, the Supreme Court turned away two challenges, brought on takings and due process grounds, to city ordinances in San Francisco and Detroit that gave a single scav- enger firm the exclusive right to collect and dispose of city garbage. California Reduction Co. v. Sanitary Reduction lkbrls, 199 U.S. 306, 50 L. Ed. 204, 26 S. Ct. 100 (1905); Gardner v. Michigan, 199 U.S. 325, 50 L. Ed. 212, 26 S. Ct. 106 (1905). Although in neither of these cases did the Court address whether the municipal waste systems comported with the Commerce Clause, we squarely face that question today. The Town of Babylon, New Vork, has elected to take over the local commercial garbage market. Rather than assemble a municipal waste disposal bureaucracy and purchase directly the necessary equipment, the Town has hired one private company to pick up all commercial garbage, and another to operate act incinerator where that garbage is burned. Businesses and commercial property owners finance this system by paying the 1 **41 Town flat property taxes and user fees tied to the amount of garbage they generate. No private companies, local or out-of- state, may collect commercial garbage in Babylon. Page 4 LEXSEE The plaintiff's in these consolidated cases argue that the Supreme Court's decision in r & .a Carbone, inc. v. Twin of Clarkstotcn, 128 L. Ed. 2d 399. 114 S. Ct. M77 0994j, Ims stripped local governments of their lone settled authunt% to collect and dispose 01' t,m n _arb,t e In C',trbonc. the Supreme Court struck down a municipal ordinance that required private earbaee haulers to process all town garbage at a single, privately mned local transfer s:ation. Likc«ise, the present plaintiffs argue, Babylon has in effect created monopolies in the waste collection and disposal mar- kets by taking over both markets and then hiring inde- pendent (* 12761 contractors to provide services on the Town's behalf. This system, they contend, discrimi- nates against interstate commerce and therefore violates the Commerce Clause. We disagree. Babylon's waste management plan, which so closely resembles those approved by the Supreme Court in California Reduction and Gardner, neither discriminates against, nor imposes any inciden- tal burdens on, interstate 1"51 commerce. in reach- ing that conclusion, we reject the plaintiffs' contention that the Carbone decision fashioned from the "dormant" Commerce Clause a new, and unprecedentedly sweep- ing, limitation on local government authority to pro- vide basic sanitation services to local residents and busi- nesses, on an exclusive basis and financed by tax dollars. Such a limitation, to burro\% tltc words of the Supreme Court, "could interfere significantly with a State's abil- ity to structure relations exclusively with its own cit- izens. It would also threaten the future fashioning of effective and creative programs for solving local prob- lems and distributing governmental largesse. A healthy regard for federalism and good government renders us reluctant to risk these results." Reeves, inc. v. Stake, 447 US. 429. 441, 65 L. Ed. 2d 244. 100 S. Ct. 2271 (198(Q) (citation onti(ted). The United States District Court for the Eastern District of Nei% lbrk tTltontas C. Platt, Chief Judge) entered a preliminary injunction against the Town of Babylon's implementation of its waste management plan. The court held that plaintiff's in these consolidated cases. USA Recycling and A. A. S: M. Carting, had demonstrated that their challenge to 1**61 the Town's system uas virtually certain to succeed in light of the Supreme C'ourt's recent decision in Carbone, 114 S. Ct. at 1682-84. We find that plaintiffs have failed to demonstrate a likelihood of success on the merits, be- cause Babylon's system dues not violate the dormant Commerce Clause. The district court also erred by ;rantin_� 10JL111CMe relief despite us explicit tinding that plaicitiffh «ill not suffer irreparable harm from imple- mentation of Babylon's new waste management system. L 0 J I; d r' 66 E.3d 1272, *1276; 1995 U.S. App. LEXiS 27011, **6; 41 ERC (BNA) 1254 Because plaintiffs have not made the requisite showings for preliminary injunctive relief, we reverse. i. FACTS At the heart of the dispute is the relationship between the Town of Bah, Ion, an incinerator built in Babylon at the behest of the Town ("incinerator"). and a pri- vate garbage hauler hired by the Town (Babylon Source Separation Commercial, Inc., or "BSSCI"). First, we describe the circumstances surrounding the construction and operation of the incinerator. Second, we describe the town's creation of a commercial garbage district in the wake of the Supreme Court's decision in Carbone. Three aspects of Babylon's waste management plan merit special attention. First, the Town 1**71 has licensed and hired BSSCI to collect all garbage within the district and has refused to renew the licenses of any other pri- vate haulers to collect garbage pursuant to individual contracts with town businesses. Second, the Town per- mits BSSC 1 to dispose of town waste at no charge at the Incinerator. Third, the Town finances its commer- cial garba,re collection and disposal system by charging a flat S 1500 benefit assessment to commercial properly owners, plus a schedule of user fees to individual busi- nesses for garbage they generate beyond a fixed base amount. The facts set forth below are not in dispute. A. The Babylon Incinerator In the Long island Landfill Law of 1983, nl the New i York Legislature set deadlines for Babylon and neighbor- ing towns to shut down their municipal dumps, which were contaminating the aquifer that serves most of Long Island. Because closing its landfill would leave Babylon with a shortage of garbage disposal options, the town 1 began to consider building a garbage incinerator. This C choice was consistent with the State of New York's ar- ticulated policy preference for incinerators 1*12771 (or 'resource recovery facilities," as they are also known) ! over landfills, (**81 because "trash -to -ash" facilities re- duce the volume of solid waste, put garbage to produc- tive use by generating electricity, and 'Acre deemed to be less harmful to the environmerit. See N.Y. ENVTL, CONSERV. LAW § 27-0106 (AcKinney Supp. 1995). n2 To promote its hierarchy of recycling and disposal preferences, New `.brk created a statutory frame%vork that enables towns to contract with private companies to build and operate incinerators and other solid waste management facilities. N.Y. GEN. MUN. LAW § 120-w (,1cKinnev 1936 & Supp. 1994). The State Legislature also passed a law specifically authorizing Babylon to en- ter into contracts to build a garbage incinerator. 1985 N.Y. Laws 478 3 4(l). i Page 5 LEXSEE nt 1983 U.Y. Laws 299 (codified at N.Y. ENVTL. CONSERV. LAW § 27-0704 t 41cKinnev 1984)). The Long Island Landfill Law phased out the practice of landfilling raw garbage, prohibited development of ne%% landfills in deep Ilo« groundwater recharge zones, and desiumated resource recocen', incinera- tion, or composting as the preferred alternatives for disposal of municipal solid waste. n_' Section ?7-0106 provides as follows: In the interest of public health, safety and wel- fare and in order to conserve energy and natural resources, the state of New York, in enacting this section, establishes as its policy that: 1. The following are the solid waste management priorities in this state: (a) first, to reduce the amount of solid waste gener- ated; (b) second, to reuse material for the purpose for which it was originally intended or to recycle mate- rial that cannot be reused; (c) third, to recover, in an environmentally accept- able manner, energy from solid waste that can not be economically and technically reused or recycled; and (d) fourth, to dispose of solid waste that is not being reused, recycled or from which energy is not being recovered, by land burial or other methods approved by the department. 2. State government must make an essential contri- bution to the development and implementation of en- vironmentally, economically and technically viable solid waste management programs through fulfilling its responsibilities to provide programs which pro- mote waste reduction and the expansion of markets for recovered materials, clearly articulated, respon- sive and consistently applied regulatory structures, and a hill range of technical assistance to local gov- ernments. A state -local partnership, in which the basic responsibility for the planning and operation of solid waste management facilities remains with local governments and the state provides necessary guidance and assistance, must be forged. 3. This policy, after consideration of economic and technical feasibility, shall guide the solid waste management programs and d_cisions of the depart- ment and other state agencies and authorities. 1**91 With state approval (if not encouragement) in hand, JJ-� ��400 wi F.3d 1272, •1277; 1995 U.S. App. LEXIS 27011, "g; 41 ERC (BNA) 1254 Page 6 LEXSEE and in accordance with the bidding procedure detailed in New York General Municipal Law § 120-w(4)(c) (McKinney 1986), n3 Bab} Ion solicited proposals from more than sixty-nine companies in eighteen states and Canada to construct and operate the hicinerator. Out of the tiyc companies that whntittrd bids, Ogden Martin Systems, Inc. ("Ogden") was awarded (lie contract. Ogden is a New Jersey corporation with a Delaware parent. n3 New York General Municipal Law § 120- w(4)(e) (McKinney 1986) sets forth a detailed bid- ding process for such contracts, indicating what in- formation must be included in bid proposals, requir- ing notice and comment on the town's request for proposals, and establishing guidelines for evaluat- ing submitted bids. To finance construction of the incinerator, the Town of Babylon Industrial Development Agency (the "Agency"), a "public benefit corporation" created un- der New 7brk law and controlled by the Town, issued S 88.9 million in tax-exempt [""10) bonds. n4 The land on which the Incinerator was built is owned by the s Town, leased to the Agency, and subleased to Ogden. The Incinerator itself is owned by the Agency and leased to Ogden, which operates the facility. n4 See N.Y. GEN. MUN. LAW §§ 850-888 (McKinney 1986 & Supp. 19941) (describing pur- pose, organization, and general powers of indus- trial development agencies); id. § 907-a (McKinney 1986) (establishing Babylon IDA). Under New York law, the purposes of an industrial development agency shall be to promote, develop, encourage and assist in the acquiring, constructing, reconstructing, improv- ing, maintaining, equipping and furnishing of in- dustrial, manufacturing, warehousing, commercial, research and recreation facilities including industrial pollution control facilities, educational orcultural fa- cilities, railroad facilities and horse racing facilities and thereby advance the job opportunities, health, general prosperity and economic welfare of the peo- ple of the state of New tbrk and to improve their recreation opportunities, prosperity and standard of living . . . . Id. § 858, The Agency's governing board is ap- pointed by the Babylon Town Board, and each mem- ber "serves at the pleasure of the appointing author- ity." Id. § 856(2). 1"l11 Under a 1985 Service Agreement between Babylon and Ogden tthe "A�.,reemcnt"t, the Tt)%%n has an uncon- ditional obligation to pay 1.12.781 Ogden a Service Fee for operating the incinerator, regardless of whether any garbage is processed there. ThrouLh the Service Fee, Bab}lon pays for debt scr,.ice on the bonds, operation and maintenance expenses, and various pass -through costs including,, trustee Ices, payments in lieu of taxes, and the cost of transporting and disposing of ash. Under the Agreement, the Town holds exclusive rights to ac- cept garbage for disposal at the incinerator, and to set and collect fees for such disposal. Although Ogden controls the day-to-day operations of the Incinerator, the com- pany is required to process whatever garbage the Town accepts for disposal. The Agreement requires Babylon to deliver a minimum of 225,000 tons of garbage each near to the Incinerator. B. Babylon's Pre -Carbone Garbage Collection and Disposal System in 1987, to ensure the financial viability of its incinerator, the Town passed a flow control ordinance that required all solid waste collected within Babylon to be disposed of at a location designated by the Town. BABYLON CODE § 1* 1?1 133-40(A) (1991). n5 Babylon designated its Incinerator as the only permis- sible disposal site, and required garbage haulers to pay "tipping fees" to the Town for each ton of garbage de- livered there. The revenues from these fees offset some of Babylon's costs under its Agreement with Ogden, n5 The New lbrk State Legislature specifically authorized Babylon to enact such a flow control or- dinance. The town of Babylon is authorized to adopt and amend a local law to be known as the solid waste manaecntem law. Such law sliall provide for the management un a to\�n-%%ide basis of all solid waste genera(ed within the town of Babylon. . . . § 2. It is hereby declared to be the policy of the state of Ne%y lurk with respect to the collection, transportation, delivery, storage, processing and dis- posal of solid �saste in the town of Babylon, in the county of Suftolk, to displace competition with reg- ulation or monopoly public service. In furtherance of this policy, the town of Bab\ Ion is hereby, autho- rized to adopt a local law ( t) to exclusively control 20 L 66 F.3d 1272, * 1278. 1995 U S. App, LEXIS 27011, ** 12; 41 ERC (BNA) 1254 Page 7 LEXSEE all solid waste and all energy and materials derived therefrom, including without limitation the collec- tion, transportation and delivery of solid waste to a designated resource recovery facility or facilities within the roan of I;ahvlun for storage or process- ing or for any ether disposition or handling: and (2) to provide for the establishment and collection from time to time of charges as compensation for the ser- vice of dispesrng or llMld!ing of such solid waste, all in order to assure a regular solid waste collection and disposal or handling service for the people of the town of Babylon. 1985 N.Y. Laws 478, §§ 1-2. **13 In 1994, however, the Supreme Court struck down a similar flow control ordinance enacted by another New York municipality that had required the processing of all solid waste in town at a local, privately owned transfer station. C & A Carbone, Inc ti. To%%n of Clarksrown, 128 L. Ed. 2d 399, 114 S. C1. 1677 (1994). In light of that decision, Babylon determined that it should no longer enforce its own flow control ordinance, and it looked for a new way to finance its incinerator. C. The Commercial Garbage Improvement District In response to the Carbone decision, Babylon decided to create Commercial Garbage Collection District No. 2 (the "District"), covering most commercial real estate in town. n6 Uniform municipal collection and disposal of waste generated in the District was designed to re- place the multitude of contracts between individual com- mercial garbage generators and the seventeen haulers li- censed to collect commercial waste in Babylon. n7 Based on [*12791 various cost surveys and a competitive bid- ding procedure pursuant to N.Y. General Municipal Law § 120-w(4)(e) (McKinney 1986), the Town concluded that it could provide better garbage service to commer- cial property at an overall [**141 savings of S 7 million to S 8 million per year to town consumers. n6 The Town described the extent of the District in its Final Request for Proposals for commercial waste collection and recycling services: The Commercial Garbage District encompasses the entire geographic area of the Town of Babylon, and includes all parcels not included in the Residential Solid Waste District (all improved resi- dential parcels, 3 families or less) and excluding the Incorporated Villages of Amityville, Babylon and Lindenhurst; all vacant residential land; all land (im- proved and unimproved) owned by the United States Government, State, County. Town and Villages; but not schools, tire, ambulance, %kater and Irbrary dis- tricts. Within the geographic limits of the unin- corporated Tuun of Bahvlon. the Toun classifica- tion of property in June 1994 showed fewer than 7,000 parcels which would comprise the Commercial Garhagc District. Final Request for Proposals at 3-4. n7 In 1986, the Town created a Residential Garbage Improvement Area (the "Residential District") to provide municipal garbage collection and disposal services to all town residents, pursuant to New lbrk Town Law §§ 54, 198 (,McKinney 1965 & Supp. 1986). The Residential District consists of the unincorporated area of the Town outside the Villages of Amityville, Babylon, and Lindenhurst, and outside any previously existing refuse and garbage districts. In December 1987, after another competitive bidding process pursuant to New fork General Municipal Law § 120-w(4)(e) (McKinney 1986), the Town contracted with Babylon Source Separation, Inc., to collect residential refuse and to provide recycling services in the Residential District. For reasons that are not clear, the plaintiffs do not challenge the creation of the Residential District. Based on the bids submitted, the Town entered into a five-year Service Agreement with Babylon Source Separation Commercial, file. ("BSSCI") to provide garbage hauling services to all improved commer- cial property within the District. Under the Service Agreement, the Town ;wreed to grant BSSCI an exclu- sive license to collect commercial garbage within the District. n8 Each month, the Town must pay BSSCI a base fee of S 22.75 per week for basic service to each par- cel, plus additional fees for collection of garbage above the base amount. n8 The To%%n would grant BSSCI the only Class 2 license, which authorizes a hauler to collect and transport all wastes, except construction and derno- lition debris. %%ithin the District. Such a license can be granted only to a carter that has a contract with the Town. Local Lass No. 2 of 1995 (to be codified al BABYLON CODE § 133-1.1tB)). Other carters, including plaintiffs, are still eligible to apply for Class I and 3 licenses. A Class l license authorizes a hauler to collect and transport nonrecy- 0J_ to.,; 20 E2 M, 66 RM 1272, *t279; 1995 U.S. App. LEXiS 27011. **15; 41 ERC (BNA) 1254 ciable waste outside an improvement district, and to collect and transport recyclable waste from the im- provement district only "if properly authorized by the property owner." Id. 9 133-14(A). A Class 3 license authorizes a hauler to collect and transport constniction and demolition debris anywhere in the Town. Id. V 133-14i,C). *•16j The Service Agreement permits BSSCI to dispose of up to 96,000 tons of garbage per year at the Incinerator and unlimited amounts of recyclable material at the town recycling facility, all at no charge. If BSSCI dumps more than 96,000 tons at the Incinerator, it is obligated to "pay the prevailing tipping, fee to the Town at the time of such delivery." BSSCI has the option to deliver commercial refuse elsewhere, but it must bear those disposal costs it- self. Although Babylon retains the right to direct BSSCI to deliver the contract waste to a particular disposal site, in which case the Town is responsible for paying any disposal fees, the Town has not indicated that it wishes to exercise this contractual right. To finance the provision of collection and disposal ser- vices in the District, the Town imposed a S 1500 annual benefit assessment against each improved parcel of com- mercial properly within the District. All such parcels are entitled to "basic service" from BSSCI, defined as weekly collection of one cubic yard of commercial refuse and one-half cubic yard of recyclables. The property owner may allocate this basic service to one commercial establishment per parcel. Other businesses [**17] on a parcel, and those businesses requiring more than basic service, must pay a user fee for each additional cubic yard of garbage. If a business cannot agree with BSSCi as to how much extra service is needed, a contract moni- tor appointed by the Town will determine the appropriate service level that the business must receive. D. Proceedings in the District Court In mid -December 1994, plaintiffs filed the present ac- tions in the United States District Court for the Eastern District of New York, seeking to prevent Babylon from implementing its contract with BSSCI to provide collec- tion and disposal services in the District, and from fail- ing to renew the plaintiffs' existing licenses to collect garbage on a town -wide basis. The plaintiffs in USA Recycling, Inc. v, Town of Babylon (No. 95-7129) include a commercial solid waste management recycling facility, a garbage collection company that is currently li- censed to collect garbage in Babylon, several individuals who own commercial property within the District, and an [* 12801 individual who owns a business located in the Page 8 LEXSEE District (the "USA Recycling plaintiffs"). The plaintiffs in A. A. & M. Carting Service, Inc. v. Town (**181 of Babylon, New )urk, Commercial Garbage District No. 2 t No. 95 -7 131 ) are an out-of-state waste disposal facil- ity, a motor earner engaced in interstate transportation of solid �� rite, h%e local %k atite col lc(:( companies cur- rently licensed to collect garbage in Babylon, and an as- sociation of small businesses that generate waste within the District (the "A A & \1 Carting plaintiffs"). Plaintiff's claim primarily that the Town's plan to col- lect and dispose of commercial garbage violates the so- called "dormant" Commerce Clause of the United States Constitution, which limits the states' ability to regulate interstate commerce absent congressional authorization. Specifically, they argue that the exclusion of all private garbage haulers front the commercial garbage collec- tion market, the Town's decision to let its hired garbage hauler dispose of' garbage at no charge at the Babylon Incinerator, and the user fees and benefit assessments charged to property owners and businesses within the District add up to a system that impermissibly discrimi- nates against interstate commerce in the waste collection and disposal markets. On December 30, 1994, the district court held a hear- ing on a motion [** 191 for a preliminary injunction in USA Recycling, and entered an order applicable to both of the instant cases on January 5, 1995. That order de- nied all pending motions for injunctive relief without prejudice to renewal, but directed the Town to maintain the status quo and to recognize the existing licenses of collection companies pendini-, amendment of the Town Code. Babylon and BSSCI initially filed an appeal and sought an emergency stay of that order from this Court, but then withdrew their appeal. On Jamiary 10, 1995, Babylon amended its Town Code to implement the new plan. n9 One new pro- vision of the Town Code effectuates the exclusive col- lection provision of the BSSCI Service Agreement: only BSSCi. as the sole collector that has entered into a con- tract with the Town, is eli,ible for a license to collect nonrecyclable earbaee 2cneraied within Babylon's com- mercial arba district. Local Law No. '_ of 1995 (to be codified at BABYLON CODE ; 133-14i,B)). Other provisions make it illegal for an individual commercial waste generator to dispose of its own waste, either by contractins with a Barba e hauler that lacks a Town li- cense, or by transporting its own waste without a "spe- cial [**201 exemption" from the Town Board upon a showing of "exceptional circumstances." Local Law No, 2 of 1995 (to be codified at BABYLON CODE 33 133- 1 l(B)(3), 133.371. Plaintiffs in both actions amended their complaints :and renewed their motions for prelimi- vJ— 1,2 M1 Page 9 66 E.3d 1272. *1280, 1995 U.S. App. LEXiS 27011, **20; LEXSEE 41 ERC (BNA) 1254 nary injunctive relief, legal standard or by basing the preliminary injunction on a clearly erroneous findine of fact. n9 it appears from the record that the Town, at the direction of the district court, has refrained from fil- ing these amendments with the New York Secretary of State, a ministerial act required for the changes to take effect. See N.Y. NIUN. 1101ME RULE LAW 27(3) (McKinney 1994). On February 2, 1995, the district court granted those motions in a consolidated ruling. Assertedly guided by the Supreme Court's decision in Carbone, the court de- termined that the plaintiffs' challenge to the Babylon waste management system was likely to succeed on the merits. The court stated that the Service Agreement "gave BSSCI not only a powerful, but virtually an irre- sistible incentive to dispose of the waste at the town facil- ity,' and thus hoarded the local demand 1**211 for waste collection and disposal services for the benefit of BSSCI and the Incinerator. As a result, the court concluded that the amended Babylon ordinance had the same discrim- inatory effect on interstate commerce as the ordinance struck down in Carbone. Despite its explicit finding that plaintiffs would not suffer irreparable harm from their exclusion from Babylon's commercial garbage market, the court entered a preliminary injunction prohibiting the Town and BSSCi from implementing the District garbage collection system. Babylon and BSSCI appeal from that order. We expe- dited that appeal, and now reverse. II. DISCUSSION A. Standard of Review It is well established in our Circuit that a court may grant a plaintiff preliminary injunctive relief only upon a showing of 1*12811 irreparable harm, and either (1) a likelihood of success on the merits of its case or (2) sufficiently se- rious questions going to the merits to snake them a fair ground for litigation and a balance of hardships tipping decidedly in its favor. Polymer Technology Corp. v. Afintran, 37 F.3d 74, 77- 78 (2d Cir. 1994) (citation and internal quotation marks omitted). We have explained 1**221 that if the moving party has established the requirements for 1 such an injunction, the injunction may be reversed only if the district court has abused its discretion. A district court may abuse its discretion by applying an incorrect tklkhnan Publishing Corp. v. Lan(loll, Inc., 43 F.3d 775. 7.50 t2d Cir. 1994) tcitation omitted). We first review the district court's determination that the plaintiffs had demonstrated a likelihood of success on the merits of their Commerce Clause claim, and then turn to whether plaintiffs have shown that they would suffer irreparable harm. B. Likelihood of Success on the Merits 1. Commerce Clause Jurisprudence The Commerce Clause provides that Congress "shall have Power . . . To regulate Commerce with foreign Nations, and among the several States." U.S. CONST. art. 1, § 8, cl. 3. "Although the Commerce Clause is by its text an affirmative grant of power to Congress to regulate interstate and foreign coninierce, the Clause has Iona been recognized as a sef f-executing limitation on the powerof the States to enact 1**231 laws imposing substantial burdens on such commerce." South -Central Timber Der., Inc. v. Winnicke, 467 U.S. 82, 87, 81 L. Ed. 2d 71. 104 S. Ct. 2237 (1984). This negative restriction on state power has often been labelled the "dormant" Commerce Clause. Oklahoma Tar Contnt`n v. Jefferson Lines, Inc., 131 L. Ed. 2d 261, 115 S. Ct. 1331, 1335 (1995). To determine whether a state or municipal activity vio- lates the dormant Commerce Clause, the Supreme Court has instructed us to undertake two separate inquiries. First, we must determine whether the state is "regulat- ing" the market at all, as opposed to merely "participat- ing" in it. See Reer-es. inc. v. Strike, 447 U.S. 429, 436-39, 65 L. F-d. 2d 244, 100 S. Cr. 2271 (1980). if the state is buying or selling goods as any private economic actor might, then it is emglaging in "market participation" that by definition falls outside the scope of activity governed by the dormant Commerce Clause. !d. ra 435-39. On the other hand, if the state activ- ity C011S1111]fCS "rr-,ulauon" of interstate commerce, then the court must proceed to a second Inquiry: whether the activity regulates evenhandedly with only "incidental" effects on interstate commerce, or discriminates against interstate Z. commerce. As we use the term here, 1 * 1241 "discrimina- tion" simply means differential treatment of in -state and out-of-state economic interests that benefits the former and burdens the latter. If a restriction on commerce is discriminatory, it is virtually per se invalid. By contrast, 66 F.3d 1272, *1281, 1995 U.S. App. LEXIS 27011, **24; 41 ERC (BNA) 1254 nondiscriminatory regulations that have only incidental effects on interstate commerce are valid unless "the bur- den imposed on such cornmerce is clearly excessive in relation to the putative local benefits." Pike t: Bruce Church, Inc., .iU7 US. 137, 142, 90S. Cr. 844, 847, 25 L. E1. 2d 17a (1970). Oregon W;ste Svs., Inc. v. Department of Envtl. Qualir.. 128 1-. Ed. 2c! 13, 114 S. Ct. 1345, 1350 (1994) (citations and internal quotation marks omitted). nl0 n10 For furdher discussion of Commerce Clause jurisprudence, we refer the reader to our opinion in SSC Corp v. Town of Smithtown, 66 FM 502, 1995 U.S. App. LEXIS 26762 (2d Cir. 1995), filed simul- tancously herewith. The party challenging the validity of a state statute or municipal ordinance bears the burden of showing that it discriminates (**251 against, or places some burden on, interstate commerce. Hughes v. Oklahoma, 441 U.S. 322, 336, 60 L. Ed. 2d 250, 99 S. Ct. 1727 (1979). If discrimination is established, (* 12821 the burden shifts to the state or local government to show that the local benefits of the statute outweigh its discriminatory ef- fects, and that the state or municipality lacked a nondis- criminatory alternative that could have adequately pro- tected the relevant local interests. Id. If the challenging party cannot show that the statute is discriminatory, then it must demonstrate that the statute places a burden on interstate commerce that "is clearly excessive in relation to the putative, local benefits." Minnesota t: CloverLeaf Creartrery Co., 449 US, 456, 471, 66 L. Ed. 2d 659, 101 S. Ct. 715 (1981) (quoting Pike, 397 U.S. at 142). In accordance with the Supreme Court's instruc- tions, we proceed to decide whether each component of Babylon's waste management system constitutes "regu- lation" of commerce and, if so, whether such regulation violates the Commerce Clause. We first examine the Town's relationship with businesses and property own- ers in the District, where it has elected to occupy the entire field of garbage collection. We then discuss in turn the Town's relationships (**261 with BSSCI and Ogden. 2. The Relationship Between the Town and Businesses and Property Owners in the District The Town of Babylon has taken over the local com- mercial garbage collection market. No private haulers Page 10 LEXSEE may enter into garbage collection contracts with in- dividual businesses. Instead, the Town (through its contractor. BSSCI) provides exclusive collection ser- vices within the District. Relying primarily on C & .-I Curbone , htc . t. Tm n of Clurkstottwn. 128 L. Ed. 2d 399, 114 S Ct. 1677 (19,)4t, the plaintiffs claim that their exclusion from this market facially discrim- inates against interstate commerce because it favors a single garba,_,c hauler t BSSt7I t :in(! a single garbage dis- posal facility (the Incinerator) over all other in -state and out-of-state competitors. Hence, they argue, the Town's commercial garbage collection system violates the dor- mant Commerce Clause. Babylon responds in three ways. First, it argues that its takeover of the local garbage collection market is in- sulated from Commerce Clause scrutiny because it con- stitutes "market participation," not "market regulation." Second, the Town argues that even if its assumption of garbage collection duties in the District 1**271 consti- tutes market regulation, it has not discriminated in fa- vor of any local company. Rather, it has evenhandedly prohibited local businesses from entering into contracts with any garbage haulers -- local or out-of-state -- and provided uniform garbage collection and disposal as a government service through its agent, BSSCI. Third, the Town argues that its system does not place an undue bur- den on interstate commerce. W'e address each of these argurnents in turn. a. bfarket Part icipationl:tilarket Regulation As an initial matter, we hold that the Town's decision to replace the private market for commercial garbage col- lection with uniform municipal collection is subject to the limitations of the dormant Commerce Clause because it constitutes regulation of that market, not participation in it. Babylon has exercised its governmental powers by denying licenses to all garbage haulers but the one hired by the Town, and by establishing civil and criminal penalties (or haulers who collect garbage without a Ii- cense. Because no private actor could engage in such ac- tivity, the Town is acting as a market regulator rather than a market I s"281 participant. See SSC Corp. v. Town of Smithtotsn• 66 F.3d 50", 1995 U..S.:Ipp. LEX1S26762, * 45 (2d Cir. 1995). 'The Town does "participate" in the garbage collection market in a different respect: it buys garbage hauling services from BSSCI. But states and local governments do not enjoy carte blanche to regulate a market simply because they also participate in that market. Id. at *45.146: cf. South -Central Timber, 467 U.S. tit 97 (plurality opinion) (holding that Alaska may not re_ulate timber processing market simply be- cause it participates in timber sales market). Particular L iie 66 F.3d 1272. *1282; 1995 [J.S. App. LEXIS 27011, 41 ERC (BNA) 1254 state actions that do not constitute "market participation" are subject to the limitations imposed by the Commerce Clause. A state engaging in mercantile activity does not obtain blanket immunity to regulate the market [*12831 in which it participates, free from the strictures of the dormant Commerce Clause. Courts must CvaluatC sepa- rately each challenged activity of the state to determine whether it constitutes participation or regulation. b. Discrimination Against Interstate Commerce Although the Town's decision to eliminate the commer- cial garbage collection market constitutes "market reg- ulation" rather than "market [**291 participation," we find that it does not discriminate in any way against interstate commerce. The Town has not favored in- state garbage haulers over out-uf-state competitors. Cf. Chemical Vibjte Management, Inc. F. Hunt, 504 U.S. 334, 343-44, 119 L. Ed. 2d 121, 112 S. Ct. 2009 (1992) (striking down state tax imposed only on haz- ardous waste generated outside state but disposed of within state). Nor has the Town handicapped other in- state and out-of-state businesses from competing against a group of local proprietors. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349, 356, 95 L. Ed. 329, 71 S. Ct. 295 (1951) (striking down ordinance requiring all milk sold in city to be pasteurized within five -mile radius of city limits). The plaintiffs argue, however, that Babylon is favoring a single local garbage hauler to the detriment of both in -state and out-of-state com- petitors. In essence, they argue that the Town's ex- clusion of private garbage haulers and the hiring of a single garbage hauler -- whether that hauler is BSSCI or some other company -- is nothing more than a crude facade for a flow control ordinance like the one struck down by the Supreme Court in Carbone. Babylon, they claim, has conferred on BSSCI the same favored status that Clarkstown [**301 bestowed on its local, privately owned transfer station. 14e disagree. No one enjoys a monopoly position selling garbage col- lection services in Babylon's commercial garbage mar- ket, because the Town has elintinatr_d the market entirely. Not even the Town itself remains as a seller in the mar- ket. Although the Town is now the lone provider of garbage collection services in the District, it does so as a local government providing services to those within its jurisdiction, not as a business selling to a captive con- sumer base. Babylon's waste management plan thus dif- fers dramatically from the tlow control ordinances struck down by the Supreme Court in Carbone and by this court in SSC Corp. In both of those cases, the challenged flow control ordinances required local garbage haulers to buy processing or disposal services from a local facil- Page I i LEXSEE ity. Carbine, 114 S. Cr. at /680; SSC Corp., 66 FM 502, 1995 L'S. App. LEXIS 26762. *4. In Babylon, lo- cal businesses do not buy services from anyone. Instead, the Town unilaterally provides garbage service to every- one in the District. Although taxpayers to the District ultinlatel� foot the hill for these garbage services -- just as they foot the bill for 1 **311 street sweeping, street lighting, sewage treatment. public schools, and police and fire protection. to name just a fe.v other basic ser- vices provided by local governments -- the payment of taxes in return for municipal services is not compara- ble to a forced business transaction that the ordinances in Carbone and Smithtown required, and that rendered those ordinances discriminatory against interstate com- merce. in short, because Babylon is not selling any- thing, it cannot be considered to be a favored single local proprietor as in Carbone. New Ybrk law makes clear that the Town is fulfilling a governmental duty, not making a sale, when it pro- vides earbaec services. New lbrk municipalities have a duty to ensure proper collection and disposal of trash for the well-being and health of the Community. Nehrbas v. Incorporated Village of Lloyd Harbor, 2 N. Y.2d 190, 194-95. 159 N. Y. S. 2d 145, 140 N. E. 2d 241 (1957); 1979 NA. Op. Att'y Gen. (informal) 237 ("Generally, the removal of garbage is an affirmative duty properly delegated to and imposed upon municipalities."). To fulfill this duty. f al municipality may perform the function of removal di- rectly through its own department; or it may have it per- formed [**321 under a public contract; or it may require a license to be obtained by persons or firths authorized and qualified to perform that function. It is for the mu- nicipality. within reasonable bounds, to determine how they shall be collected and removed, or rendered [*12841 harmless. But it still has the dutv to exercise such su- pervision and control as will prevent danger to public health and injury to the public interest. P. & .4. Carting Co. r. Citt c>f New lbrk, 7 Misc. 2d 815. S17. 158 .VI'S.2d 296 1Sup. Ct., Special Term. N.1 County 19 6) (citation and quotation marks ontittedt; 1979 N.Y. Op. An'y Gen. (Informal) 237 ""Municipalities can contract with corporations to per- form Ithel municipal serice lof removitto garbagel."). Although a town does not assume the duty to pick Up trash itself sirttpl� by creating a garbage district, Industrial Refuse S%s., luc. r. O'Rourke, 134 Misc. 2d 45, 52-53, 509 N. I'S. 2d 9S8 (Shp. Ct. *stchester Cf*. 198b), aff'd as modified sub nom. Pelliccio v. Acelrod. 131.4.D.2d 650, 516 N. Y.S. 2d 903 (2d Dep't), appeal denied, 70 N. l'2d 610 (1987). it may certainly V 66 F.3d 1272, *1284, 1995 U.S. App. L1=XiS 27011, **32; 41 ERC (BNA) 1254 take on that duty expressly. Under New York law, when Babylon prohibited local businesses fronn arranging pri- vately for garbage removal, 1**33) it had to ensure that garbage would nevertheless be collected and disposed of properly in some other way. n I I n1I We do not hold that the Town has assumed an enforceable duty to collect or dispose of other types of lk aste, such as construction and demolition debris, that private haulers are still licensed to col- lect. Nor do we address the situation of a town that provides garbage collection services but does not ex- clude those within its jurisdiction from entering into individual contracts for waste collection. In Babylon, the Town chose to replace private com- mercial garbage hauling with public garbage collection -- provided not by trucks and employees of the Babylon Department of Public Works, but by an independent con- tractor (BSSCI) hired by the Town. The Town's de- cision to hire an outside firm to provide services on the Town's behalf is quite unremarkable. State gov- ernments have turned to the private sector to "contract out" or "outsource" numerous governmental functions, including services in correctional (**341 facilities, the management of concessions in public parks, the opera- tion of mental health facilities, the training of displaced workers, and the operation of toll roads. See generally JOAN W. ALLEN ET AL„ THE PRIVATE SECTOR IN STATE SERVICE DELIVERY (1989). The same is true of local governments, including in the field of waste dis- posal. As environmental regulations proliferate, towns may find that their staffs lack the requisite expertise to provide sanitation services in compliance with state and federal mandates. Such expertise may be more readily available in the private sector, from firms that special- ize in waste removal. The U.S. Office of Technology Assessment has observed that as municipal solid waste systems become more complex, municipalities (especially the smaller ones) may be reluc- tant to assume the primary responsibility for operating a complex business. The large waste management compa- nies that have emerged are sophisticated in the technical aspects of [municipal solid waste) management and fi- nancially capable of accepting some of the associated business risks. At the municipal level, the prospect of contracting out increasingly complicated waste manage- ment 1**351 services has become particularly attractive. OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, FACING AMERICA'S TRASH: Page 12 LEXSEE WHAT'S NEXT FOR MUNICiPAL SOLID WASTE 54 (reprint ed. 1991). Another reason why local governments often contract out is to avoid investing large sutras of money in capital equipment -- equipment that might be more cheaply obtained by financing schemes dial invol%e, amont! other things, the hiring of outside firms. See, e.g.. ALLEN ET AL., supra, at 4-5. One survey has shown that, at least in some circumstances_ it is more erpensi,.e ti>r a local government itself to collect town garbage than for the government to hire a private contractor to do so. BARBARA J. STEVENS. HANDBOOK OF MUNICIPAL WASTE MANAGEMENT SYSTEMS 9 (1980). While the law may distinguish between activities performed by the Town itself and those performed by independent contractors for purposes of tort liability or agency law, plaintiffs offer no authority for the proposition that these distinctions have any constitutional significance. The Town has followed the example set by countless other local governments by hiring a private contractor to collect commercial earbage on its behalf. Pursuant 1**361 to its contract 1*12851 with the Town, BSSCI must collect all garbage put out for pick-up by all "eligi- ble customers" -- that is, all commercial establishments on improved property within the District. The Town, in turn, can levy and collect unpaid user fees and bene- fit assessments as it would collect any other delinquent local tax. ,N.Y. TOWN LAW ` 198(9)(c) (McKinney 1987); 1987 N.Y. Op. Comptroller 86-88, at 3. In sum. Nve conclude that town businesses are not forced to purchase anything front the Town (or its agent, BSSCI) -- and that the Town has indeed excluded all garbage haulers, including BSSCI, from selling garbage collectinu, wrvices to businesses in Babylon. The Town's waste management system treats ail garbage haulers alike and thus does not discriminate against interstate com- merce. The plaintiffs argue that even if the local govern- ment could provide exclusive garbage services to all businesses in the District, it nevertheless discriminates against interstate commerce by financing, those services through ta..ses imposed only on busittrsscs arid commer- cial properly within the District, rather than through taxes payable by both residents and bl1SinCSSe5 on a town- �i ide basis. In support 1 ""371 ot'this argtltllCllt, plaintiffs point to the Supreme Court's st:uenlent in Carbone that if Special financing is necessary to ensure the long-term survival" of a solid waste treaunent facility, then "the town may subsidize the facility through general taxes or municipal bonds." 114 S. Cr. to 16S4. "General taxes," the plaintiffs contend, are town -wide taxes that "'are re- SJ- #2Q "I 1� 66 F.3d 1272, *1285; 1995 U.S. App. LEXiS 27011, **37; 41 ERC (BNA) 1254 .T� ceived for the general purposes of the [government], and [that] are, upon proper receipt, lost in the general revenues.'" Oregon W2ste Sis_ 114 S. Ct. at 1353 (first alteration in original) (quoting Flast v. Cohen, 392 US. S3, 128, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968) (Harlan. 1., dissenting), "Special assessments," by contrast, are imposed only "upon property within a limited area for the payment for a local improvement, supposed to enhance the valve of all property within that area." Illinois Cent. R.R. v. City of Decatur, 147 U.S. 190, 197, 37 L. Ed. 132, 13 S. Ct. 293 (1893). Plaintiffs contend that the two charges imposed by the Town -- the S 1500 per -parcel benefit assessment payable by commercial property owners and the additional per - cubic -yard user fees payable by town businesses -- are targeted against a "narrowly focused croup: potential commercial [•"381 customers of out-of-state disposal companies," and thereby discriminate against interstate commerce. In our view-, the Carbone majority used the phrase "general taxes" as a synonym for nondiscriminatory taxes -- that is, taxes that apply evenhandedly to in -state and out-of-state businesses. This interpretation finds support in the Carbone majority's citation to New Energy Co. of Indiana i� Lintbach, 486 U.S. 269, 278, 100 L. Ed. 2d 302, 108 S. Ct. 1803 (1988) ("Direct subsi- dization of domestic industry does not ordinarily run afoul of [the Commerce Clause]; discriminatory taxa- tion of out-of-state manufacturers does."). The Town imposes its fees uniformly throughout the District upon all commercial property, and upon all businesses on such property. The Town does not differentiate between local and nonlocal businesses. Accordingly, we cannot say that those taxes discriminate against nonlocal taxpayers in favor of local taxpayers. n12 n12 There is no reason to assume that by "general taxes" the Supreme Court meant "general revenue taxes" -- that is, taxes that are commingled with other municipal revenues. The courts have generally dis- tinguished "special assessments" from "general rev- enue taxes" not when determining whether those fees discriminate against interstate commerce, but rather, when determining whether they are "fairly related to services provided to the State" -- one of four re- quirements which a state tax must satisfy to survive a Commerce C'lausc challenge under Complete Auto Transit, Inc. r. Bradv, 430 U.S. 274, 279, 51 L. Ed, 2d 326. 97 S. Ct. 1076 (1977). According to Complete Auto Transit, a state tax is valid if it "is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not dis- criminate against interstate commerce, and is fairly Page 13 LEXSEE related to the services provided by the State." Id. General revenue taxes satisfv the fourth prong of the Complete Auto Transit test so lone as they are rea- sonably related to the extent of the taxpayer's con- tacts with the State. The courts will not inquire as to tchether the ;fate s gross receipts from a "general revenue tax" match, dollar for dollar, the benefits re- turned to the taxpayer. Commonwealth Edison Co. v. Montana, 453 US. 609. 625-28. 69 L. F_41. 'd 88-1, 101 S. Ct. 2946 (1981). Special assessments and user fees, by contrast, which "are purportedly assessed to reimburse the State for costs incurred in providing specific quantifiable services," are sub- ject to a somewhat more demanding standard. id. at 622 n.12. Those taxes must not be "'manifestly disproportionate to the services rendered'" by the state. Id. (quoting Clark v. f'ttul Graf•, Inc., 306 US. 553, 599, 83 L. Ed. 1001, 59 S. Ct. 744 (1939)). Because it is undisputed that the Town uses all of the revenue from its user fees and ben- efit assessments to defray its expenses in providing garbage services to the District, we cannot conclude that the amount of those assessments is "manifestly disproportionate" to the benefits the Town confers in return. Cf. Evansville-Wnderburgh Airport Auth. Dist. v. Delta Airlines, Inc., 405 U.S. 707, 719-20, 31 L. £d. 2d 620. 92 S. Ct. 1349 (1972) (upholding state and municipal head tax on airline passengers to defray costs of airport construction and maintenance, in part because plaintiffs failed to show fees "to be excessive in relation to costs incurred by the tax- ing authorities"). in any event, the plaintiffs do not explicitly press the argument that the Town's two assessments would be invalid under Complete Auto Transit, but rather, focus on the fact that the fees are not imposed on both commercial and residential entities throughout the entire Town. 1 "391 ['12861 Plaintiffs argue that by taxing only commercial property and businesses, the Town is focusing its tax bur- dens on the entities more likely to engage in interstate commerce -- more hkels, that is. than individual town residents. if we %%ere to accept this argument, however, all taxes imposed solely on "commercial" entities would inherently discriminate against interstate commerce, and thus fall under the "virtually per se rule of invalidity" under the Commerce Clause. Presumably, such a rule would sweep away everything from state corporate in- come taxes to corporate franchise taxes. The flaw in the plaintiffs' argument is obvious, however: the local businesses subject to these taxes are equally likely to en- gage in local commerce as to engage in interstate corn- 1 66 F.3d 1272. *12W 1995 U.S. App. LEXIS 27011, **39, 41 ERC (DNA) 1254 merge. The To,.vn's imposition of benefit assessments and user fees within the District has the legitimate, non - protectionist goal of apportioning the costs of providing services to that district In an equitable m nner, it is in the nature of a local improvement district that the town provides sertces oniv it) properr or persons within the district, and that those entities bear all of the costs of those town services. [**a01 See, e.g., N.Y. TOWN LA\V § 10R190)) (McKinney I'Q871 Under New )brk law, town boards may establish "improvement districts" to provide any of several erturnerated services, "wholly at the expense of the district": sewers, drainage, water, water quality treatment, parks, public parking, lighting, snow removal, water supply, sidewalks, fallout shel- ters, refuse and garbage collection, aquatic plant growth control, ambulance service, harbor improvement, public dock, beach erosion control. ld. § 198 (McKinney 1987 Supp. 1994). n13 All of these districts are financed through charges levied against those persons who ben- efit from the services provided within that district. in general, the town may lev% assessments based on either an "ad valorem basis,' meaning against property owners in proportion to the value of the property, or a "benefit basis," meaning in proportion to the actual benefit con- ferred by the district on property. Id. § 202. Making local businesses bear the tax bill for municipal services does not discriminate against interstate commerce. n 13 The New fork Legislature has also authorized specified local governments to establish other types of improvement districts. For example, any town in Suffolk County is authorized to create a special improvement district for the disposal of duck waste. N.Y. TOWN LAW § 198-a (McKinney 1987). The town may charge users and property owners (usually, those who operate and own duck farms) within the district "duck waste charges" based on the volume of duck waste the Town treats, or upon any other equitable basis that the town board chooses. Id. § 198-a(2). Duck waste districts (whence, presumably, the phrase "down in the dumps") might be said to enjoy a special nexus with foreign commerce. Cf. Missouri v. Holland, 252 U.S. 416, 434-35, 64 L. Ed. 641, 40 S. Ct. 332 (1920) (upholding Migratory Bird Treaty Act, 40 Star. 755 (1918), pursuant to con- gressional power to implement treaties, and describ- ing migratory birds as a "national interest of very nearly the first magnitude" since they are both "a food supply" and "the protectors of our forests and our crops"). (**411 Page 14 LEXSEE c. The Pike Balancing Test: Endue Burden on interstate Commerce Having concluded that Babylon's assumption of collec- tion duties to (lie ,arbaLe market does not discriminate against interstate commerce, we now must evaluate its commercial waste disposal system under the (* 12871 bal- ancin,, test set forth in Pike I. [truce Church. Inc.. 397 U.S. 137, 25 L. Ed. 2d 174. 90 S. Ct. 844 (1970). In that case, the Court stated that where a statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate com- merce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Al. at 142. We first determine whether the Town has imposed any burdens on interstate commerce. We have explained that the "incidental burdens" to which Pike refers "are the burdens on interstate commerce that exceed the burdens on intrastate commerce." New York State Trawlers Assn v. Jorling, 16 F.3d 1303, 1303 (2d Cir. 1994) (cit- ing Clover Leaf Creamery Co., 449 U.S. at 471.72); see also Pacific Northwest liaison Producers v. Smirch, 20 F.3d 1008, 1015 (9th Cir.) 1**421 (explaining that "incidental burdens" on interstate commerce include dis- ruption o' interstate travel and shipping due to lack of uniformity in state laws, impacts on commerce beyond the borders of the state, or burdens that fall more heav- ily on out-of-state interests), cent. denied, 130 L. Ed. 2d 211. 115 S. Ct. 297 (1994). Although Babylon's takeover of the local commercial garbage market may have some relatively minor effects on both interstate and local commerce, it will not impose any different burdens on nonlocal as opposed to local earbage haulers. That is, while the takeover will result in only one garbage hauler collecnne commercial earbase on the Town's behalf in Babvion. (tie new system w ill not necessarily increase or decrease interstate commerce in garbage collection. Ally Irilpact on inttrrsUlte conunerce would depend on whether a sin,lc bu1Cr lthe 'lbwnl, purchasing collec- tion services in bulk for the entire District, would tend to hire out-of-state Garbage haulers more often or less often than numerous buyers (Babylon's individual busi- nesses) would have under the old system. Those buy- ers, like the Town, could have preferred a local garbage hauler to a nonlocal hauler, or vice versa, for (**431 any reason: cost, quality of service, or prior business relationship, just to name a few. There is no reason to assume that by shifting all hiring of garbage haulers V_ 66 17.3d 1272, *1287; 1995 U.S. App. LEXIS ?,7011, **43; 41 ERC (BNA) 1254 into the hands of one buyer, the flow of interstate com- merce will be reduced, and thereby burdened, in fact, the open bidding process used by the Town to hire a single garbage hauler could readily result in the hiring of an out-of-state garbage hauler -- %N hick would actu- ally' shift a portion of' the garbat,e collection market into interstate commerce. See Clover Leaf Creamery, 449 U.S. at 47-7 (observing that trithough state statute ban- ning nonrecyclab)e mill: containers %WUld presumably cause market disruptions, "there is no reason to suspect that the gainers will be Minnesota firms, or the losers out-of-state firms"). Accordingly, we Lind (hat Babylon has imposed no greater burdens on nonlocal firms than it has placed on local (inns. The plaintiffs also attack the Town's system of benefit assessments and user fees, on the theor} that by forcing local businesses to pay the Town for garbage hauling, businesses will be umvilling to hire a private hauler and essentially pay for garbage collection a second time. But the [**4.11 Town's takeover of the garbage collection sys- tem, not the tax system, prevents local businesses from hiring private haulers to pick up their garbage. Even if the `[own financed garbage collection for the District from "general revenues" - for example, by increasing the town -wide ad valorem properly tax -- businesses would still be prohibited from hiring private haulers. Upon closer scrutiny, it becomes clear that the plaintiffs do not seriously challenge the Town's taxation system. Rather, they dispute the use to which the Town has put their tax dollars -- to provide garbage collection and dis- posal services. In this sense, the plaintiffs' challenge to the tax system is really a reformulation of their chal- lenge to the Town's assumption of collection duties in the District. We have already rejected the notion that the Town's provision of exclusive sanitation services places any burdens on interstate commerce, since the Town pro- hibits all garbage haulers from contracting with local businesses. 'Ne likewise reject the notion that this lo- cal tax systern -- typical of [* 12881 local tax systems across the country -- places any burdens on interstate commerce. Absent a showing by the plaintiffs [**451 that the Town's waste collection system places any extra bur- den on out-of-state companies, or on local companies engaged in interstate commerce, we must conclude that the Town has not imposed any "incidental burdens" on interstate commerce that 'are clearly excessive in rela- tion to the putative local benefits." Pike, 397 U.S. at 142. We. nevertheless note that Babylon has legitimate -- indeed, compelling -- interests that are served by its waste management program. In our multi -tiered fed - Page 15 LEXSEE oral system, local governments have historically borne primary responsibility for ensuring the safe and re- liable disposal of waste generated within their bor- ders -- a role that Congress has expressly recognized. Resource Conservation and Recovery Act ("RCRA'), § 1002(aft4) (codified at 42 U.S.C. § 690/(a)(4) (1988))• ("Collection and disposal of solid wastes should con- tinue to be primarily the function of State, regional, and local agencies ", The Tug n must meet tar- gers for solid waste recycling set by overlapping state and federal mandates. See, e.e., N.Y. GEN. MUN. LAW § 120-aa (McKinney 1986 & Supp. 1994) (re- quiring local government to enact ordinances mandating source separation [**461 of recyclable items from solid waste); see also 40 C.F.R. § 256.31 (1994) (requiring states receiving federal assistance under RCRA to plan for source separation, recycling, and resource conserva- tion). Local governments must enjoy some leeway in coping with the solid waste crisis. 3. The Town's Relationship with BSSCi (the Garbage Hauler) The plaintiffs argue that BSSCI is a "single local pro- prietor" that is favored by Babylon in three ways. As discussed above, they claim primarily that BSSCI en- joys a captive customer base because the Town prohibits other private haulers from competing with it in the local commercial garbage market. Property owners and com- mercial enterprises, they contend, are thereby forced to do business with the designated garbage hauler. This, they argue, mirrors the situation in Carbone, where the Supreme Court struck down a municipal ordinance that required all town garbage to be processed at a to- tal, privately owned transfer station. 114 S. Ct. at 1683. We need not revisit our rejection of that argument. BSSCI is merely a contractor hired to collect garbage on the Town's behalf, not a favored seller of [**471 garbage collecting services with whom local companies are forced to do business. Plaintiffs raise two further objections to the Town's contract with BSSCI -- objections that are somewhat an- cillar' to the Toun's takeover of the garbage collec- tion market. First, the plaintiffs claim that besides a monopoly. BSSCI enjoys an unfair advantage over its competitors because the Town lets it dispose of commer- cial waste for free at (tic Incinerator. According to the plaintiffs, this subsidy is comparable to the one invali- dated by the Supreme Court in nest Lain Creamen, Inc. v. Healy, 129 L. Ed. 2r1 157. 114 S. Ct. 2205 (1994). where Massachusetts had funnelled revenue from a tax on all milk sold in the state to Massachusetts dairy farm- ers only. Second, the plaintiffs argue that BSSCI has 09- i'40 66 P.3d 1272, *1288; 1995 U.S. App. LEXiS 27011, **47; 41 ERC (BNA) 1254 been the special object of the Town's favor, and that the process for selecting a town garbage hauler was skewed in that firm's direction. We are not persuaded by the analogy to West Lynn Creamery, or by the plaintiffs' al- legations of favoritism toy. ards BSSCI. Both the Town's exercise of its dumping rights at the incttlerator and its hiring of a garbage hauler involve a local government spending tax dollars for the benefit 1**481 of its citi- zens -- paradigmatic esarmhles of "market participation" that are riot subject to the iitnitations of the dormant Commerce Clause. Furthermore, we note that even if the Town's actions constituted "market regulation," they would nevertheless pass muster under the Commerce Clause. a. Slarkct Participation/Market Regulation The Town's decision to let BSSCI dump trash collected in the District for free at the Incinerator constitutes market participation -- not discrimination against interstate com- merce. As described earlier, the Town effectively owns the Incinerator, and pays 1 * 12891 Ogden a monthly ser- vice fee to operate the facility the Town owns exclusive rights to dispose of waste there. The Town may exer- cise those rights as it sees fit. It could sell those rights on the open market. For example, it has entered into a seven-year agreement with the Nassau/Suffolk Hospital Council to burn treated, regulated medical waste at the Incinerator at a rate of S 240 per ton. Alternatively, the Town could re -sell those rights only to town residents, just as South Dakota sold cement from its factory only to state residents in Reeves, 447 U.S. at 440. Instead, the Town has 1**491 chosen to give away those rights for free, to dispose of garbage generated by town busi- nesses. Babylon's decision to let BSSCI dump trash for free at the Incinerator therefore constitutes municipal participation in the waste disposal market. Plaintiffs also argue that the process Babylon used to select a particular garbage hauler was skewed in favor of BSSCI, a consortium of Long island garbage haulers. in other words, plaintiffs argue that the Town's seem- ingly neutral takeover of the garbage market was in fact a pretense for handing BSSCi a focal garbage monopoly. But allegations that the Town favored BSSCi are irrel- evant because the market participation doctrine permits the Town to hire whatever company it chooses, on what- ever terms it chooses, [o provide municipal services. As the Supreme Court has held, "Nothing in the pur- poses animating the Commerce Clause prohibits a State, in the absence of congressional action, from participat- ing in the market and exercising the right to favor its own citizens over others." Hughes v. Alevandria Scrap Corp., 426 U.S. 794, 810. 49 L. Ed. 2d 220, 96 S. Ct, Page 16 LEXSEE 2488 (1976) (footnote omitted); Wtite v. Massachusetts Council of Constr. Employers, 460 U S. 204, 207, 75 L. Ed. 2d /. 103 S. Cf. 1042 (1983); 1**501 see also SSC Corp., slip op. at 7550,53. When a local government decides to provide a municipal service such as garbage collection to its residents, it need not buy garbage trucks or put drivers on the town payroll to pass constitutional muster. instead, it can hire an outside contractor to provide those services to the town In Massachusetts Council of Construction Employers, for example, the Supreme: Court held that the City of Boston could re- quire its building contractors to hire at least fifty per- cent of their workforce from among Boston residents. 460 U.S. at 214-15. Because all of the employees cov- ered by that mandate were "in a substantial if informal sense, 'working for the city,'" Boston was considered to be simply favoring its own residents through the ex- penditures of municipal funds. Id. at 211 n.7. As the Court stated, "when a state or local government enters the market as a participant it is not subject to the re- straints of the Commerce Clause." 1d. at 208. Nothing in the Constitution precludes a local government from hirinia a local company precisely because it is local. b. Discrimination Against, or Burdens on, Interstate Commerce 1**511 in any event, there is no evidence that Babylon (1) is "subsidizing" BSSCI by allowing it to dump town garbage at the Incinerator for free, or (2) selected BSSCI because it is a consortium of local companies. The plaintiffs' first argument, that the Town is sub- sidizing BSSCi by letting it dump garbage for free at the Incinerator, ignores economic reality. Although a customer normally pays its garbage hauler once for two services, collection and disposal, Babylon has purchased those services separately. The Town pays BSSCI to collect town garbage, and Ogden to incinerate it. If Babylon had so desired, it could have charged BSSCI "tipping fees" to dump town trash at the Incinerator -- as the netahborinz town of Sinuhtow'n has done. See SSC Corte. 66 F.1d 502, 1995 U. S. App. LEXIS 26762, 14. By cll:tr°lng, tees at the Incinerator, the Town could eliminate its hauier's arguable incentive to insinuate non- contract �,arbage into the tiarbage it dumps for free at the Incinerator. See id. at *40. But if BSSCi had to pay to dispose of town garbage, it would have passed those costs back to Babylon in a higher bid. The Town there- fore saves money in its contract with BSSCI by letting it dump for 1**521 free at the Incinerator. 1*12901 The disposal component of the contract is therefore a wash -- not a subsidy -- for BSSCI. Likewise, plaiiittfis' allegations of bias in favor of 6 J 1 2 0 L 66 F.3d 1272, *1290: 1995 U.S. App. LEXiS 27011. **52-, dl ERC (BVA) 1254 BSSCI are so insubstantial that, even if the Town's hir- ing of a garbage hauler were subject to the limitations of the dormant Commerce Clause, we would nevertheless conclude that the Town's selection of BSSCi neither dis- criminated against nor irnposed any burden on interstate commerce. Bali, Ton conducted an open bidding pro- cess to find a garbage hauler for its District, pursuant to § 120-w(4)(c) of the New York General Municipal Law ONI,:Kinncs 1986). ,\ccordtng to an undisputed af- fidavit of the Town Comptroller, the Town "aggressively solicited proposers from a national audience" by send- ing out bid packages to sixty-nine companies across the country, twenty-four of which were based outside New York. The Town also notified national trade publications of the bidding process, spoke with representatives of in- dustry trade groups such is the Solid Waste Association of North America, and contacted national waste haul- ing firms by telephone to generate interest in bidding. Furthermore, the Town did not impose any geographical [**531 eligibility limitations on those who bid to provide collection scn ices in the District. The plaintiffs argue that, despite these efforts to gen- erate nationwide interest in bidding, the Town skewed the selection process in favor of BSSCi, which was ultimately awarded the contract to collect commercial garbage within the District. In evaluating the various bids that were submitted, the Town Board placed sig- nificant weight on whether the bidder had "experience identical to or related to that required under this procure- ment" and "experience in transition and implementation of services identical to or similar to services required un- der this procurement." BSSCI received the highest marks in that category, since its principals had already proven. their ability to start up a new collection system smoothly and efficiently as members of the consortium serving as the town's garbage hauler in the Babylon Residential District. Furthermore, the draft contract contained in the request for proposals required successful bidders to maintain a local office in Babylon and to keep off -duty garbage trucks "parked securely in a central yard, estab- lished by the Contractor, within the Town of Babylon." [**541 Despite the plaintiffs' protestations to the contrary, none of these factors detracted from the nondiscrimina- tory nature of the Town's bidding process, or resulted in any undue burdens on interstate commerce. First, plain- tiffs neglect to mention that the Town selected BSSCI not only because of its prior experience hauling garbage in Babylon, but also because it submitted the lowest - priced bid. Indeed, the Town considered the relative merits of the submitted bids according to several dis- tinct criteria, including cost, prior experience, ability to Page 17 LEXSEE provide equipment and support services on the sched- ule requested by the Town, and ability to meet financial obligations. Second, the requirement of maintaining a secured parking lot and a local office can hardly be con- sidered discrimination against interstate commerce. At most, such a requirement v.ould amount to a burden on nonlocal firms that would have to establish in -town service locations if awarded the contract. But such bur- dens are do ininimis Mici) ae consider the fact that the chosen hauler must, by the nature of the garbage col- lection services, pick tip garbage locally -- from busi- nesses situated within the Town. Because the [**551 hauler's tracks must be available at a moment's notice to provide back-up service within the District, their ge- ographic proximity to the District is a sine qua non of the contract. Furthermore, is the Town explains, local officials can more easily monitor the garbage hauler's performance of its contractual duties -• including the maintenance of a dedicated fleet of collection vehicles -- if those vehicles are kept in a single location accessible for inspections. Similarly, the maintenance of a local of- fice will also enable consumers to file complaints more readily, as well as to ensure that the contractor is respon- sive to local needs. In short, the requirement that these support services (purchased by the town) be provided lo- cally places nothing more than a de minimis burden on interstate commerce -- a burden which is far outweighed by the nondiscriminatory local interests served by en- suring reliable. (1 129 11 consistent sanitation service to town businesses. d. The Town's Relationship with Ogden (the Incinerator Operator) The plaintiffs also argue that the garbage disposal com- ponent of the Town's waste management plan impermis- sibly favors the incinerator overall [**561 other in -state and out-of-state disposal facilities. First, they contend that the Town has effectively guaranteed that all District waste will be disposed of at the incinerator by letting BSSCI dump commercial waste there for free. This, they contend, has closed off the local commercial garbage market to out-of-state competuton. Second, they argue that the benefit assessments and user fees ch: rt!ed by the Town against property and businesses in the District, coupled %%ith the use of those funds to support operation of the incinerator, constitutes a tax -and -subsidy scheme that discriminates against interstate commerce like the one struck down in ttrsr L.win Creuuterv, 11.1 S. Cr. al 2205. We address each argument in turn. a. Market Participaiion,,Alarket Regulation First, we conclude that the Town is engaging in market S9 — le(d N 66 F.3d 1272, *1291; 1995 U.S. App. LEXIS 27011, *'56; 41 ERC (BNA) 1254 participation both when it purchases incinerating ser- vices from Ogden, and when it exercises its rights to use those services by letting BSSCI durnp town garbage at the incinerator for free. The Town acts as a buyer in the market for incineratine scrs ices when it uses tax dollars to repay municipal bands and to pas' Ogden to operate the incinerator. lliis [**57I is a simple act of govern- ment procurement. As the Supreme Court has observed, "there is no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market." Rect-es, 447 U.S. at 437. Having bought those incinerating services, the Town may use them as it chooses. As discussed earlier, the Town sells some incinerating services to a local hospital council for the disposal of medical waste. instead of selling the remainder of its rights to use the Incinerator, the Town uses them to dispose of trash that BSSCI col- lects from the commercial garbage improvement district. (The Town also may reserve some of the disposal rights for garbage from its residential garbage district, but the details of residential collection and disposal are not be- fore us.) The Town is acting completely within the proper bounds of its discretion when it charges BSSCI nothing to use those rights. The district court correctly observed that by letting BSSCI dump garbage for free at the Incinerator, the Town has created "not only a powerful, but virtually an irresistible incentive to dispose of the waste at the town facility." By lowering its tipping fees to zero, [**581 the Town has guaranteed a flow of garbage to its Incinerator. But local governments are perfectly free, as market participants, to use economic incentives to bene- fit local businesses. We repeat the Supreme Court's ob- servation in Alexandria Scrap that the Commerce Clause poses no barrier to a state "participating in the market and exercising the right to favor its own citizens over others." 426 U.S, at 810. This is perfectly consistent with Carbone, as well. Indeed, what some commenta- tors have labelled "economic flow control" is precisely what Justice O'Connor suggested would be fully con- sonant with the majority's holding in Carbone, 114 S. G. at 1690 (O'Connor, J., concurring) (suggest- ing that Clarkstown could have financed its transfer sta- tion "by lowering its price for processing to a level competitive with other waste processing facilities"); see Eric S. Petersen & David N. Abramowitz, Municipal Solid Waste Flow Control in the Post -Carbone World, 22 FORD11AM URB. L.J. 361, 404 (1995) ("Economic flow control is achieved when haulers deliver solid waste to a facility because the costs of disposal at the facility, including transportation costs and tipping fees, [**591 are less than or comparable to those at alternative dis- posal sites."). Page 18 LEXSEE b. Discrimination Against, or Burdens on, interstate Commerce The plaintiffs reply that even if the Town's purchase of incineratine services does constitute market participa- tion, its financing of those incinerating services through property I * 12921 taxes and user fees nevertheless consti- tutes an unconstitutional "rcgulation" of interstate com- merce. In support of their argument, the plaintiffs claim that Babylon's taxing scheme is no different from the one struck down in West Lynn Creamery. In that case, Massachusetts imposed a facially neutral tax on all milk sold in the state. All of the money collected was then distributed to in -state dairy farmers. The effect of the scheme, the Supreme Court found. was to increase local producers' share of the state milk market. The Court also rejected the state's argument that its program was valid because neither the tax on the one hand, nor the subsidy on the other, independently violated the dormant Commerce Clause: (The states( argument would require us to analyze sepa- rately two parts of an integrated regulation, but we can- not divorce the premium 1**601 payments from the use to which the payments are put. It is the entire program -- not just the contributions to the fund or the distributions from that fund -- that simultaneously burdens interstate commerce and discriminates in favor of local producers. The choice of constitutional means -- nondiscriminatory tax and local subsidy -- cannot guarantee the constitu- tionality of the program as a whole. 114 S. Ct. at 2215. Unlike the Massachusetts milk scheme, however, Babylon's financing system does not "subsidize" BSSCI or Ogden. Instead, the Town spends its tax revenues to purchase services for town residents - - a traditional, and unexceptionable, municipal activity. Babylon buys garbage collection services from BSSCI and incineratine services froin Ogden. Nor, as explained earlier, does the Town subsidize BSSCI by letting it dump town garbage for "free" at the Incinerator; rather, the Town pays less to BSSCI in the first place for collecting garbage because BSSCi does not hase to pay for garbage disposal. If anyone is "subsidized" by the user fees, it is the municipal treasury -- not am• private business. And that, of course, is the point of every tax. Thus, although we agree 1"61I that the Tow•n's tax system constitutes "regulation," we disagree that it has any discriminatory effect, or that it impermissibly bur- dens interstate commerce. To the contrary, we believe that the Town of Babylon has taken to heart the Supreme Court's admonition in Carbone that if "special tinanc- IL apt 66 F.3d 1272, *1292; 1995 U.S. App. LEXiS 27011, **61; 41 ERC (BNA) 1254 ing is necessary to ensure the long-term survival" of the incinerator, then "the to%%n may subsidize the facility through general taxes or municipal bonds." 114 S. Ct. at 1684. Babylon has employed both taxes and bonds. It levies a S 1500 flat tax on all improved cornmercial prop- erties in the district, as %Sell as a "user fee" for each cubic yard of garbage generated on each parcel above a fixed base amount. We believe that both of these charges qual- ify as the sort of taxes the Supreme Court had in mind in Carbone. Although most municipalities raise the bulk of their funds through ad valorem property taxes, many also employ income or sales taxes, as kkell as special levies designed to pay for specific municipal services like schools, roads, fire fighting, or sewer service. It is not remarkable, therefore, to see a town create a waste control district and to spread its costs among those who [**621 reap the benefit of services provided in that dis- trict. The S 15001 flat properly tax is perhaps a rough estimate of the benefit accorded to each parcel of prop- erty in the district: but plaintiffs do not contend that it is out of all proportion to the benefit conferred on each parcel. The per -cubic -yard user fee, by contrast, cor- responds much more closely to the benefit enjoyed by each waste generator in the District. Each business pays tax on the garbage they generate, above a fixed amount. Not only is this tax fairer than an ad valorem tax -- be- cause it taxes businesses based on the actual amount of municipal services they consume -- but it also creates a greater incentive for businesses to reduce the amount of waste they generate. We cannot take exception to either of these purposes of Babylon's tax system. 5. Municipal Reliance on Long -Standing Precedent Finally, we note that we must decide this case against the backdrop of two venerable, and until now unchal- lenged, decisions of the Supreme Court. In California Reduction Co, v. Sanitary Reduction librls, 199 U.S. 306, (*12931 26 S. Ct. 100, 50 L. Ed. 204 (1905), and Gardner v. ltlichigan, 199 U.S. 325, 50L. Ed. 212, 26 S. Ct. 106 (1905), the Court upheld the authority [**63] of San Francisco and Detroit to grant exclusive rights to collect and dispose of garbage within the city to single scavenger companies, who in turn would incinerate the garbage. The Court rejected takings and due process challenges to those systems. Justice Harlan, speaking for the Court, spoke of the pressing need for municipal- ities to enjoy some flexibility in formulating solutions to the waste disposal crises thin facing them: ,Many of the questions involved in municipal sanitation i have proved to be difficult of solution. There is no mode of disposing of garbage and refuse matter, as found in cities and dense populations, which is universally fol- Page 19 LEXSEE lowed. In some cities garbage receptacles, properly covered, are provided. sometimes by the householder, sometimes by the municipal authorities or the garbage collector. But even such devices often prove to be worth- less for cant of proper attention to them by household- ers. Then, the question arises for the consideration of the municipal authorities as to the frequency of the re- moval of garbage. The practice of not at all uniform. in some cities. it is collected ses en times a %%eek; in others, six, four, and three times a week. Again, [ **641 ques- tions arise as to the mode in which garbage should be collected; and the statement is made by those who have investigated the subject, that while "there appears a well- nigh unanimous demand on the part of health officers, and oftentimes of the public generally, for the municipal collection of garbage," the "problem of garbage disposal has not been solved." . . . These references to the different methods employed to dispose of garbage and refuse have been made in order to show that the Board had before them a most difficult problem -- unsolved by experience or science -- as to the best or most appropriate method of protecting the pub- lic health in the matter of the disposal of the garbage, refuse and other materials found on private premises, and in hotels, restaurants and like places. The State, charged with the duty of safeguarding the health of its people, committed the subject to the wisdom and dis- cretion of the Board of Supervisors. The conclusion it reached appears in the ordinances in question, and the courts must accept it, unless these ordinances are, in some essential particular, repugnant to the fundamental law. California Reduction. 199 U.S. at 320-21 [**651 (cita- tion omitted). These rulings of the Supreme Court have engendered important reliance interests at the state and local level. The New York Court of Appeals, for ex- ample, long ago declared that a municipality could pass an ordinance prohibiting the collection of garbage by persons unlicensed by its health department, and then declare that no licenses should be ,ruued except to the person having a contract titi ith the city for the collection of garbage. City of Rochester r. Guiberlett, 211 N.Y. 309, 317. 105 N� E. 548 (1914) ("Experience has shown that, when there are many collectors of garbage within a municipality acting, independently although under li- cense, )I Is difficult to m:un(atn the supervision necessary to presenc the public health: sshile, %vith one contractor acting under a contract pursuant to which he is paid and for the faithful performance of which lie is required to give a bond with sureties, the public health can be and is better and more surely protected."); id. at 31S-20 (re- lying on California Reduction and Gardner). The chal- 66 F.3d 1272, *1293, 1995 U.S, App. LEXIS 27011. **65; 41 ERC (BNA) 12.54 lenges associated with sanitary waste disposal have not diminished in the last ninety years. Local governments have continued to shoulder the 1 **661 primary responsi- bility for solving waste disposal problems -- a role that has been recognized by Congress. See, e.g., Resource Consenation and Rccover� ,1ct § iOU2(3)(4) (codified at 42 U.S.C. § 6901(a)(4)) (1988) (congressional find- ing that "collection and disposal of solid wastes should continue to be primarily the function of State, reeional, and local agencies" supplemented by federal financial and technical assistance). We recognize that the Supreme Court was not faced with Commerce Clause challenges to the Detroit and San Francisco waste disposal systems, and that those cases do not dispose of the much narrower issues we are faced with today. See, c.g., Bibb v Navajo Freight Lines, Inc., 359 U.S. 520, 529, 791*1294] S. Cf. 962, 3 L. Ed. 2d 1003 (1959) ("Local regulations which would pass muster under the Due Process Clause might nonetheless fail to survive other challenges to constitu- tionality that bring the Supremacy Clause into play. Like any local law that conflicts with federal regulatory mea- sures, state regulations that run afoul of the policy of free trade reflected in the Commerce Clause must also bow.') (citations omitted); Quill Corp. v. North Dakota, 504 U.S. 298, 312. 119 L. Ed. 2d 91, 112 S. Ct. 1904 (1992) (distinguishing [**671 between Due Process and Commerce Clauses). Yet we cannot brush aside two Supreme Coun precedents that dealt with waste disposal systems so similar to the one before us today. If we were to rule in plaintiffs' favor, the municipal garbage systems upheld by the Court in California Reduction and Gardner would be unconstitutional, and municipalities could no longer undertake the traditional local govern- mental function of collecting town garbage. We decline the invitation to derive such a revolution- ary proposition from the Supreme Court's decision in Carbone -- an opinion that described itself as unrcmark- ably invalidating "just one more instance of local pro- cessing requirements" that the Court had long held in- valid. 114 S. Ct. at 1682, As Chief Justice Marshall once wrote, "an opinion which is to overrule all for- mer precedents, and to establish a principle never be- fore recognised, should be expressed in plain and ex- plicit terms. A mere implication ought not to prostrate a principle which seems to have been so well established." United States v, Burr, 25 F. Cas. 55, 165 (C.C.D. 16. 1807) (No. 14,693). We refuse to undercut the long- standing precedents of California Reduction [**681 and l Gardner absent clear indication from the Supreme Court that the Commerce Clause is now to be interpreted to effectively preclude local governments from providing Page 20 LEYSEE basic sanitation services such as garbage collection on an exclusive basis, and financing those services by taxing local residents. We therefore conclude that the plaintiffs have failed to state a %iable claim under the Cornrnerce Clause, and therefore have not demonstrated that they are likely to succeed on the merits. Furthermore, we note that the de- fendants moved for dismissal in the district court, that the parties ►ta,,e exhaustively briefed the issues before us, and that the Corntnerce Clause claims may be resolved as a matter of law. Accordingly, ,ve find that this is an appropriate case for invoking the doctrine of Smith x 1itican Iron 1• arks, 165 U.S. 518, 525, 17 S. Cr. 407, 410, 41 L. Ed. 810 (1897); North Carolina Railroad Co. ►: Sion, 268 U.S. 288. 292, 45 S. Ct. 531, 532, 69 L. Ed. 959 (1925): and CES Publishing Corp. v St. Regis Publications, inc., 531 F.2d 11, 15 (2 Cir. 1975), that when on appeal from (tie grant of a preliminary injunction it appears that the "bill had no equity to support [**691 it", 165 U.S. at 525, 175. Ct. of 410. a court of appeals should direct dismissal of the complaint. Friarton Estates Corp. v. City of New lark, 681 F.2d 150, 160-61 (2d Cir. 1982); see Aerojet-General Corp. v, American Arbitration Assn, 478 F.2d 248, 252-53 (9th, Cir. 1973): see also 16 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3937, at 269 (1977) ("On appeal from grant or denial of a preliminary injunction, . . . it may make excellent sense to determine whether the complaint states a claim on which relief can be granted."). We therefore direct dismissal of the plaintiffs' Commerce Clause claims. C. Irreparable Harm Finally, we address the district court's unusual decision to grant preliminary injunctive relief despite its explicit finding that plaintiffs would not suffer any irreparable harm as a result of the implementation of Babylon's solid waste management plan. It is settled law in our Circuit that, as a general mat- ter, a plaintiff must make a showing of irreparable harm before a court may issue preliminary injunctive relief. See Polv»ter Technologv Corp. v. Aliniran, 37 F.3d 74, 77-78 (2d Cir. 1994). Nevertheless, [**701 the district court stated that it would "grant the motion for injunc- tion, none ithstanding the fact that I don't think irrepara- ble harm has been shown." We have described a [* 12951 showing of irreparable harm as the sine qua non for pre- liminary injunctive relief, Buffialo Forge Co. v. Antpco- S 1— 0,20 L_ �1 �1 66 F.3d 1272, *1295, 1995 U.S. App. LEXIS 27011, 41 ERC (BNA) 1254 Pittsburgh Corp., 638 F. 2d 568. 56912d Cir. 1981), and such a departure from established precedent clearly con- stitutes an abuse of discretion. See JSG Trading Corp. v. Tra) I1I ap, Inc., 917 F 2d 75. 79 (2d Cir. 1990) (reversing grant of preliminary injunction where district court found only 'possibility" rather than "likelihood" of irreparable hann). Although plaintiffs concede that the district court mis- applied the standards for granung equitable relief, they nevertheless urge us to comb the record for facts that would support a finding of irreparable harm. It is true that we may affirm "on any basis for which there is a record sufficient to permit conclusions of law, includ- ing grounds upon which the district court did not rely." Leon v, Murphy, 988 F2d 303, 308 (2d Cir. 1993). in this case, however, the district court explicitly found that plaintiffs had not demonstrated irreparable 1**711 harm. We could only affirm the preliminary injunction, then, by determining that the district court's factual finding was "clearly erroneous." Because the record supports the district court's determination that plaintiffs' alleged injuries would be entirely financial -- and therefore re- mediable by an award of money damages -- we cannot say that the district court clearly erred when it found that the plaintiffs had not demonstrated irreparable harm. II1. CONCLUSION This case boils down to two simple propositions. First, towns can assume exclusive responsibility for the collection and disposal of local garbage. Second, towns can hire private contractors to provide municipal ser- vices to residents. In neither case does a town discrim- inate against, or impose any burden on, interstate com- merce. The local interests that are served by consolidat- ing garbage service in the hands of the town -- safety, sanitation, reliable garbage service, cheaper service to Page 21 LEXSEE residents -- would in any event outweigh any arguable burdens placed on interstate commerce. In summary, we uphold Babylon's waste management system. We reverse the district court's entry of the pre- liminary injunction, and dismiss 1 721 the plaintiffs' claims under the Commerce Clause because: 1. The plaintiffs failed to establish a likelihood of success on the merits, because the Town's waste man- agement scheme does not violate the dormant Commerce Clause; and 2. Evidence in the record supports the district court's finding that plaintiffs will not suffer irreparable harm from implementation of the Town's waste management plan. Because we dispose of all claims raised by plaintiffs in USA Recycling, inc. v. Babylon, No. 95-7129, we direct the district court to enter final judgment in favor of the Town and BSSCI in that case. The plaintiffs in A. A. & M. Carting Service, Inc. v. Town of Babylon, No. 95-7131, raise additional claims under various statutory and constitutional provisions. We therefore remand for further proceedings on those claims, consistent with this opinion. Accordingly, we dismiss plaintiffs' claims under the Commerce Clause, as well as plaintiffs' civil rights claims premised upon violations of the Commerce Clause. The plaintiffs in USA Recycling, Inc, v. Town Babylon, No. 95-7129, raise additional claims under various statutory and constitutional provisions. The plaintiffs in 1**731 A. A. & M. Carting Service, Inc. v. Town of Babylon, No. 95-7131, arguably raise a claim under the Sherman Act. We therefore remand for further proceddings on any remaining claims, consistent with this opinion. Page 38 I ST CASE of Level 2 printed in FULL format y " BENNETT ELECTRIC COMPANY, a Florida corporation, and WEST SIDE SANITATION, INC., d/b/a Lazaro's Waste & Recycling Systems, Inc., a Florida corporation, Plaintiffs, vs. THE VILLAGE OF MIAMI SHORES, a Florida municipality, Defendant. Case No. 97•0727-CIV-MORENO UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA 1998 U.S. Dist. LEXIS 9473 May 7, 1998, Decided May 6, 1998, Filed DISPOSITION: 1. 1) Defendant's Motion to Dismiss GRANTED. Entire complaint dismissed with prejudice. CORE TERMS: ordinance, waste, collection, recy- cling, town, municipality, garbage, commerce clause, disposal, interstate commerce, processing, solid waste, flow conL-ol, state action, discriminate, recovered, vil- lage, municipal, hauler, source -separated, selling, com- merce, collector, antitrust laws, out -of -stare, anticom- petitive, collecting, immunity, local government, state Policy COUNSEL: For Plaintiffs: Susan April, Esq., Holland & Knight, Howard Mazloff, Esq., Howard MazJoff, P.A., Miami, FL. For Defendant: Scott E. Perwin, Esq., Kenny Nachwalter Seymour Arnold Critchlow & Spector, P.A., Richard Sarafan, Esq., Richard & Richard, P.A., Miami, FL. JUDGES: FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE. OPINIONBY: FEDERICO A. MORENO OPINION: ORDER. GRANTING DEFENDANT'S MOTION TO DISMISS AND ORDER CLOSING CASE This case presents the question of whether a munici- pality's decision to take control of the local waste collec- tion market violates the Commerce Clause or the federal antitrust laws. The Court concludes that the munici- pality's actions neither discriminate against nor unduly burden interstate commerce, and that the municipality is entitled to state action immunity from the antitrust laws. Therefore, the municipality's motion to dismiss the Amended Complaint is GRANTED. 1. BACKGROUND Pursuant to the Miami Shores Village Code, commer- cial establishments and residential units must use the waste collection and disposal services of the Village of Miami Shores unless authorized ('21 to hive a private, village -licensed waste collector. n1 Plaintiffs' Amended Complaint n2 alleges that this municipal Ordinancz violates the Commerce Clause, and the Sherman and Clayton Acts. nl Miami Shores' Village Code § 9-2(a) (the 'Ordinance') provides, in pertinent part, that "every commercial establishment and residential unit shall utilize the waste collection services of the village, except as otherwise authorized in this chapter.' a2 Plaintiffs filed their original Complaint, which had named individual members of the Miami Shores Village Council as defendants, on March 21, 1997. Plaintiffs subsequently agreed to the voluntary dis- missal of the individual defendarts. On February 17, 1998, Plaintiffs filed an Amended Complaint, which named only the Village as a defendant, and which added a claim for declaratory relief under stale law regarding the applicability of the Ordinance to source -separated recovered materials as defined by state law. In their Amended Complaint, Plaintiffs claim that Miami (031 Shores did not begin to enforce the portion of the Ordinance at issue until July 1995, At that time, nu- 1 Page 39 1998 U.S. Dist. LEXIS 8473. '3 merous multi -family buildines and businesses contracted with private collectors for wa-sie collection and disposal services, instead of using Miami Shores' services. Or. July 11, 1995. tiltami Shores' Public Works Director recommended to the Miarni Shores Manager that the en- tities that used private collectors be prohibited from do- ing so and be required to use and pay for Mianu Shores' waste collection and disposal services. On July 18, 1995, the Miami Shores Council began to enforce the Ordinance based in part on the recommen- dation of the Public Works Director and the 'Manager. The Council required all accounts, except for certain ac- counts which were exempted, to use and pay for Miami Shores' waste collection and disposal services. Plaintiffs allege that the Council began enforcing the Ordinance in order to fund capital improvements that arc unrelated to waste collection. As of the July 18, 1995, Council vote, Plaintiff Bennett Electric Company was utilizing Miami Shorts' waste collection and disposal services. In September 1995, Bennett received a .S 3,170.50 statement from Miami Sbores [04] for anticipated waste collection and disposal services from October 1, 1995 to September 30, 1996. Bennett subsequently sent a letter to Miami Shores terminating the municipal waste collection and disposal service. On October 1, 1995, Bennett entered into a one- year contract with a private collector --Environmental Waste Systems ('EWS')--for wa_ue collection and dis- posal services. Ben ieit's contract with EWS was for 5 737.52, which Beruicit notes is less than 25 % of what Miami Shores would have charged for comparable ser- vices. In early April 1996, Bcnncit rr'civcd a notice from the Public Works Department indicating that the private col- lexors' licenses would not be renewed and that Benner; would be required to use Miami Shores' waste collec- tion and disposal services. On April 26, 1996, Bcnnett's owner was informed by the Public Works Director that Bennett could no longer use the private collector, and that Bennett would have to use and pay for Miami Shores' waste collection and disposa! services. Bennett was also informed by the Manager that Miami Shores would be- gin servicing Bennett on June 1, 1996. In early May 1996, Bennett received a letter from the Public Works Director indicating ['51 that the charge for Miami Shores' waste coilection and disposal services would be S 3.589 35. Based on Miami Shores' actions, Sennett was unable to renew its contract with EWS af- ter it expired on Scpicinber 30. 1996. and Bennett was billed by both EWS and Ntiami Shores from June 1, 1996 through September 30, 1996. Plaintiff West Side Sanitation, Inc.. dlb/a Lazaro's Waste & Recycling Systems, Inc. ('Lazaro's') alleges that numerous contracts that it had with private com- mercial residents of Miami Shores to collect and dispose of their waste, as well as contracts that Lazaro's had purchased from another private collector, became value- less and were terminated as a result of Miami Shores' enforcement of the Ordinance. IL LEGAL ANALYSIS A. The Commerce Clause The Commerce Clause provides that Congress 'shall have Power . . . To regulate Commerce with foreign Nations, and among the several States . . . .' U.S. Coast. an. I, § 8, cl. 3. 'Although the Commerce Clause is by its text an affirmative grant of power to Congress to regulate interstate and foreign commerce, the Clause has long been recognized as a self-executing limitation on the power of the States to enact laws (06) imposing substantial burdens on such commerce." South -Central Timber Dev., Inc. v. Litnnieke, 467 U.S. 82, 87, 81 L. Ed. 2d 71, 104 S. Ct. 2237 (1984). This negative restriction on state power is known as the 'dormant' Commerce Clause. Oklahoma Tax Comm'n v. Jefferson Lines, Inc., 514 U.S. 175, 179, 1.31 L. Fd. 2d 261. 115 S. Ct. 1331 (1995). Under pertinent Supreme Court casclaw, this Court must conduct two inquiries to determine whether the Ordinance is valid despite its effect on interstate com- merce. n3 First, the Court must determine 'whether the ordinance discriminates against, interstate commerce . . ' C & A Carbone, Inc. v. Town of Clv stown, 511 US, 383, 390, 128 L. Ed, 2d 399, 114 S. Cr. 1677 (1994). 'Discrimination against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of tests in which the municipal- ity can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest.' Id. at 392 (citing Maine v. Tavlor, 477 U.S. 131, 91 L. Ed. 2d I10, 106 S. Ct. 2-WO (1986)). n3 The panics do not dispute the fact that the Ordinance regulates interstate commerce, thus bring- ing the Ordinance 'within the purview of the Commerce Clause.' C & A Carbone. Inc. v. Town of Clarkstown, 511 U.S. 383, 389, 128 L. Ed. 2d 399, 114 S. Ct. 1677 (1994), ['71 If, however, the Court finds that the Ordinance does L.. 1998 U.S. Dist. LEXIS 9473. •7 not discriminate against interstate commerce, then the Court must procerd to the second inquiry: assessing 'whether the ordinance imposes a burden on interstate commerce that is 'clearly excessive in relation to the pu- tative local bcncrits " 1d at 390 (quoting Pike v, Bruce Clwrch, Inc., 397 US, 137. 142. 25 L. Ed. 2d 174. 90 S. Ct. 844 (1970)). 1. Discrimination Against Interstate Commerce The parties' arguments as to whether the Ordinance violates the Commerce Clause focus on two recent cases addressing similar Commerce Clause issues C de A Carbone, Inc. r. Town of Clardswvvn, 511 U.S. 383, 128 L. Ed. 2d 399, 114 S. Ct. 1677 (1994), and USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272 (2d Cyr. 1995). cent. denied, 517 U.S. 1135, 134 L. Ed. 2d 544, 116 S. Cr. 1419 (1996). Carbone involved a chal- lenge by a solid waste processing company and related entities to a so-called flow control ordinance adopted by the Town of Ciarkstoum, New )brk. The now control ordinance basically provided that all nonhazardous solid waste within the town had to be processed at a desig- nated transfer station before 1.81 leaving Clarkstown. At this transfer station, bulk solid waste would be sepa- rated into recyclable and nonrecyclable items. The recy- clable waste would then be shipped to a recycling facility, while the nonrccyclable waste would be sent to a landfill or incinerator. Carbone operated a recycling center in Clarkstown, performing many of the functions that the transfer station would perform. For example, Carbone would son and bale bulk solid wa;ie, and then ship it off to various processing facilities. Under the flow control. ordinance, the processing fees charged ar the transfer station would be used to amor- tize the cost of the station. Thc local contractor who agreed to construct the facility was permitted to charge haulers a so—called tipping fec of S 81 per ton, and the town guaranteed the contractor a minimum of 120,000 tons per year. If the station did not receive the minimum 120,000 tons, the town agreed to pay the deficit in the tipping fees. After rive years under this arrangement, the town. would purchase the facility from the contractor for one dollar. The facility's ability to reach the 120,000 con yearly guarantee was made more difficult by the fact that the S 81 per ton tipping [*91 fee was greater than the disposal cost on the private market. To solve this problem and to help achieve the 120,O00 ton guarantee, the town passed 1 the flow control ordinance, thereby requiring all nonhaz- ardous solid waste within Clarkstown to pass through the transfer station Under the now control ordinance, Carbone was still Page 40 allowed to receive solid waste, but Carbone had to bring the nonrecyclable items from that waste to the transfer station. Carbone thus could not ship the noareoyclable waste itself. and Carbone had to pay the tipping fee on trash it had already soned. The Supreme Court held that the flow control ordi- nance violated the Commerce Clause. Carbone, 511 US. at 386. The Court explained that 'the now control ordinance discriminatrs, for it allows only the favored operator to process waste that is within the limits of the town. The ordinance is no less discriminatory because in -state or in -town processors are also covered by the prohibition.' Id. at 39L The Court further reasoned that the now control ordinance 'boards solid waste, and the demand to get rid of it, for the benefit of the pre- ferred processing facility.' Id, at 392. Similarly, the flow (•101 control ordinance was found to 'squelcho competition in the waste -processing service altogether, leaving no room for investment from outside.' Id. The Court rejected the Town of Clarkstown's argu- ment that special rmancing was needed for the facility to survive: 'if so, the town may subsidize the facility through general taxes or municipal bonds. But having elected to use the open market to earn revenues for its project, the town may not employ discrimiamory regula- tion to give that project an advantage over rival business from out of State.' Id. at 394 (citation omitted). In support of its argument that the Ordinance does not violate the Commerce Clause, Miami Shores attempts to distinguish Carbone and relies heavily on the Second Circuit Court of Appeals' decision in USA Recycling, Inc. v. Town of .Babylon, 66 F.3d 1272 (2d Cir. 1995). cen. denied, 517 U.S. 1135, 134 L. Ed. 2d 544, 116 S. 0. 1419 (19%). In USA Recycling, the Second Circuit analyzed, under the Commerce Clause, the Town of Babylon's decision to 'take over the local commer- cial garbage market.' USA Recycling, 66 FM at 1275. To establish control of the local market, the Town of Babylon 1.1 11 hired two private companies: one to pick up commercial garbage, and the other to operate the in- cinerator to burn the garbage. To finance this system, Babylon relied on flat properly taxes and user fees (based on the amount of garbage generated) paid by businesses and commercial property owners. The Second Circuit rejected the plaintiffs' arguments that Babylon's waste management plan discriminated against, or imposed an undue burden on, interstate commerce in violation of the Commerce Clause. Id. at 1276. In its Motion to Dismiss, Stianti Shores asserts that the Ordinance does not violate the Commerce Clause because, rather than selling waste collection services, Miami Shores is providing these services as a munici- t i Page 41 1998 U.S. Dist. LEXIS 8473, • l l pal government performing traditional municipal func- tions that are not in conflict with federal law. ,Miarru Shores argues that the instant case is more analogous to USA Recycling than to Carbone, and that the Ordinance thus does not violate the Commercc Clause. This Court agues. As in the Town of Babylon in USA Recycling, in Miami Shores 'no one enjoys a monopoly position sell- ing garbage collection services in [the Village's] com- mercial garbage market. because [' 12] the (Village] has eliaunateii the rnarkct entirely. Not even the [Village] itself rtn ins as a seller in the market. Although the [Village] is now the lone provider of garbage collection services . . ., it dots so as a local government providing services to those withir itsjurisdiction, not as a business selling to a captive consumer base.' USA Recycling, 66 F.3d at 1283. Here, as in USA Recycling, the municipality has taken over the waste collection services to the exclusion of private haulers. Id. at 1282. Thus, 'Babylon's (and Miami Shores'] waste management plans] differo dra- matically from the flow control ordinances struck down by the Supreme Court in Carbone and by [the Second Circuit in a related case]. In both of those cases, the chal- lenged flow control ordinances required local garbage haulers to buy processing or disposal services from a local facility. In Babylon (and in Miami Shores), local businesses do not buy services from anyone. instead, the Town unilaterally provides garbage service to everyone in the District.' Id. at 1283. Unlike the situation in Carbone, in the instant case, the Village 'is not selling anything, [and] [' 13] it cannot be considered to be a favored single local proprietor as in Carbone.' Id. This Court concludes that if the Town of Babylon's decision to hire two private companies to control the local com- mercial garbage markct satisfies the Commerce Clause, then Miami Shores' derision to take over the market it- self, without favoring any private companies, certainly does not violate the Commerce Clause. This Court also agrees with the USA Recycling court's rejection of the argument that Carbone 'fashioned from the 'dormant' Commerce Clausc a new, and unprccedent- edly sweeping, limitation on local government ;authority to provide basic sanitation services to local residents and businesses, on an exclusive basis and financed by tax dollars.' n4 Id. at 1276. n4 Plaintiffs note that the ordinance in USA Recycling involved generally applicable taxes, whale Miami Shores charges user fees as a private waste processor would. However, the Town of Babylon also employed user fees for garbage generated be - yond a fixed base amount. See USA Recycling, 66 Fad at 1276. 1279 In any event, even if Miami Shores relies solely on user feu rather than taxes, the Ordinance dons not discriminate against inter- state commerce. (•14 Plaintiffs argue that the Ordinance discriminates against interstate coramercc because it hoards a local resource--waste--for the benefit of the favored local processor --Miami Shores. However, the Carbone Court merely found that the Clarkstown flow control ordinance constituted 'just one more instance of local processing requirements that we long have held invalid.' Carbone, 511 U.S. at 391 (citations omitted). The Court explained that the flow control ordinance was similar to laws that had previously been found by the Court to 'hoard a local resource —best meat, shrimp, or milk —for the benefit of local businesses that treat it.' Id. at 392. T'be Court concluded that the flow control ordinance 'hoards solid waste, and the demand to get rid of it, for the benefit of the preferred processing facility.' Id. The Carbone Coun's concerns are not implicated where, as here, a municipality has completely elimi- nated the private market. In Miami Shorts, no 'local businesses' benefit from the Ordinance, and there is no 'preferred processing facility.' Carbone does not for- bid a municipality from taking over waste collection itself. Miami Shores' decision to provide waste [015] collection services using its own trucks and employees ensures that local and out-of-state businesses and invest- ment are treated equally. Therefore, the Ordinance dots not discriminate against interstate cornrnerce. Sce WSA Reryciing, 66 F.3d ai 1285 (funding that the 'Town [of Babylon] has indeed excluded all garbage haulers .. . from selling garbage collecting services to businesses in Babylon. The Town's waste management system treats all garbage haulers alike and thus does not discriminate against interstate commerce.'). The distinction betwetn a municipality taking over waste collection within its boundaries, as Miami Shores has done, and a municipality acting as a participant or regulator of a private rrurket, was rccogaized by a dis- trict court in this Circuit, in a case relied on by Plaintiffs. Sec Slbste Recycling, Inc. v. Southeast Alabama Solid V.hsre Disposal Auth., 814 F: Supp. 1566 (Af.D. Ala. 1993). aff'd without opinion, 29 F.3d 641 (Ilth Cir. 1994). The court in Waste Recycling held that munic- ipal flow control ordinances enacted by three cities (as named representatives of 36 local governments) violated the Commerce Clause. The ordinances at issue required (•161 that all solid waste collected within each city by -J3" I tie0 1998 U.S. Dist. LEXIS 9473, • 16 public or private collectors be delivered only to the waste disposal facility of the Southeast Alabama Solid Waste Authority, a public non-profit corporation organized by four counties, along with more than 30 cities and towns within the counties, (o provide for solid waste manage- ment. However, the Waste Recycling court recognized the difficult questions raised by the issues currently be- fore this Court: The defendants hypothetically question whether it would violate the commerce clause if a single municipality completely occupied the collection and disposal of solid waste within its boundaries --that is, the city collected and tiLsposed of all solid waste at its own landfill, and prohibited any participation by private parties. Because this is not the scenario presented in this case, the court need not reach this difficult question. Here, the parties have defined the issues as whether the cities are par- ticipants in or regulators of private markets and, if the latter, whether their regulation of these private markets violates the commerce clause; the issue is not whether the cities have nationalized the markets (• 17) within their boundaries. Wwe Recycling. 814 F. Supp. at 1583 n.22 (emphasis added). Plaintiffs assert several arguments to distinguish this rase from USA .Recycling. First, Plaintiffs argue that Miami Shores' actions are not 'traditional municipal functions' and are illegal, while in USA Recycling, 'New York law made clear that the Town is fulfilling a governmental duty, not making a sale, when it pro- vides garbage services.' USA Recycling, 66 F.3d at 1283. Plaintiffs claim that a municipality cannot fore- close private competition in waste processing and charge Mated prices to raise revenues. Plaintiffs also posit that'. Florida's enactment of the Solid \kaste Management Act, Fla. Stat. § 403.702 et seq. (the 'SWMA'), indicates that waste collation is no longer a traditional municipal function in Florida. The Court rejects these contentions, The Florida St2iutcs and Florida case!aw support Miami Shores' arguments that v;a_ste collection is in- deed to traditional municipal function. See Fla. Scat. § 180,G6(5) (1997) (authorizing murtklpalitiea to 'pro- vide for tine collection and disposal of garbage"); id. § 180.13(2) (1997) (authorizing municipalities (•18) to 'atablisb, lust and equitable rates or charges to be paid to the municipahty for the use of (a) utility by each person, firm or corporation whose premises are served thereby'); United Sanitation Sens of Hillsborough, Inc. v. City of Tampa, 302 So. 2d 435, 436 (Fla. 2d DCA 1974) (although not addressing Commerce Clause issues, finding that 'unlike virtually every other enter - Page 42 prise, the 'business' (of garbage collection) may not only be regulated, but in fact exclusively performed -.as an essential pan of a 'public service' --by municipaU- tics or other governmental subdivisions, ever, if such a decision results s the complete preclusion of private fa- cd1tics for the same use'); see also united Sanitation, 302 So. 2d at 436 (explaining that the 'private busi- ness of (garbage) collection . . . is not, nor has it ever been, akin in any way to 'ordinary' examples of private enterprise --the selling of shoes, the repair of au- tomobiles, or the selling of motel rooms. . . . The 'enterprise' of garbage collection is one of those unique callings which are subject to the plen.uuy power of gov- ernment.'). Plaintiffs cite no authority to support the notion that Fla. Scat. § 180 has (' 19) been repealed or that United Sanitation has been overruled by the SWMA. The Court is also not convinced by Plaintiffs' argu- ment that waste procusing is a 'proprietary,' or quasi - private, function rather than a 'governmental' function based on Smog v. City of Tampa, 123 Fla. 716, 167 So. 528 (Fla. 1936). While noting that 'there is certainly nothing connected with garbage disposal that partakes of a public or governmental function,' the Smoak court merely found that a city could not claim sovereign immunity in tort when its employees negli- gently perform garbage collection duties. 167 So. at 529. However, as Miami Shores notes, Florida courts no longer decide the sovereign immunity Lssue using the 'proprietary/governmental' distinction, but rather employ an "operational/discretionary' distinction. See Dept of Health & Rehab. Servs. v. B.J.M., 656 So. 2d 906, 911-912 (Fla. 1995). rL5 In addition, a high-speed police chase can be an 'operational' function that is not shielded from tort liability by sovereign immunity. See City of Pinellas Park v. Brown. 604 So. 2d 1222, 1227 (Fla. 1992). However, this surely does not indicate that Police pursuit of criminals is not (020) a governmental function. n5 Certain 'discretionary' governmental functions are immune from tort liability. 'Discretionary' acts are chose involving 'an exercise of executive or leg- islative power such that, for the court to intervene by way of ton law would inappropriately entangle it in fundamental questions of policy and planning.` B.I.M., 656 So. 2d at 911 n.3. 'Operational' Auc- tions, which are subject to tort liability, are those which are 'not necessary to or inherent in policy or planning, that merely reflect(] a secondary deci- sion as to how those policies or plans will be imple- mented.' Id. at n.4. L 1998 U.S. Dist. LEX1S 8473. *20 The Court also notes that the SWMA contemplates that municipalities will play a significant role in pro- viding waste collection services. See, e.g.. Fla. Star. § 403.702(2)(i) (1997) (noting that one goal of the SWMA is to 'encourage counties and municipalities to utilize all means reasonably available to promote efficicnt and proper methods of managing solid waste . . .'); Fla. Scat. § 403 7049(3) ['211 (1997) (defining 'service area' as 'the area in which the county or municipality provides, directly or by contract, solid waste manage- ment service'). The USA Recycling court noted that 'for ninety years, it has been stilled law that garbage collection and dis- posal is a core function of local government in the United States. At their option, cities may provide garbage pick-up to their citizens &rcctly . . . or they may rely on a closely regulated private market to prr,- vide those services.' USA Recycling, 66 F.3d at 1275. The USA Recycling court relied in pan on two long., standing Supreme Court cases that, while not address- ing Commerce Clause issues, are certainly relevant to the issues before this Court. In California Reduction Co. v. Sanitary Reduction "brks, 199 U.S. 306, 50 L. Ed. 20W, 26 S. Ct. 100 (1905) and Gardner v. Michigan, 199 U.S. 325, 50 L. Ed. 212, 26 S. Cf. 106 (1905), the Supreme Court rejected takings and due pro- cess challenges to San Francisco and Detroit ordinances that granted the exclusive garbage collection and dis- posal rights within the cities to single scavenger compa- nies. The USA Recycling coup found, and this Court agrees, that 'if [0221 we were to rule in plaintiffs' favor, the municipal garbage systems upheld by the Court in California Reduction and Gardner would be unconsti- tutional, and municipalities could no loner undertake the traditional local governmental function of collecting wwn garbage.' USA Recycling, 66 F.3d at 1294. This Court would overstep its authority if it concluded that waste collection was no longer a traditional municipal function in Florida. Plaintiffs also attempt to distinguish USA Recycling on several additional grounds. First. Plaintiffs assert that the Town of Babylon used competitive bidding for its waste contract, thereby giving out-of-state private competitors a chance to compete in the market, while Miami Shores has eliminated all private competition by taking over the waste collection itself. Plaintiffs also argue that in USA Recycling, the Town of Babylon was saving it_s residents money by consolidating services, 1 while Miami Shores is charging its customers more than private competitors would in an effort to raise revenues. Plaintiffs further claim that USA Recycling is incompat- ible with Carbone and is simply wrong. The Court finds chest arguments untenable. 10231 Page 43 Miami Shores' decision to use its own trucks and em- ployees, rather than those of an independent contractor, obviated the need for competitive bidding. The USA Recycling court recognized the Town of Babylon's use of a competitive bidding process, which left open the pos- sibility that an out-of-state firm could be selected to pro- vide the waste collection services. See USA Recycling, 66 F.3d at 1287. Local and out-of-state firms were thus treated equally in Babylon, because either type of firm could theoretically be chosen to provide the waste col- lection duties. However, Miami Shores' decision to Like over waste collection also results in equal treatment of local and nonlocal firms: all of them art precluded from collecting waste in the Village. Plaintiffs also argue that Miami Shores' enfomement of the Ordinance sterns from the Village's desire to raise revenue. See Amended Complaint PP 12, 31. After finding that the flow control ordinance discriminated against interstate commerce and 'rigorous scrutiny' thus applied, the Court in Carbone noted that 'by itself, of course, revenue generation is not a local interest that can justify discrimination against interstate commerce.' [•241 Carbone, 114 S. Ct. at 1684. However, Muni Shores' Ordinance does riot discriminate against inter- state commerce, and thus 'rigorous smdny' does not apply, as in -state and out-of-state waste collection firmsi are treated alike. Therefore, even accepting as tote the allegation that the Ordinance has resulted in increased bills for Bennett based in part on the Town's desire to raise revenues, this Court is not compelled to find that the Ordinance discriminates against interstate com- merce. Plaintiffs' contention that USA Recycling is both "simply wrong' and irreconcilable with Carbone is with- out merit. While both cases present similar issues, the Second Circuit in USA Recycling thoroughly analyzed Carbone and found it distinguishable. This Court's con- clusion that Miami Shores' Ordinance does not violate the Commerce Clause is consistent with both Carbone, which is binding authority, and with USA Recycling. I. Undue Burden on Interstate Commerce Having determined that the Ordinance does not dis- criminate against interstate commerce, the Court must evaluate whether the 'burden imposed or. [interstate} commerce is clearly excessive in relation to the puta- tive [4251 local benefits.' Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 25 L. Ed. 2d 114. 90 S. Ct. 844 (1970). As in USA Recycling, !Miami Shores' takeover of waste collection services 'will not impose any differ- ent burdens on noalocal as opposed to local garbage 1 $4 '0 1 1998 U.S. Dist. LEXIS 8473. *25 haulers.' USA Recycling, 66 F3d at 1287. All local and nonlocal private firms are treated equally by the Ordinance: they arc prohibited from providing waste collection scr%.tccs in Miami Shores Plaintiffs argue that USA Recycling is distinguishable because the Town of Babylon hired its garbage hauler using a bidding process that left open the possibility that an out-of-state firm could be selected, 'which would ac- tually shift a portion of the garbage collection market into interstate commerce.' Id. w 1287. Miami Shores does not use a competitive bidding process. as it sim- ply provides the waste collection services with its own trucks and employers. However, neither an out-of-state nor a local firm could provide the waste collection ser- vices in Miami Shores, as the Village does so itself. Therefore, the Miami Shores Ordinance 'has imposed no greater burdens on non -local firms that it has placed on local firms.' [0261 Id. at 1287. In addition, the fact that B?cnncit may pay more for waste collection under the Ordinance does not compel a finding that the Ordinance discriminates against, or imposes an undue burden on, interstate commerce. The USA Recycling court noted that saving residents money by consolidating services was one benefit of the Town of Babylon's takeover of waste collection. See id. at 1295. However, as Miami Shores notes, the Ordinance may allow low -volume residential customers, who are more expensive to serve than high -volume commercial customers, to benefit from the lower unit costs associ- ated with serving commercial customers. Nevertheless, even without this benefit, the mere fact that Btnnett's waste collection bills may increase when the municipal- ity provides the service dots not dictate a finding that the Ordinance violates the Commerce Clause. Assuming that the Ordinance did burden inter- state comuxrcc, other putative local benefits —including 'safety, sanitation, [and) reliable garbage service' — remain. Id. at 1295. The USA Rmycling court fur- ther noted that municipalities have "legitimate —indeed, compelling' interests in talking over the garbage market. 1•271 'In our multi -tiered fc&ral system, local govern- ments have historically borne primary responsibility for ensuring the safe and reliable disposal of waste generated within their borders --a role that Congress has expressly recognized. . . . Local governments must enjoy some leeway in coping with the solid waste crisis.' Id. at 1288. J B. The Sherman Act Miami Shores argues that Count It of the Complaint, which asserts a claim for monopolization under the Sherman Act, should be dismissed because Miami Page 44 Shores' waste -collection activities are exempt from an- titrust scrutiny pursuant to the state action doctrine. Miami Shores also contends that Count 11 should be dismissed because Nliarnt Shores is not a seller in the relevant market. The Coun finds that Miami Shores' action are entitled to state action immunity from the antitrust laws. Therefore, the Court need not address whether Miami Shores is a seller in the relevant market. 1. The State Action, Doctrine Miami Shores contends that its actiorts arc exempt from the federal antitrust laws under the state action doctrine enunciated in Parker v. Brown, 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307 (1943) and Town of 14281 Hallie v. City of Eau Claire, 471 US. 34. 85 L. Ed. 2d 24, 105 S. Cr. 1713 (1985). Wben a musidpatl govetmatient acts purmisnt to a 'clearly mikulated mod affirmatively cacpn scd' state policy to displace cow titian with regulation or monopoly public scMce, the state acuon doctrine exempts the municlpatlfiy's aoti- compedLive activities from antitrust liability. 1avm of Hallie, 471 J.S. at 44; sce also Bankers Ins. Co v. Florida Residential Prop. and Cas. Joint Urtdenw ring Assn, 137 F.3d 1293, 1296 (11 th Cir. 1998). The mtmidpality's aiaucompctiuve conduct need only be a 'foreseeable result° of the statutes establishing the state policy to displace compeucion. Town of Hallie, 471 U.S. at 42. 'It is not accessary ... for the state legWatmt to have stated explicitly that it expected the City to eagsae in conduct that would have anticompetitive effects.' Id. The Eleventh Circuit employs a three-part test to de- tetmine whether the 'clear articulation' test is satisfied. Miami Shores must cstablisb "(1) that it is a polid- cal subdivision of the state; (2) that, through statutes, the suite generally authori= the political subdivision to perform the challenged 1029) action. anti (3) that, through statutes, the &tare has clearly articulaaed a stye policy zutxniring anticompetitive conduct." Crosby V. Hospital Auth. of lbldosta and Lowndes Countyy; 93 F.3d 1515, 1532 (llth Cir. 1996), cert. denied, 137L. Ed. 2d 328, 117 S. Ct. 1246 (1997) (quoting FTC. v. Hospital Bd. of Directors of Lee County, 38 F.3d 1184, 1187-88 (11th Cir. 1994)). Plaintiffs argue that Miami Shores fails both the second and third parts of the Crosby test. n6 n6 Plaintiffs agree that Miami Shores is a politi- cal subdivision of the state, thus satisfying the first prong of the Crosby test. In support of its assertion of state action immunity, Miami Shores relies on Florida Statutes §§ 180.06(5) L 1 i• 1998 U.S. Dist. LEX1S 8473, 029 and 180.13(2). Florida Statutes 1180.06(5) autborbrs mWelpalldes to 'provide for the collection &A dis- posal of gate.' Florida Statutes § 180.13(2). in trout, grants mtanicipalMes the power to 'establish just and equitable rates or charges to be paid to the munkipwU.ty Got the use ['3oj of (a] utility by each person, firm or corpomim whose premises arc served thereby ... . This Court concludes that Florida Ststut:es $¢ 180.06(5) and 180.13(2) "generally authorize' Misic! Shores to provide waste collection serviocs, sce CEO tR, 93 F.3d at 1532, and also constitute a 'dearly artiat- lated and affirma.Livcly expressed' state policy to dis- ptaoe competition in the area of waste collection. See 7bvm of Haliie, 471 U.S. at 44 (finding that Wisconsin statutes authorizing city to provide sewage services and to determine service area 'evidence a 'clearly attico- lated and affirmatively expressed' state policy to displace competition with regulation'). As in Town of Hallie, in the instant case 'it is clear that anticompetitive effects logically would result from this broad authority w reg- Wate ' Id. at 42. In addition, the Fleveath Circuit has previously found that similar legislative greats of authority contained in Fla. Stat. § 180.06 and related sections governing water and sewage services satisfied the state action test. See Falls Chase Special Taxing Dist. v. City of Tallahassee, 738 F. 2d 711 (11 th Cir. 1986); Auton v. Dade City, 783 F.2d 1009 [*31] (Ilth Cir. 1986). Thus, Miami Shorts is entitled to antitrust immunity under the state action doctrine. Plaintiffs argue that the state action doctrine does not immunize Miami Shores' actions from antitrust scrutiny because the Florida legislature's enactment of the Solid Waste Management Act, Fla. Stat. § 403.702 et seq. (the 'SWMA'), establishes a policy forbidding munkf- pal monopolization of waste processing and supporting competition in the field. Plaintiffs claim that the provi- sions of the SWMA encompass almost all of the waste involved in this case, and that the Ordinance, both on its face and as applied, coven all waste generated by businesses within Miami Shores. Plaintiffs thus con- tend that the Ordinance violates state law and policy as set forth in the SWMA, and that the general statements concetning waste processing contained in Fla. Scat. § 180 are controlled by the explicit provisions of Florida's SWMA. Miami Shores argues that the Ordinance is in compli- ance with the SWMA, that the goal of the SWMA is to protest the environment, rather than to promote compe- tition in waste collection, and that the Court need not determine whether the Ordinance technically complies (032] with the SWMA, as long as Florida has expressed Page: 45 a policy which contemplates anticompetitive behavior by the municipality. Although Fla. Star. §§ 180.06(5) and 190.13(2) sat- isfy the state action test, thereby immunizing Miami Shores' anticompetitive behavior from the federal an- titrust laws, the Court finds that Florida's SWMA ex- pre&ws a policy supporting competition in waste pro- cessing involving 'source -separated recovered materi- als' (SSRMs). n7 The SWMA provides, for instatnct. that a local government 'may not require a commercial establishment that generates source -separated recovered materials to sell or otherwise convey its recovered ma- terials to the local government or to a facility desig- natod by the local government. . . .' Fla. Staff. ; 403.7046(3x1997). The SWMA also protects the right of an establishment that generates SSRMs to sell do SSRMs to a certified recovered materials dealer, as WeH as protecting the right of such dealers to purchase or col- lect such SSRMs from commercial establishments. See id. Other provisions of the SWWA also support coat - petition related to SSRMs. See id. § 403.7046(3xd). ng n7 The SWMA, defines 'recovered materials' W include 'metal, paper, glass, plastic, textile. or tubber materials that have known recycling poten- tial [and] can be feasibly recycled." Fla. Seri. ¢ 403.703(7) (1997). `Source separated' is defined as the 'recovered materials [that] are separated from solid waste when the recovered materials and solid waste are generated,' and 'de minimis solid waam . . . may be included in the recovered materials.' Fla. Seat. § 403.703(44) (1997). [°33] n8 Fla. Seat. § 403.7046(3)(d) provides, in perti- new part: In addition to any other authority provided by law. a local government is hereby expressly authorized . . . to enter into a nonexclusive franchise or to otherwise provide for the collection, transportation, and processing of recovered materials at commercial establishments provided that such franchise or pro- vision does not prohibit a certified recovered materi- als dealer from entering into a contract with a oom- mercial establishment to purchase, collect, transport. process, or receive source -separated recovered ma- terials. . . . (emphasis added). Miami Shores asserts in its briefs that, because the L 1998 U.S. Diu. LEXIS 9473, •33 Ordinance and the SWMA are not in conflict, the Ordinance 'does not prohibit Bennett . . . from making private arrangements for the collection of any source -separated recyclable materials, nor does it pro- hibit Lazaro's . . . from collecting and processing such materials.' Rep. M.cm. of Def. in Supp. of Mot. to Die., at 12. The Court concludes that it need not decide whether the Ordinance is in strict compliance with the [-34] SWMA. The Supreme Court has explained that, in the context of the state action doctrine: in order to prevent Parker from undermining the very interests of federalism it is designed to protect, it is nec- essary to adopt a concept of authority broader than whas is applied to determine the legality of the municipality's action under state law. City of Cofumbiu Y. Omni Outdoor Advertising, Inc., 499 U.S. 365, 372, 113 L. Ed. 2d 382, 111 S. 0. 1344 (1991). The Court in City of Columbia considered South Carolina statutes that authorized a municipality to reg- ulate the size, location and spacing. of billboards. The Court rejected the argument that the municipality's reg- ulation was not authorized if it was not, as the state statute required, adopted for a legislatively authorized purpose. The Court adopted the 'broader' concept of authority for Parker purposes because otherwise, the federal court would "inevitably become0 the standard reviewer not only of federal agency activity but also Of state and local activity whenever it is alleged that the governmental body, though possessing the power to =&age in the challenged conduct, has actually exer- cised its [*35] power in a manner not authorized by state law." Id. at 372 (quoting P. Areeda & H. Hovenkamp, Antitxtut Law P 212.3b, p. 145 (Supp. 1989)). Therefore, for state action immunity purposes, this Court will examine the authority granted to Miami Shores under a broader concept than what might be used to determine the legality of Miami Shores' actions under Florida law. Since the Court concludes that Fla. Stat. 4 180 pro- vides the necessary state policy to displace competition. Page 46 and since Miami Shores agrees that the Ordinance does not cover source -separated recyclable materials beam the Ordinance and the SWMA are not in conflict, this Court will not conduct a detailed analysis of whether the Ordinance technically complies with the SWMA. Analyzed under a broad concept of authority, Miami Shores' actions are entitled to Parker immunity from the federal antitrust laws. III. Declaratory Relief In Count III of their Amended Complaint, Plaintiffs seek a declaration that the Ordinance does not apply to them because Miami Shores has taken the position that the Ordinance does not apply to the collection of SSRMs. Bennett argues that Miami Shores cannot force it to use [•36] Miami Shores' waste processing services for SSRMs. Similarly, Lazaro's argues that MimW Shoats cannot prevent it from collecting and processing SSRMs within Miami Shores. As previously noted, Miami Shores contends that the SWMA and the Ordinance are not in conflict, and that the Ordinance 'does not prohibit Bennett . . . from making private arrangemmts for the collection of any source -separated recyclable materials, nor does it pro- hibit Lazaro's ... from collecting and processing such materials." Rep. Mem. of Def. in Supp. of Mot. to Dis., at 12. Nonetheless, because the Court has dis- missed Plaintiffs' Commerce Clause and Sherman Act claims, the Court lacks subject matter jurisdiction over the state law claim for declaratory relief. See 28 U.S.C. $ 1367(c)(3). Therefore, Count III is dismissed. CONCLUSION Miami Shores' decision to take over the local waste collection market does not violate the Commerce Clause. and is immune from the federal antitrust laws pustsumt to the state action doctrine. Therefore, the Defendant's Motion to Dismiss is GRANTED. The entire complaint is dismissed with prejudice. DONE AND ORDERED in Chambers at Miami, Florida, this 7th ['37] day of May, 1998. FEDERICO A. MOR.ENO UNITED STATES DISTRICT JUDGE Page 62 114 S. Ct. 1677 printed in FULL format. C & A CARBONE, INC., ET AL., PETITIONERS v, TOWN OF CLARKS'TOWN, NEW YORK No. 93-1402 SUPREME COURT OF THE UNITED STATES 511 U.S. 383; 114 S. Ct, 1677: 1994 U.S. LEXIS 3477: 128 L. Ed. 3d 399: 63 U.S.L.W. 4315: 38 ERC (BNA) 1529; 94 Cal. Daily Op. Service 3443; 94 Daily Journal DAR 6577, 24 ELR 20815; 8 Fla. Law W. Fed. S 96 December 7, 1993. Areued Nlay 16. 1994. Decided PRIOR HISTORY: [***I] ON WRIT OF CORE TERMS: waste, town, ordinance, commerce, CERTIORARI TO THE .APPELLATE DIVISION, solid, interstate, station, processing, out-of-state, reg- SUPREME COURT OF NEW YORK, SECOND ulation, discriminate, disposal, trash, municipal, pro - JUDICIAL DEPARTMENT. cessor, contractor. discrimintnorv, tipping, out-of-town, nonrecyclable, competitor, dormant, municipality, resi- DISPOSITION: 182 App. Div. 2d 213, 587,V. Y, S. 2d dent, designated, environmental. recycling, protection- 631, reversed and remanded. ism, site. disposed < =2> View References < = 3 > Turn Off Lawyers' Edition Display DECISION: Town ordinance requiring that all nonrecyclable nonhazardous solid waste within town be deposited at designated transfer station held to violate Federal Constitution's commerce clause. SUMMARY: A town in New York State adopted a flow control ordinance requiring that before leaving the town. all nonrecyclable nonhazardous solid waste generated within the town, or _enermed outside the tok%n and brought into the town, be processed at a designated transfer station that, under an ag ccmeni bet%tieen the ws�n and a local private contractor calling for the contractor to construct the station and operate it for 5 years, was to he purchased by the town from the contractor for S I after the 5-year period. In order to amortize the cost of the transfer station, rite town was allowing the contractor to charge haulers who deposited -.yaste at the station a tipping fee of S 81 per ton. which rate exceeded the disposal cost of unsorted solid waste on the private markn. Atier i compam. witch ryas engaged in the processing of solid waste and operated in the town a recvclin, center similar to the itm-,'s transfer station, w•as discovered to be shipping nonrecyclable waste from the no%+n to other sites. the tow n sought w. intunction in the New York Supreme Court, Rockland County, requiring the company to ship such wasie to the transfer, station. The company responded by suing in the United States District Court for the Southern District of New York to enjoin the flow control ordinance. Findinc, a sufficient likelihood that the ordinance violated the Federal Constitution's commerce clause (Art 1, 8, cl 3), the District Court grunted the injunction sought by the conip.m} r770 F Supp .S 1,i, Subsequently the New lbrk Supreme Court granted summary judgment to the town and ordered the compan% to conlpl,, with the ordinance. The District Court then dissolved its injunction. The New Yurk Appellate Dt%ision. Second Department, i I t held that 1 the ordinance did not discriminate against interstate commerce, and (2) affirmed the New lurk Supreme Court judgment (132 App Div 2d 213, 537, NYS 2d 681). The New lurk Court of Appeals denied the company's motion for leave to appeal (80 NYS 2d 760, 605 NE 211 874). On certiorari, the United States Supreme Court reversed. In :in opinion by Kennedy. J., joined by Stevens, Scalia, :�- 040 L Page 63 511 U.S. 383, 11-1 S. CI, 1677, "*; LEXSEE 1994 U.S. LEXIS 3477, '"1; 128 L. Ed. _d 399 Thomas, and Ginsburg, JJ., it was held that the ordinance ( I ) regulated interstate commerce, because (a) the company's recycling center processed waste from places other than the town, including from out of state, and (b( the ordinance (i) drove up the cost for out-of-state interests to dispose of their solid waste, and nu deprived out-of-state businesses of access to a local market; and (3) violated the commerce clause b% depri, ing competitors. including out-of-state tlrnis, of access to a local market, because (a) the ordinance it) discnnunated h� allownig onl% the favored operator to process %kaste within the town, (it) hoarded solid %'rite. .Intl the detinard '.o _'Clrai Of It, :,,r the benefit of the preferred processing facility, and (iii) squelched competition in waste -processing service, and (b) the town (i) had nondiscriminatory alternatives, such as uniform safety regulations enacted without the object to discriminate, for addressing the health and em ironrnental problems alleged to iustify the ordinance. tit � could not jw nfy the ordinance as a wav to steer solid waste away from out-of-town disposal sites that the town might deem harmful to the environment, where to do so would extend the town's police power beyond its jurisdictional bounds, and (iii) could subsidize the facility through general taxes or municipal bonds. O'Connor, J., concurring in the judgment, (1) agreed with the majority that the ordinance violated the commerce clause, but (2) expressed the view that the ordinance was unconstitutional not because of facial or effective discrimination against interstate commerce, but rather because the ordinance imposed an excessive burden on interstate commerce. Sauter, J., joined by Rehnquist, Ch. J., and Blackmun. J., dissenting, expressed the view that (I) there was no evidence that the ordinance caused discrimination against out-of-town processors, because there was no evidence in the record that such processors had lost business as a result of the ordinance, ('_) the ordinance was not protectionist in its purpose or effect, and (3) protection of the public rise was a legitimate local benefit directly advanced by the ordinance. LEXIS HEADNOTES - Classified to O.S. Digest Lawyers' Edition: <=7> CONIMERCE §220 solid waste -- flow control ordinance -- discrimination against interstate commerce - Headnote: <=8> [lA) <=9> [IB] <=10> [ICJ < = I I > [113) <=12> [IEj <=13> [117[ A town's flow control ordinance requiring that before leaving the town. all nonrecyclable nonhazardous solid waste generated within the town, or generated outside the town and brought into the nmil. be processed at a designated transfer station that, under an agreement between the town and a local private contractor calling for the contractor to construct the station and operate it for 5 years, will be purchased by the town from the contractor for S t after the 5-year period, violates the Federal Constitution's commerce clause (Art 1, 8, cl 3) bydepriying competitors, including out-of-state firms, of access to a local market --where the town allows the contractor to charge haulers a particular tipping fee rate for waste deposited at the station, promises to pay the contractor any deficit between actual annual tipping fees and the annual tipping fees projected by the town, and intends that the tipping fees will finance the cost of constructing the station, and where the tipping fee rate at the station exceeds the disposal cost of unsorted solid waste on the private market --because (I) with respect (a the stream of commerce in the processing and disposing of solid waste, the ordinance discriminates by allowing only file favored operator to process waste that is within the town; (2) the fact that in -state or in -town processors are also covered by the ordinance does not make the ordinance less discriminatory; (3) the ordinance hoards solid waste, and file demand to get rid of it. for the benefit of the preferred processing facility; (4) the ordinance squelches competition in the waste -processing service altogether, leaving no room for investment from outside; (5) the town has any number of nondiscrin ifiator% aiternanties for addressing the health and environmental problems alleged to justify the ordinance, where the most oh%nnls altern,iltse +ould be uniform safety regulations enacted %siihout the object to discri(rin.ue, which rc_ul.motls %WUld insurr 01.11 competitors do not underprice the market by cutting corners on environmental, safety; (6) OW Iown 1IM% nut ;tisltts the ordinance as a way to steer solid waste away from out-of-town disposal sites that the town aught deem harinful to the ens ironnlent, where to do so would extend the town's police power beyond its jurisdictional bounds: tat it' specctl financing is necessary to insure the long-term survival of (he designated facility, the town Islas tiubsidve the facilitn through general taxes or municipal bonds, but haying elected to use the open market to earn re<c:) es for iti pro;ecl. Illy tow tl nlav :lot enlploy discriminatory regulation to give that project an advantage over rival hu,ulesses from outside the state. io'Connor, J.. dissented in part from this holding; Sauter, J., Rehnquist. Ch. J.. and 131,(ckmutl. I. dissented from this holding.) < = 14 > CONINIERCE §8 9 - �f 20 511 U.S. 383, *; I i4 S. Cf. 1677, **, 1994 U.S. LEMS 3477, ***1; 128 L. Ed. 2d 399 what constitutes -- regulation -- effect on out-of-state business -- Page 64 LEXSEE Headnote: < = 15 > [2AI < = 16> 12BI For purposes of the Federal Constitution's commerce clause tArt 1, 8, cl 31. a town's flow control ordinance requiring that before leaving the town, all nonrecvclable nonhazardous solid waste generated within the town, or generated outside the town and brought into the town, be processed at a designated transfer station that. under an agreement between the town and a local private contractor calling for the contractor to construct the station and operate it for 5 years, will be purchased by the town from the contractor for S 1 after the 5-year period --where the town allows the contractor to charge haulers a particular tipping fee rate for waste deposited at the station, which rate exceeds the disposal cost of unsorted solid waste on the private market --regulates interstate commerce, because, although the ordinance may not in explicit terms seek to regulate interstate commerce, it does so nonetheless by its practical effect and design, since (1) while the immediate effect of the ordinance is to direct local transport of solid waste to a designated site within the local jurisdiction, the economic effects are interstate in reach, since a solid waste processing company's recycling center, conducted similarly to the transfer facility, receives and processes wash from places other than the town, including from out of state, (2) by requiring that nonrecyclable waste be deposited at the transfer station at an additional cost, the ordinance drives up the cost for out-of-state interests to dispose of their solid waste, (3) even as to waste originant in the town, the ordinance prevents everyone except the favored local operator from performing the initial processing step and thus deprives out-of-state businesses of access to a local market, and (-I) actions are within the domain of the commerce clause if they burden interstate commerce or impede its free flow. <=17> COMMERCE §148 town ordinance -- tests for determining validity Headnote: < =18 > [31 With respect to two tests yielded by the United States Supreme Court's case law for determining whether an ordinance violates the Federal Constitution's commerce clause (Art 1, 8, cl 3)--(1) whether the ordinance discriminates against interstate commerce, and (2) whether the ordinance imposes a burden on interstate commerce that is clearly excessive in relation to the putative local benefits of the ordinance --the Supreme Court, having determined that a town ordinance discriminates against interstate commerce, need not resort to the second test. <=19> CONIMERCE §152 discrimination -- Headnote: <=20> [41 The central rational for the rule that state or municipal laws that discriminate against interstate commerce violate the Federal Constitution's commerce clause (Art 1, 8, cl 3) is to prohibit state or municipal laws whose object is local economic protectionism --laws that would excite those jealousies and retaliaton, measures that the Federal Constitution was designed to prevent. < =21 > COMMERCE §206 food processing -- Headnote: < =22> [5] Laws imposing local processing requirements that deprive out-of-state meat inspectors, shrimp haulers, or milk pas- teurizers of access to local demand for their services violate the Federal Constitution's commerce clause (Art 1, 8, cl 3) by barring the import of the processing service; such offending local laws hoard a local resource --be it meat, shrimp, or milk --for the benefit of local businesses that treat the resource. <=_'3> CONINIERCE §15'_ discrimination -- favoring local businesses -- BJ— (1 11— 511 U.S. 383, *: l l4 S. Ct, t677, **; 1994 U.S. LEXiS 3477, ***1: 128 L. Ed. 2d 399 Page 65 LEXSEE Headnote: < ='_4> 16A1 < =25> 1681 < =26> 16C1 Under the Federal Constitution's commerce clause (Art I, 8, cl 3), discrimination by a municipality against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under %worous scrutiny, that it has no other means to advance a legitimate local interest; arguments that the munn_tpaltty has no other means to advance a legitimate local interest must he rejected absent the clearest showing that the unobstructed flow of interstate commerce itself is unable to solve the local problem; the commerce clause presumes a national market free from local legislation that discriminates in favor of local interests; and state and local governments may not use their regulatory power to favor local enterprise by prohibiting patronage of out-of-state competitors or [heir facilities. <=27> COMMERCE §153 exports or imports -- Headnote: < = 28 > 17 I Under the Federal Constitution's commerce clause (Art i, 8, cl 3), states and localities may not attach restrictions to exports or imports in order to control commerce in other states. <=29> COMMERCE §152 discrimination -- revenue generation --' Headnote: <=30> [8] With respect to the rule that state or municipal discrimination against interstate commerce in favor of local business or investment violates the Federal Constitution's commerce clause (Art 1. 8, cl 3) unless it can be shown that the state or municipality has no other means to advance a legitimate local interest, revenue generation is not, by itself, a local interest that can justify discrimination against interstate commerce. SYLLABUS: Respondent town agreed to allow a private contractor to construct within town limits a solid waste transfer station to separate recyclable from nonrecyclable items and to operate the facility for five years, at which time the town would buy it for one dollar. To finance the transfer station's cost, the town guaranteed a mini- mum waste now to the facility, for which the contractor could charge the hauler a tipping fee which exceeded the disposal cost of unsorted solid waste on the private mar- ket. In order to meet the waste flow guarantee, the town adopted a flow control ordinance, requiring all nonhaz- ardous solid waste within the town to be deposited at the transfer station. While recyclers like petitioners (collec- tively Carbone) may receive solid waste at their own sorting facilities, the ordinance requires them to bring nonrecyclable residue to the transfer station, thus forbid- ding them to ship such waste themselves and requiring them to pay the tipping fee on trash that has already been sorted. After discovering 1***21 that Carbone was ship- ping nonrecyclable waste to out-of-state destinations, the town filed suit in state court, seeking an injunction re- quiring that this residue be shipped to the transfer sta- tion. The court granted summary judgment to the town, tindine the ordinance constitutional. and the Appellate Division affirmed. Held: The flow control ordinance violates the Commerce Clause. Pp. 389-395. (a) The ordinance regulates interstate commerce. While its immediate effect is to direct local transport of solid waste to a designated site within the local jurisdiction, its economic effects are interstate in reach. By requiring Carbone to send the nonrecyclable portion of waste it receives frorn out of State to the transfer station at an additional cost, the ordinance drives up the cost for out- of-state interests to dispose of their solid waste. It also deprives ou[-of-stale businesses of access to the local nnarket, b% pre%cntin_ evenone except the favored lo- cal operator from pert0rnung the ;nitial processing step. P. 389. (b) The ordinance discriminates against interstate com- merce, and thus is invalid. See Philadelphia r. New Jersev, 4J7 U.S. 617. 624. 57L. Ed. /R*f31 2d 475. 93 S. Ct. 2531. A1[houg11 the ordinance erects no barrier to the import or export of an solid waste. the article of commerce here is nut so much the waste itself, but rather the service of processing and disposing of it. Whit re- spect to this stream of contnerce, the ordinance discrinn- L.. Page 66 511 U.S. 383. +; 114 S. Cf. 1677, •+; LEXSEE 1994 U.S. LEXiS 3477, •'+3; 128 L. Ed. ?d 399 inates, for it allows only the favored operator to process General. and Susan E. Ashbrook and Bryan F. waste that is within the town's limits. it is no less dis- Zima, Assistant Attorneys General; and by the criminatory because in -state or in -town processors are Auornevs General and other officials For their ! also covered by the prohibition. Cf., e. g., Dean Milk respective jurisdictions as follows: Charles E. Co, w. Madison. 340 U.S. J40, 95 L. Ed. 329, 71 Cole. Aitornew General of :Maska. Grant Mods, S. Ct. 29Facorirtg a single local proprietor makes Attornev: General of Aro iw. R:ch.trd Blumenthal, the ordinance's protectionist effect even more acute, for Attorney General of Connecticut. Charles tit. Oberly it squelches competition in the waste -processing service III, Attorney General of Delaware. Robert A. altogether, leaving no room for outside investment. Pp. Butterworth. Atiorne% General (,t Florida. Robert 389-392. A. ",larks, Attorney General of Hawaii, Roland W. Burris, Attorney General of Illinois, Pamela (c) The town does not lack other means to advance a Carter, Attorney General of Indiana. Bonnie 1. legitimate local interest. it could address alleged health Campbell, Attorney General of Iowa, Michael and safety problems through nondiscriminatory alter- E. Carpenter, Attorney General of Maine, Scott natives, such as unifomn safety regulations that would Harshbarger, Attorney General of Massachusetts, ensure that competitors do not underprice the market Frank J. Kellev. Attornev General of 'Michigan, by cutting comers on environmental safety. Justifying Hubert H. Humphrey Iff, Attorney General of the ordinance as a \ray to steer solid waste away from 'Minnesota, and Beverly Connerton and Stephen out-of-town [•++41 disposal sites that the town might Shakman, Assistant Attorneys General, Joseph P. deem harmful to the environment would extend its police Nlazurck, Attorney General of Montana. Michael power beyond its jurisdictional boundaries. 'Moreover, F. E slew, Attorney General of North Carolina, the ordinance's revenue generating pufpose by itself is Theodore R. Kulongoskt. Attornev General of not a local interest that cari justify discrimination against Ore_on, Ernest D. Preate, Jr., ,Attorney General of interstate commerce. If special Financing is needed to en- Pennsylvania, Pedro R. Pierluisi, Attorney General sure the transfer station's long-term survival, the town of Puerto Rico, T. Travis Medlock, Attorney General may subsidize the facility through general taxes or mu- of South Carolina, Stephen D. Rosenthal, Attomey nicipal bonds, but it may not employ discriminatory General of Virginia, and James E. Doyle, Attorney regulation to give the project an advantage over rival General of Wisconsin; for the State of New York out-of-state businesses. Pp. 392-395. et al. bw Robert Abrams. Attortew General. Jerry Boone, Solicitor General, .Andrea Green, Deputy COUNSEL: Betty Jo Christian argued [he cause for pe- Solicitor General. John 1. Sipus and Gordon J. titioners. With her on the briefs were Paul 1. Ondrasik, Johnson, Assistant Attorneys General, O. Peter Jr., David Silverman, Kenneth Resnik, and Charles G. Sherwood, Leonard J. Koerner, and ;Martin Gold; Cole. for Prince George's County, Maryland, et al. by Lewis A. Noonberg, Charles W. Thompson, Jr., William C. Brashares argued the cause for respondent. and Michael P. Whalen: for Rockland County, New With him on the brief were Murray N. Jacobson and lbrk. by Ilan S. Schoenberger, for the County of San Richard A. Glicket. 4 Diego, California, by Lloyd M. Harmon, Jr., Diane Bardsley, Scott 11. Peters. W. Cullen MacDonald, Briefs of amici curiae urging reversal were filed Eric S. Petersen, and Jerome A. Barron; for the for Incorporated Villages of Westbury. Mineola, and City of Indianapolis, Indiana. ct al. by Scott M. New Hyde Park et al. by Lawrence W. Boes, DuBoff, Pamela K. ,Akin. Feishaw Kin;. `fary Anne Jerome F. 4latedero, John M. Spellman, and Donna Wood. Michael F. N. Gtllm, John D. Pirich, David P. tii. C. Gilibeno; for the Chemical ytanufacturers Qubtten Ruben C. C':uuwn, ,utd Patrick T. Qoulden; Association et al. by Theodore L. Garrett; and For for the City of Springfield. Missouri, by StuartH. the National Solid Wastes Management Association Newberger, Jeffrey H. Howard. and Clifton S. by' Bruce L. -fhall and Bruce J. Parker. ENarten; for the Town of Smithtown, New York, et al. by W. Cullen MacDonald. Richard L. Sigal, Briefs of amici curiae urging affirmance were Eric S Petersen, and Jon A. Gerber: for the Solid tiled for the State of New Jersey by Robert 1. Waste Disposal Authont% of the crts of Huntsville, Del Tufo, Attorney General, !viary C. Jacobson, Alabama. by Charles It Vmnu ,er; for the Clarendon Assistant Attorney General, and Carla Vivian Foundation by Ronald D M.mic;; for the National Bello, Senior Deputy Attorney General; for the ;\siU:1.1(1 Jrt of Bond l.a.c ors b} C' B.urd Brown, State of Ohio et al. by Lee Fisher, Attornev Robert B McKmstr;. Jr . and Brendan K Collins; L 511 U.S. 383, *; 114 S. Cl. 1677, **; 1994 U.S. LEXIS 3477, ***-i; 128 L. Ed. 2d 399 for the National Association of Counties et aL by Richard Ruda; for Ogden Projects, Inc., by Robert C. Bemius and Jeffrey R. Horowitz; and for the Solid Waste Association of North .America ct at. by Bam• S. Shattoff, B. Richard Marsh, and Robert b. Thorin,zton. [***51 - JUDGES: KENNEDY, J., delivered the opinion of the Court, in which STE' ENS, SCALIA, THO,NIAS, and GINSBURG, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment, post, p. 401. SOUTER, J., filed a dissenting opinion, in which REHNQUIST, C. 1., and BLACKMUN, I., joined, post, p. 410. OPINIONBY: KENNEDY OPINION: [*3851 [**16801 JUSTICE KENNEDY de- livered the opinion of the Court. As solid waste output continues apace and landfill ca- pacity becomes more costly and scarce, state and local governments 1*3861 are expending significant resources to develop trash control systems that are efficient, law- ful, and protective of the environment. The difficulty of their task is evident from the number of recent cases that we have heard involving waste transfer and treatment. See Philadelphia v. New Jersey, 437 US. 617. 57 L. Ed. 2d 475. 93 S. Ct. 2531 (1978): Chemical lkbsre Management, Inc. v. Nuru, 504 U.S. 334. 119 L. Ed, 2d 121, 112 S. Ct. 2009 (1992): Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S. 353, 119 L. Ed. 2d 139, 112 S. Ct. 2019 (1992): Oregon Waste Systems, Inc. v. Department of Environmental [***61 Quality of Ore., ante, p. 93. The case decided today, while perhaps a small new chap- ter in that course of decisions, rests nevertheless upon well -settled principles of our Commerce Clause jurispru- dence. \Ve consider a so-called flow control ordinance, which requires all solid waste to be processed at a des- ignated transfer station before leaving the municipality. The avowed purpose of the ordinance is to retain the processing fees charged at the transfer station to amor- tize the cost of the facility. Because it attains this goal by depriving competitors, including out-of-state thins, of access to a local market, we hold that the flow control ordinance violates the Commerce Clause. The town of Clarkstown, New fork, lies in the lower Hudson River Valley, just upstream from the Tappan Zee Bridge and by highway minutes from New Jersey. Witliin the town limits are the village of Nyack and the hamlet of Nest Nyack. In :August 1989, Clarkstown en- (ered into a consent 1*3871 decree with the New York Page 67 LEXSEE State Department of Environmental Conservation. The town agreed to close its landfill located on Route 303 in Nest Nyack and build a new solid waste transfer station on the saute site. The ,tattorl ( ' ° `-1 \would receive bulk solid %kaslc and separate rec\cl,thle trom nunrecvclable (tents. Rec}clahle \\:tstc would he haled for shipment to a recychne facility: nonrccvclable waste, to a suitable landfill or incinerator. The cost of building_, the rrans;cr station was estimated at S 1.4 million. A local private contractor aerccd to construct the facility and operate it for five years, after which the town would buy it for 5 1. During those. five years, the town guaranteed a minimum waste flow of 120,000 tons per year, for which the contractor could charge the hauler a so-called tipping fee of $ 81 per ton. If the station received less than 120,000 tons in a year, the town promised to make up the tipping fee deficit. The object of this arrangement was to amortize the cost of the transfer station: The town would finance its new facilin with the income icneraced by the tipping fees. The problem, of course, was how to meet the yearly guarantee. This difficult' %%as compounded by the fact that the tipping fee of S 81 per ton exceeded the disposal cost of unsorted solid waste on the private market. The solution the town adopted was the flow control ordi- nance here in question, Local Laws 1' 81 1990, No. 9 of the Town of Clarkstown (full text in appendix). The ordinance requires all nonhazardous solid waste within the town to be deposited at the Route 303 transfer sta- (ion. Id.. 3 3.0 tvaste _eneraied %within the town), 3 5.A (waste generated outside and brought in). Non- compliance is punishable by as much as a S 1,000 fine and up to 15 days in jail. § 7. The petitioners in this case are C &_ A Carbone, Inc., a cotttpanv engaged In the I—If)8I I processing of solid waste. and various related companies or persons, all of whom we designate Carbone. Carbone operates a recy- cling center in Clarkstown, 1 `388) where it receives bulk solid waste. sorts and bales it, and then ships it to other processing fac,liues -- much as ocl-urs at (he town's new transfer station. While the Clow control ordinance per- mits rcc\,lcri like C�iihotte to �:or nue recet\'Ina solid waste. ; 3 C. it rcqutres than to hrinu the nunrecvclable residue trout that \,astc to the RUtltc 303 station. It thus forbids Carbone to ,hip the ncntrcc}clable waste itself, and it requires lar'nc!ne to p.r. a :i{ {!in fce on trash chat Carbone has :dread% sorted In `larch 1991. a tractor -miner :ont: imtiz 23 bales of 1.1191 solid \waste ;truck an merpass on the Palisades Interstate Park\vay. \When the police investigated the ac- cident. the\ dixo%ered !lie truck w a, :.trryutg household w;tste 1170111 ('mhone', Clarksiow n plant to silt Indiana In r 720 L 511 U.S. 383. *388; 114 S. Ct. 1677, ** 1681; 1994 U.S, LEXiS 3477, ***9; 128 L. Ed. 2d 399 landfill. The Clarkstown police put Carbone's plant under surveillance and in the next few days seized six more tractor -trailers lea%ing the facility. The trucks also contained nonrecyclable waste, originating both within and without the tov:n, and destined for disposal sites in Illinois, lndiana, \1est V ir,in!a, and Florida. The town of Clarkstown sued Carbone in New York Supreme Court, Rockland County. seeking an injunc- tion requiring Carbone to ship all nonrecyclable waste to the Route 303 transfer station. Carbone responded by suing in United States District Court to en)oin the flow control ordinance. On July 11 , the federal court granted Carbone's injunction, finding a sufficient like- lihood that the ordinance violated the Commerce Clause of the United States Constitution. C. & .4. Carbone, Inc. v. Clarks; oi� ti, 770 F Stipp. S4S (SDNY 1991). Four days later, the New York court granted summary judgment to respondent. The court declared the flow control ordinance consntuuonal 1***101 and enjoined Carbone to comply with it. The federal court then dis- solved its injunction. The Appellate Division affirmed. 182 rf.D.2d 213, 587 N.Y.S.2d 681 (2d Dept. 1992). The court found that the [*3891 ordinance did not discriminate against interstate commerce because it 'applies evenhandedly to all solid waste processed within the Town, regardless of point of origin.' Id., at 222, 587.V.Y.S.2d at 686. The New York Court of Appeals denied Carbone's motion for leave to appeal. 80 N. Y. 2d 760. 605 N.E.2d 87.1 (1992). We granted certiorari, 508 U.S. 938 (1993). and now reverse. At the outset we confirm that the flow con- trol ordinance does regulate interstate commerce, despite the town's position to the contrary. The town says that its ordinance reaches only waste within its jurisdiction and is in practical effect a quarantine: It prevents garbage from entering the stream of interstate commerce until it is made safe. This reasoning is premised, however, on an outdated and mistaken concept of what constitutes interstate commerce. While the immediate effect of the ordinance is to di- rect local transport of solid waste to a designated site within the local jurisdiction, [***! 11 its economic ef- fects are interstate in reach. The Carbone facility in Clarkstown receives and processes waste from places other than Clarkstown, including from out of State. By requiring Carbone to send the nonrecyclable portion of this waste to the Route 303 transfer station at an addi- tional cost, the flow control ordinance drives up the cost for out-of-state interests to dispose of their solid waste. Furthermore, even as to waste originant in Clarkstown, the ordinance prevents everyone except the favored lo- cal operator from performing, the initial processing step. Page 68 LEXSEE The ordinance thus deprives out-of-state businesses of access to .1 local market. There economic effects are more than enough to brine the Clarkstown ordinance within the put%icw of the Commerce Clause, it is well settled that action, are wtlhin !it(: domain of the Commerce Claus c it' t':;c% h11n!cn 1mcr,ta1e commerce or impede its free flow. ,NLRB v. Jones & 1**16821 Laughlin Steel Corp., 301 U..S. 1. 31. 81 L. Ed. 893, 57 S. Ct. 61; 1193� . he real yurvmn is whether the flow, control ordinance is valid despite its undoubted effect on interstate commerce. 1 *390[ For this inquiry our case law yields two [**'12[ lines of analysis: first, whether the ordinance discriminates against interstate commerce, Philadelphia, 437 U.S. at 624; and second, whether the ordinance imposes a burden on interstate commerce that is "clearly excessive in relation to the putative local ben- efits,' Pike v. Brace Church. inc.. 397 U.S. 137, 142, 25 L. Ed. 2d 174. 90 S. Ct. 844 (1970). As we find that the ordinance discriminates against interstate com- merce, we need not resort to the Pike test. The central rationale for the rule a,.zain,t discrimination is to prohibit state or municipal laws whose object is local economic pr01CCti0ll1S111, lawS that would excite those jealousies and retaliatory measures the Constitution was designed to prevent. See The Federalist No. 22, pp. 143-145 (C. Rossiter ed. 1961) (A. Hamilton); Madison, Vices of the Political System of the United States, in 2 Writings of James Madison 362-363 tG. Hunt ed. 1901). We ha�c; interpreted the Commerce Clause 10 invalidate lo- cal laws that impose commercial barriers or discriminate against an article of commerce by reason of its origin or destination out of State. See, e. o., Philadelphia, supra (striking down New Jersey statute that 1***131 prohib- ited the import of solid waste); Hughes v. Oklahoma, 441 U.S. 322. 60 L. Ed. 2d 250, 99 S. Ct. 1727 (1979) (striking down Oklahoma law that prohibited the export of natural minnows). Clarkstown protests that its ordinance does not dis- criminate because it does not differentiate solid waste on the basis of its geographic origin. All solid waste, regardless of orizill, must be processed at the desig- nated transfer station before it leases the town. Unlike the statute in Philadelphia. s.n, the town, the ordinance erects no harrier to (he ilrinurt or export of any solid waste but requires only that the waste be channeled through (lie (lestgnated 1aC1h1\. Our initi.11 discussu>n of the effects of the urdintutce on interstate :ommerce _,oes far toward refuting the town's contention that there is no discrimmauon in its regula- tory scheme. The to,.c n's own arguments ,o the rest of the wa%. As the town Itself points out, what stakes garbage a profitable 1 ' 31)1 1 business is not its own worth but the fact that its possessor must pay to get rid of it. 5It U.S. 383, *391: 114 S. Ct. 1677, **1682; 1994 U.S. LEX1S 3477. ***13; 128 L. Ed. 2d 399 In other words, the article of commerce is not so much the solid waste itself, but rather ilic service of process- ing and [***14) disposing of it. With respect to this stream of commerce, the flow control ordinance dis- criminates, for it allows only the favored operator to process wastc that is %k :thin the limits of the town. The ordinance is no less discriiiunatory because in -state or in -town processors are also covered by tilt: prohibition. in Dean .;1r1.k Co, 1. : a(iison, 3ar) US. 349. 95 L. Ed. 329, 71 S. Ct. 295 (1951), we struck down a city ordinance that required all milk sold in the city to be pasteurized within five miles of the city lines. We found it "immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce." id., at 354, n. 4. Accord, Fort Graiicu Sanitan Landfill, Inc. 1. ,Michigan Dept. oj:Yatural Resources, 504 U.S. at361 ("Our prior cases teach that a State (or one of its polit- ical subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of ar- ticles of commerce threu_h subdivisions of the State, rather than through the State itself"). In this light, the now control ordinance is just one more instance of local processing requirements that we long have held invalid. [***151 See :Minnesota v. Barber, 136 U.S. 313, 34 L. Ed. 455, 10 S. Ct. 862 (1890) (striking down a Minnesota statute that required any meat sold within the State, whether originating within or without the State, to be examined by an inspector within the State): Foster - Fountain Pocking Co. v. Hardel, 273 US. 1, 73 L. Ed. 147, 49 S. Ct. 1 (1928) (striking down [**16831 a Louisiana statute that forbade shrimp to be exported unless the heads and hulls had first been removed within the State); Johnson v. Haydel, 278 US. 16, 73 L. Ed. 155, 49 S. Ct. 6 (1928) (striking down analogous Louisiana statute for oysters); Toonter v. Witsell, 334 U.S. 385, 92 L, F-d. 1460, 68 S. Ct. 1156 (1948) (strik- ing down South Carolina statute that required shrimp fishermen to unload, pack, and stamp their catch before shipping it to another State); Pike y. Bruce Church, itic.. supra (striking down (*3921 Arizona statute that required all Arizona -grown cantaloupes to be packaged within the State prior to export); South -Central Timber Development, inc. v. > auiicke, 467 U.S. 82, 81 L. Ed. 2d 71, 104 S. Ct. 2237 (1984) (striking down an Alaska regulation that required (***16( all Alaska tim- ber to be processed within the State prior to export). The essential vice in laws of this sort is that they bar the import of the processing service. Out-of-state meat inspectors, or shrimp hullers, or milk pasteurizers, are deprived of access to local demand for their services. Put another way, the offending local laws hoard a local resource. -- be it meat, shrimp, or milk -- for the benefit of local businesses that treat it. The flow control ordi- Page 69 LEXSEE nance has the same design and effect. It hoards solid waste, and the demand to get rid of it, for the benefit of the preferred processing facility'. The only conceivable distinciion front the cases cited above is that the flow control ordinance favors a single local proprietor. But this difference ;utit makes the protccuonist effect oi' the ordinance more acute. in Dean Milk, the local process- ing requirement at least permitted pasteurizers within tiye inlleti of the city it) col11pe1C \11 ow -of -Mail` pas- teurizer who wanted access to that market might have built a pasteurizing facility within the radius. The now control ordinance at issue here squelches competition in the waste -processing service alioecther, leaving [***171 no room for investment from outside. Discrimination against interstate commerce in favor of local business or investment is per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest. Maine v. Tn•lor, 477 U.S. 131. 91 L. Ed. 2d 110, 106 S. Ct. 2440 (1986) (up- holding Matne's hall on the import of haitfish because Maine had no other way to prevent the spread of par- asites and the adulteration of its native fish species). A number of amici contend that the flow control or- dinance fits into this narrow class. They suggest that as landfill space (*393( diminishes and environmental cleanup costs escalate, measures like flow control be- come necessary to ensure tfle safe handling and proper treatment of solid waste The te.ich�iig of our cases is that these arguments illust be rejected absent the clearest showing that the unobstructed flow of interstate com- merce itself is unable to solve the local problem. The Commerce Clause presumes a national maiket tree from focal legislation that discriminates in favor of local in- terests. here Clarkstown has any number 11***181 of nondiscriminatory alternatives for addressing the health and environmental problems alleged to justify the ordi- nance in question. The most obvious would be uniform safety regulations erlacted without the object to discrim- inaie. 'These regulations would ensure that competitors like Carbone do not under -price the market by cutting corners on en%irunmenlal safer.. Nor may Clarkstown justify the flow control ordmance as a %%ay to steer solid w;htC a%%Jl t1`0111 0111-0i-Iowil dhOO.-1,11 Sites that It illleht deem harmful to the en%irollmcnt. TO do so "youid ex- tend the town's police power bel.ond its jurisdictional bounds. States and localities may not attach restrictions to exports or imports in order to control commerce in other States. Baldlim v G..-I. F Seeli;. Inc'., 294 US. 511, 79 L. Ed. 1032, 55 S. (,'t. 49, 0935) (striking down \e%% lurk Liw that prohibtted the :ale of milk un- less the price paid to the original milk producer equaled the nllniniuni required by \cat, l;,rk t. 511 U.S. 383, *393: 114 S. Ct. 167". **1683: 1994 I.S.S. LEXIS 3477, ***18: 128 L. Ed. 2d 399 (** 16841 The flow control ordinance does serve a cen- tral purpose that a nonprotecrtonist regulation would not: It ensures that the town -sponsored facility will be prof- itable, so that the local contractor can build it (***191 and Clarkstown can bu% it back at nominal cost in five %cars. In ether words. as the most candid of amici and even Clarkstown admit• the flow control ordinance is a financing measure. By itself, of course, revenue gen- eration is not a local Interest that can Justify discrim- ination against interstate commerce. Otherwise States could impose discriminatory tares against solid waste originating [ "394) outside the State. See Chemical Mste Management, Inc. v. Ifunt, 504 U.S. 334. 119 L. Ed. 2d 121, 112 S. Ct. 2009 (1992) (striking down Alabama statute that imposed additional fee on all hazardous waste generated outside the State and disposed of within the State); Oregon V"aste Svstems, Inc. v. Department of Environmental Quality of Ore., ante, p. 93 (strik- ing down Oregon statute that imposed additional fee on solid waste generated outside the State and disposed of within the State). Clarkstown maintains that special fi- nancing is necessary to ensure the long-term survival of the designated facility. If so, the town may subsidize the E facility through general taxes or municipal bonds. New I Energy Co. of Ind. v. Limbach, 486 U.S. 269, 278, 100 L. Ed. (***201 2d 302, 108 S. Ct. 1803 (1988). But having elected to use the open market to earn revenues for its project, the town may not employ discriminatory regulation to gi%e that project an advantage over rival businesses from out of State. Though the Clarkstown ordinance may not in explicit terms seek to regulate in- terstate commerce, it does so nonetheless by its practical effect and design.. In this respect the ordinance is not far different from the state law this Court found invalid in Buck v. Kuykendall, 267 U.S. 30Z 69 L. Ed. 623, 45 S. Ct. 324 (1925). That statute prohibited common carriers from using state highways over certain routes without a certificate of public convenience. "'riling for the Court, Justice Brandeis said of the law: "Its pri- mary purpose is not regulation with a view to safety or to conservation of the highways, but the prohibition of competition. It determines not the manner of use, but the persons by whom the highways may be used. It pro- hibits such use to some persons while permitting it to others for the same purpose and in the same manner." Id., at 315-316. State and local governments may not use their reaufatory power to favor local enterprise by [1""211 prohibiting patronage of out-of-state: competi- tors or their facilities. We reverse the. (•3951 judgment and remand the case for proceedings not inconsistent with this decision. It is so ordered. APPENDIX TO OPINION OF THE COURT TOWN OF CLARKSTOWN Page 70 LEXSEE Local Law No. 9 of the year 1990 A local law entitled. "SOLID WASTE TRANSPORTATION AND DISPOSAL." Be it en,lctcd b% the TOWN BOARD of the Town of CLARKSTOWN as follows: Section I. Definitions Unless otherwise stated expressly, the following words and expressions, where used in this chapter, shall have the meanings ascribed to them by this section: ACCEPTABLE WASTE -- All residential, commer- cial and industrial solid waste as defined in New York State Law. and Regulations, including Construction and Demolition Debris. Acceptable Waste shall not include Hazardous Waste, Pathological Waste or sludge. CONSTRUCTION AND DEMOLITION DEBRIS -- Uncontaminated solid waste resulting from the construc- non, remodeling, repair and demolition of structures and roads: and uncontaminated solid waste consisting ofveg- etation resulting from land clearing and grubbing, utility line maintenance and seasonal and storm related cleanup. (***221 Such waste includes, but is not limited [** 16851 to bricks, concrete and other masonry materials, soil, rock, wood, wall coverings, plaster• drywall, plumbing fixtures, non -asbestos insulation, rooting shingles, as- phaltic pae anent, electrical wiring, :Ind components con- taining no hazardous liquids. metals, brush grass clip- pings and leaves that are incidental to any of the above. HAZARDOUS WASTE -- All solid waste desig- nated as such under the Environmental Conservation Law, the Comprehensive Environmental Response, Compensation and Liabiht% 1 #3961 Act of 1980, the Resource Conservation and Recovery Act of 1976 or any other applicable law. PATHOLOGICAL \%ASTE -- ``','aste material which may be considered infectious or biohazardous, origi- native from hospitals, public or private medical clin- ics. departments or research laboratories, pharmaceu- tical industries. blood banks, forensic medical depart- ments, niorularies. %rterinarN facilities and other similar facilities and Includes egwpnlent, Instruments, utensils, fonlites, l.tborawr% waste tnicluding pathological spec- inlen5 and 1011111CS JIMId:lnl 01CI%:101, 5L'r!IC l facilities, equipment. bedcling and utensils lincludinz patholog- ical specimens 1 ""-11 Mid dhil lSal fonlltes attendant theretol. .hairy, (hypodermic needles. seringes. etc.), dtalysls unit .easte. animal carca.sses. offal and body parts, bluluglcal nlatertals. Ie:u_cules, medicines, etc.) and other;unllar materials, but dues not include anv such 511 U.S. 383, *396; 114 S. Ct. 1677. **1685; 1994 U.S. LEXIS 3477, ***23: 128 L. Ed. 2d 399 waste material which is determined by evidence satisfac- tory to the Town to have been rendered non-infectious and non-biohazardous. PERSONS -- Any individual, partnership, corpora- tion, association, trust, business trust, joint venturer, governmental body or other entity, howsoever consti- tuted. UNACCEPT:NDLE \�ASTE -- Hazardous Waste, Pathological Waste and sludge. SLUDGE -- Solid, semi -solid or liquid waste gen- erated from a sewage treatment plant, wastewater treat- ment plant, water supply treatment plant, or air pollution control facility. TOWN -- When used herein. refers to the Town of Clarkstown. Section 2. General Provisions A. Intent; Purpose. 1. The intent and purpose of this chapter is to provide for the transportation and disposition of all solid waste within or generated within the Town of Clarkstown so that all acceptable solid waste generated within the Town is delivered to the Town of Clarkstown solid waste fa- cility [***241 situate at Route 303, West Nyack, New York and such other sites, 1 *3971 situate in the Town, as may be approved by the To%vn for recycling, processing or for other disposition or handling of acceptable solid waste. 11. The powers and duties enumerated in this law constitute proper town purposes intended to bene- fit the health, welfare and safety of Town residents. Additionally, it is hereby found that, in the exercise of control over the collection, transportation and dis- posal of solid waste, the Town is exercising essential and proper governmental functions. B. Supervision and Regulation. The Town Board hereby designates the Director of the Department of Environmental Control to be responsi- ble for the supervision and regulation of the transporta- tion and disposition of all acceptable waste generated within the Town of Clarkstown. The Director of the Department of Environmental Control shall be responsi- ble for and shall supervise the Town's activities in con- nection with any waste collection and disposal agree- ments entered into between the Town and third parties and shall report to the Town Board with respect thereto. C. Power to Adopt Rules and Regulations. The Town [*** T51 Board may, after a public hearing, Page 71 LEXSEE adopt such rules and regulations as may be necessary to effectuate the purposes of this chapter. At least seven (7) business 1**16861 days' prior notice of such public hearing shall be published in the official newspaper of the Town A copy of all rules and regulations promul- Vted hereunder :and :un a ncridowws thereto shall be tiled to the office of the Town Clerk upon adoption and shall be effective as provided therein. Section 3. Collection and Disposal of Acceptable Waste A. The removal, transportation :and or disposal of ac- ceptable waste within or generated within the Town of Clarkstown shall be exclusively disposed of, controlled and regulated by the Town under this chapter and Chapter 50 and Chapter 82 of the Clarkstown Town. Code, to- gether with such 1.3981 rules and regulations as the Town has or may from time to time adopt. B. All ;acceptable waste, as defined herein, except for construction and demolition debris, shall be re- moved, transported and, or disposed of only by carters licensed pursuant to the requirements of Chapter 50 of the Clarkstown Town Code and any amendments thereto. All other persons are hereby prohibited from [***26[ re- moving, transporting or disposing of acceptable waste, except for construction and demolition debris gener- ated within the Town of Clarkstown, and except as may be provided for herein or in the rules and regulations adopted pursuant to this chapter and or Chapter 50 of the Clarkstown Town Code. C. All acceptable waste generated within the territo- rial limits of the Town of Clarkstown is to be transported and delivered to the Town of Clarkstown solid waste fa- cility located at Route 303, West Nyack, New Nbrk or to such other disposal or recycling facilities operated by the Town of Ckirkstow n. ` or to recycling centers estab- lished by special permit pursuant to Chapter 106 of the Clarkstown Town Code, except for recyclable materials which are .separated from solid waste at (he point of ori- gin or generation of such solid waste, which separated recyclable materials tray he transported and delivered to facilities «!thin the T(-)lkn a� :alc)resaid. or to sites out- side (lie trwn. As to acceptahle waste brought to said recycling faciltttes, the unrec�cicd residue shall be dis- posed of at a solid waste 1'aciltty operated by the Town of Clarkstown. In a sep:(rate zoning, ordinance, the Town de- clared that it ;hall have only one destenated transfer station. Town of Clarkstow it Zoning Code § 106-3. I*11271 9.9- 140 L 511 U.S. 383, *398: 114 S. Ct. 1677, **1686: 1994 U.S. LEXIS 3477, ***27: 128 L. Ed. 2d 399 D. It shall be unlawful to dispose of any acceptable waste generated or collected within the Town at anv loca- tion other than the facilities or sites set forth in Paragraph "C" above. *3991 Section 4. Disposal of Unacceptable !Paste. A. No unacceptable waste shall be delivered to the Town of Clarkstown solid %,aste facility situate at Route 303, \\cst Nyack, Nc,.� Jerk or other solid waste facility operated by the Town of-Clarkstown or recycling centers established by special permit pursuant to Chapter 106 of the Clarkstown Town Code by any person, including, without limitation, any licensed carter or any munici- pality. Failure to comply with the provisions of this section shall be subject to the provisions with respect to such penalties and enforcerrtent, including the sus- pension or revocation of licenses and the imposition of Fines, in accordance with the provisions of this chapter and/or Chapter 50 of the Clarkstown Town Code and any amendments thereto. The To%yn Board of Clarkstown may, by resolution, provide for the disposal of sewer sludge, generated by a municipal sewer system or the Rockland County sever district, at a disposal facility situate within the Town of Clarkstown. [***281 B. It shall be unlawful, within the Town, to dispose of or attempt to dispose of unacceptable waste of any kind generated within the territorial limits of the Town of Clarkstown, except for sewer sludge as provided for in Section "A" above. [**1687] Section 5. Acceptable and Unacceptable Waste Generated Outside the Town of Clarkstown. A. It shall be unlawful, within the "town, to dispose of or attempt to dispose of acceptable or unacceptable waste of any kind generated or collected outside the territorial limits of the Town of Clarkstown, except for acceptable waste disposed of at a Town operated facility, pursuant to agreement with the Town of Clarkstown and recyclables, as defined in Chapter 82 of the Clarkstown Town Code, brought to a recycling center established by special per- mit pursuant to Chapter 106 of the Clarkstown Town Code. B. It shall be unlawful for any person to import accept- able waste or unacceptable waste from outside the Town of [*4001 Clarkstown and dump same on any property located within the Town of Clarkstown and to proceed to sift, sort, mulch or otherwise mix the said material with dirt, water, garbage, rubbish or other substance, i having the [**t291 effect of concealing the contents or origin of said mixture. This provision shall not apply to composting of acceptable %yaste carried out by the Town of Clarkstown. Page 7? LEXSEE Section 6. Fees for Disposal of Acceptable Waste at Town Operated Facilities. There shall he separate fees established for disposal of acceptable waste at Town operated disposal facilities. The Town Board, by resolution adopted from time to time, shall fix the various fees to be collected at said fa- cilities. The initial fees to be collected are those adopted b% the Tu« n Board on December 11, 1990 by Resolution Number 1097. Section 7. Penalties for Offenses. Notwithstanding any other provision of this chapter, the violation of any provision of this chapter shall be punishable by a tine of not more than one thousand dol- lars (S 1,000.00) or by imprisonment for a period not e.xceedina fifteen (15) days for each offense, or by both fine and imprisonment, and each day that such violation shall be permitted to continue shall constitute a separate offense 1lereunder. Section S. Repealer: Severabilit� Ordinances and local laws or parts of ordinances or local laws heretofore enacted and inconsistent with [***301 any of the terms or provisions of this chapter are hereby repealed. in the event that any portion of this chapter shall be declared invalid by a court of compe- tent jurisdiction, such invalidity shall not be deemed to affect the remaining portions hereof. Section 9. When Effective. This chapter shall take effect immediately upon filing in the office of the Secretary of State. CONCURBY: O'CONNOR CONCUR: 1*4011 JUSTICE O'CONNOR, concurring in the judsmen[. The tots n of Clarkstown's flow control ordinance re- quires all "acceptable waste" generated or collected in the too n [0 be disposed of only at the town's solid waste facility. *1'0%y11 of Clarkstown, Local Law 9, as 3.C-D (191.01 (Local Lativ 9). The Court holds today that this ordinance violates the Commerce Clause because it dis- criminatei against interstate commerce. Ante. at 390. 1 agree %ith tho majorit%'s ultimate conclusion that the or- dinance violates the dormant C0111111CCCe Clause. In my view, ho«eyer, the 10%%11's ordin:lnce is unconstitutional not because of facial or effective discrimination against interstate commerce. but rather because it imposes an excessive burden on interstate commerce. I also write a 511 U.S. 383. *401: 114 S. Ct. 1677. *11687; 199-1 U.S. LEXIS 3477. ***30; 128 L. Ed, 2d 399 separately to address the (* * * 31 j contention that flow control ordinances of this sort have been expressly au- thorized by Congress, and are thus outside the purview of the dormant Commerce Clause. I The scope of the dormant Commerce Clause is a ju- dicial creation. Or, its face, the Clause provides only that "the Congress shall ha%'e Power . . . To regulate Commerce among the scyeral States . U.S. Const., Art. 1, § S, cl. 3. This Court long ago [**1688] concluded, however, that the Clause not only empowers Congress to regulate interstate commerce, but also imposes limitations or. the States in the absence of congressional action: "This principle that our economic unit is the nation, which alone has the gamut of powers necessary to con- trol of the economy, including the vital power of erect- ing customs barriers against foreign competition, has as its corollary_ that the states are not separable economic units. . . . What is ultimate is the principle that one state in its dealings with another may not place itself in a position of economic isolation." H. P. Hood & Sans, (*40211nc. v. Du Mond, 336 U.S. 525, 537-538, 93 L. Ed. 865, 69 S. Ct. 657 (1949) (internal quotation marks and citations (***321 omitted). Our decisions therefore hold that the dormant Commerce Clause forbids States and their subdivisions to regulate interstate commerce. V1'e have generally distinguished between two types of impermissible regulations. A facially nondiscrimina- tory regulation supported by a legitimate state interest which incidentally burdens interstate commerce is con- stitutional unless the burden on interstate trade is clearly excessive in relation to the local benefits. See Brown - Forman Distillers Corp. v. New York State Liquor Authoritv, 476 U.S. 573, 579, 90L. Ed. 'd 552, 106 S. Ct. 2080 (1986); Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 25 L. Ed. 2d 174, 90 S. Ct. 344 (1970). Where, however, a regulation "affirmatively" or "clearly" discriminates against interstate commerce on its face or in practical effect, it violates the Constitution unless the discrimination is demonstrably justified by a valid factor unrelated to protectionism. See flionnng v. Oklahoma, 502 U.S. 43 7, 454, 117 L. Ed. 2d 1, 112 S. Ct. 789 (1992); Maine v. Tavlor. 477 U.S. 131, 138, 91 L. Ed. 2d 110, 106 S. Cr. 2440 (1986). Of course, there is no clear line separating (***331 these categories. "In either situation the critical considera- tion is the overall effect of the statute on both local and interstate activity." Brown -Forman Distillers, supra, at 579. Page 73 LEXSEE Local Law 9 prohibits anyone except the town - authorized transfer station operator from processing dis- carded waste and shipping it out of town. in effect, the town has L'ICen a Aaste prOcessln_L' monopoly to the trans- fer station. The nlalorit% concludes that this processing monopoly facially discriminates against interstate com- merce. Ante. at -i9I. 39_'. in support of this conclusion, the majunt} cites pre%wus decisions of this Court strik- ine down regulatory enactments requiring that a partic- ular economic activity be performed within the jurisdic- tion. See, e, g., Dean Milk Co. v. Madison, 340 U.S. 349, 95 L. Ed. 329. 71 S. Ct. 295 (1951) (unconstitu- tional for city to require milk to be pasteurized within rive miles of the city); Minnesota v. Barber, 136 U.S. 313, 34 L. Ed. 455, 10 S. Ct. 862 (1890) (unconsti- tutional for State 1*4031 to require meat sold within the State to be examined by state inspector); Foster -Fountain Pocking Co. v. Hal•del, 278 US. 1, 73 L. Ed. 147, 1***341 49 S. Ct 1 (1928) (unconstitutional for State to require that shrimp heads and hulls must be removed before shrimp caul be removed from the State): South - Central Timber De l elopment, lnc. v. Minnicke, 467 U.S. 82, 81 L. Ed. 2d 71, 104 S. Ct. 2237 (1984) (unconstitutional for State to require all timber to be processed within the State prior to export). Local Law9, however, lacks ;in important feature common to the regulations at issue in these cases -- namely, discrimination on the basis of eeoeraphic ori- gin. In each of the cited cases, the challenged enact- ment gave a competiti%'e advamage to local business as a group vis-a-vis their out-of-state or nonlocal competi- tors as a group. in effect, the regulating jurisdiction -- be it a State tPlke), a count ' (Fort Gratiot Sanitary Landfill, Inc t•. Michi,-an Dept. of Namral Resources, 504 U.S. 353, 119 L. F_d. 2d 139. r'12 S. Ct. 2019 (1992)), or a city (Dean Milk) -- drewa line around it- self and treated those inside the line more favorably than those outside the line. Thus, In Pike, the Court held that an Arizona law requiring that Arizona cantaloupes be 1"10891 packaged In Artzona before being shipped 1 * 351 out of state facially t1kcrinimated against in- terstate k:omwcrcc The benetl(., of the discriminatory scheme benCfl[CLI the Arltuna packazur; industry, at the expense of its conhpeutlon in California. Similarly, in Dean Milk, on which (Ile maionit he aylly relies, the city of Madison drew a line around Its perimeter and re- quired (ll,u Al milk sold in the cln be pasteurized only by dairies located inside the line 'rills type of geographic distinction. which confers an CCurnunliC advantage on local interests in general, is Cunmmrn to all the local pro- Cessin' caves cited b% the nl;tjurlt%. And the Court has, l believe, correctly concluded that these arrangements are 0 3 — 42 0 511 U.S. 383, *403: 1,14 S. Ct. 1677, **1689: 1994 G.S. LEXIS 3477, "*35; 128 L. Ed. 2d 399 protectionist either in purpose or practical effect, and thus amount to virtually per se discrimination. in my view, the maiorit�• fails to conic to terms with a significant distinction bcneeen the laws in the local pro- cessing [•411-1] cases discussed above and Local Law 9. Unlike the regulations we haee previously struck down, Local Law, 9 does not give more favorable treatment to local interests as a group as compared to out-of-state or out-of-tosk n economic interests. Rather, the garbage sorting monopol} is achieved 1`361 at the expense of all competitors, be they local or nonlocal. That the or- dinance does not discriminate on the basis of geographic origin is vividly illustrated by the identity of the plain- tiffs in this very action: Petitioners are local recyclers, physically located in Clarkstown, that desire to process waste themsel,: es, and thus bypass the cow n's designated transfer facility, Bccause in -town processors -- like peti- tioners -- and out-of-town processors are treated equally, I cannot agree that Local Law 9 "discriminates" against interstate commerce. Rather, Local Law 9 "discrimi- nates" evenhandedly against all potential participants in the waste processing business, while benefiting only the chosen operator of the transfer facility. I believe this distinction has more doctrinal signifi- cance than the majority acknowledges. In considering state health and safety regulations such as Local Law 9, we have consistently recognized that the fact that interests .within the regulating jurisdiction are equally affected by the challenged enactment counsels against a finding of discrimination. And for good reason. The ex- istence of substantial in -state interests harmed by a regu- lation is "a [***371 powerful safeguard" against legisla- tive discrimination. Minnesota v. CloverLealfCrearrtery Co., 449 U. S. 456, 4 73, n. 17, 66 L. Ed. 2d 659, 101 S. Ct. 715 (1981). The Court generally defers to health and safety regulations because "their burden usually falls on local economic interests as well as other States' economic interests, thus insuring that a State's own political pro- cesses will serve as a check against unduly burdensome regulations." Rm'mond Motor Transp., Inc. v. Rice, 434 U.S. 429, 444, n. 18, 54 L. Ed. 2d 664, 98 S. Ct. 787 (1978). See also Kassel v. Consolidated Freightwa 5 Corp. of Del., 450 U.S. 662. 675, 67 L. Fd. 2d 580, 101 S. Ct. 1309 (1931) (same). Thus, while there is no bright [*4051 line separating those enactments which are virtually per se invalid and those which are not, the fact that in -town competitors of the transfer facility are equally burdened by Local Law 9 leads me to conclude that Local Law 9 does not discriminate against interstate commerce. II That the ordinance does not discriminate against inter - Page 74 LEXSEE state commerce does not, however, end the Commerce Clause inquiry. Even a nondiscriminatory regulation may [`381 nonetheless impose an excessive burden on interstate trade Mien cunsidered in relation to the local benefits conferred. See Brutttt-Furman Distillers, 4-6 US of 579. indeed, we ha%c IOnH recognized that "a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute impos- ing it applies alike to . . the people of the State enacting such statute." Britntner e'. Rebman, 138 U.S. 78, 8.3. 34 L. Ed. 862, 11 S. Ct. 213 (1891) (internal quotation marks and citation omitted). Moreover, "the extent of the burden that will be tolerated will of course depend on the: nature of the local interest involved, and on 1 ** 16901 whether it could be promoted as well with a lesser impact on interstate actte'tues." Pike. 397 US, at 142. Judged against these standards, Local Law 9 fails. The local interest in proper disposal of waste is obvi- ously significant. But this interest could be achieved by simply requiring that all waste disposed of in the town be properh processed somewhere. For example, the town could ensure proper processing by setting specific standards with which all town processors must comply. In fact, however, the town's purpose [***391 is nar- rower than merely ensuring proper disposal. Local Law 9 is intended to ensure the financial viability of the trans- fer facila%. I agree with. the majority that this purpose c;ul be achteeed be other means that would have a less dramatic impact on the Clow of goods. For example, the town could finance the 1*406j project by imposing tares, by issuing municipal bonds, or even by lower- ine its price for processing to a level competitive with other waste processing facilities. But by requiring that all waste he processed at the town's facility, the ordi- nance "squelches competition in the waste -processing service altogether, leaving no room for investment from outside." :vue, at 392. In addition. "'the practical effect of [Local Law 91 must be ce aluated not only by cunsiderin� the conse- quences of the statute t[selC, bill also by considering how the challenaed statute ntav interact w tth the lezitimate regulator% reeintes Of :he other Stags and what effect would arn,e If not One, but m:ui} or eeery, [jurisdictfonj adopted similar Iegislatwn.'" llioming v. Oklahoma, 502 U.S. at 45-1-454 tquuting Llealy v. Beer Institure, 491 L'. S. 324. 336, Ni L Fri. 2,1 2 75 , 109 1 * "401 S. Cr. 2491 This is not a h%pothetical inquiry. Over 20 SLIWS ltiase etttited statute, authonting local tuvernments to adopt flow' control laws. ` If the lo- calities in these States tmpuse the type of restriction on the moeentent of waste that Clarkstuwit has adopted, the free plus enlent of solid waste to the stream of commerce L 511 U.S. 383, *406; 114 S. Ct. 1677, **1690; 1994 U.S. LEAS 3477, ***40; t28 L. Ed. 2d 399 will be severely impaired. Indeed, pervasive now con- trol would result in the type of balkanization the Clause is primarily intended to present. See H. P. Hood & Sons, 336 U.S. ci 5.i 7 -53.5. * Coln. Res. Star. § 30-20-107 (Supp. 1993); Conri. Gen. Star. § 22a-220a (1993); Del. Code Ann., Tit. 7, § 6406(31) (1991); Fla. Stat. § -103.71 3 (1991): lla•,�. Res. Stat. § 340A-3(a) (1985); Ind. Code §§ 36-9-31-3 and -4 (1993); Iowa Code § 28G 4 (1987); La. Res. Stat. Ann. § 30:2307(9) (West 1959); Me. Rev. Star. Ann., Tit. 38, § 1304-B(2) (1964); Minn. Star. § 1 15A.80 (1992); Miss. Code Ann. § 17-17-319 (Supp. 1993): Mo. Rev. Star. § 260 202 (Supp. 1993), N. J. Scat. Ann. §§ 13.1E-22, 43:13A-5 (West 1991 and Supp. 1993); N. C. Gen. Star. § 130A-294 (1992); N. D. Cent. Code §§ 23-29-06(6) and (8) (Supp. 1993); Ore. Rev. Stat. §§ 268.317(3) and (4) (1991); Pa. Stat. Ann., Tit. 53, § 4000.303te) (Purdon Supp. 1993); R. 1. Geri.. Laws § 23-19- 10(40) 11956): Tenn. Code Ann. § 68-211-814 (Supp. 1993); Vt. Star. Ann., Tit. 24, § j203b (1992), Va. Code Ann. § 15.1-28.01 (Supp. 1993). [***41J [*4071 Given that many jurisdictions are contemplat- ing, or enacting flow control, the potential for conflicts is high. For example, in the State of New Jersey, just south of Clarkstown, local waste may be removed from the State for the sorting of recyclables "as long as the residual solid waste is returned to New Jersey." Brief for New Jersey as Amicus Curiae 5. under Local Law 9, however, if petitioners bring waste from New Jersey for recycling at their Clarkstown operation, the residual waste may not be returned to New Jersey, but must be transported to Clarkstown's transfer facil- ity. As a consequence, operations like petitioners' can- not comply with the requirements of both jurisdictions. Nondiscriminatory state or local laws which actually conflict with the enactments of other States are con- stitutionall-Y infirm if they burden interstate commerce. See Bibb i. .Navajo Freight Lines. Inc., 359 US. 520, 526-530, 3 L. Ed. 2d 1003, 79 S. Cr. 962 (1959) (unconstitutional for Illinois to require truck mudguards when that requirement conflicts with the requirements of other States); Southern Pacific Co. s. Arizona e.x rel. Sullivan, 325 U.S. 761, 773-774, 39 L. Ed. 1***42/ 1915, 65 S. Ct. 1515 (1945) (same). The increasing j number of 1 ** 16911 flow control regimes virtually en- sures some inconsistency between jurisdictions, with the effect of eliminating the niosement of waste between ju- risdictions. I therefore conclude: that the burden Local Gage 75 LEXSEE Law 9 imposes on interstate commerce is excessive in re- lation to Clarksiown's interest in ensuring a fixed supply of waste to supply its project. ill Although this Court can -- and often dues -- enforce the dormant aspect of the Commerce Clause, the Clause is primarily a grant of congressional authority to reg- ulate commerce amonu, the States. Amicus National Association of Bond Lawyers (NABL) argues that the flow control ordinance in this case has been authorized by Congress. Given the residual nature of our authority under the Clause, and 1 *4081 because the argument that Congress has in fact authorized now control is substan- tial, i think it appropriate to address it directly. Congress must be "unmistakably clear" before we will conclude that it intended to permit state regulation which would otherwise violate the dormant Commerce Clause. South -Central Timber, 467 U.S. at 91 (plurality opin- ion). See I""4i1 also Sporhase v. .Nebraska ex rel. Douglas, 4 S C. S. 941. 960, 73 L. Ed. 2d 1254, 102 S. Ct. 3456 (1932) (finding consent only where "Congress' intent and policy (o sus(arn state legislation from attack under the Commerce Clause was expressly stated") (ci- tations and internal quotation marks omitted). The State or locality has the burden of demonstrating this intent. M-oining s. Oklahoma. 502 U.S. at 453. Amicus NABL argues that Subchapter IV of the Resource Conservation and Recovery Act of 1976 (RCRA). 90 Stat. 2813, as amended. 42 U.S.C. § 6941 et seq., and its amendments, remove the con- stitutional constraints on local implementation of flow control. RCRA is a sweeping statute intended to reg- ulate solid waste from cradle to zrave. In addition to providing specific federal standards for the management of solid waste. RCRA Subchapter IV governs "State or Regional Solid Waste Plans." Aniong the objectives of (he subchapter is to "assist in developing and encour- aging methods for the disposal of solid waste which are em iionmentall sound this Is to be accomplished by federal "assistance to States or re,_tonal authorities for coniprehensr.e plannim-, punL..rtit to Federal guidelines." § o,),,I. Under RCRA. Stales are to submit solid waste man - at, plans that "prohibit the establishment of new open dumps within the State." and ensure that solid waste will be "utilized for resource recosery or . disposed of in sanu.trs landfilis . or othePAIse disposed of in an environmentails sound manner." § 6943ta)(2). The pions MUNI also ensure that Mate and local gosermnems not be "prohibited under State or local law from nezoti- annz and entenn_z into Iona terns 14091 contracts I'orthe L 511 U.S. 383, *409; 11.1 S. Ct. 1677, **1691; 1994 U.S. LEYiS 3477. ***44; 128 L. Ed. 2d 399 supply of solid waste to resource recovery facilities [or) from entering into long-term contracts for the operation of such facilities." § 6943(a)(5). Amicus also points to a statement in a House Report addressing § 6943(a)(5), a statement evincing some con- cern with flow control. "This prohibition [on state or local laws prohibiting long-term contracts) is riot to be construed to affect state planning which may require all discarded materials to be transported to a particular location. . . ." H. R. Rep. No. 94-1491, p. 34 (1970) (emphasis added). Finally, in the Solid Waste Disposal Act Amendments of 1980, Congress authorized [***451 the Environmental Protection Agency (ER-\1 to "provide technical assis- tance to States [arid local governments) to assist in the removal or moditication of legal, institutional, and eco- nomic impediments which have the effect of impeding the development of systems and facilities [for resource recovery J." § 69a3(d)(3i. Among the obstacles to ef- fective resource recovery are "impediments to institu- tional arrangements necessary to undertake projects . . including the creation [**16921 of special districts, authorities, or corporations where necessary having the power to secure the supply of waste of a project." § 6948(d)(3)(C) (emphasis added). I agree with amicus `:ABL that these references in- dicate that Congress expected local governments to im- plement some form of flow control. Nonetheless, they neither individually nor cumulatively rise to the level of the "explicit" authorization required by our dormant Commerce Clause decisions. First, the primary focus of the references is on legal impediments imposed as a result of state -- not federal -- law. in addition, the ref- erence to local authority to "secure the supply of waste" is contained in § 6948(d)(3)(C), which [***461 is a del- egation not to the States but to EPA of authority to as- sist [*410] local government in solving waste supply problems. EPA has stated in its implementing regula- tions that the "State plan should provide for substate cooperation and policies for free and unrestricted move- ment of solid and hazardous waste across State and local boundaries." 40 CFR § 256.42(h) (1993), And while the House Report seems to contemplate that municipalities may require waste to be brought to a particular location, this stronger language is not reflected in the text of the statute. Cf. United States v. .Nordic Village, Inc., 503 U.S. 30, 37, 117L. Ed. 2d 131, 112 S. Ct. 1011 (1992) (for waiver of sovereign in inunity, "if clarity does not exist [in (he text], it cannot be supplied by a committee report"); Dellinuth v. ,tltith. 491 U.S. 223, 230, 105 L. Ed. 2d 131, 109 S. Ct. 239" (19891 (same). In short, Page 76 LEYSEE these isolmed references do not satisfy our requirement of an explicit statuton authorization. It is within Congress' power to authorize local im- position of flow control. Should Congress revisit this area, and enact legislation pro,tiding a clear indication that it intends i • • *4 71 States and localities to implement now control, we will, of course. defer to that legislative judgment. Until then. however. Local Law 9 cannot sunthe c,on�tituiional sczuiim. A,:Lordingly. I concur in the judgment of the Court. DISSENTBY: SOUTER DISSENT: JUSTICE SOUTER, with whom THE CHIEF JUSTICE and JUSTICE BLACKMIN join, dis- senting. The majority may invoke "%veil -settled principles of our Commerce Clause jurisprudence," ante, at 386, but it does so to strike down an ordinance unlike anything this Court has ever invalidated. Previous cases have held that the "negatuve" or "dormant" aspect of the Commerce Clause renders state or local legislation un- constitutional when it discriminates against out-of-state or out-of-town businesses such as those that pasteurize milk, hull shrimp, or mill lumber, and the majority re- lies on these cases because of what they have in com- mon with this one: out-of-state processors are excluded 1*4111 front the local niarket there, from the market for trash processing servicesi. What the majority ig- nores, however, are the differences between our local processing cases and this one: (h% exclusion worked by Clarkstow n's Local Law 9 bestows no benefit on a class [***481 of local private actors, but instead directly aids the government in satisfying a traditional governmental responsibtitty. The In,,% dues not ditterentiate between all local and :ill out-of-town providers of a service, but in- stead between the one entity responsible for ensuring that the job gets done and all other enterprises, regardless of their location. The ordinance thus tails outside that class of tariff or protectionist measures that the Commerce Clause has traditionally been thought to bar States from enacting a aunt each other. and when the majority sub- sumes the ordinance w ithin the Mass of laws this Court has struck down as faciallt discriminatory (and so avails itself of our "virMall} per se rule" against such statutes, see Philadclphia v. New lerse,.. 43- U.S. 617, 624. 57 L. Ed. 2d 475, 98 S. Ct _1531 ( 19-8)), the majority is in fact _rc.ut,. emcndinu, the G.ww s dorniant reach. There are, however. good and Sulicient reasons against e\pandim! the c:ommer,:e Clause's inherent ca- pacity to truntp c•<ercisics of state authority such as the ordinance at issue here I'liert: is tit) indication in the L Sit U.S. 383. *411; 114 S. Ct. 1077, **1692; 1994 U.S. LEXIS 3477, ***48; 128 L. Ed. 2d 399 record that any out-of-state trash processor [** 1693) has been harmed, [***491 or that the interstate movement or disposition of trash will be affected one whit. To the degree Local Law 9 affects the market for trash process- ing services, it does so only: bY subjecting Clarkstown residents and businesses to hurdens lair different from the burdens of local favoritism that dormant Commerce Clause jurisprudence seeks to root out. The town has found a way to finance a public tmpro,,ement, not by transferring its cost to out -of state econonuc interests, but by spreading it among the local generators of trash, an equitable result with tendencies that should not dis- turb the Commerce Clause and should not be disturbed by us. f *4121 1 Prior to the 1970's, getting rid of the trash in Clarkstown was iust a matter of taking it to the local dump. But over the course of that decade, state regula- tors cited the town for dumping in violation of environ- mental laws, and in August 1989 the town entered into a consent decree with the New fork State Department of Environmental Consen-ation, promising to close the landfill, clean up the environmental damage, and make new arrangements to dispose of the town's solid waste. Clarkstown agreed to build a "transfer station" [***501 where the town's trash would be brought for sorting out recyclable material and baling the nonrecyclable residue for loadine into long -haul trucks bound for out-of-state disposal sites. Instead of building the transfer station itself, Clarkstown contracted with a private company to build the station and run it for five years, after which the town could buy it for 5 1. The town based the size of the fa- cility on its best estimate of the amount of trash local residents would generate and undertook to deliver that amount to the transfer station each year, or to pay a sub- stantial penalty to compensate for any shortfall. This "put or pay" contract, together with the right to charge an S 81 "tipping" fee for each ton of waste collected at the transfer station, was meant to assure the company its return on investment. Local La,.% 9, the ordinance at issue here, is an in- tegral part of this financin, scheme. It prohibits in- dividual trash venerators within the town from evad- ing payment of the S 81 tipping fee by requiring that all residential, commercial, and industrial waste gener- ated or collected within the town be delivered to the transfer station. While Clarkstown residents may dump j their 1`511 waste at another locally licensed recycling center, once such a private recycler culls out the recy- clable materials, it must dispose of any residue the same way other Clarkstown residents do, by taking it to the Page 77 LEXSEE town's 1*4131 transfer station. Local Law 9, as 3.C. 3. D (1990). n 1 Ifo6t-of-towners wish to dispose of their waste. in Clarkstown or recycle it there, they enter the town subject to the same restrictions as Clarkstown res- idents, in being required to use only the town -operated transfer station or a licensed recycling center. 3 5.A. n I The ordinance has excepuuns not at issue here for hazardous waste, pathological waste, and sludge, and for source -separated recvclables, which can be disposed of within or outside the town. Local Law 9, §§ 1, 3.0 (1990). Petitioner C & A Carbone, Inc., operated a recycling center in Clarkstown, according to a state permit autho- rizing it to collect waste, separate out the recyclables for sale, and dispose of the rest. In violation of Local Law 9, Carbone failed to [***521 brine this nonrecyclable residue to the town transfer station, but took it directly to out-of-state incinerators and landfills, including some of the ven same ones to which the Clarkstown transfer station sends its trash. Apparently, Carbone bypassed the Clarkstown facility on account of the S 81 tipping fee, saving Carbone money, but costing the town thou- sands in lost revenue daily. In this resulting legal ac- tion, Carbone's complaint is one that any Clarkstown trash generator could have trade: the town has created a monopoly on trash processing services, and residents are no longer free to provide these services for them- selves or to contract for them with others at a mutually agreeable price. [**16941 I1 We are not called upon to judge the ultimate wisdom of creating this local monopoly, but we are asked to say whether Clarkstown's monopoly violates the Commerce Clause, as long read by this Court to limit the power of state and local goverlimenis to discriminate against interstate commerce: 1 `4141 "IThel 'iicgati�e' aspect of the Commerce Clause prohibits c,:ononu,: prowcnomsm -- that is, regulatory measures des(aned to benefit in -state economic interests 1' 531 by burdening out-of-state competitors. Thus, state statutes that clearly discriminate aLminsi interstate commerce ;ire routinely struck do%%n, unless the discrim- ination IS detnUnStlabl%' lusltficd by a valid factor unre- lated to economic pro(ectionism. " New Energy Co. of Ind. v. Limbach, 486 U.S. 2w). '7;-274. IQ0 L. Ed. 2d 302, 108 S. Ct. 1803 ( 19881 (citations onulted). This him( Pon on the state and local power has been 511 U.S. 383, *414; 114 S. Ct. 1677, **1694. 1994 U.S. LEXIS 3477, `53; 128 L. Ed. 2d 399 seen implicit in the Commerce Clause because, as the majority recognizes, the Framers sought to dampen re- gional jealousies in general and, in particular, to elimi- nate retaliaton, tariffs, which had poisoned commercial relations under the articles of Confederation. Ante, at 390. Lays that hoard for local businesses the right to serve local markets or deyeiop local resources work to isolate States from each other and to incite retaliation, since no State could stand by Nwhile another advanced the economic interests of its o,,yn business classes at the expense: of its neighbors. A The majority argues that resolution of the issue before us is controlled by a line of cases in which we have struck down state or local laws that discriminate against out- of-state [***541 or out-of-town providers of processing services. See ante, at 391-39'_. With perhaps one ex- ception, n2 the laws invalidated 1*4151 in those cases were patently discriminatory, differentiating by their very terms between in -state and out-of-state (or local and nonloeal) processors. One ordinance, Cor example, for- bad selling pasteurized milk "unless the same shall have been pasteurized and bottled . . . within a radius of five miles from the centrai portion of the City of Madison . " n3 Dean Milk Co. v. Madison, 340 U.S. 349, 350, n. 1, 95 L. Ed. 329, 71 S. Ct. 295 ( 195 1 ) (quot- ing General Ordinances of the City of Madison 3 7.21 (1949)). The other laws expressly discriminated against commerce crossing state lines, placing these local pro- cessing cases squarely within the larger class of cases in which this Couri has invalidated facially discriminatory legislation. n4 n2 The arguable exception is Pike v. Bruce Church, Inc., 397 U.S. 137, 25 L. Ed. 2d 174, 90 S. Cf. 844 (1970), where the Court 'invalidated an administrative order issued pursuant to a facially neutral statute. While the order discriminated on its face, prohibiting the interstate shipment of respon- dent's carualoupes unless they were first packaged lo- cally, the statute it sought to enforce merely required that Arizona-gro,.vn cantaloupes advertise their State of origin on each package. In Pan IiI, I discuss the line of cases in which sse have struck down statutes that, although lacking explicit geographical sorting mechanisms, are discriminatory in practical effect. 1...551 n3 The area encompassed by this provision in - eluded all of Madison except the runways of the municipal airport, plus a small amount of unin- corporated land. See The !Madison and Wisconsin Foundation, ;Map of the City of Madison (1951). Page 78 LEXSEE n4 See, e. g.. Chemical Waste 'Management, inc. V. Hunt, 504 L`.S, 334. 119 L. Ed, 2d 121, 112 S. Ct. 2009 ( 1992) (Alabama statute taxing haz- ardous waste not orwinating in State); 'A'yoming v. Oklahoma, 502 U.S. 437, 117 L. Ed. 2d 1. 112 S. Ct. 789 (1992) (Oklahoma statute requiring power plants to burn at least 10 percent Oklahoma - mined coal); New Energy Co. of ind. v. Limbach, .186 U.S. 261), 100 L. Ed 2d 302. 108 S. Ct. 1803 (1988) (Ohio statute awarding tax credit for sales of ethanol only if it is produced in Ohio or in a State that awards similar tax breaks for Ohio - produced ethanol); New England Power Co. v. New Hampshire, 455 U.S. 331, 71 L. Ed. 2d 188. 102 S. Cf. 1096 (1982) (New Hampshire statute prohibit- ing hydroelectric power from heing sold out of State without permission from the State's Public Utilities Commission); Hughes v. Oklahoma, 441 U.S. 322, 60 L. Ed. 2d 250. 99 S. Ct. 1727 (1979) (Oklahoma law forbidding out-of-state sale of natural minnows). *` 561 As the majority recognizes, Local Law 9 shares two features with these local processing [**16951 cases. It regulates a processing service available in interstate com- merce, i. e., the sortlno and baltn�,. of solid waste for disposal. .and it does so in a fashion that excludes out- of-town trash processors by its eery terms. These par- allels bet�seen Local Law 9 and the statutes previously invalidated confer initial plausibility on the majority's classification of this case with those earlier ones on pro- cessing, and they even bring this one within the most general language of some of the earlier cases, abhorring 1*4161 the tendency of such statutes "to impose an arti- ficial ri;idity on the economic pattern of the industry," Toomer v. \Vitsell, 334 U.S. 385, 403-404, 92 L. Ed. 1460, 68 S. Ct. 1 156 (1948). B There are, however. both analytical and practical dif- ferences between this and the earlier processing cases, differences the majority underestimates or overlooks but %0ich, it' cisen their due, should prevent this case from being, decided the same way. First, the terms of Clarkstown's ordinance I'mor a single processor, not the class of all such businesses located in 1 0**571 Clarksto�� n. Second. (he one proprietor so favored is essentially :tit agent of the mun(ctpa( zo%ernment, which (unlike Carbone or other prt%ate trash processors) must ensure tho MUM 11 of «rite according to acceptable standards of public health. An discrimination worked by Local Law 9 thus fails to produce the: sort of en- trepreneurial ta�ortttsm s%e have previously defined and 511 U.S. 383, *416; 114 S. Ct. 1677, ** 1695; 1994 U.S. LEXIS 3477. ***57; 128 L. Ed. 2d 399 condemned as protectionist. 1 The outstanding feature of the statuses or ordinances reviewed in the local processing cases is their distinc- tion between two classes of private economic actors according to location, favoring shrimp hullers within Louisiana, milk pastrurizers within five miles of the cen- ter of Madison, and so on. See Foster -Fountain Packing Co. v. Haydel, 278 U.S. 1, 73 L. Ed. 147, 49 S. Ct. 1 (1928); Dean ;Milk Co. v. Madison, supra. Since nothing in these local processing laws prevented a proliferation of local businesses within the State or town, the out-of-tow-n processors were not excluded as part and parcel of a general exclusion of private firms from the market, but as a result of discrimination among such firms according to geography alone. It was be- cause of that 1***581 discrimination in favor of local businesses, preferred at the expense of their out-of-town or out-of-state competitors, that the Court struck down those local processing [14171 lays n5 as classic examples of the economic protectionism the dormant Commerce Clause jurisprudence aims to prevent. In the words of one commentator summarizing our case law, it is laws 'adopted for the purpose of improving the competitive position of local economic actors, just because they are local, vis-a-vis their foreign competitors" that offend the Cormerce Clause, Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 (1116961 ,Mich. L. Rev. 1091, 1138 (1986). The Commerce Clause does not otherwise protect access to local markets. id., at 1128. n6 n5 See South -Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 92, 81 L. Ed. 2d 71, 104 S. Ct. 2237 (1984) (quoting South Carolina Highway Dept. Y. Barnwell Brothers, inc., 303 U.S. 177, 185, n. 2, 82 L. Ed. 734, 58 S. Ct. 510 (1938)) (danger lies in regulation whose "'bur- den fails principally upon those without the state'"); Dean Nfilk Co. v. Madison, 340 U.S. 3.39, 354, 95 L. Ed. 329, 71 S. Ct. 295 (1951) (in "erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce. This it cannot do . . ."); Foster -Fountain Packing Co. v. Haydel, 278 U.S. 1, 13, 73 L. Ed. 147, 49 S. Ct. 1 (1928) (statute unconstitutional because it "favorlsl the canning of the meat and the man- ufacture of bran in Louisiana" instead of Biloxi); Minnesota v. Barber, 136 U.S. 313, 323, 34 L. Ed, 455, 10 S. Ct. 862 (1890) (statute infirm be- cause its necessary result is "discrimination against Page 79 LEXSEE the products and business of other States in favor of the products and business of Minnesota"). See also Fort Gratiot Sanitary Landfill. Inc. v. Michigan Dept. of Natural Resources, 50.4 U.S. 353, 361, 119 L Ed. _'d 139, 112 S. Ct. 20I1) ( 1992) (statute infirm because it protects "local ��aste producers . from competition from out-of-state waste pro- ducers who seek to use local waste disposal areas"); Philadelphia v. New Jersey..1;7 U.S. 617. 626-627. 57 L. Ed. 2d 475, 98 S. Cl. 2531 (1978) (New Jersey "may not . . . discriminate against articles of commerce coming from outside the State unless there is some reason, apart front their origin, to treat them differently"). 1***591 n6 See also Smith. State Discriminations Against Interstate Commerce, 74 Calif. L. Rev. 1203, 1204. 1213 (1986) ( "The nub of the matter is that discriminatory regulations are almost invariably in- valid, whereas nondiscriminaton• regulations are much more likely to survive "Ia1 regulation is dis- criminator, if it imposes greater economic burdens on those outside the state, to the economic advantage of those within"): L. Tribe, American Constitutional Law 417 (2d ed. 1988) ("Tile negative implications of the commerce clause derive principally from a po- litical theory of union, not from an economic theory of free trade. The function of the clause is to ensure national sohdanty. not economic efficiency-). 1.4181 The majority recognizes, but discounts, this difference between laws favoring all local actors and this law favoring a single municipal one. According to the majority, "this difference just makes the protection- ist effect of the ordinance more acute" because outside investors cannot even build competing facilities within Clarkstowri. Ante, at 392. But of course Clarkstown (***601 investors face the same prohibition, which is to say that Local Lary 9's ev--hision of outside capital is part of a broader e\c:us(on of private capital, not a discrimination against out -of Mate iiv estors as such. 0Cf. Lewis v. BT Imestmem %Lma,2ers. Inc., 447 U.S. _17, 64 L. Ed. 2d 702. 100 S. Ct. '009 (1980) (striking down smiute prohibiting businesses owned b} out-of- state banks. bank holdin1 Companies, or trust companies from pro%(din, investment idrtsory services). Thus, while these differences ntay underscore the ordinance's :utticompetittve effect, they ;uhstannally mitigate anv protectionist effect, for suh)eCMl out-of-town investors and facilities to the sante consrram(s as local ones is not economic protectionism. See :yew Energy Co. of Ind. y. Limbach. 4811 1. S ;u 273 2'4 n8 .�. - ,40 L 511 U.S. 383, *418; 114 S. Cf. 1677. **1696; 1994 U.S. LEXiS 3477, ***60; 128 L. Ed. 2d 399 n7 The record does not indicate whether local or out-of-state investors own the private firm that built Clarkstown's transfer station for the municipality. n8 In a potentially related argument, the major- ity says our case lav4 supports the proposition that an "ordinance is no less discriminatory because in- state or in -town processors are also Covered by [its] prohibition." Ante, at 391. if this statement is un- derstood as doing away with the distinction between laws that discriminate based on geography and those that do not, authority for it is lacking. The major- ity supports its statement by citing from a footnote in Dean Milk, that 'it is immaterial that Wisconsin milk from outside the Madison area is subjected to the same proscription as that moving in interstate commerce," 340 U.S. at 3�-f, n. a, but that observa- tion merely recognized that our dormant Commerce Clause jurisprudence extends to municipalities as well as to States and invalidates geographical restric- tions phrased in miles as well as in terms of political boundaries. This reading is confirmed by the fact that the Dean Milk Court's only explanation for its statement was to cite a case striking down a statute forbidding the selling of "'any fresh meats . . . slaughtered one hundred miles or over from the place at which it is offered for sale, until and except it has been inspected" at a cost to its owner of a penny per pound. Brimmer v. Rebman, 138 U.S. 78, 80, 34 L. Ed. 862, 11 S. Ct. 213 ( 1891 ) (quoting Acts of Va. 1889-1890, p. 63, ch. 80). That the majority here cites also to Fort Gratiet Landfill v. Michigan Dept. of Natural Resources, supra, may indicate that it reads Dean Milk the same way I do, but then it cannot use the case to stand for the more radical proposition I quoted above. ***611 *4 t 91 2 Nor is the monopolist created by Local Law 9 just an- other private company successfully enlisting local gov- ernment to protect the jobs and profits of local citizens. While our previous local processing cases have barred discrimination in markets served by private companies, Clarkstown's transfer station is essentially a municipal facility, built and operated under a contract with the mu- nicipality and soon to revert entirely to municipal own- ership. n9 This, of course, is no mere coincidence, since the facility performs a municipal function that tradition as well as state and federal law recognize as the domain [**1697] of local government. Throughout the history of this country, municipalities have taken responsibil- i(y for disposing of local garbage to prevent noisome Page 80 LEXSEE smells, ohstrucuon of the streets, and threats to pub- lic health, nit) and today ('4201 78 percent of landfills receiving municipal solid waste are owned by local gov- ernments. See U.S. Environmental Protection Agency, Resource Conservation and Recovery Act, Subtitle D Study: Phase i Report, p. -4-7 (Oct. !9861 (Table 4- '_). The National Government provides 'technical and financial assistance [***621 to States or regional au- thorities for comprehensive planning" with regard to the disposal of solid waste, 42 U.S.C. § 6941, and the State of New York authorizes local governments to prepare such management plans for the proper dis- posal of all solid waste generated within their juris- dictions, N. Y. Emir. Conserv. Law § 27-0107 (SicKinney Supp. 1994). These general provisions un- derlie Clarkstown's more specific obligation (under its consent decree with the New York State Department of Environmental Conservation) to establish a transfer sta- tion in place of the old town dump, and it is to finance this transfer station that Local Law 9 was passed. n9 At the end of a 5-year term, during which the private contractor receives profits sufficient to in- duce it to provide the plant in the first place, the town will presumably step into the contractor's shoes for the nominal dollar. Such contracts, enlisting a private company to build, operate, and then transfer to local government an expensive public improve- ment, enable municipalities to acquire public facili- ties without resorting to municipal funds or credit. [*••63] nI0 For example, in 1764 the South Carolina Legislature established a street commission for Charleston with the power "to remove all filth and rubbish. to such proper place or places, in or near the said town, as they . . . shall allot . . . Act of Aug. 10, 1764, Pl. In New Amsterdam a century earlier, '(he burgomasters and schepens ordained that all such refuse be brought to dumping - grounds near the City Hall and the gallows nor to other designated places." 11. Goodwin, Dutch and English on the Hudson 105 t 1977 ed.). indeed, some conrtnunttics have employed flow control ordinances in pursuit of these goals, ordi- nances this Court has nv tcc upheld against consti- tution;tl attack. See Caltfornta Reduction Co. v. Sanitary Reduction Works. 199 U.S. 306, 50 L. Ed. 204. 'b S. Ct. 101) , 1905) (upholding against a tak- ings challenge an ordinance requiring that all garbage in San Francisco be disposed of, fora fee, at facilities belonging to F. E. Sharon). Gardner v. Michigan, 199 U.S. 32i. 50 L. Ed. '_ 12. _'t) S. C(. 106 (1905) L Page 81 51 1 U.S. 383, *420; 11.4 S. Ct. 1677, ** 1697; LEXSEE 1994 U.S. LEXIS 3477, ***63. 128 L. Ed. 2d 399 (upholding against due process challenge an ordi- nance requiring that ail garbage in Detroit be col- lected and disposed of by a single city contractor). It is not mere inattention that has left these fine old cases free from subsequent aspersion. for they illus- trate that even at the hewht of the Lochner era the Court recognized that for municipalities struggling to abate their garbage problems, the Constitution did not require unimpeded pm ate enterprise. The majority ignores this distinction between public and private enterprise, equating Local Dw 9's "hoard- ing" of solid waste for the municipal transfer station with the design and effect of ordinances that restrict access to local markets for the benefit of local private firms. Anic, at 392. But private businesses, whether local or out of State, first sere the 1*4211 private inter- ests of their owners, and there is therefore only rarely a reason other than economic protectionism for favoring local businesses over their out-of-town competitors. The local government itself occupies a very different market position, however, being the one entity that enters the market to scrnve the public interest of local citizens quite apart from private interest in private gain. Reasons other than economic protectionism are accordingly more likely to explain the design and effect of an ordinance that fa- vors a public facility. •Iite facility as constructed might, for example, be one that private economic actors, left to their own devices, would not have built, but which the locality needs in order to abate (or guarantee against creating) a public nuisance. There is sonic evidence in this case [***651 that this is so, as the New York State Department of Environmental Conservation would have had no reason to insist that Clarkstown build its own transfer station if the private market had furnished ad- equate processing capacity to meet Clarkstown's needs. An ordinance that favors a municipal facility, in any event, is one that favors the public sector, and if "we con- tinue to recognize that the States occupy a special and specific position in our constitutional system and that the scope of Congress' authority under the Commerce Clause must reflect that position," Garcia y. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 556, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985), then surely this Court's dormant Commerce Clause jurisprudence must itself f **1698] see that favoring state -sponsored facili- ties differs from discriminating among private economic actors, and is much less likely to be protectionist. 1 � Having established that Local Law 9 does not serve the competitive class identified in previous local processing cases and that Clarkstown differs correspondingly from other local processors, we must ask whether these differ- ences justify a standard of dormant 1***661 Commerce Clause re%iew that differs 114221 from the virtually fatal scrutiny unposed in those earlier cases. I believe they do. The justification for subjecting the local processing laws and the broader class of clearly discriminatory com- mercial re`ulation to near -fatal scrutiny is the virtual cer- tainty that such laws, at least in their discriminatory as- pect, sere no legitimate, nonprotectionist purpose. See Philadelphia v. New Jersey, 437 U.S. at 624 ("Where simple economic protectionism is effected by state leg- islation, a virtually per se rule of invalidity has been erected"). n I I Whether we rind "the evil of protection- ism," id., at 026, in the clear import of specific statutory provisions or in the legislature's ultimate purpose, the discriminatory scheme is almost always designed either to favor local industry. as such. or to achieve some other goal while exporting a disproportionate share of the bur- den of attuning it, which is nicreh. a subtler form of local favoritism, id., at 626-628. nl I For the rare occasion when discriminatory laws are the best vehicle for furthering a legitimate state interest, Maine v. Taylor, 477 U.S. 131, 91 L. Ed. 2d 110, 106 S. Ct. 2440 (1986). provides an exception, but we need not address that exception here because this ordinance is not subject to the pre- sumption of unconstitutionality appropriate for pro- tectionist legislation. ***67 On the other hand, in a market served by a munic- ipal facility, a law that favors that single facility over all others is a law that favors the public sector over all private -sector processors, whether local or out of State. Because the favor does not go to local private competi- tors of out-of-state firms, out-of-state governments will at the least lack a nwnye to favor their ow n firms in order to equal lie the position, of pnyate competi(ors. While a preterencr in f:nor of the go�c:ntntcni nm% incidentally function AS 10c:11 ta�,oriu,nt is «ell, a more particular- ized enquiry is necessary before a court can say whether such a law does in fact smack too sironaly of economic protectionism. If Local Law 9 is to be struck down, in other %fiords, it must he under chat test most readily 1*-423) ide;nnfied with Pike v. Bruce Church, Inc., 397 U.S. 137. 25 L. Ed. 2d 17.1, 90 S. Ct. 844 (1970). III We h:n e said that When Icsislatiun that does not �20 L 511 U.S. 383, *423; 114 S. Ct, 1677. **1698; 1994 U.S. LEXiS 3477, ***67; 128 L. Ed. 2d 399 facially discriminate "comes into conflict with the Commerce Clause's overriding requirement of a national 'common market,' we are confronted with the task of effecting an accommodation of the competing national and local interests." Hunt 1•**681 v. Washington State Apple Advertising Coinin'n, 432 U.S. 333, 350. 53 L. Ed. 2d 383, 97 S. Ct. 243.1 (1977). Although this anal- ysis of competing interests has sometimes been called a "balancing test," it is not so rnuch an Open-ended weigh- ing of an ordinance's pros and cons, as an assessment of whether an ordinance discriminates in practice or other- wise unjustifiably operates to isolate a Slate's economy from the national common market. If a stanite or lo- cal ordinance serves a legitimate local interest and does not patently discriminate, "it will be uplield unless the burden imposed on (interstate) commerce is clearly ex- cessive in relation to the putative local benefits." Pike v. Bruce Church, Inc., supra, at 142. The analysis is similar, to, but softer around the edges than, n12 the test we f**16991 ernploy in cases of overt discrimina- tion. "The question becomes one of degree," and its answer depends on the nature of the burden on interstate commerce, the nature of the local interest, and the avail- ability of alternative methods for advancing the f*4241 local interest without hindering the national one. 397 U.S. at 142, 145, n12 Where discrimination is not patent on the face of a statute, the party challenging its constitution- ality has a more difficult task, but appropriately so because the danger posed by such laws is generally smaller. Discrimination that is not patent or pur- poseful "in effect may be substantially less likely to provoke retaliation by other states . . . . In the words of Justice Holmes, 'even a dog distinguishes between being stumbled over and being kicked.'" Smith, 74 Calif. L. Rev., at 1251 (quoting O. W. Holmes, The Common Law 3 (1881)). See also Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Nlich. L. Rev. 1091, 1133-1134 (1986). f...691 The primary burden Carbone attributes to low con- trol ordinances such as Local Law 9 is that they "pre- vent crash from being sent to the most cost-effective dis- posal facilities, and insulate the designated facility from ail price competition." Brief for Petitioners 32. In this case, customers must pay S I I per ton more for dump- ing trash at the Clarkstown transfer station than they would pay at Carbone's facility, although this dollar fig- ure presumably overstates the burden by disguising some differences between the two: according to its state per - Page 82 LEXSEE mit. 90 percent of Carbone's waste stream comprises re- cyclable c;irdboard, while the Ciarkstown facility takes all manner of less valuable waste, which it treats with state-of-the-art environmental technology not employed at Carbone's more rudimentary plant. Fortunately, the dollar cost of the burden need not be pinpointed, its nature being more significant than its economic extent. When we look to its nature, it should be clear that the monopolistic character of Local Law 9's effects is not itself' suspicious for purposes of the Commerce Clause, Although the right to compete is a hallmark of the American economy and local monopolies are subject 1***701 to challenge under the century -old Sherman Act, n13 the bar to monopolies (or, rather, the authority to dismember and penalize them) arises from a statutory, not a constitutional, mandate. No more than the Fourteenth Amendment, the Commerce Clause "does not enact Mr. Herbert Spencer's Social Statics .. . for] 1*4251 embody a particular economic theory, whether of paternalism . . . or of laissez faire." Lochner v. New 1brk. 198 U.S. 45, 75, 49 L. Ed. 937, 25 S. Ct. 539 (1905) (Holmes. J.. dissenting). The dormant Commerce Clause does not "protect the particular struc- ture or methods of operation in a►nyl . . . market." Exxon Corp. v. Governor of Mar} land, 437 U.S. 117, 127, 57 L. Ed. 2d 91, 98 S. Ct. 2207 (1978). The only right to compete that it protects is the right to compete on terms independent of one's location. n13 See 15 U.S.C. §§ i and 2. Indeed, other flow control ordinances have been challenged under the Sherman Act, although without success where municipal defendants have availed themselves of the state action exception to the antitrust laws. See Hybud Equipment Corp. y. Akron, 742 F.2d 949 (CA6 1984); Central Iowa Refuse Systems, Inc. v. Des !vloines Metropolitan Solid Waste Agency, 715 F.2d 419 (CA8 1983). That the State of New York's Holland-Grotnack Law, 1991 N. Y. Laws, ch. 569 (McKinney), authorizes C'larkstown's flow control ordinance may explain why no Sherman Act claim w'as made here. 1***711 «'bile the ntunopoIIsuc nature of the burden may be disregarded, :ut geographically discriminatory el- ements must be assessed ,i uh care. We have already observed that there is no geoamphicaliy based selection ainong private firms. and it is clear from the face of the ordinance that nothing, hinges on the source of trash that enter: Clarkstown or upon the destination of the processed waste that leaves the transfer station. There Page 83 511 U.S. 383, *425: 114 S. Ct. 1677, 111699; LEYSEE 1994 U.S. LEXIS 3477, **•71: 128 L Ed. 2d 399 is, to be sure, an incidental local economic benefit, for the need to process Clarksto%vn's trash in Clarkstown will create local jobs. But this local boon is mitigated by another feature of the ordinance, in that it finances Whatever benefits it confers on the town from the pock- ets of the eery citizens «ho passed it into law. On the reasonable assumption that no one can avoid producing some trash, ever, resident of Clarkstown must bear a portion of the burden Local Law 9 imposes to support the municipal monopoly, an uncharacteristic feature of statutes claimed to violate the Corutlerce Clause. By way of contrast, most of the local processing statutes we have previously invalidated imposed require- ments that made local 1** 17001 goods more expensive [***721 as they headed into the national market, so that out-of-state economies bore the bulk of any burden. Requiring that Ala_sk-mi timber be milled in that State prior to export would add the value of the milling ser- vice to the Alaskan economy at the expense of some other State, but would not burden the Alaskans who adopted such a law. Cf. South -Central Timber Development, inc. v. Wunnicke, 467 U.S. 82, 92, 81 L. Ed. 2d 71, 104 S. Ct. 2237 (1984). Similarly. South Carolinians [*4261 would retain the financial benefit of a local pro- cessing requirement for shrimp without paying anything more themselves. Cf. Toomer v. Witsell, 334 U.S. at 403. n14 And in Philadelphia v. New Jersey, 437 U.S. at 628, the State attempted to export the burden of conserving its scarce landfill space by barring the im- portation of out-of-state waste. See also Brown -Forman Distillers Corp. v New York State Liquor Authority, 476 U.S. 573, 580, 90 L. Ed. 2d 552, 106 S. Ct. 2080 (1986) (price reduction for in -state consumers of alcoholic beverages procured at the expense of out-of- state consumers). Courts step in through the dormant Commerce Clause to prevent such exports because leg- islative [***731 action imposing a burden "principally upon those without the state . . . is not likely to be subjected to those political restraints which are nor- mally exerted on legislation where it affects adversely some interests within the state." South -Central Timber, supra, at 92 (quoting South Carolina Highway Dept. v. Barnwell Brothers, Inc., 303 U.S. 177. 185, n. 2, 82 L. Ed. 734, 58 S. Ct. 510 (1938)); see also Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767-768, n. 2, 89 L. Ed. 1915, 65 S. Ct. 1515 (1945). Here, in contrast, every voter in Clarkstown pays to fund the benefits of flow control, however high the tipping fee is set. Since, indeed, the mandate to use the town facility will only make a difference when the tipping fee raises the cost of using the facility above what the market would otherwise set, the Clarkstown voters are funding their benefit by assessing themselves and paying an eco- nomic penalty. Any whiff of economic protectionism is far from obvious. n15 n 14 1 recognize that the economics differ if a State does not enjoy a significant price advantage over its neighbors and thus cannot pass along the added costs associated with its local processing requirement, but such States are unlikely to adopt local processing re- quirements for precisely that reason. ***741 n 15 This argument does not alone foreclose the possibility of economic protectionism in this case, as the ordinance could burden, in addition to the residents of Clarkstown, out-of-town trash proces- sors who would have soueht Clarkstown's business in the absence of flow control. But as we will see, the absence of evidence of injury to such processors eliminates that argument here. 1*4271 An examination of the record confirms skep- ticism that enforcement of the ordinance portends a Commerce Clause violation, for it shows that the burden falls entirely on Clarkstown residents. If the record con- tained evidence that Clarkstown's ordinance burdened out-of-town providers of garbage sorting and baling ser- vices, rather than just the local business that is a party in this case, that fact might be significant. But petitioners have presented no evidence that there are transfer stations outside Clarkstown capable of handling the town's busi- ness, and the record is devoid of evidence that such en- terprises have lost business as a result of this ordinance. Cf. Pike v. Bruce Church, Inc., 397 U.S. [***751 at 145 ("The nature of the burden is, constitutionally, more significant than its extent" and the danger to be avoided is that of laws that hoard business for local res- idents). Similarly, if the record supported an inference that above -market pricing at the Clarkstown transfer sta- tion caused less trash to flow to out-of-state landfills and incinerators, that, too, might have constitutional signifi- cance. There is, hosvcyer. no evidence of any disruption in the flow of trash from curbsides in Clarkstown to land- fills in Florida and Ohio. n 16 1 " 1 7O1 1 Here 1 *4281 we caul confidently say that the onl% business lost as a re- sult of this ordinance is business lost in Clarkstown, as customers who had used Carbone's facility drift away in response to any higher fees Carbone may have to insd- tute to aftOrd its share of city services: but business lost in Clarkstown as a result of a Clarkstown ordinance is not a burden that offends the Constitution. it I ti fit this context, note that the conflict JUSTICE O'CONNOR hypothesizes between multiple flow - 511 U.S. 383, *428; 114 S. Cf. 1677, **1701; 199-1 U.S. LEXIS 3477, ***75; 128 L. Ed. 2d 399 control laws is not one that occurs in this case. It' Carbone was processing trash from New Jersev, it was making no attempt to return the nonrecycled residue there. And theoretically. Carbone could have complied with both flow control ordinances, as Clarkstown's law required local processing, while New Jersey's required only that any postprocessIIng residue be returned to the State. But more fundamen- tally, even if a nondiscriminatory ordinance conflicts with the law of some other jurisdiction, that fact would not, in itself, lead to its invalidation. In the cases JUSTICE O'CONNOR cites, the statutes at is- sue served no legitimate state interest that weighed against the burden on interstate commerce their con- flicts created. See Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 525, 3 L. Ed. 2d 1003, 79 S. Ct. 962 (1959) (mudguards Illinois required on trucks possess no safety advantage but create new hazards); Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 779, 89 L. Ed. 1915, 65 S. Ct. 1515 (1945) (.Arizona statute limiting length of trains "affords at most slight and dubious advantage, if any` with respect to safety). Here, in contrast, we will see that the municipality's interests are sub- stantial and that the alternative means for advancing them are less desirab!e and potentially as disruptive of interstate commerce. Finally, in any conflict be- tween flow control that reaches only waste within its jurisdiction and flow control that reaches beyond (requiring waste originating locally to be returned after processing elsewhere), it may be the latter that should give: way for regulating conduct occurring wholly out of State. See Brown -Forman Distillers Corp. v. New hbrk State Liquor Authority, 476 U.S. 573, 580-582, 90 L. Ed. 2d 552, 106 S. Cf. 2080 (1986), ***76 This skepticism that protectionism is afoot here is con- firmed again when we examine the governmental inter- ests apparently served by the local law. As mentioned already, the State and its municipalities need prompt, sanitary trash processing, which is imperative whether or not the private market sees fit to serve this need at an affordable price and to continue doing so dependably into the future. The state and local governments also have a substantial interest in the flow -control feature to minimize the risk of financing this service, for while there may be an element of exaggeration in the statement that "resource recovery facilities cannot be built unless they are guaranteed a supply of discarded material," H. R. Rep. No. 94-1491, p. 10 (1976), there is no ques- tion that a "put or pay" contract of the type Clarkstown Page 84 LEXSEE signed will be a significant inducement to accept munic. ipal responsibihiN to guarantee efficienc.v and sanitation in trash processing. Waste disposal with minimal envi- ronmental damage requires serious capital Investment, id., at 3-1. and there are limits on any municipality's abil- ity to incur debt or 1 *4291 to finance facilities out of tax revenues. 1***771 Protection of the public rise is a le- gitimate local benefit directly advanced by the ordinance and quite unlike the generalized advantage to local busi- nesses that we have condemned as protectionist in the past. See Regan, 8.1 Mich. L. Rev., at 1120 ("Raising revenue for the state treasury is a federally cognizable benefi("; protectionism is not); cf. Fort Gratiot Sanitary Landfill, Inc. v. Ntichigtut Dept. of Natural Resources, 504 U.S. 353, 357, 119 L. Ed. 2d 139, Ill S. Cf. 2019 (1992) (law protects private, not publicly owned, waste disposal capacity for domestic use); Philadelphia v. New Jersey, 437 U.S. at 627, n. 6 (expressing no opinion about State's power to favor its own residents in granting access to state-owned resources). n17 n17 The Court did strike down California's depression -era ban on the "importation" of indi- gent laborers despite the State's protestations that the statute protected the public fise from the strain of additional outlays for poor relief, but the Court stressed the statute's direct effect on immigrants in- stead of relying on any indirect effects on the public purse. See Edwards v. California, 314 U.S. 160, 174. 86 L. Ed. 119, 62 S. Ct. 164 (1941). 1***781 Moreover, now control offers an additional benefit that could not be gained by financing through a subsidy derived from general tax revenues, in spreading the cost of the facility among all Clarkstown residents who gener- ate trash. The ordinance does, of course, (**17021 pro- tect taxpayers, including those who already support the transfer station by patronizing it, from. ending up with the tab for making provision for large -volume trash pro- ducers like Carbon_, who would rely on the municipal facility when that was advantageous but opt out when- ever the transfer station's price rose above the market price. In proportioning each resident's burden to the amount of trash generated• the ordinance has the added virtue of providing a direct and measurable deterrent to the generation of unnecessar} waste in the first place. And in any event it is far front clear that the alterna- tive to flow control (i. e.. subsidies from general tax revenues or municipal bonds) would be less disruptive of interstate commerce 1 *4301 than tlow• control, since a subsidized competitor can effectively squelch compe- of 41 F� 511 U.S. 383, *430; 114 S. Ct. 1677. **1702; 85 Page Page 85 1994 U.S. LEYIS 3477, `78; 128 L. Ed. 2d 399 tition by underbidding it. izens of Clarkstown from themselves. It should not There is, in short, no evidence that Local Law 9 causes be wielded to prevent them from attacking :heir local garbage problems with an ordinance that does not dis- discrimination [***79] against out-of-town processors, criminate between local and out-of-town participants in because there is no evidence in the record that such pro the private market for trash disposal services and that is cessors have lost business as a result of it. Instead, we know only that the ordinance causes the local resi- not protectionist in its purpose or effect. Local Law 9 dents who adopted it to pay more for trash disposal scr- conveys a privilege on the municipal government alone, the only market participant that bears responsibility for vices. But local burdens are not the focus of the dormant cnsurint, that adequate trash processing services continue Commerce Clause, and this imposition is in any event readily justified by the ordinance's legitimate benefits in to be available to Clarkstown residents. Because the Court's decision today is neither compelled by our local reliable and sanitary trash processing. processing cases nor consistent with this Court's reason * * * for [***801 inferring a dormant or negative aspect to The Commerce Clause was not passed to save the cit- the Commerce Clause in the first place, I respectfully dissent. Page 20 471 U.S. 34 printed in FULL format. TOWN OF HALLIE ET AL. v. CITY OF EAU CLAIRE No. 82.1832 SUPREME COURT OF THE UNITED STATES 471 U.S. 34, 105 S. Ct. 1713; 1985 U.S. LEXIS 191: 85 L. Ed. '_d 24; 53 U.S.L.W. 4418: 1985-1 Trade Cas. (CCH) P66,484; 23 ERC (BNA) 1544: 15 ELR 20373 November 26, 1984. Argued March 27. 1985, Decided PRIOR HISTORY: [***11 town, antitrust, exemption, supervision, regulation, ar- CERTIORARI TO THE UNITED STATES COURT ticulated, municipal, monopoly, collection, articulation, OF APPEALS FOR THE SEVENTH CIRCUIT. displace, unincorporated, actively, transportation, com- pulsion, Sherman Act, annexed, supervised, prereq- uisite, authorization, immunity, delegated, engaging, DISPOSITION: 700 F.2d 376, affirmed. compelled, affirmatively, adjacent, replace CORE TERMS: municipality, sewage, anticompetitive, < =2 > View References < =3 > Turn Off Lawyers' Edition Display DECISION: Municipality's anticompetitive activities, authorized but not compelled or actively supervised by state, held to be within the "state action" exemption from the federal antitrust laws. SUMMARY: A group of unincorporated Wisconsin townships tiled suit against an adjacent city in the United States District Court for the Western District of Wisconsin, alleging that the city had violated the Sherman Act (1.5 USCS 1 et seq.) by acquiring a monopoly over sewage treatment in the area and providing that service only to areas which were willing to be annexed by the city and to use its sewage collection services rather than those of the towns. The District Court ruled in favor of the city, pointing to a Wisconsin law which authorized cities providing sewage services to limit the unincorporated areas covered by their service unless ordered by the ,fate to service certain areas. and holding that the city's conduct fell s�ithin the "state action" exemption from the federal antitrust Ia\ss. The United States Court of Appeals for the Seventh Circuit affirmed (700 F2d 376). On certiorari, the United States Supreme Court affirmed. In an opinion by Powell, 1., expressing the unanimous view of the court, it was held that anticompetitive conduct by a nlunicipaiii% is protected be the state action exemption to the federal antitrust laws where it is authorized by state lase, even though the state does not compel or actively supervise the anticompetitive conduct or expressly assert that the law is intended to have an anticompetitive effect. LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition: < =6> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 "state action" exemption -- municipalities -- sewage ser ice -- Headnote: <=7> [IAJ <=8> (IBJ <=9> [ICJ A city's actions in acquiring a monopoly over sewage treatment services in two counties, and making those services available only to areas which agree to be annexed by the city and to use its sewage collection services rather than those of adjacent towns, are exempt from challenge under the federal antitrust kms as "state action." where such actions are authorized, though not compelled, by the state pursuant to a clearly articulated state policy to replace competition in the provision of sewage services with regulation. L.. Page 21 471 U.S. 34, •; 105 S. Ct. 1713, `*; LEXSEE -� 1985 U.S. LEXIS 191. ""1; 85 L. Ed. 2d 24 <=10> RESTRAINTS OF TRADE, MONOPOLIES AND UNFAIR TRADE PRACTICES §9 "state action" exemption -- municipalities --action pursuant to state policy -- Headnote : < = i I > [_,%j = I _2 > I'Bj Municipalities are not beyond the reach of the federal antitrust laws by virtue of their status because they are not themsely; s sovereign; rather, in order to obtain tfte protection of the "state action" exemption. municipalities must demonstrate chat their anticompetitive activities were authorized by the state pursuant to a clearly expressed state policy to displace compctitiun wuh regulation or monopoly public service. < =13> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 "state action" exemption -- municipalities -- express statement of policy -- Headnote: < =14 > [31 A state legislature need not expressly state in a statute or its legislative history that it intends actions delegated to municipalities therein to have anticompetitive effects, in order for that statute to constitute a "clear articulation" of an anticompetitive policy and thus bring municipal actions based on that statute within the "state action" exemption from the federal antitrust laws. < = 15> RESTRAINTS OF TRADE, "*IONOPOLIES. AND UNFAIR TRADE PRACTICES §9 "state action" exemption -- municipalities -- state compulsion -- Headnote: < = 16 > [41 It is not necessary to show that a municipality's anticompetitive conduct was compelled by the state in order to find that the municipality acted pursuant to a clearly articulated state policy, and thus bring such conduct within the "state action" exemption from the federal antitrust laws. < =17> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 "state action" exemption -- municipalities -- state supervision -- Headnote: < =18 > (51 A municipality need not show that its anticompetitive conduct was actively supervised by the state in order to bring that conduct within the "state action" exemption from the federal antitrust laws. SYLLABUS: Petitioners, unincorporated townships lo- cated in Wisconsin adjacent to respondent city, filed suit against respondent in Federal District Court, alleging that petitioners were potential competitors of respon- dent in the collection and transportation of sewage, and that respondent had violated (tie Sherman Act by acquir- ing a monopoly over the provision of sewage treatment services in the area and by tying the provision of such services to the provision of sewage collection and trans- portation services. Respondent refused to supply sewage treatment services to petitioners, but supplied the ser- vices to individual landowners in petitioners' areas it' a 1 majority of the individuals in the area voted by refer- endum election to have their homes annexed by respon- dent and to use its sewage collection and transportation services. The District Court dismissed the complaint, finding, inter afia, that Wisconsin statutes regulating the municipal provision of sewage services expressed a clear state police to replace competition with regulation. The court concluded that respondent's 1""1 allegedly anti- contpetitivc conduct fell u. tthin the "state action" exemp- tion to the federal antitrust 1AWS csulbhshed by Pinker v. Bro�%n. 3r 7 U.S. 341. The CUtlrl of Appeals affirmed. Held: It espondetit's anucompetiuve activities are pro- tected b,, the state action exemption to the federal an- titrust la%%s. Pp. 3`3-47. ta) Before a ntuntcipahEy may claim the protection of the state action exemption, it must demonstrate that it is engaging in the challenged activity pursuant to a "clearly articulated" state poltc}. LaJinette t. Lowsiurui Power & Light Ca . 435 U.S. 3SN. Pp. 38-40. 471 U.S. 34. *; 105 S. Cf. 1713. **; 1985 U.S. LEXiS 191, **a_'; 85 L. Ed. 2d 24 (b) Wisconsin statutes grant authority to cities to con- struct and maintain sewage systems, to describe the dis- trict to be served, and to refuse to serve unannexed areas. The statutes arc not merely neutral on state policy but, instead, clearly: conternp)ate that a city may engage in an- ticompetitive conduct. To pass the "clear articulation" test, the legislature need not expressly state in a statute or the legislative history that it intends for the delegated action to have anticonipettnve effects. The Wisconsin statutes evidence a clearly articulated state (***31 pol- icy to displace competition with regulation in the area of municipal provision of se%yage services. Pp. 40-44. (c) The "clear aniculation" requirerrtcnt of the state ac- tion test does not require that respondent show that the State "compelled" it to act. Although compulsion af- firmatively expressed may be the best evidence of state policy, it is by no means a prerequisite to a finding that a municipality acted pursuant to clearly articulated state policy. Cantor v. Detroit Edison Co., 428 U.S. 579, and Goldfarb y. Virginia Stare Bar, 421 US. 773, dis- tinguished. Pp. 45-46. (d) Active state supervision of anticompetitive conduct is not a prerequisite to exemption from the antitrust laws where the actor is a municipality rather than a private pang. The requirement of active state supervision serves essentially the evidentiary function of ensuring that the actor is engaging in the challenged conduct pursuant to state policy. Where the actor is a municipality rather than a private party, there is little or no danger that it is involved in a private price -Fixing arrangement. The dan- ger that a municipality will seek to further [***41 purely parochial public interests at the expense of more over- riding state goals is minimal, because of the requirement that the municipality act pursuant to a clearly articulated state policy. Pp. 46-47. COUNSEL: John J. Covelli argued the cause for peti- tioners. With him on the briefs was Michael P. May. Frederick W. Fischer argued the cause and tiled a brief for respondent. * Ronald A. Zumbrun and Robert K. Best tiled a brief for the Pacific Legal Foundation as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Rule, Carter G. Phillips, Catherine G. O'Sullivan, and Nancy C. Garrison: for the State of Illinois et al. by Neil F. Hartigan, Attorney General of Illinois, Robert E. Davy, Page 22 LEXSEE Thomas 1. DeMay. Linley E. Pearson, Attorney General of Indiana, Frank A. Baldwin, Deputy Attorney General, Bronson C. LaFollette, Attorney General of Wisconsin. and Michael L. Zaleski, Assistant Attorney General; for the Commonwealth of Virrzmia et al by Gerald L. Battles. Attorney General of Virginia, Elizabeth B. Lacy, Deputy Attorney General, Craig Thomas Merritt, Assistant Attorney General, Joseph I Lieberman, Attorney General of Connecticut. Robert M. Langer, Assistant Attornev General. Hubert H. Humphrey Ill, Attorney Genera) of Minnesota, Stephen P. Kileriff, Assistant Attorney General, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Eugene F. Waye, Deputy Attorney General, Brian McKay. Attorney General of Nevada, David L. Wilkerson, Attorney General of Utah, and Suzanne NI. Dallimore, Assistant Attorney General; for the U.S. Conference of Mayors et if. by Stephen Chapple, Frederic Lee Ruck, and Ross D. Davis; for the American Public Po%%cr ,association et al. by Carlos C. Smith, Frederick L. Hitchcock, Edward D. Meyer. Stanley P. Hebert, John W. Pestle. John D. Maddox. June W. Wiener, Clifford D. Pierce, Jr., Donald W. Jones, Eugene N. Collins, and Randall L. Nelson: and for the National inStittitt of Municipal La%% Officers by Roger F. Culler. Roy D. Bates, Geor,e Agnost, Benjamin L. Brown. J. Lamar Sheliry. John W. Witt, Robert J. Aliton, lames K. Baker. Clifford D. Pierce, Jr., William H. Taube, William 1. Thornton, Jr., Henry W. Underhill, Jr., and Charles S. Rhyne. David Epstein tiled a brief for the American Ambulance Association et ai. as amici curiae. 1*.*51 JUDGES: POWELL. J.. delivered the opinion for a unanimous Court. OPiNIONBY: POWELL OPINION: 1-361 1**17151 JUSTICE POWELL deliv- ered the opinion of the Court. This case presents the question Mnether a municipality's anticompetitive activ- ities are protected by the state action exemption to the federal antitrust I.ms establtsl;ed by Purker v. Brown, 317 U..S.: 41 i1943r. ~)ten the activities are authorized, but not c0111pclled. by the State. and the State does not acnyeh supentsc the utrtcorttprtitttit conduct. l Petitioners--'i1-yn of Flallie. To�%n of Seymour, Town of Union. and TwN n of Washington (the Towns) -- are 9^ 0 20 IL 471 U.S. 34, *36: 105 S. Ct. 1713, **1715: 1985 U.S. LEXiS 191. ***5; 85 L. Ed. _'d 24 four Wisconsin unincorporated townships located adja- cent to respondent, the City of Eau Claire (the City). Town of Hallie is located in Chippewa County, and the other three towns are located in Eau Claire County. nl The Towns tiled suit against the City in United States District Court for the Western District of Wisconsin seeking injunctive relief and alleging, that the City vio- lated the Sherman Act, 15 L'. S. C. § I et seq.. by acquir- ing a monopoly over the pr?k'ision of sewage treatment services in Eau Claire and Chippewa Counties, and by tying [*371 [***61 the provision of such services to the provision of sewage collection and transportation ser- vices. n2 Under the Federal Water Pollution Control Act, 33 U. S. C. § 1251 et seq., the City had obtained federal funds to help build a selvage treatment facility within the Eau Claire Service Area, that included the Towns; the facility is the only one in the market avail- able to the Towns. The City has refused to supply sewage treatment services to the Towns. It does supply the ser- vices to individual landowners in areas of the Towns if a majority of the individuals in the area vote by referen- dum election to have their homes annexed by the City, see Wis. Star. §§ 66.024(4.), 144.07(l) (1982), and to use the City's sewage collection and transportation services. nl The City is located in both Eau Claire and Chippewa Counties. n2 The complaint also alleged violations of the Federal Water Pollution Control Act, .33 U S. C. § 1251 et seq., and of a common-law duty of a utility to serve. The District Court dismissed these claims, and they are not at issue in this Court. [***7 Alleging that they are potential competitors of the City in the collection and transportation of sewage, the Towns contended in the District Court that the City used its monopoly over sewage treatment to gain an unlawful monopoly over the provision of sewage collection and transportation services. in violation of the Sherman Act. They also contended that the City's actions constituted an illegal tying arrangement and an unlawful refusal to deal with the Towns. [**17161 The District Court ruled for the City. h found that Wisconsin's statutes regulating the municipal provision of sewage service expressed a clear state pol- icy to replace competition with regulation. The court 1 also found that the State adequately supervised the mu- nicipahiy's conduct throu_zh the State's Department of Natural Resources, that was authorized to review munic- ipal decisions concerning provision of sewage services Page 23 LEXSEE and corresponding annexations of land. The court con- cluded that the City's allegedly anticompetitive conduct fell within the state action exemption to (tie federal an- tilrust laws, as set forth in Community Communications 1 *381 Co. v. Boulder, 455 U.S. 40 (1982). 1 ***8) and Parker v. Brown. supra. Accordingly, it dismissed the complaint. The United Slatcs Court of :Appeals for the Seventh Circuit aftirtned. 700 1--2d 3' 6 t19)3). it ruled that the Wisconsin statutes authorized (tie City to provide sewage services and to refuse to provide such services to unin- corporated areas. The court therefore assumed that the State had contemplated that anticompetitive effects might result, and concluded that the City's conduct was thus taken pursuant to state authorization within the meaning of Parker %. Broit'tr, supra. The court also concluded that in a case such as this involving "a local govern- ment performing a traditional municipal function," 700 F.2d, at 384, active state supervision was unnecessary for Parker immunity to apply. Requiring such supervi- sion as a prerequisite to immunity would also be unwise in this situation. the court believed, because it would erode traditional concepts of local autonomy and home rule that were clearly expressed in the State 's statutes. We granted certiorari, 467 U.S. 1 240 (1984), and now affirm. if The starting point in any 1 `91 analysis involving the state action doctrine is the reasoning of Parker v, Brown. in Parker. relying on principles of federalism and state sovereignty, the Court refused to construe the Sherman Act as applying to the anticompetitive conduct of a State acting through its lce!slattrre. 317 U.S., at 350-351. Rather, it ruled that the Sherman Act was intended to prohibit private restraints on trade. and it refused to infer an intent to "nullify a slate's contro! over its officers and agents" in activities directed by ih� leuislature. ld., at 351. Municipalities. on the other hand, are not beyond the reach of the antitrust laws by Virtue of their status because they are 1101 1he1115el%CS ;uAereip. L ij'avetre v. Louisiana Pvn er & Light Co., 435 C. S. 389, 412 (1978) topinion of BRENNA\, J. i. Rathcr. to obtain exemp- tion, municipalities 1 `391 nnist demonstrate that their anticompetiti%e activities were authorized by the State "pursuant to state polity w displace competition with regulation or monopoly public set ice." Id.. (it 413. The deterinutauon that a nlunicipalit� 's activities con- stitute 1 • ° � 101 stag acuon is nut a purely formalistic inquirN : tho Stag may not �alidatc a municipality's an- ucoinpcmit e conduct smillk I)% declaring it to be law- ful. Porky i. Breit Pi. 3/ 7 Us . at 351. On the other �- 7120 L 1 Page 24 471 U.S. 34, *A 105 S. Ct. 1713. "1716. LEXSEE 1985 U.S, LEXiS 191. ***10; 85 L. Ed. 2d 24 hand, in proving that a state policy to displace competi- tion exists, the municipality need not "be able to point to a specific, detailed legislative authorization" in or- der to assert a successful Parker defense to an antitrust suit. 435 U.S., at 415. Rather, Lafavetic suggested, without deciding the issue, that it would he sufficient to obtain Parker immunity for a municipality to show that it acted pursuant to a "clemiy articulated and affir- matively expressed . . state pol!cv" that was "ac- tively supervised" by the State. 455 U.S., at 410. The plurality viewed this approach as desirable because it "(preserved) to the States their freedom . . . to admin- ister state regulatory policies frees of the inhibitions of the federal antitrust laws ('"17171 without at the same time permitting purely parochial interests to disrupt the Nation's free-market goals." id., at 4i5-416. In California ('**I I Retail Liquor Dealers Assn. v, ,!!ideal Aluminum, Itic., 445 U.S. 9: (1980), a unan- imous Court applied the Lafayette two -pronged test to a case in which the state action exemption was claimed by a private party. n3 In (F-Iol that case, we found no antitrust immunity for California's wine -pricing system. Even though there was a clear legislative policy to permit resale liquor price maintenance, there was no state super- vision of the anticompetitive activity. Thus, the private wine producers who set resale prices were not entitled to the state action exemption. When we again addressed the issue of a municipality's exemption from the antitrust laws in Boulder, supra, %+ e declined to accept Lafayette's suggestion that a municipality must show more than that a state policy to displace competition exists. We held that Colorado's Home Rule Amendment to its Constitution, conferring on municipal governments general authority to govern local affairs, did not constitute a "clear ar- ticulation" of a state policy to :authorize anticompetitive conduct with respect to the regulation of cable television in the locale. Because the city could not meet 1***121 this requirement of the state action test, we declined to decide whether governmental action by a municipality must also be actively supervised by the State. 455 U.S., at 5)-52, n. 14. n3 Midcal was original!v brought as a mandamus action seeking an injunction against a state agency, the California Department of Alcoholic Beverage Control. The State played no role, however, in set- ting prices or reviewing their reasonableness, activ- ities carried out by the private wine dealers. 445 U.S., at 1(X)-101, The ii; re fact that the state agency was a named defendant %kas riot sufficient to alter the state action analysis from that appropriate to a case involving the state regulation of private anti- competitive acts. See Southern Slotor Carriers Rate Conference, Inc. v. United States, post, at 56-57 It is therefore clear from our cases that Nefore a munici- pality will be entitled to the protection of the state action exemption from the antitrust laws. it must demonstrate that it is 1 *** 131 engaging in the challenged activity pur- suant to a clearly expressed state policy. We have never fully considered, however. how clearly a state policy must be articulated for a municipality to be able to es- tablish that its anticompetitive activity constitutes state action. Moreover, we have expressly left open the ques- tion whether action by a municipality -- like action by a private party -- must satisfy the "active state supervi- sion" requirement. Boulder, supra, at 51-52, n. 14. We consider both of those issues below, III The City cites several provisions of the Wisconsin code to support its claim that its allegedly anticompeti- tive activity 1*411 constitutes state action. We therefore examine the statutory structure in some detail. A Wisconsin Slat. a` (32.18tI) (1981-1982) grants au- thority to cities to construct, add to, alter, and repair sewage systems. The authority includes the power to "describe with reasonable particularity the district to be (served!." Ibid. This grant of authority is supplemented by Wis. Star. 66.069(2)(c) (1981-1982), providing that a city operating a public utility may by ordinance fix the limits of such service [***14] in unincorporated areas. Such ordinance shall delineate the area within which service will be provided and the municipal utility shall have no obligation to serve be- yond the area so delineated." With respect to joint sewage systems, Wis. Stat. 144.07(t) (1981-1982) provides that the State's Department of Natural Resources may require a city's sewage sysiem to be constructed so that other cities, (O\kns, or areas tim% connect k) the system, and the Department nia% order that such (" 17 t 81 connections be made. Subsection t I titi pros ides, however, that an order by the Department of Natural Resources for the connection of unincorporated iermory to a city system shall be veld if that terrttor refuses to become annexed to the cin. 11-1 n4 There is nu such order of the Department of Natural Resources at issue tit this case. Page 25 471 U.S. 34, *41; 105 S. Cf. 1713. •*1718, LEXSEE 1985 U.S. LEXIS 191, ***14; 85 L. Ed. 2d 24 B The Towns contend that these statutory provisions do not evidence a state policy to displace competition in the provision of sewage services because they make no ex- press mention [*42] of anticompetitive [***151 conduct. n5 As discussed above, the statutes clearly contemplate that a city may engage in anticompetitive conduct. Such conduct is a foreseeable resu!t of empowering the City to refuse to serve unannexed areas. It is not neccssar, as the Towns contend, for the state legislature to have stated explicitly that it expected the City to engage in conduct that would have anticompetitive effects. Applying the analysis of Lafayette v. Louisiana 1Anrer & Light Co., 435 U.S. 389 (1978), it is sufficient that the statutes au- thorized the City to provide sewage services and also to determine the areas to be sered. We think it is clear that anticompetitive effects topically would result from this broad authority to regulate. See New Motor *hicle Board v. Orrin 1V Fox Co., 439 U.S. 96, 109 (1978) (no express intent to displace the antitrust laws, but statute provided regulatory structure that inherently "[displaced) unfettered business freedom"). Accord, 1 P. Areeda & D. Turner, Antitrust Law para. 212.3, p. 54 (Supp. 1982). n5 The Towns also rely on Wis. Slat. Ann. §§ 66.076(() and 66.30 (1965 and Supp. 1984) to ar- gue that the State's policy on the provision of sewage services is actually procompetitive. This claim must fail because, aside from the fact that it was not raised below, the provisions relied upon do not support the contention. First, it is true that § 66.076(1) permits certain municipalities, including towns, to operate sewage systems. The provision is simply a general enabling statute, ho%vever, not a mandatory prescrip- tion. In addition, subsection (8) of § 66.076 incor- porates into the enabling statute all of the limitations of § 66.069, including the power to limit the area of service. Thus, § 66.076(1) does not express a procompetitive state attitude. Nor does § 66.30 aid the Towns. It is a general provision concerning all utilities -- not just sewage systems -- that permits municipalities to enter into cooperative agreements. The statute is not manda- tory, but merely permissive. Moreover, even assum- ing two municipalities agreed pursuant to this sec- tion to cooperate in providing sewage services, the result would not necessarily be greater competition. Rather, the two combined might well be more effec- tive than either alone in keeping other municipalities out of the market. ***16) 1 `431 Nor do we agree with the Towns' contention that the statutes at issue here are neutral on state policy. The Towns attempt to liken the Wisconsin statutes to the Home Rule Amendment involved in Boulder, argu- ing that the Wisconsin statutes are neutral because they leave the City free to pursue either anticompetitive con- duct or free-market competition in the field of sewage services. The analog% to the [ionic Rule Amendment involved in Boulder is inapposite. That Amendment to the Colorado Constitution allocated only the most gen- eral authority to municipalities to govern local affairs. We held that it was neutral and did not satisfy the "clear articulation" component of the state action test. The Amendment simply did not address the regulation of ca- ble television. Under Home Rule the municipality was to be free to decide every aspect of policy relating to cable television, as well as policy relating to any other field of regulation of local concern. Here, in contrast, the State has specifically authorized Wisconsin cities to provide sewage services and has delegated to the cities the express authority to take action that foreseeably will result in anticompetitive ['**171 effects. No reasonable argument can be made that these statutes are neutral in the same way that Colorado's Home Rule Amendment was. n6 n6 Nor does it help the Towns' claim that the statutes leave to the City the discretion whether to provide sewage services. States must always be free to delegate such authority to their political subdivi- sions. [ ** 17191 The Towns' argument amounts to a con- tention that to pass the "clear articulation" test, a legis- lature must expressly state in a statute or its legislative history that the legislature intends for the delegated ac- tion to have anticompetitive effects. This contention embodies an unrealistic vie%% of how legislatures work and of how statutes are written. No legislature can be expected to catalog all of the anticipated effects of a statute of this kind. [ `441 Furthermore, requiring such explicit authoriza- tion by the State might have deleterious and unnecessary consequences. Justice Ste%kart's dissent in Lafayette was concerned that the plurality's opinion would 1 *** 181 im- pose this kind of requtr.ment on legislatures, with detri- mental side effects upon niunicipahties' local autonomy and authority to govern thcroselses. 435 L'.5., at 434- 435. In fact, this Court has never required the degree of specifictn that the'Rmns insist is necessary. n7 L J Page 26 471 U.S. 34. *44; 105 S. Ct. 1713. **1719; LEXSEL" 1985 U.S. LEXiS 191, ***18; 85 L. Ed. 2d 24 n7 Requiring such a close examination of a state legislature's intent to determine whether the federal antitrust laws apple would be undesirable also be- cause it would embroil the federal courts in the un- necessary inicritrctation of state statutes. Besides burdening the courts, it would undercut the funda- mental policy of Parker and the state action doctrine of immunizirtc' state action from federal antitrust scrutiny. See I P Areeda R D. Turner. Antitrust Law para. 212.31bi (Supp. 1982). In sum, we conclude that the Wisconsin statutes evidence a 'clearly articulated and affirmatively expressed" state policy to displace competition with regul.nion in the area of municipal provision of sewage services. These statu- tory [***19[ provisions plainly show that "'the legisla- ture contemplated the kind of action complained of.'" Lafayette, supra, at 415 (quoting the decision of the Court of Appeals, 532 F2d 431, 434 (CAS 1976)). n8 This is sufficient to satisfy the "clear articulation" re- quirement of the state action test. n8 Our view of the legislature's intent is supported by Town of Hattie v. City of Chippewa Falls, 105 Wis. 2d 533, 314 N. W' 2d 321 (1982), in which the Supreme Court of Wisconsin rejected the Town of Hallie's challenge under state antitrust laws against the City of Chippewa Falls in a case quite similar to the one at bar. There, the Town of Hallie argued that the City's refusal to provide it with sewage treat- ment services, the requirement of annexation, and the City's conditioning of the provision of treatment services on the acceptance also of sewage collection and other city services, violated the state antitrust laws. The State Supreme Court disagreed, conclud- ing that the legislature intended the City to undertake the challenged actions. Those actions therefore were exempt from the State's antitrust laws. Analyzing §§ 66.069(2)(c) and 144.07( l in), the court concluded that the legislature had "viewed annexation by the city of a surrounding unincorporated area as a rea- sonable quid pro quo that a city could require before extending sewer services to the area." ld., at 540- 541, 314 N. IV. 2d, at 325. Althou,h ;he Wisconsin Supreme Court's opinion does not, of course, decide the question presented here of the City's immunity under the federal an- titrust laws, it is instructive on the question of the state legislature's intent in enacting the statutes re- lating to the municipal provision of sewn fie services. [... 201 *451 C The Towns further argue that the "clear articulation" requirement of the state action test requires at least that the City show that the Stag "compelled" it to act. in so dome, the% rclv on language tit Cantor I. Detroit Edison Co.,-428 U.S_579 (1976). and Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975). We disaeree with this contention for several reasons. Cantor and Goldfarb concerned private patties -- not municipalities -- claim- ing the state action exemption. This fact distinguishes those cases because a municipality is an arm of the State. We may presume, absent a showing to the contrary, that the municipality acts in the public interest. n9 A private party, on the 1** 17201 other hand, may be presumed to be acting primarily on his or its own behalf. n9 Among either things, municipal conduct is in- variably more likely to be exposed to public scrutiny than is private conduct. Municipalities in some States are subject to "sunshine" laws or other manda- tory disclosure regulations, and municipal officers, unlike corporate heads. are checked to some degree through the electoral process. Such a position in the public eye may provide some greater protection against antitrust abuses than exists for private par- ties. I=R''_11 None of our cases imof,.me the application of the state action exemption to a municipality has required that compulsion be shown. Both Boulder, 455 U.S., at 56-57, and Lafayette, 435 US., at 416-417, spoke in terms of the State's direction or authorization of the an- ticompetitive practice at issue. This is so because where the actor is a municipality, acting pursuant to a clearly articulated state policy, compulsion is simply unneces- sary as an evidentiary matter to prove that the challenged practice constitutes state action. in short, although com- pulsion affirmatively 1*461 expressed may be the best evidence of state policy, it is b\ no means a prerequisite to a finding that a municipality. acted pursuant to clearly articulated state policy. IV Finally, the Towns argue that as there was no ac- tive state supervision, the City may not depend on the state action exemption. The Towns rely primarily on Ian- ouage in Lafayette. It is fair to say that our cases have not been entirely clear. The plurality opinion in Lafayette did sui;se,t1 without elaboration and without deciding the Issue. that a .it., L:lai:nirt,, tL'c exemption [* 221 must show that its anticortiprtune conduct was actively supervised by the State 4.i5 L S.. at 410. In California Retail Luµtor Dealers Assn � .tltdcal Aluminum, /tic., 445 U.S. 9' (1980)• it un:uttnwtis Court held that super- 09— 14u L �1 4 Page 27 471 U.S. 34, *46; 105 S. Ct. 1713. **1720: LEXSEE 1985 U.S. LEXIS 191, **`22; 85 L. Ed. 2d 24 vision is required where the anticompetitive conduct is fixing arrangement." 445 US.. at 106. Where a private 4 by private parties. In Boulder, however, the most re- pam is engaging in the anticompetitive activity, there is cent relevant case, we expressly left this issue open as a real danger that he is acting to further his own inter- 1 to municipalities. 455 U.S.. cr 51-52, n. 14We now ests, rather than the governmental interests of the State, conclude that the active state supen ision requirement Where the actor is a municipality, there is little or no should not be imposed in cases in which the actor is a danger th:u it is involved in a private price: -fixing ar- municipality. n10 rangement. The only real danger is that it will seek to further purely parochial public interests at the expense nl0 In cases in %0ich the actor is a state agency, of more o%erriding state goals. This danger is minimal, it is likely that active state super •ision would also however, because of the requirement that the municipal - not be required, although %vc do not here decide that itv act pursuant to a clearly articulated state policy. Once issue. Where state or municipal regulation by a pri- it is clear that state authorization 1***241 exists, there vate party is involved, however, active state supervi- is no need to require the State to supervise actively the sion must be shown, even where a clearly articulated municipality's execution of what is a properly delegated state policy exists. See Southern Motor Carriers Rate function. Conference, inc. v. United States, post, at 62. V We conclude that the actions of the City of Eau Claire in this case are exempt from the Sherman Act. [***23] They were taken pursuant to a clearly articulated state P°Itcy to replace competition in the provision of sewage As with respect to the compulsion argument discussed services with regulation. We further hold that active above, the requirement of active state supervision serves state supervision is not a prerequisite to exemption from essentially an evidentiary function: it is one way of en - j the antitrust laws where the actor is a municipality rather suring that the actor is engaging in the challenged con than a private party. «'e accordingly [**1721] affirm j duct pursuant to state policy. In Slidcal, we stated that ` the judgment of the Court of Appeals for the Seventh i the active state supervision requirement was necessary Circuit. to prevent a State from circumventing the Sherman Act's proscriptions 'by casting .. . a gauzy cloak of state in- It is so ordered. volvement over what is [*47] essentially a private price- i S9-- 720 Page 3 1ST CASE of Level I printed in FULL format. SEBRING UTILITIES CW411SISSION, Appellant, v, HOtiSE SAVINGS ASSOCIATION OF FLORIDA, a State of Florida Chartered Savings & Loan Association, and AMERICAN HOMES SERVICE CORPORATION, a Florida corporation, Appellees No. 86-1366 Court of Appeals of Florida, Second District 508 So. 2d 26, 1987 Fla. App. LEXIS 7288; 1987-1 Trade Cas. (CCH) P67,489; 12 Fla. Law W. 824 March 18, 1987, Filed SUBSEQUENT HISTORY: [**1] Motion for rehearing is denied, June 5, 1987. PRIOR HISTORY: Appeal from the Circuit Court for Highlands County; J Dale Durrance, Judge. COUNSEL: Andrew B. Jackson, Sebring, and Steven L. Brannock of Holland & Knight, Tampa, for Appellant. H. Rex Owen and Brice Crawford of Law Offices of H. Rex Owen, St. Petersburg, for Appellees. JUDGES: Scheb. C.J.. Ryder and Frank. JJ., concur OPINIONBY: SCHEB OPINION: [*27] Appellant Sebring Utilities Commission challenges a final judgment awarding treble damages to appellee Home Savings Association for the Commission's violation of antitrust laws. We reverse. The Sebring Utilities Commission was established by the Florida Legislature pursuant to Chapter 23535, Laws of Florida (19.35). The Commission operates public mu- nicipal electric and «ater utilities for the city of Sebring and also serves customers outside the municipal bound- aries. Horne Sa,. tncs was constructing an office building outside the c* limits and applied to the Commission for water service. Home Savings preferred to purchase electricity from Florida Power Corporation, a private utility, which competes with the Commission in areas outside the city of Sebring;. The Commission, however, informed [**2] Home Sa% inks that its water service ap- plication would not be approved unless it also agreed to purchase electricity from the Conunission. Home Savine:s refused, and when the Commission, in April 1984, formally denied its application, Monte Savings proceeded to install a private well to supply its water needs. Home Savings brought suit against the Commission in May 1984, alleging the Commission's policy of ty- ing together of water and electrical services was arbitrary and unjustly discriminatory. Home Savings sought dam- ages based on the Commission's refusal to extend water service and its refusal to provide fire protection to the building without the tie-in of electricity. In May 1985, Horne Savings added to its claim a demand for treble damages, alleging the tie-in of water and electrical ser- vices violated the Florida Antitrust Act of 1980. The Commission moved to strike the antitrust claim, urging immunity from antitrust liability, but the motion was denied. At a nonjury trial the Commission presented evidence of financial difficulties as justification for its tie-in pol- icy. Revenues from both the water and electrical systems were pledged to repay the indebtedness on its S92 million [**3] in bonds issued in 1981. }et, the Commission's witnesses testified that sufficient revenues were not be- ing generated to satisfy the debt service on these bonds. Additionally, some reports indicated the need to in- crease the capacity of the water system. Testimony further demonstrated that the tie-in policy was adopted as a result of these economic pressures to increase the Commission's income. Furthermore, the Cortunission's evidence demonstrated that Home Savings never made separate application for fire protection. There was, how- ever, evidence presented that fire protection was auto- matically included when water service was afforded by the Commission. The trial court ruled that the Commission's practice of tying water and electrical services together was un- just and discriminatory and that its denial of Home Savings' application for water service was invalid. The court awarded Home Savings $76,466.13 damages for 508 So. 2d 26. *27, 1987 Fla. App, LEYIS 7298, **3; 1987-1 Trade Cas. (CCH) P67,489; 12 Fla. Law W. 824 the amount it expended to install %rater and fire pro- tection systems. The trial court further ruled the tie-in was [*28] a violation of Florida's antitrust laws and that the Commission %vas not ttnmunc from suit under the antitrust act. i lencc, the court m arded treble dam- ages [**4] ati pro%ided In Scctwn 5•1' "111. Florida Statutes t19S3), resulting in an award of S229,398.39. The court retained jurisdiction to determine attorneys' fees and costs From that Judgment, this appeal by the Com irusslon ensued. At the outset, we note that in ruling the tie-in pol- icy unjust and discriminatory, the trial court apparently followed our decision in Edris 1: Sebring Utilities Commission, 237 So. 2d 585 (Fla. 2d UCA), cent. de- nied. 240 So 'd 6,43 (Fla. 1970). in Edris• this court held the Conu;ussion's policy requiring customers resid- ing outside the city to purchase electricity as a condition precedent to obtaining city %cater was unjust, discrimi- natorv, and invalid. Missing from Edris was any eco- nomic ,iustiticanon for the tie-in police. In contrast, the Commission in this case presented ample economic jus- titication for hay ing adopted a policy of tying water and electric services toVerher. Hence. the cases are factually distinguishable and Edris does not control the result in this case. Courts v,-ill not interfere with a municipal utility's ex. ercise of its authority as long as the municipality does not arbitrarily discriminate between its customers and can [**Sj present reasonable justifications for its ac- tions. Pinellas Apartment .-association, Inc. v City of St. Petersburg, 294 So. 2d 676 (Fla. 2d DCA 1974)• A municipality's decision is presumed valid, and the bur- den is on the challenger to prove it is unjust or arbitrary. Clay Utility Co. v. Ciry of Jacksonville, 227 So. 2d 516 (Fla. 1st DCA 1969). In this situation, we cannot say the Cornrnission's re- fusal to provide water only to Home Savings was dis- criminatory because such a policy was applied to all potential customers outside the municipal limits. The fi- nancial difficulties experienced by the Commission and its need to increase revenues presented a reasonable eco- nomic justification for the tie-in policy. Consequently, we hold the trial court erred in awarding damages for the Commission's refusal to provide water service only to Home Savings. It necessarily follows that the Commission's failure to provide fire protection was not unreasonable. Florida recently enacted section 542.235, Florida Statutes t 1985), expressly immunizing municipalities from antitrust damages. However, the Commission concedes this recently enacted immunity is not avail- able to it in this suit. See § 1**61 5.12.235(5), Fla. Page 4 Star. (1985). let, it argues that the Local Government Antitrust Act, 15 U.S.C. $ 35, which became effective September 24, 1984, and grants absolute immunity from damages to all local governments in federal antitrust lit- igation, should apply. The Commission correctly points out that section 542'0, Florida Statutes t 1983). of the Florida Antitrust Act provides any activity or conduct exempt under federal antitrust law is also exempt from the Florida Antitrust .-`act See also Fast .Vaptes Mier Systenu, Inc. v. Board of County• Commissioners, 473 So.2d 309 (Fla, 2d DC-1 1985) (County Water and Sewer System Law § 153.01 et seq. exempts boards of county commissioners, water -sewer districts and their members from Florida Antitrust Act). Since we think the Commission is entitled to immunity under the standard in effect prior to the enactment of the federal immunity statute, we do not decide whether the federal immunity statute is available to the Commission. In Town of Hallie v. City of Eau Claire, 471 U.S. 34, 105 S. Ct. 1713, 85 L. Ed. 2d 24 (1985). the United States Supreme Court was presented with the question of whether a municipality's anticompetitive activities [**7] are protected by state action exemption to the Federal Antitrust Laws when the activities are authorized but not compelled by the state and the state does not ac- tively supervise the anticompetitive conduct. The court held that a municipality is exempt from antitrust laws if its "anticompetitive activities [are] authorized by the state 'pursuant to state policy to displace competition with regulation or monopoly public service."' 105 S. Ct. at 1716 (quoting City of Lafayette v. Louisiana Poser & Light (*291 Co., 435 U.S. 389, 413, 98 S. Ct. 1123, 1137, 55 L. Ed. 2d 364 (1978) (Brennan, J, plurality). The court observed that state authorization is shown if the municipality demonstrates it is "engaging in the challenged activity pursuant to a clearly expressed state policy." Hallie, 105 S. Ct. at 1717. Further, the court opined that it is not necessary to show that the leg- islature explicitly intended the municipality's conduct to have anticompetitive effects. Rather, it is only necessary to demonstrate the legislature contemplated anticompet- itive conduct would result from the authority granted the municipality. Hallie, 105 S. Ct. at 1718.19. Thus, we must determine [**S] whether Chapter 23535, Laws of Florida (1945). authorizing the creation of the Commission, and the Florida Statutes authorizing municipal water systems satisfies the "clear articulation" test of Hallie. The latter question was answered affirma- tively in Falls Chase Special Taxing District v. City of Tallahassee, 738 F.2d 711 (11th Cir. 1986). The Falls Chase court quoted extensively from Auton v, Dade City, 783 F.2d 1009 (11 th Cir. 1986). and held that the Florida Statutes authorizing municipal water systems satisfy the AV Page 5 508 So. 2d 26, *29; 1987 Fla. App. LEXIS 7288, **8; 1987-1 Trade Cas. (CCH) P67,489; 12 Fla. Law W, 824 *clear articulation" requirement expressed in Hallie. We F:2d at 1010. We recognize that general law specifically think Falls Chase states the correct view on this issue. excludes utilities owned and operated by municipalities Section 7 of Chapter 23535, Laws of Florida (I�)45), from regulation by the Public Service Commission. See gives the Commission "exclusive general supervision, §§ 366.02, 366.11 and 367.022(2), Fla. Stat. (1983). charge, operation and management of all of the public however, as the Supreme Court concluded in Hallie, utilities of the City of Sebring." Section 9 grants it "full the active state supervision requirement should not be power and exclusive authority to fix rates and charges imposed in cases in which the actor is a municipality." of electricity, gas and water . . . as if provided b\ Hallie, 105 S. Ct. at 1720. an ordinance of the Cit}. ' We hold these provisions cv- Accordingly, we hold the trial court erred to finding idence a clearly, expressed state policy to displace com- the Commission violated the Florida Antitrust Act. We petition with monopoly public service. Delegation of direct the trial court to vacate the judgment of damages regulatory power is an indication the legislature [**91 against the Commission and enter judgment in its favor. recognized municipal public works often require anti RYDER and FRANK, 7J., Concur. competitive practices, See Auton v. Dade City, 783 j i i j r 1 { t 1 t f , t i t 1 1 F { t i Page 3 455 U.S. 40 printed in FULL format. COMMUNITY COMM UN[CATIONS CO.. INC. v. CITY OF BOULDER, COLORADO. ET AL. No. 80-1350 SUPREME COURT OF THE UNITED STATES 455 U.S. 40: 102 S. Ct. 835: 1982 U.S. LENIS 65: '0 L. Ed. 2d 810: 50 U.S.L.W. -11.14: 1982-1 Trade Cas. (CCH) P64,448: 1982-1 Trade Cas. (CCH) P72,502; 50 Rad. Reg. 2d (P & F) 1183 October 13, 1981, Argued January 13. 1982, Decided PRIOR HISTORY: [***I] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT DISPOSITION: 630 F.2d 704, reversed and remanded. CORE TERMS: ordinance, antitrust, Sherman Act, municipality, exemption, municipal, regulation, cable, television, anticompetitive, sovereign, exempt, mora- torium, affirmatively, pre-emption, articulated, fed- eralism. entity, monopoly, pre-ei ipted, plurality, en- act, supremacy, enacting, joined, charter, invalid, self- government, home -rule, conspiracy < =2 > View References < =3 > Turn Off Lawyers' Edition Display DECISION: Ordinance enacted by home -rule municipality prohibiting expansion of cable television operator's business, held not to be "state action" eligible for exemption from federal antitrust laws. SUNINIARY: The assignee of a permit granted by a city ordinance to conduct a cable television business within the city limits filed suit in the United States District Court for the District of Colorado, alleging, that the city violated l of the Sherman Act (15 USCS 11 when it enacted an "emergency" ordinance prohibiting the assignee for three months from expanding its business to areas of the city not currently served by it so that the city council could draft a model cable television ordinance and invite new businesses to enter the market under the terms of that ordinance, even though the city is a "home -rule" municipality which is granted extensive powers of self-government in local and municipal matters by the constitution of the state in which the city is located. The District Court held that the city's moratorium ordinance was not exempt from federal antitrust laws under the "state action" doctrine ofan earlier decision of the United States Supreme Court and issued a preliminary injunction (485 F Stipp 103>), The United States Court of Appeals for the Tenth Circuit reversed, holding that the citv's action satisfied the criteria for an exemption from antitrust liability (630 F2d 704). On certiorari, the United States Supreme Court reversed and remanded. In an opinion by Brennan, J.. joined by Marshall, Blackmun, Powell, and Stevens, JJ., it %%as held that the wontoriuni ordinance was not exempt from antitrust scrutiny under the "state action" doctrine, the direct delegation of po`ker> to the city through a home -rule amendment in the state constitution not rendering the ordinance an act of government performed by the city acting as the state in local matters. Stevens, J., concurred, emphasizing that the holding that the city's action was not exempt from the antitrust laws was not tantamount to a holding that the antitrust laws have been violated. Relinquist, J., joined by Burger. Ch. I. and O'Connor, J., dissented, expressing the view that the question addressed in the case was not whether state and local governments are exempt from the Sherman Act, but whether statutes, ordinances, and regulations enacted as an act of government are preempted by the Sherman Act under the operation of the Federal Constitution's supremacy clause, and that the presuniption is that preemption is not to be found absent the clear and manifest intention of Congress that the federal act should supersede the police powers of the states. rr�� i Page 4 455 U.S. 40, 102 S. Ct. 835, ' LEXSEE -.� 1982 U.S. LEXIS 65, ***1; 70 L. Ed. 2d 810 White, I., did not participate. LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition: r < =7> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 home -rule municipality -- exemption from federal antitrust 1a%ks -• Headnote: <=8> (IA1 <=n> (lsl <=10> 11C) A city which has been granted poi+ers of self-governtrent to local and municipal matters h%- a "home -rule" amendment in the constitution of the state in which it is located does not enjoy an exemption from federal antitrust liability in regard to its enactment of an "emergency" ordinance prohibiting a cable television business from expanding its business for three months to areas not currently sen•ed by it so that the city council can draft a model cable television ordinance and invite new businesses to enter the market under the terms of that ordinance, the direct delegation of powers to the city through the home -rule amendment not rendering the ordinance an act of government performed by the city acting as the state in local matters so as to make the ordinance a "state action" eligible for exemption. (Rehnquist, J., Burger, Ch. J., and O'Connor, J., dissented from this holding.) < =1 I > RESTRAINTS OF TRADE, ;MONOPOLIES, AND UNFAIR TRADE PRACTICES § 1 I city ordinance -- exemption from antitrust scrutiny -- Headnote: < =12 > (21 A city's ordinance cannot be exempt from antitrust scrutiny unless it constitutes the action of the state itself in its sovereign capacity, or unless it constitutes municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy. < =13 > CONSTITUTIONAL LAW §47 1 sovereign authority -- cities, counties. and other bodies -- t t ! Headnote: < =14 > (31 i All sovereign authority within the geographical limits of the United States resides either with the government of the United States, or with the states of the union; there may be cities, counties, and other organized bodies with limited legislative functions, but they are all derived from, or exist in subordination to, one or the other of these. f I < =15 > RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 federal antitrust laws -- state action exempt - Headnote: < =16> (4) When a municipality's action is challenged as anticompetitive and the municipality claims that its action is exempt from liability under the federal antitrust laws as a state action, the requirement for such a claim of clear articulation and affirmative expression by the state of the policy being implemented by the municipality's action is not satisfied when the state's position is one of mere neutrality respecting the municipal action challenged as anticompetitive. < =17 > RESTRAINTS OF TRADE. MONOPOLIES. AND UNFAIR TRADE PRACTICES § l I federal antitrust laws -- municipalities as "persons" covered -- Headnote: < = 18 > (5 1 The federal antitrust laws, like other federal laws imposing civil or criminal sanctions upon "persons," apply to municipalities as well as to other corporate entities. �a�— 1,20 L Page 5 455 U.S. 40, *; 102 S. Ct. 935. **; LEXSEE -� 1982 U.S. LEXIS 65, ***I: 70 L. Ed. 2d 810 <=19> RESTRAINTS OF TRADE, ;vlONOPOLIES, AND UNFAIR TRADE PRACTICES §I I federal antitrust laws -- state action exemption -- state's subdivisions -- Headnote: <=20> [61 When the state itself has not directed or authorized an anticompetitive practice, the state's political subdivisions in exercising their delegated po,.yer must obey the antitrust lag% s. SYLLABUS: Respondent city of Boulder is a "home rule" municipality, granted by the Colorado Constitution extensive powers of self-government in local and mu- nicipal matters. Petitioner is the assignee of a permit granted by a city ordinance to conduct a cable televi- sion business within the city limits. Originally, only limited service within a certain area of the city could be provided by petitioner, but improved technology of- fered petitioner an opportunity to expand its business into other areas, and also offered opportunities to po- tential competitors, one of whorn expressed interest in obtaining a permit to provide competing service. The Citv Council then enacted an "emergency" ordinance prohibiting petitioner from expanding its business for three months, during which time the Council was to draft a model cable television ordinance and to invite new businesses to enter the market under the terms of that ordinance. Petitioner filed suit in Federal District Court, alleging that such a restriction would violate § I of the Sherman Act, and seeking a preliminary in- junction [***21 to prevent the city from restricting pen- tioner's proposed expansion. Tire city responded that its moratorium ordinance could not be violative of the an- titrust laws because, inter alia, the city enjoyed antitrust immunity under the "state; action" doctrine of Parker v. Brown, 317 U.S. 341. The District Court held that the Parker exemption was inapplicable and that the city was therefore subject to antitrust liability. Accordingly, the District Court issued a preliminary injunction. The Court of Appeals reversed, holding that the city's action satisfied the criteria for a Parker exemption. Held: Boulder's moratorium ordinance is not exempt from antitrust scrutiny under the Parker doctrine. Pp. 48-57. (a) The ordinance cannot be exempt from such scrutiny unless it constitutes either the action of the State itself in its sovereign capacity or municipal action in further- ance or implementation of clearly articulated and affir- matively expressed state policy. Pp. 48-51. (b) The Parker "state action" exemption reflects Congress' intention to embody in the Sherman Act the 1 federalism principle that the States possess a signifi- cant measure [***31 of sovereignty under the Federal Constitution. But this principle is inherently limited: Ours is a "dual system of government," Parker, supra, at 351. which has no place for sovereign cities. Here, the direct delegation of po%%crs to the city through the Home Rule Amendment to the Colorado Constitution does not render the cable television moratorium ordi- nance an "act of government" performed by the city act- ing as the State in local matters so as to meet Parker's "state action" criterion. Pp. 52-54. ("c) Nor is the requirement of "clear articulation and aflirmatiye expression" of a state policy fulfilled here by the Home Rule Amendment's "euarantee of local auton- omy," since the State's position is one of mere neutrality respecting the challenged moratorium ordinance. This case involves city action in the absence of anv regulation by the State, and such action cannot be said to further or implement any clearly articulated or affirmatively ex- pressed state policy. Pp. 5a-56. (d) Respondents' argument that denial of the Parker exemption in this case will have serious adverse con- sequences for cities and will unduly burden the federal courts is simply 1 ­41 an attack upon the wisdom of the lone,.standin_7 congressional commitment to the pol- icy of fret: markets and open competition embodied in the antitrust laws, which laws apply to municipalities not acting in furtherance of clearly articulated and affir- matively expressed state policy. Pp. 56-57. COUNSEL: Harold R. Farrow argued the cause for pe- titioner. With him on the briefs were Thomas A. Seaton and Robert E. Ybule. Jeffrey H. Howard argued the cause for respondents. With him on the brief Mere Kathleen A. McGinn, Dale R. Harris, Bruce T. Reese, Joseph N. de Raismes, and Alan E. Boles, Jr. Thomas P. McMahon, Assistant Attornev General of Colorado, arQUued the causC tier the State of Colorado et al. as antici curiae ureine reversal. Mill him on the brief were J. D. MacFarlane. Attorney General of Colorado. Mary 1. Mullarkey, Solicitor General, and B. Lawrence Theis, First Assistant Attorney General; Wilson L. Condon, Attorney General of Alaska. and Louise E. `la and Mark E. Ashburn. Assistant Attorneys General: Steve Clark. Attorney General of Arkansas, and David L. Williams. Depute Attorney General; Richard S. Gebelein. Attorne% General of Delaware, and Robert P. Lobte, Deputy Attornev General: (***51 455 U.S. 40, *; 102 S. Ct. 835. **; 1982 U.S. LEXIS 65, ***5; 70 L. Ed. 2d 810 Tany S. Hong, Attorney General of Hawaii, and Shelton G. W. Jim On, Deputy Attorney General; Tyrone C. Fahner, Attorney Gcncral of Illinois, and Thomas M. Genovese, assistant Attorney General: Thomas J. Miller, Attorney General of Iowa, and John R. Perkins, Assistant \ttorncy General: Robert T. Stephan, Attorney General of Kansas, and Wayne E. Hundlev, Deputy Attornev General: Richard S. Cohen, Attornev General of Maine: Stcnccn If sachs. Attornev General of Maryland, and Charles O. Monk 11, Assistant Attorney General; Warren R. Spannaus, Attorney General of Minnesota, and Stephen P. Kilgriff, Special Assistant Attorney Gencral; John Ashcroft, Attorney General of Missouri, and Williarn Newcomb, Assistant Attorney General; Mike Greely, Attorney General of Montana, and Jerome J. Cate; Paul L. Douglas, Attornev General of Nebraska, and Dale A. Comer, Assistant Attorney General; Jeff Binzaman, Attorney General of New Mexico, and James A. Wechsler and Richard H. Levin, Assistant attorneys General; Robert Abrams, Attorney General of Ne« tibrk, and Lloyd Constantine, Assistant Attorney General; William J. Brown, Attorney General of Ohio, and Eugene F. McShane, Assistant Attorney General; [***61 LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Eugene F. Waye and John L. Shearbum, Deputy Attorneys General; Dennis J. Roberts 11, Attorney General of Rhode Island, and Patrick J. Quinlan, Special Assistant Attorney General: Mark White. Attorney General of Texas, and Linda A. Aaker, Assistant Attornev General; John J. Easton, Jr., attorney General of Vermont, acid Jay 1. Ashman and Glenn A. Jarrett, Assistant Attorneys General; Chauncey H. Browning, Attorney General of West Virginia, and Charles G. Brown, Deputy Attorney General; and Bronson C. La Follette, Attorney General of Wisconsin, and Michael L. Zaleski, Assistant Attorney General.* * J. D. MacFarlane, Attorney General of Colorado, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Solicitor General, B. Lawrence Theis, First Assistant Attorney General, and Thomas P. McMahon, Assistant Attorney General, tiled a brief for the State of Colorado a s amicus curiae urg- ing reversal. Briefs of amici curiae urging affirmance were filed by Bingham Kennedy and Howard J. Gan for the Cable Television Information Center; by Robert D. Pritt, John D. Cummins, and Glenn fit. Young for the City of Akron, Ohio, et al.; by Burt Pines, James A. Doherty, and John F. Haggerty for the City of Los Angeles; by Susan K. Griffiths for the Colorado Municipal League; by Roger F. Cutler, John Dekker, James B. Brennan, Henry W. Underhill, Jr., and Page 6 LEXSEE Benjamin L. Brown for the National Institute of Municipal Law Officers: and by Ross D. Davis, Howard W. Fogt, Jr., Jay N. Viron. and Catherine B. Klarfeld for the National League of Cities. 1*.*�1 ` JUDGES: BRENNAN, J., delivered the opinion of the Court, in which MARSHALL. BLACKMUN, POWELL. and STEVENS. )I.. joined STEVENS, J.. tiled a concurring opinion, post, p. 58. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J„ and O'CONNOR, J., joined, post, p. 60. WHITE, J„ took no part in the consideration or decision of the case. OPINIONBY: BRENNAN OPINION: 1*431 [**8361 JUSTICE BRENNAN deliv- ered the opinion of the Court. The question presented in this case, in t.%hich the District Court for the District of Colorado granted preliminary injunctive relief, is whether a "home rule" municipahty, granted by the state constitution extensive powers of self-government in lo- cal and municipal matters, enjoys the "state action" ex- emption from Sherman Act liability announced in Parker v. Brown, 317 U.S. 341 (1943). 1 Respondent city of Boulder is organized as a "home rule" municipality under the Constitution of the State of Colorado. nl The 1-8371 city is thus entitled to exer- cise "the full right of self-government in both local and municipal matters." and with respect to such matters the City Charter and ordinances 1 *441 supersede the laws of the State. 1 ***81 Under that Charter, all municipal leg- islative powers are exercised by in elected City Council. n2 In 1964 the City Council enacted an ordinance grant- ing to Colorado Televents. Inc., a 20-year, revocable, nonexclusive permit to conduct a cable television busi- ness within the city limits. This permit was assigned to petitioner in 1966, and since that time petitioner has provided cable television service to the University Hill area of BOUlder. an area where xnnc '_0 c of the city's population lives. and %%here. for ,geographical reasons, broadcast tele%tston st,nals cannot be received. nl The Colorado Home Rule Amendment, Colo. Const., Art. NX, ; 6. provides in pertinent part: "The people of each city or town of this state, hav- ing it population of two thousand inhabitants . . . , are hereby Vested with, and they shall always have, power to make, amend, add to or replace the charter of stud city or town. Which shall be its organic law and extend to all its local and municipal matters. 455 U.S. 40, *44; 102 S. Cf. 835. **837. 1982 U.S. LEXIS 65, ***8; 70 L. Ed. 2d 810 "Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or 1 town any law of the state in conflict therewith. "It is the intention of this article to grant and con- firm to the people of all municipalities coming within its provisions the foil right of self-government in both local and municipal matters . . . . "The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except insofar as superseded by the charters of such cities and towns or by ordinance passed pur- suant to such charters." ***91 n2 Boulder, Colo., Charter § 11 (1965 rev. ed.). From 1966 until February 1980, due to the limited service that could be provided with the -technology then available, petitioner's service consisted essentially of re- transmissions of programming broadcast from Denver and Cheyenne, Wyo. Petitioner's market was there- fore confined to the University Hill area. However, markedly improved technology became available in the late 1970's, enabling petitioner to offer many more chan- nels of entertainment than could be provided by local broadcast television. n3 Thus presented with an op- portunity [*45] to expand its business into other areas of the city, petitioner in May 1979 informed the City Council that it planned such an expansion. But the new technology offered opportunities to potential competi- tors, as well, and in July 1979 one of them, the newly formed Boulder Communications Co. (BCC), n4 also wrote to the City Council, expressing its interest in ob- taining a pennit to provide competing cable television service throughout the city. n5 n3 The District Coun below noted: "Up to late 1975, cable television throughout the country was concemed primarily with retransmis- sion of television signals to areas which did not have normal reception, with some special local weather and news services originated by the cable operators. During the late 1970's however, satellite technology impacted the industry and prompted a rapid, almost geometric rise in its growth. As earth stations be- came less expensive, and 'Home Box Office' com- panies developed, the public response to cable tele- vision greatly increased the market demand for such expanded services. Page 7 LEXSEE "The 'state of the art' presently allows for more than 35 channels, including movies, sports, FM ra- dio, and educational, children's, and religious pro- gramming. The institutional uses for cable television are taut increasing. with technology for two-way ser- s ice ;ip;ibilin Future potent:.tl for cahle toles ision is referred to as 'blue sky', indicating that virtually unlimited technological improvements are still ex- pected " -J.yS F.Snpn 1035. 1030-1037 (19,30). [***101 n4 BCC syas a defendant below, and is a respondent here. n5 Regarding this letter, the District Court noted that "BCC outlined a proposal for a new system, ac- knowledging the presence of [petitioner[ in Boulder but stating that 'Whatever action the City takes in regard to [petitioner[, it is the plan of BCC to begin building its system as soon as feasible after the City grants BCC its permit.'" W., at 1037. The City Council's response, after reviewing its ca- ble television policy, n6 was the 1**8381 enactment of an "emergency" ordinance [*461 prohibiting petitioner from expanding its business into other areas of the city for a period of three months. n7 The City Council an- nounced that during this moratorium it planned to draft a model cable television ordinance and to invite new busi- nesses to enter the Boulder market under its terms, but that the moratorium was necessary because petitioner's continued expansion during the drafting of the model ordinance would discourage potential competitors from entering the market. n8 n6 "The . . . City Council . . . [initiated[ a review and reconsideration of cable television in view of the many changes in the industry since .. . 1964. . . . Accordingly, they hired a consultant, . . . and held a number of stud% meetings to develop a governmental response to these changes. The pri- mary thrust of [the consultant'sl advice was that the City should be concerned about the tendencv of a cable system to become a natural monopoly. -Much discussion in the City Council centered around a sup- posed unfair advantage that Ipetitionerl had because it was already operatim-, in Boulder. Members of the Council, and the C w. Manager. expressed tears that [petitioner nught] not he the best cable opera- tor for Boulder. but ssould nonetheless be the only 0perat01' beC;isiC of its head ;tart in the area. The Council w;uued to create a situation in which other cable companies could stake otters and not be ham- L_ J Page 8 455 U.S. 40, *46; 102 S. Ct. 835..*838. LEXSEE 1982 U.S. LEXIS 65, ''"10; 70 L. Ed. 2d 810 pered by the possibility that (peritionerl would build out the whole area before they even arrived." ibid. [***111 n7 The preamble to this ordinance offered the fol- lowing declarations as iu>tiiication for its enactment: "[Cable] television companies have within recent months displayed interest in Bening the community and have requested the Ctn Council to grant ltheml permission to use the public right-of-way in provid- ing that service; and .. the present per-mittee, [petitioner], has indi- cated that it intends to extend its services in the near future ... ; and . . the City Council finds that such an exten- sion , . . would result in hindering the ability of other companies to compete in the Boulder market; and "... the Citv Council intends to adopt a model ca- ble television per -ma ordinance, solicit applications from interested cable television companies, evaluate such applications, and determine whether or not to grant additional permits . . . [within] 3 months, and finds that an extension of service by (petitioner] would result in a disruption of this application and evaluation process; and the City Council finds that placing tempo- rary geographical limitations upon the operations of (petitioner] would not impair the present services of- fered by [it] to City of Boulder residents, and would not impair [its] ability . . . to improve those ser- vices within the area presently served by it." Boulder, Colo., Ordinance No. 4473 (1979). [***12] n8 The Council reached this conclusion despite BCC's statement to the contrary, see n. 5, supra. Petitioner tiled this suit in the United States District Court for the )District of Colorado, and sought, inter alia, a preliminary injunction to prevent the city from restricting petitioner's 1*471 proposed business expan- sion, alleging that such a restriction would violate § 1 of the Sherman Act. n9 The city responded that its mora- torium ordinance could not be violative of the antitrust laws, either because that ordinance constituted an exer- cise of the city's police powers, or because Boulder en- joyed antitrust immunity under the Parker doctrine. The District Court considered the city's status as a home rule municipality, but determined that that status gave auton- omy to the city only in matters of local concern, and that the operations of cable television embrace "wider concerns. including interstate commerce . . . (andl the First .-Amendment rights of communicators." 485 FSupp. 1035, 1038-1039 (19,W). Then, assuming, ar- guendo, that the ordinance teas within the city's 1 •** 131 authority is a home rule muntctpaht%, the District Court considered City of Lafayette t. Louisiana Power & Light Co.. 435 U.S. 3,39 (1978)• and concluded that the Parker exemption was "wholiv inapplicable." ind that the city was therefore subject to antitrust liability. 485 FSupp., at 1039. n10 1**8391 Petitioner's motion for a prelimi- nary injunction was accordingly granted. n9 26 Slat. 209, as amended, 15 U. S. C. § 1. Section i of the Sherman :Act provides in pertinent part that "(everyl contract, combination . . . , or conspiracy, in restraint of trade or commerce among the several States . . . , is declared to be illegal." Petitioner also allcLed, inter alia, that the city and BCC %%ere engaged in a conspiracy to restrict com- petition by substituting BCC for petitioner. The District Court noted that although petitioner had gathered some circumstantial evidence that might in- dicate such a conspiracy, the evidence was insuffi- cient to establish a probability that petitioner would prevail on this claim. 485 FSupp., at 1038. MO The District Court also held that no per se antitrust violation appeared on the record before it, and that petitioner was not protected by the First Amendment from all regulation attempted by the city. id., at 1039-1040. ***14 On appeal, a divided panel of the United States Court of Appeals for the Tenth Circuit reversed. 630 F.2d 704 (1980). The majority, after examining Colorado law, rejected the District Court's conclusion that regulation of the cable television business %vas beyond the home rule authority 1 •-481 of the city. /d.. at 707. The ma- jority then addressed the quesnon of the city's claimed Parkerexempuon. It distinguished the present case from C'ir: of L.tfarette un the _,round that, in contrast to the municipally operated revenue -producing utility compa- nies at issue there, "no propricctn• interest of the City is here involved." 630 Fad, at 708. After notine that the city's regulation "was the only control or active su- pervision exercised bs state or local eovernment, and . represented the only expression of policy as to the subject matter," id., at 707, the majority held that the citv's actions therefore satisfied the criteria for a Parker exemption, 630 F. _' 1. at 708. n I I We granted certiorari, 450 U.S. 1039 (1981). We reverse. L 455 U.S. 40, *48; 102 S. Ct. 835. **839: 1982 U.S. LEXiS 65, *•*14; 70 L. Ed. 2d 810 nll The majority cited California Retail Liquor Dealers Assn, v. ,lfidcal Aluminum, inc., 445 U.S. 97 (1980), as support for its reading of City of Lafayette, and concluded "that City of Lafayette is not applicable to a situation wherein the governmen- tal entity is asserting a governmental rather than pro- prietary interest, and that instead the Parker-Midcal doctrine is applicable w exempt the City from an- titrust liabi!ity." 630 F2d, at 708. The dissent urged affirmance, agreeing with the District Court's analysis of the antitrust exemption issue. Id., at 715-718 (Markey, C. I., United States Court of Customs and Patent Appeals, sitting by des- ignation, dissenungn. The dissent also considered the city's actions to violate "[common) principles of contract law and equity," id., at 715. as well as the First Amendment rights of petitioner and its cus- tomers, both actual and potential, id.. at 710-714. The petition for certiorari did not present the First Amendment question, and we do not address it in this opinion. 1. Parker v. Brown, 317 U.S. 341 (1943), addressed the question whether the federal antitrust laws prohibited a State, in the exercise of its sovereign powers, from im- posing certain anticompetitive restraints. These took the four, of a "marketing program" adopted by the State of California for the 1940 raisin crop; that program pre- vented appellee from freely marketing his crop in inter- state commerce. Parker noted that California's program "derived its authority . . . [*49) from the legislative command of the state," id., at 350. and went on to hold that the progratta was therefore exempt, by virtue of the Sherman Act's own limitations, from antitrust attack: "We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of govern- ment in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed 1***161 to Congress." Id., at 350-351. Page 9 LEXSEE The availability of this exemption to a State's munici- pahlics was the question presented in City of Lafayette, supra. in that case. petitioners were Louisiana cities em- powered to own and operate electric utility systems both within and beyond their municipal limits. Respondent brought suit a_auttst perttnrtters under the Sherman Act. alleging that they had committed various antitrust of- fenses in tite conduct of their utility systems, to the injun• of respondent 1**8401 R,,wIMIM imOked the Parker doctrine as entitling them to dismissal of the suit. The District Court accepted this argument and dis- missed. But the Court of Appeals for the Fifth Circuit reversed, holding that a "subordinate state governmental body is not ipso facto exempt from the operation of the antitrust laws," City oj'Lajayette v. Louisiana Power & Light Co.. 532 F_'d 431. 434 t/9.76t ( footnote omitted), and directing the District Court on remand to examine 'whether the state legislature contemplated a certain type of anticompetitive restraint," ibid. nl2 n 12 The Court of Appeals described the applicable standard as follows: "[itl is not necessary to point to an express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activ- itv was clearly within the legislative intent. Thus, a trial judge may ascertain. from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of. On the other hand, the connection between a legislative grant of power and the subor- dinate entity's asserted use of that power may be too tenuous to permit the conclusion that the entity's in- tended scope of activity encompassed such conduct. A district judge's inquiry on this point should be broad enough to include all evidence which might show the scope of legislative intent." 532 F.2d, at 434-435 (footnote and citation omitted). [x•=171 11501 This Court affirmed. In dour, so, a majority rejected at the outset petitioners' claim that, quite apart from Parker. "Congress never intended to subject local governments to the antitrust laws." 435 U.S., at 394. A plurality opinion for four Justices then addressed pe- titioners' argument that Parker. properly construed, ex- tended to "all ,_o ernmental entities, whether state agen- cies or subdivisions of a Stair, simply by reason of their status as such." 435 U.S.. at 408. The plural- ity opinion rejected this argument. after a discussion of Parker, Goldfarb v. Virginia State Bar, 421 U.S. 773 U I.— Page 10 455 U.S. 40, *50; 102 S. Ct. 835, **840; LEXSEE 1982 U.S. LEXIS 65. *`*17; 70 L. Ed. 2d 810 (1975), and Bates v. State Bar of Arizona. 433 U.S. 350 (1977). n 13 These precedents were construed as holding that the Parker exemption reflects the federalism princi- ple that we are a Nation of States, a principle that makes no accommodation for sovereign subdivisions of Stares. The plurality opinion said: 'Cities are not themselves sovereign; they do not re- ceive all the federal deference of the States that create them. Parker's limitation of the exemption to 'official action [***181 directed by a state,' is consistent with the fact that the States' subdivisions generail,y have not been treated as [*511 equivalents of the States thertselves. In light of the serious economic dislocation which could result if cities were free to place their o%kn parochial in- terests above the Nation's economic goals reflected in the antitrust laws, we are especially unwilling to pre- sume that Congress intended to exclude anticompetitive municipal action from their reach." 435 U.S., at 412-413 (footnote and citations omitted). n13 THE CHIEF JUSTICE, in a concurring opin- ion, focused on the nature of the challenged activity rather than the identity of the parties to the suit. 435 U.S., at 420. He distinguished between "the pro- prietary enterprises of municipalities," id., at 422 (footnote omitted), and their "traditional government functions," id., at 424, and viewed the Parker ex- emption as extending to municipalities only when they engaged in the latter. [***Igl The opinion emphasized, however, that the State as sovereign might sanction anticompetitive municipal ac- tivities and thereby immunize municipalities from an- titrust liability. Under the plurality's standard, the Parker doctrine would shield from antitrust liability mu- nicipal conduct engaged in "pursuant to state policy to displace competition with regulation or monopoly public service." 435 U.S., at 413. This was simply a recogni- tion that a State may frequently choose to effect its poli- cies through the instrumentality of its cities and towns. It was stressed, however, that the "state policy" relied upon would have to be "clearly articuiated and [**8411 affir- matively expressed." Id., at ,110. This standard has since been adopted by a majority of the Court. New Motor chicle Board of California v. Orrin W. Fox Co., 439 U.S. 96, 109 (1978); California Retail Liquor Dealers Assn. v. .Llidcal Aluminum, Inc., 445 U.S. 97, 105 (1980). n14 ni-1 In Midcal we held that a California resale price maintenance system. affecting all wine produc- ers and wholesalers within the State, was not entitled to exemption from the antitrust laws. in so holding, we explicitly adopted the principle, expressed in the plurality opinion in City of Lafayette, that anticom- petitive restraints engaged in by state municipalities or subdivisions mitt be "clearly articulated and af- firmatively expressed as state policy" in order to gain an antitrust exemption. .ideal, 445 US., at 105. The price maintenance sys�em at issue in Micical was denied such an exemption bec fuse ;i failed to satisfy the "active state supervision" criterion described in City of Lafayette. 435 U.S., (it 410, as underlying our decision in Bates is Sane Bar of Arizona, 433 U.S. 350 (1977). Because we conclude in the present case that Boulder's moratorium ordinance does not satisfy the "clear articulation and affirmative expres- sion" criterion, we do not reach the question whether that ordinance must or could satisfy the "active state supervision" test focused upon in ,Midcal. [... 201 1*521 B Our precedents thus reveal that Boulder's moratorium ordinance cannot be exempt from antitrust scrutiny unless it constitutes the action of the State of Colorado itself in its sovereign capacity, see Parker, or unless it constitutes municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy, see City of Lafayette, Orrin W. Fox Co., and Midcal. Boulder argues that these criteria are met by the direct delegation of powers to rnunicipali- ties through the Home Rule Amendment to the Colorado Constitution. It contends that this delegation satisfies both the Parker and the City of Lafayette standards. We take up these arguments in turn. (1) Respondent city's Parker argument emphasizes that through the Home Rule amendment the people of the State of Colorado ha%e vested in the city of Boulder even power theretofore possessed by the legislature . . in local and municipal ;o'mrs.'" M5 The power thus possessed by Boulder's 11531 City Council assert- edly embraces the regulation of cable television, which is claimed to pose essentially local problems. n 16 Thus, it is su,!_ested, the 1**'211 city's :able television mora- torium ordinance is an "act of eoyernment" performed by the cite acting 1-8421 as the State in local matters, which meets the "state action" criterion of Parker. nil n 15 Denver Urban Renee, tit : Itahoriiv v. Byrne, 618 P. 2d 1374, 1381 (1980), quoting Four -County '20 0 455 U.S. 40, *53. 102 S. Cf. 835. **842: 1982 U.S. LEXiS 65, ***21: 70 L. Ed. 2d 810 Metropolitan Capital Improvement District v. Board of Counry Comtn'rs, 149 Colo. 284, 294, 369 P. 2d 67. 72 (196-) (emphasis in oriemal). The Bvmc court went on to state that "bv virtue of Article XX, a home rule city is not inferior to the General Assemblv concerning, its local and municipal af- fairs." 618 P 2d, at /381. Petitioner strongly dis- putes respondent city's premise and its constriction of Byrne. chine Citt aeul C nienr� ni Detner r. Siteet. 138 Colo. 41, 48, 329 P. 2d 441, 445 (1958), Cii and County, of Denver v. , Then, 77 Colo. 212. 219-220, 235 P. 777, 780-781 (1925), and 2 E. McQuillan, Municipal Corporations y 9.08a, p. 638 (1979), as contrary authority. But it is not for us to determine the correct view on this issue as a mat- ter of state law. Parker affords an exemption from federal antitrust la%vs, based upon Congress' inten- tions respecting the scope of those laws. Thus the availability of the Parker exemption is and must be a matter of federal law. n16 Boulder cites the decision of the Colorado Supreme Court in ,`Ianor Vail Condominium Assn. v. )fail, 199 Colo. 62, 66-67, 604 P. 2d 1168, 1171- 1172 (1980), as authority for the proposition that the regulation of cable television is a local matter. Petitioner disputes this proposition and Boulder's reading of Manor Vail, citing in rebuttal United States v. Southwestern Cable Co., 392 U.S. 157, 168-169 (1968). holding that cable television sys- tems are engaged in interstate communication. In this contention, petitioner is joined by the State of Colorado, which filed an amicus brief in support of petitioner. For the purposes of this decision we will assume, without deciding, that respondent city's enactment of the moratorium ordinance under chal- lenge here did fall within the scope of the power del- egated to the city by virtue of the Colorado Home Rule Amendment. n17 Respondent city urges that the only distinction between the present case and Parker is that here the "act of eovernment" is imposed by a home rule city rather than by the state le,islature. Under Parker and Colorado law, the argument continues, this is a distinction without a difference, since in the sphere of local affairs home rule cities in Colorado possess every power once held by the state legislature. [***231 We reject this argument: it both misstates the 1 letter of the law and misunderstands its spirit. The Parker state -action exemption reflects Congress' inten- tion to embody in the Sherman Act the federalism prin- ciple that the States possess a significant measure of Page I I LEXSEE sovereignty under our Constitution. But this princi- ple contains its own limitation: Ours is a "dual system of government." Rirker, 317 L''S.. (it 351 (emphasis added). %khich has no place for sovereign cities. As this Court stated long ago, all sovereign authority "within the geographical limits of the United States" resides either with the Government of the United States, or [with] the States of the Union. There exist within the broad do- main of sovereignty but these two. There may be cities, counties, and other organized bodies with limited leg- islative [*541 functions, but they are all derived from, or exist in, subordination to one or the other of these." United States v. Kagaina, 118 U.S. 375, .379 f1886) (emphasis added). The dissent in the Court of Appeals correctly dis- cerned this limitation upon the federalism principle: "We are a nation not of 'city-states' 1 • 241 but of States." 630 F. 2e1, (it 717. Parker itself took this view. When Parker examined Coneress' intentions in enacting the an- titrust la%% s, the opinion, as previously indicated, noted: "[Nothing) in the language of the Sherman Act or in its history . sutgcsts that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. . . . [And[ an unexpressed pur- pose to nullify a siiw's control over its officers and .cents is not lightly to be attributed to Congress." .317 L•'S., at 350-351 (emphasis added). Thus Parker recog- nized Congress' intention to limit the state -action exemp- tion based upon the federalism principle of limited state sovercienn. City of Lafayette, Orrin W. Fox Co., and Midcal reaffirmed both the vitalaty and the intrinsic lim- its of the Parker state -action doctrine. it was expressly recognized by the plurality opinion in City of Lafayette that municipalities "are not themselves sovereign,* 435 U.S., at 412, and that accordingly they could partake of the Parlor exemption only to the extent that they acted pursuant to a 1-251 clearly articulated and affirma- tively expressed state pokey, 435 L'S., at 413, The Court adopted this vie%( in Orrin 1t' [ai Co.. 439 U.S.. ,it 109, :uid Mlihul, 44i L'.S . ur 105. We turn then to Boulder's contention that its actions were undertaken pursuant to :t clearly artacuIMCLI and affirinaticely ex- pressed state policy. (2) Boulder first argues that the retµuareinent of "clear articulation and aftinnan%e expression" is fulfilled by the Colorado biome Rule Amendintnit's "guarantee of )oral :ttnonontv." 11 contends, tiuourig front Cin1 of LufaYene. 435 U.S., at 394, 1"55f 415, that by this IL ,e20 Page 12 455 U.S. 40, *55; 102 S. Ct. 835. **842; LEXSEE 1982 U.S. LEXiS 65, ***25; 70 L. Ed. 2(1 810 means Colorado has "comprehended within the powers granted" to Boulder the power to enact the challenged or- dinance, and that Colorado has thercb� "contemplated" Boulder's enactment of an anticompetitive regulatory program. Further. Boulder contends that it may be in- ferred, "from the authority given" to Boulder "to op- erate in a particular area" -- here, the asserted home rule authority to reculate cable television -- "that the legislature contemplated the kind of action complained of." (Emphasis supplied.) Boulder therefore [***261 concludes that the "adequate state mandate" required by City of Lafayette, supra, at 415, [ * *8431 is present here. n18 n18 Boulder also contends that its moratorium or- dinance qualifies for antitrust immunity under the test set forth by THE CHIEF JUSTICE in his City of Lafayette concurrence, see n. 13, supra, because the challenged activity is clearly a "traditional gov- ernment function." rather than a "proprietary enter- prise." But plainly (lie requirement of "clear articulation and affirmative expression" is not satisfied when the State's position is one of mere neutrality respecting the munic- ipal actions challenged as anticompetitive. A State that allows its municipalities to do as they please can hardly be said to have "contemplated" the specific anticompeti- tive actions for which municipal liability is sought. Nor can those actions be truly described as "comprehended within the powers granted," since the term, "granted," necessarily implies an affirmative addressing of the sub- ject [***27) by the State. The State did not do so here: The relationship of the State of Colorado to Boulder's moratorium ordinance is one of precise neutrality. As the majority in the Court of Appeals below acknowl- edged: "(We] are here concerned with City action in the absence of any regulation whatever by the State of Colorado. Under these circumstances there is no inter- action of state and local regulation. We have only the action or exercise of authority by the City." 630 F. 2d, at 707. Indeed, Boulder argues that 1*561 as to local mat- ters regulated by a home rule city, the Colorado General Assembly is without power to act. Cf. Cim of Lafayette, supra, at 414, and if. 44. Thus in Boulder's view, it can pursue its course of regulating cable television compe- tition, while another home rule city can choose to pre- scribe monopoly service, while still another can elect free-market competition: and all of these policies are equally "contemplated," attd "comprehended within the powers granted." Acceptance of such a proposition -- that the: general grant of power to enact ordinances nec- essarily implies state authorization to enact specific an- ticompetitive 1***281 ordinances -- would wholly evis- cerate the concepts of "clear articulation and affirmative expression" that our precedents require. IIi Respondents argue that denial of the Parker exemp- tion in the present case will hate serious adverse con- sequences for cities, and wall unduly burden the federal courts. But this argument is simply an attack upon the Xvisdotn of the long-standing congressional commitment w the poltc� of free markets and open competition em- bodied in the antitrust laws, n19 Those laws, like other federal iaw's imposing civil or criminal sanctions upon "persons." of course apply to municipalities as well as to other corporate entities. n20 Moreover, judicial [**844) enforcement 1*571 of Congress' will regarding the state - action exemption renders a State "no less able to allocate governmental power between itself and its political sub- divisions. It means only that when the State itself has not directed or authorized an anticompetitive practice, the State's subdivisions in exercising their delegated power must obey the antitrust laws." City of Lafayette, 435 U.S., at 416. As was observed in that case: "Today's decision does not threaten [***29) the le- gitimate exercise of governmental power, nor does it preclude municipal government from providing services on a monopoly basis. Parker and its progeny make clear that a State properly may direct or authorize its instrumentalities to act in a way which, if it did not reflect stag policy, would be inconsistent with the an- titrust laws. . . . IAssumingl that the municipality is authorized to provide a service on a monopoly basis, these limitations on municipal action will not hobble the execution of legitimate governmental programs." Id., at 416-417 ( footnote omitted). n19 "Antitrust laws in general, and the Sherman Act in particular, are the Magna Carta of free enter- prise. They are as important to the preservation of economic freedom and our free -enterprise system as the Bill of Rights is to the protection of our funda- mental personal freedoms. And the freedom auaran- teed each and every business. no matter how small, is the freedom to compete -- to assert with vigor, imagination, devotion, and in!enuity whatever eco- nomic muscle it cut muster." Cnited States v. Topco Associates, /nc'.. 405 U.S. W6, 610 (1972). 1. 301 n2o See City clt'Lallaevre. 435 US., at 394-397. We hold tod:n onl% that the Parker v. Brown ex- entptnm was no har to the District Court's grant of 0i1 Fey L 455 U.S. 40, *57; 102 S. Ct. 835. **844; 1982 U.S. LEXiS 65, *`*30; 70 L. Ed, 2d 810 injunctive relief. This case's preliminary posture makes it unnecessary for us to consider other issues regarding the applicability of the antitrust laws in the context of suits by private litigants against govern- ment defendwit,. As we said in City of Lafavc[te. "fit] maybe that certain activities MIMI might appear anticompetitive when engaged in by private parties, take on a different coinple.xion when adopted by a lo- cal oovemrncni." 4i .� US . cr 417. ry JS. Compare. C. g., ,Vational Socirt� of Professional Engineers v. United States, 435 U.S. 679, 657-692 (1978) (con- sidering the validity of anticompetictive restraint im- posed by private agreement), with Exxon Corp. v. Governor of Man land, 437 U.S. 117. 133 (1978) (holding that anticompetitive effect is an insufficient basis for invalidatim, a state law). Moreover, as in City of La{a ette, supra, at 401-402, we do not confront the issue of remedies appropriate against muincipal officials. (***31 J The judgment of the Court of Appeals is re- versed, and the action is remanded for further proceed- ings consistent with this opinion. It is so ordered. JUSTICE WHITE took no pan in the consideration or decision of this case. CONCURBY: STEVENS CONCUR: 1*581 JUSTICE STEVENS, concurring. The Court's opinion, which I have joined, explains why the ciry of Boulder is not entitled to an exemption from the antitrust laws. The dissenting opinion seems to assume that the Court's analysis of the exemption issue is tantamount to a holding that the antitrust laws have been violated. The assumption is not valid. The dissent's dire predictions about the consequences of the Court's holding should therefore be viewed with skepticism. nl nl Cf. Cantor v. Detroit Edison Co., 428 US, 579, 615 (Stewart, J., dissenting) (the Court's hold- ing "will surely result in disruption of the operation of every state -regulated public utility company in the Nation and in the creation of '(he prospect of massive treble damaee liabilities'") iquoting Posner, The Proper Relationship Between State Regulation and the Federal Antitrust Laws, 49 ;V. Y U. L. Rev. 693, 723 (1974)). See also United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166. 176, it. 10. f***321 Page 13 LEXSEE in Citv of Lafayette is Louisiana 1borer & Light Co., -435 US. 359, we held that municipalities' activities as providers of services are not exempt from the Sherman Act. The reasons for denying an exemption to the city of Lafayette are equally applicable to the city of Boulder, even though Colorado is a home -rule Stag. We did not hold in City of Lafayette that the city had violated the antitrust laws. Moreover, that question is quite different from the question whether the cit% A)( Bnuld;:r violated the Sherman Act because the character of their respec- tive activities differs. In both cases, the violation issue is separate and distinct from the e:xeinption issue. A brief reference to our decision in Cantor v. Detroit Edison Co., 428 U.S. 579, will identify the invalidity of the dissent's assumption. in that case, the Michigan Public Utility Commission had approved a tariff that`re- quired the Detroit Edison Co. to provide its customers free light bulbs. The company contended that its light bulb distribution program was therefore exempt from the antitrust laws on the authority of Parker v. Brown, 317 US. 341. 1 « `3 3) See 4'S' US., at 1*591592. The Court reiected the company's interpretation of Parker and held that the plaintiff could proceed with his antitrust attack against the company's program. «e surely did not suggest that the members of the `iichigan Public Utility Commission who had authorized the program under at- tack had thereby become parties to 1 •*8451 a violation of the Sherman Act. On the contrary. the plurality opinion reviewed the Parker case in great detail to emphasize the obvious difference between a charge that public officials have violated the Sherman Act and a charge that private parties have done so. n2 112 See 423 U.S., at 535-592 (opinion of STEVENS, 1.). Tile point was made explicit in two passages of the plurality opinion. in a footnote, the plurality stated: "The cumulative effect of these carefully drafted references unequivocally differentiates between of- ficial action, on the one hand, and individual action (even when commanded by till` State), on the other hand " Id.. at 591. n. The point was repeated in the text: "Tile federal St:uute proscribes the conduct of per- sons, not pno_ranis, and die narrow holdine in Parker concerned uni�, the lCu'A11% of the conduct of tie ;tale officcdi cliar,_ed by Iaty %kith the re- sponsibility for administering, Californct's program. What sort of char_e int,ht have been made against the %:moss prn:uc persons who engaged in a variety � "' l;20 455 U.S. 40, *59: 103 S. Cf. 835. "845; 1982 U.S. LEXiS 65, `33; 70 L. Ed. 3d 810 of different activities implementing that program is unknown and unknowable because no such charges were made." Id., at 601 (footnote omitted). The footnote ornined in the above quotation stated "Indeed, it did not even occur to the plaintiff that the state officials might have violated the Sherman Act; that question was first raised by this Court." /d., at 601. n. 42. See Bates v. State Bar of Arizona,, 433 U S. 350, .361 ("[Obviously,) Cantor would have been an entirely different case if the claim had been directed against a public official or public agency, rather than against a private party"). [***341 It would be premature at this stage of the litigation to comment on the question \%hether petitioner will be able to establish that respondents have violated the antitrust laws. The [*60] answer to that question may depend on factual and legal issues that must and should be resolved in the first instance by the District Court. In accordance with my belief that "the Court should adhere to its set- tled policy of giving concrete meaning to the general language of the Sherman Act by a process of case -by - case adjudication of specific controversies," 428 U.S., at 603 (opinion of STEVENS, 1.), I offer no gratuitous advice about the questions I think might be relevant. My only observation is that the violation issue is not nearly as simple as the dissenting opinion implies. DISSENTBY: REHNQUIST DISSENT: JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and JUSTICE O'CONNOR join, dis- senting. The Court's decision in this case is flawed in two se- rious respects, and will thereby impede, if not paralyze, local governments' efforts to enact ordinances and reg- ulations aimed at protecting public health, safety, and welfare, for fear of subjecting the local government to liability under the Sherman ["*351 Act, 15 U. S. C. 3 I et seq. First, the Court treats the issue in this case as whether a municipality is "exempt" from the Sherman Act under our decision in Parker v. Brown, 317 U.S. 341 (1943). The question addressed in Parker and in this case is not whether state and local governments are ex- empt from the Sherman Act, but whether statutes, ordi- nances, and regulations enacted as an, act of government are pre-empted by the Sherman .Act under the operation of the Supremacy Clause. Second, in holding that a mu - Page 14 LEXSEE nicipality's ordinances can be "exempt" from antitrust scrutiny only if the enactment furthers or implements a "clearly articulated and aftirmanvely expressed state Policy," ante. at 52, the Court treats a political subdi- vision of a State as an entity Indistinguishable from anv privately owned business. As I read the Court's opinion, a municipality may be said to violate the antitrust laws by enacting legislation in conflict a ith the Sherman .Act, unless the !egislation is enacted pursuant to an affirma- tive state policy to supplant competitive market forces in the area of the economy to be rcuulated. 1*611 1 Pre-emption 1*1*361 and exemption are fundamen- tally distinct concepts. Pre-emption, because it involves the Supremacy Clause, implicates our basic notions of federalism. [**846) Preemption analysis is invoked whenever the Court is called upon to examine "the inter- play bet+seen the enactments of mo different sovereigns -- one federal and the other state." Handler, Antitrust -- 1978. 78 Colum. L. Res. 1363, 1379 (1978). We are confronted with questions under the Supremacy Clause when we are called upon to resolve a purported con- flict between the enactments of the Federal Government and those of a state or local government, or where it is claimed that the Federal Government has occupied a particular field exclusively, so as to foreclose any state regulation. Where pre-emption is found, the state en- actment must fall without any effort to accommodate the State's purposes or interests. Because pre-emption treads on the very sensitise area of federal -state rela- tions, this Court is "reluctant to infer pre-emption," Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 132 (19781. and the presumption is that preemption is not to be found absent the clear and manifest [***371 intention of Congress that the federal Act should super- sede the police powers of the States. Ray v. Atlantic Richfield Co., -435 U.S. 151, i57 (1978). In contrast, exemption involves the interplay between the enactments of a sinale soverei_n -- whether one en- actment �sas intended b% Congress to relieve a party from the necessin of complying with a prior enactment. See. e. z.. National Broiler Marke(ina ,Assn. v. United States, 436 U.S. 816 t 1978� (Sherman Act and Capper- kbls(ead Actf; United States v. Philadelphia National Bank, 374 U.S. 321 . 350-355 119(13) 10avton .Act and Bank Mer_er Act of 19o0). Silver c. New York Stock Exchange` 373 U.S 341. 351 ,Of i 1963) (Sherman Act and SCCUrines Exchan_e Act). Since the enactments of only one so%erci tin are invol%ed, no problems of federal- ism are present. 1'he court imerpreting the 1 *621 statute must simply attempt to ascertain cunizressional intent, whether tine exemption is claimed to he express or inn i._ 455 U.S. 40, *62; 103 S. Cf. 835. **846; 1982 U.S. LEXIS 65, ***37; 70 L. Ed. Zd 810 plied. The presumptions utilizers in exemption analysis are quite distinct from those applied in the pre -eruption context. In examining exemption 1***381 questions, "the proper approach . . . is an analysis which recon- tiles the operation of both staiutoil schemes with one an- other rather than holding one completely ousted." Silver v. New fork Stock Exchange„ supra, at 357. With this distinction in mind, 1 think it quite clear that questions involving the so-called "state action" doctrine are more properly framed as being ones of pre-emption rather than exemptionissues under the doctrine in- evitably involve state and local regulation which, it is contended, are in conflict with the Sherman Act. Our decision in Parker v. Brown, supra, was the genesis of the "state action" doctrine That case in- volved a challenge to a program established pursuant to the California Agricultural Prorate .Act, which sought to restrict competition in the State's raisin industry by lim- iting the producer's ability to distribute raisins through private channels. The program thus sought to maintain prices at a level higher than those maintained in an un- regulated market. This Court assumed that the program would violate the Sherman Act were it "organized and made effective solely by virtue of a contract, [***391 combination or conspiracy of private persons, individual or corporate," and that "Congress could, in the exercise } of its commerce power, prohibit a state from maintain- ing a stabilization program like the present because of its effect on interstate commerce." 317 U.S., at 350. In { this regard, we noted that "[occupation] of a legislative field by Congress in the exercise of a granted power is a familiar example of its constitutional power to suspend j state laws." Ibid. We then held, however, that "[we] find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. [**8471 In a dual system of government [*631 in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." Id., at 350-351, This is clearly the language of federal pre-emption un- der the Supremacy Clause. This Court decided in Parker that Congress 1***401 did not intend the Sherman Act to override state legislation designed to regulate the econ- omy. There was no !anguage of "exemption," either express or implied, nor the usual incantation that "re- peals by implication are disfavored." Instead, the Court held that state rekulation of the economv is not necessar- ily pre-empted by the antitrust laws even if the same acts by purely private parties would constitute a violation of Page 15 LEXSEE the Sherman Act. The Court recognized, however, that some state regulation is pre-empted by the Sherman Act, explaining that "a state does not give irnrnunity to those wh-) violate the Sherman Act by authorizing them to vi- olate it, or by declaring than their action is lawful . . . " Id., at 351. Our two most recent Parker doctrine cases reveal most clearly that the "state action" doctrine is not an exemp- tton at all. but ntsiead :i matter of federal pre-emption. in New Motor Vehicle Bd. of California v. Orrin W, Fox Co., 439 U.S. 96 (19781, we examined the con- tention that the California ,Automobile Franchise Act conflicted with the Sherman Act. That Act required a motor vehicle manufacturer to secure the approval of the [** 411 California New Motor Vchicle Board be- fore it could open a dealership within an existing fran- chisee's market area, if the competing franchisee ob- jected. By so delaying the opening of a new dealer- ship whenever a competing dealership protested, the Act arguably save effect to privately initiated restraints of trade, and thus was invalid under Schwcgmann Bros. v. Calvert Distillers Corp., 341 U, S. 384 t 1951). We held that the ;Act was outside the preview of the Sherman Act because it contemplated 1*641 "a system of regulation, clearly articulated and affirmatively expressed, designed to displace unfettered business freedom in the matter of the establishment and relocation of automobile dealer- ships." 439 U.S., at 109. Wo also held that a state statute is not invalid under the Sherman ,act merely because the statute will have an anticompetitive effect. Otherwise, it' an adserse effect upon competition were enough to render a statute invalid under the Sherman Act, "'the States' power to enga_e in economic regulation would be effectively destroyed.— id., at I I I (quoting Exxon Corp. v. Governor of Maryland, 437 U.S., at 133). [***4'1 In New Motor Vehicle Bd., we held that a state statute could stand in the face of a purported conflict with the Sherman Act. in Calitornia Retail Liquor Dealers Assn. v. Micical Aluminum. inc.. 44i U.S. 97 t 1980), we invalidated California's wine -pricing iysteni in the face of a chal- lenge under the Sherillim Act. We first held that the price -setting prograin constituted resale price mainte- nance, which this Court has consistently held to be a per se" %wlahon of the Sherman Act. id., at 102-103. We then concluded tha! file program could not tit within the Parker doctrine. Althouch the restraint was imposed pursuant it) a cic:trl� articulated and affirmatively ex- pressed ,rate polic\. the program was not actively su- perytied h\ t!te Slag itseli, Hie Smie nierely authorized and Cnfor,ed price by private parties, instead of e,iait!itihllt,g the price., itself or reviewing their 455 U.S. 40, *64, 102 S. Ct. 835, **847: 1982 U.S. LEXIS 65, ***42; 70 L. Ed. 2d 810 reasonableness. in the absence of sufficient state super- vision, we held that the pricing systern was invalid under the Sherman Act. 445 U.S., at 105-106. Unlike the instant case, Parker, Midcal, and New Motor \-ehicle Bd (***u 1I . m%ol,,ed challenges (**8481 to a state statute. There was no suggestion that a State violates the Sherman Act when it enacts legislation not saved by the Parker doctrine frorn invalidation under the Sherman. Act. Instead, the statute is ;urply unenforce- able because it has been pre-cmpted by the Sherman Act. By contrast, the gist of the Court's 1 *6�1 opinion is that a municipality may actually violate the antitrust laws when it merely enacts an ordinance invalid under the Sherman Act, unless the ordinance implements an affirmatively expressed state policy. n l According to the majority, a municipality may be liable under the Sherman Act for enacting anticompetitive legislation, unless it can show that it is acting simply as the "instrumentality" of the State. nl Most challenges to municipal ordinances un- doubtedly will be made pursuant to § 1. One of the elements of a § I violation is proof of a contract, combination, or conspiracy. it may be argued that municipalities will not face liability under § 1, be- cause it will be difficult to allege that the enactment of an ordinance was the product of such a contract, combination, or conspiracy. The ease with which the ordinance in the instant case has been labeled a "contract" will hardly give municipalities solace in this regard. ***441 Viewing the Parker doctrine in this manner will have troubling consequences for this Court and the lower courts who must now adapt antitrust principles to ad- judicate Sherman Act challenges to local regulation of the economy. The majority suggests as much in foot- note 20. Among the many problems to be encountered will be whether the "per se" rules of illegality apply to municipal defendants in the same manner as they are applied to private defendants. Another is the question of remedies. The Court understandably leaves open the question whether municipalities may be liable for treble damages for enacting anticompetitive ordinances which are not protected by the Parker doctrine. n2 n2 It will take a considerable feat of judicial gym- nastics to conclude that municipalities are not sub- ject to treble damages to compensate any person *in- jured in his business or property." Section 4 of the Clayton Act, 15 U. S. C. § 15, is mandatory: "Any Page 16 LEXSEE person who shall be injured in his business or prop- erty by reason of anything forbidden in the antitrust laws . . shall recover threefold the damages by him sustained." See City of Lafayette v. Louisiana Power & Light C'o.. 435 U.S. 389. 4.42-443 (1978) (BLACK`IUN, V dissenting). ***451 `lost troubling, however, will be questions regard- ing the factors which may be examined by the Court pursuant to the Rule of Reason. in National Society of Professional Engineers v. 11661 United States, 435 U.S. 679, 695 (1979). we held that an anticompetitive restraint could not be defended on the basis of a pri- vate party's conclusion that competition posed a poten- tial threat to public safety and the ethics of a particular profession. "1The1 Rule of Reason does not support a defense based on the assumption that competition itself is unreasonable." ld., at 696. Professional Engineers holds that the decision to replace competition with reg- ulation is not within the competence of private entities. instead, private entities may defend restraints only on the basis that the restraint is not unreasonable in its ef- fect on competition or because its procompetitive effects outweigh its anticompetitive effects. See Continental T. V., inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977). Applying Professional Engineers to municipalities would mean that an ordinance could not be defended on the basis that its benefits 1*1*461 to the community, in terms of traditional health, safety, and public welfare concerns. outweigh its anticompetitive effects. A local government would be disabled from displacing compe- tition with regulation. Thus. a municipality would vio- late the Sherman Act by enactinz restrictive zoning ordi- nances, by requiring business ,tnd occupational licenses, and by granting exclusive franchises to utility services, even if the city determined that it would be in the best interests of its inhabitants to displace competition with regulation. Competition simply does not and cannot further 1-"8491 the interests that Iic behind most social welfare lr_tslauon. Although state or local enactments are not iMalidated by the Sherman Act merely because they may have anucontpetitt%e effects, Exxon Corp. v. Governor of Maryland, supra, at t33. this Court has not hesitated to invalidate such statutes on the basis that such a program would violate the antitrust laws if en- gaged in by private parties. See California Retail Liquor Dealers Assn. v. Midcal .aluminum, inc.. supra, at 102- 103 tresale price maintenances; Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951) 1***471 (same). Cf. Parker v. Brown, 317 U.S., at 350 1*671 (Court assumed the st:tbtlttauon pro,_rttn would violate the Sherman Act if ur_aMMI and Ctfec(cd by private per - el e) L 455 U.S. 40, *67; 102 S. Ci. 835. "849; 1982 U.S. LEXIS 65, "'47; 70 L. Ed. 2d 810 sons). Unless the municipality could point to an affir- matively expressed state policy to displace competition in the given area sought to be regulated, the municipality would be held to violate the Sherman ;act and (lie reg- ulatory scheme would be rendered invalid. Surely, the Court does not seek to require a rnumcipalit,' to justify every ordinance it enacts to term: of its procompetitive effects. If municipalities are permitted only to enact ordinances that are consistent «iih the procompetitive policies of the Shcrman Act, a municipality's power to regulate the economy would be all but destroyed. See Exxon Corp. v. Governor of Maryland, 437 U.S., at 133. This country's municipalities will be unable to experiment with innovative social programs. See New State ice Co, v. Licbmann, 2S5 U.S. 262, 311 (1932) (Brandeis. J., dissenting). On the other hard, rejecting the rationale of Professional Engineers to accommodate the municipal defendant [***481 opens up a different sort of Pandora's Box. If the Rule of Reason were "modified" to permit a municipality to defend its regulation -on the basis that its benefits to the community outweigh its anticompeti- five effects, the courts will be called upon to review so- cial legislation in a manner reminiscent of the Lochner (Lochner v. New York, 198 U.S. 45 (1905)) era. Once again, the federal courts will be called upon to engage in the same wide-ranging, essentially standardless in- quiry into the reasonableness of local regulation that this Court has properly rejected. Instead of "liberty of con- tract" and "substantive due process," the procompetitive principles of the Sherman Act will be the governing stan-dard by which the reasonableness of all local regulation will be determined. n3 Neither the Due Process Clause l nor cite Sherman Act authorizes federal courts to invali- date [*681 local regulation of the economy simply upon 1 opining that the municipality has acted unwisely. The j Sherman Act should not be deemed to authorize federal courts to 'substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws." (***491 Ferguson v. Skrupa, 372 U.S. i 726, 730 (1963). The federai courts have not been ap- pointed by the Sherman Act to sit as a "superlegislature to weigh the wisdom of legislation." Lincoln Federal Labor Union v. Northwestern Iron & :Metal Co., 335 U.S. 525, 535 (1949). i n3 During the Lochner era, this Court's interpre- tation of the Due Process Clause complemented its antitrust policies. This Court sougtic to compel com- petitive behavior on the part of private enterprise vrd generally forbade government interference with competitive forces in the marketplace. See Strong, The Economic Philosophy of Lochner: Emergence, Page 17 LEXSEE Embrasure and Emasculation, 15 Ariz. L. Rev, 419, 435 (1973). Before this Court leaps into the abyss and holds that municipalities may violate the Sherman Act by enacting economic and social legislation, it ought to think about the consequences of such a decision in terms of its effect both upon the very antitrust principles the Court 1***501 desires to apply to local _,o%ernments and upon the role of the federal courts in examining the validity of local regulation of the economy. [**8501 Analyzing this problern as one of federal pre- emption rather than exemption will avoid these prob- lems. Vde will not be confronted with the anomaly of holding a municipality liable for enacting anticompeti- tive ordinances. n4 The federal courts will not be re- quired to engage in a standardless review of the reason- ableness of local legislation. Rather, the question simply will be whether the ordinance enacted is pre-empted by the Sherman Act. I see no reason why a different rule of pre -eruption should be applied to testing the validity of municipal ordinances than the standard we presently apply in assessing state statutes. I set no reason why a municipal ordinance should not be upheld if it satisfies the [*691 Midcal criteria: the ordinance survives if it is enacted pursuant to an affirmative policy on the part of the city to restrain competition and if the city actively supervises and implements this policy. n5 As with the case of the State. i agree that a city may not simply au- thorize private parties to engage in activity that [***511 would violate the Sherman Act. See Parker v. Brown, 317 U.S., at 351. As in the case of a State, a municipal- ity may not become "a participant in a private agreement or combination by others for restraint of trade." Id., at 351-352. n4 Since a municipality does not violate the an- titrust laws when it enacts legislation pre-empted by the Sherman Act, there will be no problems with the remedy. Pre -erupted state or local legislation is simply invalid and unenforceable. n5 The Slidcal standards are not applied until it is either determined or assumed that the regulatory pro- gram would violate the Sherman Act if a were con- ceived and operated by private persons. See Parker v. Brown, 317 U.S., at 350: California Retail Liquor Dealers Assn. v. `iidcal Aluminum, Inc., 445 U.S. 97, 102-103 t1980t. A stmute is not pre-empted snnpl} because some conduce contemplated by the sCttutt might violate the antitrust laws. See Joseph E Sca;;rant &- Sans, Inc. % Hostetter, 384 U.S. 35, 45.40 t 1966t. Conterwly, reliance on a state statute 455 U.S. 40, *69; 102 S. Ct. 835. ' 8M: 1982 U.S. LEYIS 65, ***51: 70 L. Ed. 2d 810 does not insulate a private party from liability un- der the antiwst laws unless the statute satisfies the Midcal criteria. [***�,1 Apart from misconstruing the Parker doctrine as a mat- ter of "exemption" rather than pre-emption, the majority comes to the startling conclusion that our federalism is in no way implicated when a municipal ordinance is inval- idated by the Shcrman A.t. I see no principled basis to conclude, as does the Court• that municipal ordinances are more susceptible to invalidation under the Sherman Act than are state statutes. The majority concludes that since municipalities are not States, and hence are not "sovereigns," our notions of federalism are not impli- cated when federal law is applied to invalidate otherwise. constitutionally valid municipal legislation. I rind this reasoning remarkable indeed. Our notions of federalism are implicated when it is contended that a municipal ordi- nance is pre-empted by a federal statute. This Court has made no such distinction between States and their subdi- visions with regard to the pre-emptive effects of federal law. [*701 The standards applied by this Court are the same regardless of whether the challenged enactment is that of a State or one of its political subdivisions. See, e. g., City of Burbank v. Lockheed Air Terminal, Inc., all U.S. 624 (1973); [***531 Huron Portland Cement Co. v. Detroit, 362 US. 440 (1960). I suspect that the Court has not intended to so dramatically alter es- tablished principles of Supremacy Clause analysis. Yet, this is precisely what it appears to have done by holding that a municipality may invoke the Parker doctrine only to the same extent as can a private litigant. Since the Parker doctrine is a matter of federal pre-emption under the Supremacy Clause, it should apply in challenges to municipal regulation in similar fashion as it applies in a challenge to a state regulatory enactment. The distinc- tion between cities and States created by the majority has no principled basis to suppon it if the issue is properly framed in terns of pre-emption rather than exemption. [**8511 As tiyith the States, the Parker doctrine should be employed to determine whether local legislation has been pre-empted by the Sherman Act. Like the State, a municipality should not be haled into federal court in order to justify its decision that competition should be replaced with regulation. The Parker doctrine correctly holds that the federal interest in protecting and foster- ing competition 1***541 is not infringed so long as the state or local regulation is so structured to ensure that Page 18 LEYSEE it is truly the government, and not the regulated private entities, which is replacing competition with regulation. 11 By treating lice municipal defendant as no different from the private litigant attempting to invoke the Parker doctrine, the Court Is decision todav will radically al- ter the relationship between the States and their political subdivisions. Municipalities «ill no longer be able to regulate the local econunty %kilhout the imprimatur of a clearly expressed state polio% 1 11 to displace com- petinon.no The decision today ellectiyely destroys the "home rule" ntoventent in this country, through which local governments have obtained, not without persis- tent state opposition. a limited autonomy over matters of local concern. n7 The municipalities that stand most to lose by the decision today are those with the most autonomy. Where the State is totaliv disabled from en- acting iegislation dealing with matters of local concern, the municipality will be defenseless from challenges to its reeulation of the local economy. in such a case, the State is disabled from articulating 1***551 a policy to displace competition with regulation. Nothing short of altering the relationship ber.ueen the municipality and the State will enable the local government to legislate on matters important to its inhabitants. In order to defend itself from Sherman Act attacks, the home rule munic- ipality will have to cede its authority back to the State. It is unfortunate enough that the Court today holds that our federalism is not implicated when municipal legisla- tion is inahclaied by a federal statute. It is nothing less than a novel and egregious error when this Court uses the Sherman Act to regulate the relationship between the States and their political subdivisions. n6 The Court understandably avoids determining whether local ordinances must satisfy the "active state supervision" prong of the Nlidcal test. It would seem rather odd to require municipal ordinances to be enforced by the State richer than the city itself. n7 Seeing this opportunity to recapture the power it has lost over local affairs, the State of Colorado, joined by 22 other States, has supported petitioner as 11111CU5 curiae. It is curious, indeed, that these States now seek to use the Stiprentacy Clause as a sword. when ihev so often must defend their own enactments from its invalidating effects. 1'R 5 1 4 �,3 -� I, #;�, 0 L Page 32 421 U.S. 773 printed in FULL format. GOLDFARB ET UX. v. VIRGINIA STATE BAR ET AL. f No. 74-70 j SUPREME COURT OF THE UNITED STATES 1 421 U.S. 773; 95 S. Ct. 2004; 1975 U.S. LEAS 13; 44 L. Ed. _d 572: 1975-1 Trade Cas. (CCH) P60,355 Argued March 25. 1975 June 16, 1975 PRIOR HISTORY: antitrust, fixing, minimum -fee, advisory, exemption, floor, financing, consumers, disciplinary, immune, CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT rigid, deviation, regulating, sweeping, integral, pro- scriptions, prescribed, sovereign, discipline, prompted, CORE TERMS: Sherman Act, commerce, profession, lender, practicing interstate, ethical, regulation, anticompetitive, exempt, < =1 > View References < =2 > Turn Off Lawyers' Edition Display SUMMARY: A married couple, unable to retain an attorney willing to perform a real estate title examination for a fee less than that prescribed as the minimum fee for such service in the fee schedule published by the Fairfax, Virginia, County Bar Association, instituted a class action against the County and State Bars in the United States District Court for the Eastern District of Virginia, alleging that the operation of the minimum fee schedule, as applied to fees for i legal services relating to residential real estate transactions, constituted price fixing in violation of 1 of the Sherman Act (15 USCS 1). The fee schedule was enforced by the State Bar by its issuance of fee schedule reports and ethical opinions which stated that deviation from minimum fee schedules might lead to disciplinary action. After a trial on 1 the issue of liability only, the District Court held that (1) the minimum fee schedule violated the Sherman Act, and (2) i although the actions of the State Bar were exempt from the Sherman Act as constituting state action, the actions of the j County Bar were not so exempt (355 F Supp 491), The United States Court of Appeals for the Fourth Circuit reversed, ! holding that (1) the State Bar's actions were immune from Sherman Act proscriptions as constituting state action, and (2) the County Bar was also immune since the practice of law was not "trade or commerce" under the Act but was a i "learned profession" exempt from the Act, the challenged activities not having sufficient effect on interstate commerce to support Sherman Act jurisdiction in an;; event (497 F2r1 1). On certiorari, the United States Supreme Court reversed and remanded. In an opinion by Burger. Ch. J., expressing the unanimous view of the eight participating members of the court, it was held that the minimum fee schedule published by die County Bar Association and enforced by the State Bar, as applied to minimum fees prescribed for real property title examination xhicli could be performed legally only by an attorney and which was essential to obtain title insurance required by lenders, violated the Sherman Act, since the record established that (I) the fee schedule was not purely advisory but constituted price fixing, establishing a fixed, rigid price floor, (2) the schedule and its f enforcement substantially affected interstate commerce for purposes of the Sherman Act, a significant portion of funds 1 for purchasing homes in the county coming from outside the state and a significant amount of loans being guaranteed by federal agencies headquartered in the District of Columbia, (3) the exchange of the service of examining a land title for money constituted "commerce" under the Sherman Act and was not exempted by any sweeping "learned profession" y exclusion, and (4) the defendants' activities were not exempt from the Sherman Act as "state action," such activities not being required by state law or by the state's highest court in regulating the practice of law. Powell, I., did not participate. t Page 33 421 U.S. 773, °; 95 S. Ct. 2004, ••; LEXSEE 1975 U.S. LEXIS 13, "'": 44 L. Ed. 2d 572 LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition: < =6> RESTRAINTS OF TRADE AND MONOPOLIES §42 price fixing -- attorneys' minimum fee schedule Headnote: <=7> [1A) <=8> (IB) <=9> (IC] <=l0> [ID) <=11> [IE) A minimum fee schedule for lawyers, published by a county bar association and enforced by the state bar --as applied to minimum fees prescribed for real property title examination which could be performed legally only by an attorney and which was essential to obtain title insurance required by lenders --violates the antitrust provisions of I of the Sherman Act (15 USCS 1), where the record establishes that (1) the fee schedule was not purely advisory but constituted price fixing, substantially affecting interstate commerce, (2) the exchange of the service of examining a land title for money constituted "commerce" under the Sherman Act and was not exempted by any sweeping "learned profession." exclusion, and (3) the activities of the county bar association and the state bar did not constitute "state action," exempt from Sherman Act proscriptions. <=13> RESTRAINTS OF TRADE AND fVIONOPOLIES §42 price fixing -- attorneys' minimum fee schedule - Headnote: < =14 > 121 A county bar association's fee schedule recommending minimum fees to be charged by lawyers for real property title examination, and the enforcement of 'such schedule by the state bar, membership in which is necessary in order to practice in the state, constitute price fixing for purposes of the antitrust proscriptions of I of the Sherman Act (15 USCS 1), where the record establishes that (1) the fee schedule was not purely advisory or the mere dissemination of price information as to past standards, but instead constituted a fixed, rigid price floor for minimum fees to be charged in future transactions; (2) the fee schedule was enforced through (a) the prospect of professional discipline from the state bar, which had issued ethical opinions that any lawyer, whether or rot a member of a county bar, might be disciplined for habitually charging less than the local bar's suggested minimum fees, and (b) the desire of attorneys to comply with announced professional norms, which motivation was reinforced by the assurance that other lawyers would not compete by underbidding; (3) nearly all of the county bar members charged fees equal to or in excess of the minimum fees set " by the schedule for title examinations; and (4) consumers could not turn to alternative sources for the necessary service, since title examination was indispensable in the process of financing a real estate purchase and could be performed only by an attorney licensed to practice in the state. i < =16> RESTRAINTS OF TRADE AND MONOPOLIES §22 effect on commerce -- attorneys' minimum fee schedule r Headnote: < =17 > [3A] < =18 > (361 A county bar association's fee schedule recommending minimum fees to be charged by lawyers for real property title examination --which could be performed legally only by an attorney and which was essential to obtain title insurance required by lenders --and the enforcement of such schedule by the state bar substantially affect interstate commerce for purposes of the antitrust proscriptions of I of the Sherman Act (15 USCS 1), where even though the services were performed wholly intrastate, (1) a significant portion of funds furnished for purchasing homes in the county came from outside the state, and (2) significant amounts of loans were guaranteed by federal agencies headquartered in the District of Columbia; the necessary connection between the interstate transactions and the restraint of trade provided by the minimum fee schedule was present because, in a practical sense, title examinations, required by lenders, were necessary in real estate transactions to assure a lien on a valid title of the borrower, title examination thus being an integral part of a-n interstate transaction; the absence of a showing that home buyers were discouraged by the challenged activities does not mean that interstate commerce was not affected, nor is it necessary to show that the fee schedule raised prices, where it was established that the schedule fixed fees and thus deprived consumers of advantages derived from free competition. L Page 34 421 U.S. 773, '; 95 S. Ct. 2004. **; LEXSEE 1975 U.S. LEXIS 13, ***; 4-1 L. Ed. 2d 572 < =20> RESTRAINTS OF TRADE AND MONOPOLIES §21 effect on commerce -- Headnote: < =21 > [4A] < --- 22 > [4B For purposes of the Sherman Act (15 USCS 1 et seq.), the challenged activity's effect on interstate commerce must be viewed in a practical sense. <=24> RESTRAINTS OF TRADE AND MONOPOLIES §27 magnitude of effect on commerce -- Headnote: < =25 > 151 For purposes of the Sherman Act (15 USCS I et seq.), once it is shown that the challenged activity has an effect on interstate commerce, no specific magnitude of the effect need be proved. <=27> RESTRAINTS OF TRADE AND MONOPOLIES §22 effect on commerce -- legal services -- Headnote: < =28 > [61 Where, as a matter of law or practical necessity, legal services are an integral part of an interstate transaction, a restraint on those services may substantially affect commerce for purposes of the Sherman Act (15 USCS I et seq.); there may be legal services that involve interstate commerce in other fashions, just as there may be legal services that have no nexus with interstate commerce and thus are beyond the reach of the Sherman Act. <=30> RESTRAINTS OF TRADE AND MONOPOLIES §I I Sherman Act -- applicability to learned professions -- Headnote: < =31 > 171 There is no sweeping or total exclusion from antitrust regulation of the learned professions as not constituting "trade or commerce' for the purposes of I of the Sherman Act (15 USCS 1); the nature of an occupation, standing alone, does not provide sanctuary from the Sherman Act, nor is the public service aspect of professional practice controlling in determining whether I of the Act includes professions. <=33> RESTRAINTS OF TRADE AND MONOPOLIES §7 Sherman Act -- construction - Headnote: <=34> [8) There is a heavy presumption against implicit exemptions from the antitrust provisions of ) of the Sherman Act (15 USCS 1), i <=36> RESTRAINTS OF TRADE AND MONOPOLIES §32 f operation of restraint upon profession Headnote: <=37> [9Aj <=38> 19131 The fact that a restraint of trade operates upon a profession as distinguished from a business is relevant in determining whether the particular restraint violates the Sherman Act (15 USCS I et seq.), since it is unrealistic to view the practice of professions as interchangeable with other business activities, and automatically to apply to the professions antitrust concepts which originated in other areas; the public service aspect, and other features of the professions, may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently. L Page 35 421 U.S. 773, '; 95 S. Ct. 2004, "'; LEXSEE 1975 U.S. LEXIS 13, 44 L. Ed. 2d 572 < =40> ATTORNEYS § 13 regulation of practice -- Headnote: < =41 > [ (0A] < =42 > (1013] The highest court of a state has inherent power to regulate the practice of law in the state. < =43> RESTRAINTS OF TRADE AND MONOPOLIES §9 state action exemption -- Headnote: < =44 > [11) The threshold inquiry in determining if an anticompetitive activity is "state action" of the type not proscribed by the Sherman Act (15 USCS I et seq.) is whether the activity is required by the state acting as sovereign; it is not enough that anticompetitive conduct is "prompted" by state action --rather, anticompetitive activities must be compelled by direction of the state acting as a sovereign. <=46> RESTRAINTS OF TRADE AND MONOPOLIES §42 attorneys' minimum fee schedule -- state action -- Headnote: < =47 > [12] The "state action" exemption from the antitrust proscriptions of the Sherman Act (IS USCS I et seq.) is not applicable to the publication of a minimum fee schedule for lawyers by a county bar association, which was not a state agency, or to the enforcement thereof by the state bar, a state agency, through the issuance of fee schedule reports and ethical opinions stating that deviation from minimum fee schedules might lead to disciplinary action, where (1) no state law or rule of the state's highest court required the activities in question, (2) although the ethical codes of the state's highest court mentioned advisory fee schedules, they did not require price floors or direct either county bar associations or the state bar to supply them, and (3) there was no showing that the state's highest court approved the state bar's ethical opinions; the state bar, by issuing its ethical opinions, voluntarily joined in what was essentially a private anticompetitive activity, and in such posture cannot claim that it is beyond the reach of the Sherman Act. <=49> RESTRAINTS OF TRADE AND MONOPOLIES §I I state bar -- anticompetitive practices -- Headnote: < =50 > [ 13) That a state bar is a state agency for some limited purposes does not create an antitrust shield that allows it to foster anticompetitive practices for the benefit of its members. < =51 > RESTRAINTS OF TRADE AND MONOPOLIES §1 1 Sherman Act -- persons covered -- Headnote: <=52> [14A] <=53> [l4B] An alleged participant in a restraint of trade may have so insubstantial a connection with the restraint that liability under i the Sherman Act (15 USCS I et seq.) will not be found. < =55> RESTRAINTS OF TRADE AND MONOPOLIES §42 attorneys' minimum fee schedule -- state bar's liability -- Headnote: <=56> [15AI <=57> ItSB[ 1114�U Page 36 421 U.S. 773, *: 95 S. Ct. 2004. ••; LEXSEE 1975 U.S. LEXiS 13, ***; 44 L. Ed. 2d 572 The principle whereby liability under the Sherman Act (15 USCS 1 et seq.) will not be found when a participant has only an insubstantial connection with a restraint of trade is not applicable with regard to a state bar's enforcement of a county bar association's minimum fee schedule for la%kyers by the state bar's issuance of fec schedule reports and ethical opinions stating that deviation from minirnwn fee schedules may lead to disciplinary action, where (1) the state bar's fee schedule reports provided the impetus for the county bar association to adopt minimum fee schedules, and (2) more important, the state bar's ethical opinions provided substantial reason for lawyers to comply with the minimum fee schedules. <=59> APPEAL AND ERROR §169-1.1 remand -- issue not decided below -- Headnote: < =60> [16A] < =61 > 116B1 Upon reversing a Federal Court of Appeals' judgment which had affirmed a District Court's improper holding that a state bar's enforcement of a county bar association's minimum fee schedule was exempt from the Sherman Act (15 USCS I et seq.) as constituting state action, the United States Supreme Court will not consider the issue whether the state bar was protected by the Eleventh Amendment, but will leave such issue for the District Court on remand, where the District Court had no occasion to reach the issue in view of its original holding. < =63 > CONSTITUTIONAL LAW §881 <=64> STATES §4 regulation of professions -- Headnote: < = 65 > [ 171 The states have a compelling interest in the practice of professions within their boundaries; as part of their power to protect the public health, safety, and other valid interests, the states have broad power to establish standards for licensing practitioners and regulating the practice of professions. < =66> ATTORNEYS §2 state regulation -- Headnote: < =67 > [ 181 The interest of the states in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been officers of the courts. SYLLABUS: [*** 1 Petitioners, husband and wife, contracted to buy a home in Fairfax County. Va., and the lender who fi- nanced the purchase required them to obtain title insur- ance, which necessitated a title examination that could be performed legally only by a member of respondent Virginia State Bar. Petitioners unsuccessfully tried to find a lawyer who would examine the title for less than the fee prescribed in a minimum -fee schedule published by respondent Fairfax County Bar Association and en- forced by respondent Virginia State Bar. Petitioners then brought this class action against respondents, seek- ing injunctive relief and damages, and alleging that the minimum -fee schedule and its enforcement mechanism, as applied to fees for legal services relating to residen- tial real estate transactions, constitute price fixing in violation of § I of the Sherman Act. Although holding that the State Bar was exempt from the Sherman Act, the District Court granted judgment against the County Bar Association and enjoined the publication of the fee schedule. The Court of Appeals reversed, holding not only that the State Bar's actions %sere immune from lia- bility as "state action," Porker v. Brown. 317 U.S. 341, [***21 but also that the County Bar Association was immune because the practice of law, as a "learned pro- fession," is not "trade or commerce" under the Sherman Act: and that, in any event, respondents' activities did not have sufficient effect on interstate commerce to sup- port Sherman Act jurisdiction. Held: The minimum -fee schedule, as published by the County Bar Association and enforced by the State Bar, violates § I of the Sherman 421 U.S. 773, *; 95 S. Ct. 200-1, **: 1975 U.S. LEXIS 13, ***2:.4 L. Ed. 2d 572 Act. Pp. 780-793. (a) The schedule and its enforcement mechanism con- stitute price fixing since the record shows that the sched- ule, rather than being purely advison,, operated as a fixed, rigid price floor. The fee schedule was enforced through the prospect of professional discipline by the State Bar, by reason of attorneys' desire to comply with announced professional norms, and by the assurance that other lawyers would not compete by underbidding. Pp. 781-783. (b) Since a significant amount of funds furnished for fi- nancing the purchase of homes in Fairfax County comes from outside the State, and since a title examination is an integral part of such interstate transactions, interstate commerce is sufficiently affected for Sherman Act pur- poses notwithstanding (***3J that there is no showing that prospective purchasers were discouraged from buy- ing homes in Fairfax County by the challenged activities, and no showing that the fee schedule resulted in raising fees. Pp. 783-785. (c) Congress did not intend any sweeping "learned profession" exclusion from the Sherman Act; a title ex- amination is a service, and the exchange of such a service for money is "commerce" in the common usage of that term. Pp. 785-788. (d) Respondents' activities are not exempt from the Sherman Act as "state action" within the meaning of Porker x Brown, supra. Neither the Virginia Supreme Court nor any Virginia statute required such activities, and, although the State Bar has the power to issue ethi- cal opinions, it does not appear that the Supreme Court approves them. It is not enough that the anticompetitive conduct is "prompted" by state action; to be exempt, such conduct must be compelled by direction of the State acting as a soverign. Here the State Bar, by providing that deviation from the minimum fees may lead to disci- plinary action, has voluntarily joined in what is essen- tially a private anticompetitive activity and hence cannot claim it is beyond the (***41 Sherman Act's reach. Pp. 788-792. 497F.2d 1, reversed and remanded. BURGER, C. J., delivered the opinion of the Court, in which all other Members joined except POWEL,L. J., who took no part in the consideration or decision of the case. COUNSEL: Alan B. Morrison argued the cause and tiled briefs for petitioners. - Andrew P. Miller, Attorney General of Virginia, ar- gued the cause for respondent Virginia State Bar. With him on the brief were Anthony F. Troy, Deputy Attorney Page 37 LEXSEE General, and Stuart H. Dunn, Assistant Attorney General. Lewis T. Booker argued the cause for respon- dent Fairfax County Bar Assn. With him on the brief was John H. Shenefield. 1*7751 Solicitor General Bork argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Kauper, Gerald P. Norton, and Howard E. Shapiro. * Eleanor Nt. Fox filed a brief for the Association of the Bar of the City of New York as amicus curiae urging reversal. Briefs of antici curiae urging affirmance were filed by James D. Fellers and H. Blair White for the American Bar Assn.; by Richard C. McFarlain for the National Organization of Bar Counsel; by Leroy Jeffers for the State Bar of Texas; by Warren H. Resh for the State Bar of Wisconsin; by E. Robert Wallach and Walter J. Robinson for the Bar Association of San Francisco; and by Owen Rail and Peter M. Sfikas for the American Dental Assn. (***S1 JUDGES: Burger, Douglas, Brennan, Stewart, White, Marshall, Blackman, Rehnquist; Powell took no part in the consideration or decision of the case. OPINIONBY: BURGER OPINION: (#*20071 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. We granted certiorari to decide whether a minimum fee schedule for lawyers published by the Fairfax County Bar Association and enforced by the Virginia State Bar violates § I of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 3 1. The Court of Appeals held that, although the fee schedule and enforcement mechanism substantially restrained competition among lawyers, publication of the schedule by the County Bar was outside the scope of the Act because the practice of law is not "trade or commerce." and enforcement of the schedule by the State Bar was exempt from the Sherman Act as state action as defined in Parker v. Brown, 317 U.S. 3.11 (1943). 1 In 1971 petitioners, husband and wife, contracted to buy a home in Fairfax County, Va. The financing agency required them to secure title insurance; this re - Via)'` t 4V 1ul Page 38 4221 U.S. 773, *775, 95 S. Ct. 2004. **2007; LEXSEE 1975 U.S. LEXIS 13. ***5; 44 L. Ed. 2d 572 quired a title examination, and onlx a member of the Virginia State Bar could legally perform that service. nl [*7761 Petitioners therefore contacted it lawyer who quoted them the precise fee suggested in a minimum -fee schedule published by respondent Fairfax County Bar Association; the lawyer told them that it [***61 was his policy to keep his charges in line with the minimum -fee schedule which provided for a fee of I of the value of the property involved. Petitioners then tried to find a lawyer who would examine the title for less than the fee fixed by the schedule. They sent letters to 36 other Fairfax County lawyers requesting their fees. Nineteen replied, and none indicated that he would charge less than the rate fixed by the schedule; several stated that they knew of no attorney who would do so. nl Unauthorized Practice of Law, Opinion No. 17, Aug. 5, 1942, Virginia State Bar - Opinions 239 (1965). The fee schedule the lawyers referred'to is a list of rec- ommended minimum prices for common legal services. Respondent Fairfax County Bar Association published the fee schedule although, as a purely voluntary associ- ation of attorneys, the County Bar has no formal power to enforce it. Enforcement has been provided by re- spondent Virginia State Bar which is the administrative agency n2 through which the Virginia Supreme Court [***71 regulates the practice of law in that State; mem- bership in the [**2008] State Bar is required in order to practice in Virginia. n3 Although the State Bar has never taken formal disciplinary action to compel adher- ence to any fee schedule, [*7771 it has published reports n4 condoning fee schedules, and has issued two ethical opinions n5 indicating that fee schedules cannot be ig- nored. The most recent opinion states that "evidence that an attorney habitually charges [*7781 less than the suggested minimum fee schedule adopted by his local bar Association, raises a presumption that such lawyer is guilty of misconduct.... " n6 n2 Virginia Code Ann. § 54-49 (1972) provides: "The Supreme Court of Appeals may, from time to time, prescribe, adopt, promulgate and amend rules and regulations organizing and governing the asso- ciation known as the Virginia State Bar, composed of the attorneys at law of this State, to act as an administrative agency of the Court for the purpose } of investigating and reporting the violation of such rules and regulations as are adopted by the Court un- der this article to a court of competent jurisdiction for such proceedings as may be necessary, and re- quiring all persons practicing law in this State to be members thereof in good standing." n3 Ibid. n4 lit 1962 [tie State Bar published a minimum - fee -schedule report that Itsted a series of fees and stated that they 'represent the considered judgment of the Committee [on Economics of Law Practice] as to [al fair minimum fee in each instance." The re- port stated, however, that the fees were not manda- tory, and it recommended only that the State Bar consider adopting such a schedule. Nevertheless, shortly thereafter the County Bar adopted its own minimum -fee schedule that purported to be "a con- scientious effort to show lawyers in their true per- spective of dignity, training and integrity." The sug- gested fees for title examination were virtually iden- tical to those in the State Bar report. In accord with Opinion 98 of the State Bar Committee on Legal Ethics the schedule stated that, although there is an ethical duty to charge a lower fee in a deserving case, if a lawyer "'purely for his own advancement, intentionally and regularly bills less than the customary charges of the bar for similar services... [in order to] in- crease his business with resulting personal gain, it becomes a form of solicitation contrary to Canon 27 and also a violation of Canon 7, which forbids the efforts of one lawyer to encroach upon the employ- ment of another."' App. 30. In 1969 the State Bar published a second fee - schedule report that, as it candidly stated, "re- flect[edl a general scaling up of fees for legal ser- vices." The report again stated that no local bar as- sociation was bound by its recommendations; how- ever, respondent County Bar again quickly moved to publish an updated minimum -fee schedule, and gen- erally to raise fees. The new schedule stated that the fees were not mandatory, but tempered that by refer- ring again to Opinion 98. This time the schedule also stated that lawyers should feel free to charge more than the recommended fees; and to avoid condem- nation of higher fees charged by some lawyers, it cautioned County Bar members that "to... publicly criticize lawyers who charge more than the suggested fees herein might in itself be evidence of solicita- tion...." n5 Virginia State Bar Committee on Legal Ethics, Opinion No. 98, June I, 1960: Virginia State Bar Committee on Legal Ethics. Opinion No. 170, May 28, 1971. n6 Ibid. The parties stipulated that these opinions Page 39 421 U.S. 773, *778; 95 S. Ct. 2004, **2008; LEXSEE 1975 U.S. LEXiS 13, `7; 44 L. Ed. 2d 572 are a substantial influencing factor in lawyers' ad- herence to the fee schedules. One reason for this may be because the State Bar is required by statute to 'investigat[e1 and report... the violation of... rules and regulations as are adopted by the [Virginia Supreme Court] to a court of competent jurisdiction for such proceedings as may be necessary...." Va. Code Ann. § 54-49 (1972). Therefore any lawyer who contemplated ignoring the fee schedule must have been aware that professional sanctions were possible, and that an enforcement mechanism existed to administer them. Because petitioners could not find a lawyer willing to charge a fee lower than the schedule dictated, they had their title examined by the lawyer they had first con- tacted. They then brought this class action against the State Bar and the County Bar n7 alleging that the opera- tion of the minimum -fee schedule, as applied to fees for legal services relating to residential real estate transac- tions, constitutes price fixing in violation of § I of the Sherman Act. Petitioners sought both injunctive relief and damages. n7 Two additional county bar associations were originally named as defendants but they agreed to a consent judgment under which they were directed to cancel their existing fee schedules, and were enjoined from adopting, publishing, or distributing any future schedules of minimum or suggested fees. Damage claims against these associations were then dismissed with prejudice. After a trial solely on the issue of liability the District Court held that the minimum -fee schedule violated the Sherman Act. n8 355 (***9j F Supp. 491 (ED W. (**2009] 1973). The [*7791 cour, viewed the fee - schedule system as a significant reason for petitioners' failure to obtain legal services for less than the minimum fee, and it rejected the County Bar's contention that as a "learned profession" the practice of law is exempt from the Sherman Act. n8 The court was satisfied that interstate commerce was sufficiently affected to sustain jurisdiction un- der the Sherman Act because a significant portion of the funds and insurance involved in the purchase of homes in Fairfax County comes from outside the State of Virginia. 355 F ,Supp 491. 497 (ED kl. 1973). Both respondents argued that their actions were also exempt from the Sherman Act as state action. Parker ;'. Broom. supra, The District Court agreed that the Virginia State Bar was exempt under that doctrine be- cause it is an administrative agency of the Virginia Supreme Court, and more important, because its 'mi- nor role to this matter... derived from the judicial and 'Icgislatise command of the 1 • 101 State and was not in- tended to operate or become effective without that com- mand.'" The County Bar, on the other hand, is a private organization and was under no compulsion to adopt the fee schedule recommended by the State Bar. Since the County Bar chose its own course of conduct the District Court held that the antitrust laws "remain in full force and effect as to it." The court enjoined the fee sched- ule, 15 US.C. § 26, and set the case down for trial to ascertain damages. 15 U.S.C. § 15. The Court of Appeals reversed as to liability. 497F. 2d / (CA4 1974). Despite its conclusion that it 'is abun- dantly clear from the record before us that the fee sched- ule and the enforcement mechanism supporting it act as a substantial restraint upon competition among attor- neys practicing in Fairfax County," id., at 13, the Court of Appeals held the State Bar immune under lbrker v. Brown. supra, and held the County Bar immune because the practice of law is not "trade or commerce" under the Sherman Act. There has long been judicial recognition of a limited exclusion of "learned professions" from the scope of the antitrust laws, the court said; that exclusion is based upon the special 1***I II form [*7801 of regu- lation imposed upon the professions by the States, and the incompatibility of certain competitive practices with such professional regulation. It concluded that the pro- mulgation of a minimum -fee schedule is one of 'those matters with respect to which an accord must be reached between the necessities of professional regulation and the dictates of the antitrust laws." The accord reached by that court was to hold the practice of law exempt from the antitrust laws. Alternatively, the Court of Appeals held that respon- dents' activities did not have sufficient effect on inter- state commerce to support Sherman Act jurisdiction. Petitioners had argued that the fee schedule restrained the business of financing and insuring home mortgages by inflating a component part of the total cost of housing, but the court concluded that a title examination is gener- ally a local service, and even where it is part of a trans- action which crosses state lines its effect on commerce is only "incidental," and does not justify federal regula- tion. We granted certiorari, 419 U.S. 963 (1974), and are thus confronted for the first tinie with the question of whether the Sherman Act applies to services [`**121 performed by attorneys in examining titles in connection 421 U.S. 773, *780, 95 S. Cf. 2004, **2009; 1975 U.S. LEXiS 13, ***12; 44 L. Ed, 2d 572 with financing the purchase of real estate. 11 Our inquiry can be divided into four steps: did re- spondents engage in price fixing'? If so, are their activ- ities in interstate commerce or do they affect interstate commerce? if so, are the activities exempt from the Sherman Act because they involve a "learned profes- sion?' If not, are the activities "state 1**20101 action" within the me:uting of Parker v. Broit n, 317 US. 341 (1943), and therefore exempt from the Sherman Act? [*781] A The County Bar argues that because the fee sched- uleis merely advisory, the schedule and its enforce- ment mechanism do not constitute price fixing. Its pur- pose, the argument continues, is only to provide legit- imate information to aid member lawyers in complying with Virginia professional regulations. Moreover, the County Bar contends that in practice the schedule has not had the effect of producing fired fees. The facts found by the trier belie these contentions, and nothing in the record suggests these Findings lack support. A purely advisory fee schedule issued to provide guidelines, or an exchange of price information without a showing of an [*** 131 actual restraint on trade, would present us with a different question, e.g., American Column Co. v. United States, 257 U.S. 377 (1921); Maple Flooring Assn. v. United States, 268 US, 563. 580 (1925). But see United States v. National Assn. of Real Estate Boards, 339 US. 435. 488-439, 495 (1950). The record here, however, reveals a situation quite different from what would occur under a purely advisory fee schedule. Here a fixed, rigid price floor arose from respondents' activities: every lawyer who responded to petitioners' inquiries adhered to the fee schedule, and no lawyer asked for additional informa- tion in order to set an individualized fee. The price in- formation disseminated did not concern past standards, cf. Cement Mfrs. Protective Assn. v. United States, 268 U.S. 588 (1925), but rather minimum fees to be charged in future transactions, and those minimum rates were increased over time. The fee schedule: was enforced through the prospect of professional discipline from the State Bar, and the desire of attorneys to comply with announced professional norms, see generally American Column Co., supra, at 411; 1*7821 the motivation to conform [***141 was reinforced by the assurance that other lawyers would not compete by underbidding. This is not merely a case of an agreement that may be inferred from an exchange of price information, United States v. Container Corp., 393 U.S. 333, 337 (1969), for here a naked agreement was clearly shown, and the effect on prices is plain, n9 Id., at 339 (Fortas, 1., concurring). Page 40 LEXSEE n9 The Court of Appeals accurately depicted the situation: "(fit is clear from the record that all or nearly all of the 1County Bari members charged fees equal to or exceeding the fees set forth in the schedule for title examinations and other services involving real estate." 497 F 2d 1. l 2 (CA4 1974), "'A significant reason for the inability of [peti- tioners) to obtain legal services... for less than the fee set forth in the Ntimmum Fee Schedule... was the operation of the minimum fee schedule system.'" Id., at 4. "it is abundantly clear from the record before us that the fee schedule and the enforcement mecha- nism supporting it act as a substantial restraint upon competition among attorneys practicing in Fairfax County." ld., at 13. [***151 4loreover, in terms of restraining competition and harming consumers like petitioners the price-fixing ac- tivities found here are unusually damaging. A title ex- amination is indispensable in the process of financing a real estate purchase, and since only an attorney licensed to practice in Virginia may legally examine a title, see n. 1, supra, consumers could not turn to alternative sources for the necessary service. All attorneys, of course, were practicing under the constraint of the fee schedule. See generally United States v. Container 1**20111 Corp., supra, at 337. The County Bar makes much of the fact that it is a voluntary organization; however, the ethical opinions issued by the State Bar provide that any lawyer, whether or not a member of his county bar association, 1*7831 may be disciplined for "habitually [charging] less than the suggested minimum fee schedule adopted by his local bar Association...." See supra, at 777-778, and n. 4. These factors coalesced to create a pricing system that consumers could not realistically escape. On this record respondents' activities constitute a classic illustration of price fixing. B The County Bar argues, as the Court 1 * * * 161 of Appeals held, that any effect on interstate commerce caused by the fee schedule's restraint on legal services was incidental and remote. in its view the legal ser- vices, which are performed wholly intrastate, are essen- tially local in nature and therefore a restraint with respect to them can never substantially affect interstate com- merce. Further, the County Bar maintains, there was no showine here that the fee schedule and its enforce- ment mechanism increased fees, and that even if they did Page 41 421 U.S. 773, *783; 95 S. Ct. 2004, **2011; LEXSEE" 1975 U.S. LEX1S 13, *** 16; 44 L.. Ed. 2d 572 there was no showing that such an increase deterred any prospective homeowner from buying in Fairfax County. These arguments misconceive the nature of the transac- tions at issue and the place legal services play in those transactions. As the District Court found, n10 "a sig- nificant portion of funds furnished for the purchasing of homes in Fairfax County comes from without the State of Virginia," and "significant amounts of loans on Fairfax County real estate are guaranteed by the United States Veterans Administration and Department of Housing and Urban Development, both headquartered in the District of Columbia." Thus in this class action the transac- tions which create the need for the particular (***171 legal [*784) services in question frequently are inter- state transactions. The necessary connection between the interstate transactions and the restraint of trade pro- vided by the minimum -fee schedule is present because, in a practical sense, n 1 1 title examinations are necessary in real estate transactions to assure a lien on a valid title of the borrower. In financing realty purchases lenders require, "as a condition of making the loan, that the ti- tle to the property involved be examined...." n12 Thus a title examination is an integral part of an interstate transaction n13 and this Court has long held that S [**20121 'there is an obvious distinction to be drawn between a course of conduct wholly within a state and conduct which is an inseparable element of a larger program dependent for its success upon activity which affects commerce between the states. "I [*7851 United States v. Fran forr Distilleries, 324 U.S. 293, 297 (1945). See United State: v. i'ellow Cab Co., 332 U.S. 218, 228-229 (1947). n10 The Court of Appeals did not disturb the District Court's findings of fact. It simply disagreed on the conclusions of law drawn therefrom. nI I It is in a practical sense that we must view an effect on interstate commerce, Swift & Co. v. United States, 196 U.S. 375, 398 (1905); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S. 219. 233 (1948). n12 355 F. Supp., at 494. n13 The County Bar relies on United States v. Yellow Cab Co., 332 U.S. 218 (1947), to support its argument that the "essentially local" legal services at issue here are beyond the Sherman Act. There we held, inter alia, that intrastate taxi trips that oc- curred at the start and finish of interstate rail travel were "too unrelated to interstate commerce to consti- tute a part thereof within the meaning of the Sherman Act." Id., at 230. -rhe ride to the railway station, we said, "Jarom the standpoints of time and con- tinuity... may be quite distinct and separate from the interstate journey." /if.. at 232. Here, on the contrary, the legal services are coincidental with in- terstate real estate transactions in terms of time, and, more important, in terms of continuity they are es- sential. Indeed, it would be more apt to compare the legal services here with a taxi trip between stations to change trains in the midst of an interstate journey. in Yellow Cab we held that such a trip was a part of the stream of commerce. Id., at 228-229. f ***181 Given the substantial volume of commerce in- volved, n 14 and the inseparability of this particular legal service from the interstate aspects of real estate transac- tions, we conclude that interstate commerce has been sufficiently affected. See Montague & Co. v Lowry, 193 U.S. 38, 45-46 (1904); United States v. 4Wmen's Sportswear Assn.. 336 U.S..160, 464-465 (1949). n 14 355 F. Stipp., at 497. The fact that there was no showing that home buy- ers were discouraged by the challenged activities does not mean that interstate commerce was not affected. Otherwise, the magnitude of the effect would control, and our cases have shown that, once an effect is shown, no specific magnitude need be proved. E.g., United States v. NfcKesson & Robbins, Inc., 351 U.S. 305. 310 (1956). ,Nor was it necessary for petitioners to prove that the fee schedule raised fees. Petitioners clearly proved that the: fee schedule fixed fees and thus "deprive[d] purchasers or consumers of the advantages which they derive from free 1***191 competition." Aper Hosiery Co. v. Leader, 310 U.S. 469. 501 (1940). See United States v. Socom'-1hcuunt Oil Co., 310 U.S. 150 (1940). Where, as a matter of law or practical necessity, legal services are an integral pan of an interstate transaction, a restraint on those services may substantially affect com- merce for Sherman Act purposes. Of course, there may be legal services that involve interstate commerce in other fashions, just as there may be legal services that [*7861 have no nexus with interstate commerce and thus are beyond the reach of the Sherman Act. C The County Bar argues that Congress never intended to include the learned professions within the terms "trade or commerce" in § I of the Sherman Act, n 15 and there- fore the sale of professional 1 **20131 services is exempt from the Act. No explicit exemption or legislative his- tory is provided to support this contention; rather, the L_ 421 U.S. 773, *786; 95 S. Ct. 2004, **2013; 1975 U.S. LEXIS 13, ***19; 4d L, Ed. 2d 572 existence of state regulation seem to be its primary ba- sis. Also, the County Bar maintains that competition is inconsistent with the practice of a profession because enhancing profit is not the goal of professional activ- ities; the goal is to provide services necessary to the community. (***201 n16 That, indeed, is the classic basis traditionally 1*7871 advanced to distinguish pro- fessions from trades, businesses, and other occupations, but it loses some of its force when used to support the fee control activities involved here. n15 The County Bar cites phrases in several cases that implied the practice of a learned profession is not "trade or commerce" under the antitrust laws. E.g., Federal Club v. National League, 259 U.S. 200, 209 (1922) ("a firm of lawyers sending out a member to argue a case... does not engage in... commerce because the lawyer... goes to another State"); FTC v. Raladam Co., 233 U.S. 643, 653 (1931) ("medical practitioners... follow a profes- sion and not a trade..."); Atlantic Gleaners & Dvers v. United States, 286 U.S. 42', 436 (1932); United States v. National Assn. of Real Estate Boards, 339 U.S. 485: 490 (1950). These citations are to passing references in cases concerned with other issues; and, more important, until the present case it is clear that we have not attempted to decide whether the prac- tice of a learned profession falls within § l of the Sherman Act. In National Assn. of Real Estate Boards, we specifically stated that the question was still open, 339 U.S., at 492. as we had done earlier in American ,kfedical Assn. v. United States, 317 U.S. 519, 528 (1943) . n16 The reason for adopting the fee schedule does not appear to have been wholly altruistic. The first sentence in respondent State Bar's 1962 Minimum Fee Schedule Report states: "'The lawyers have slowly, but surely, been committing economic sui- cide as a profession." Virginia State Bar, Minimum Fee Schedule Report 1962, p. 3, App. 20. ***21 In arguing that learned professions are not "trade or commerce" the County Bar seeks a total exclusion from antitrust regulation. Whether state regulation is active or dormant, real or theoretical, lawyers would be able to adopt anticompetitive practices with impunity. We cannot find support for the proposition that Congress intended any such sweeping exclusion. The nature of an occupation, standing alone, does not provide sanctu- ary from the Sherman Act, Associated Press v. United States, 326 U.S. /, 7 (1945), nor is the public-service Page 42 LEXSEE aspect of professional practice controlling in determin- ing whether § 1 includes professions. United States v. National Assn. cif Real Estate Boards, 339 U.S., at 4.39. Congress intended to strike as broadly as it could in § I of the Sherman Act, and to read into it so wide an exemption as that urged on us would be at odds with that purpose. The language of § 1 of the Sherman Act, of course, contains no exception. "Language more comprehensive is difficult to conceive." United States v. South -Eastern Undent•riters Assn.. 322 U.S. 533, 553 (1944). And our cases have repeatedly established that there is a heavy presumption against 1 ***221 implicit ex- emptions, United States v. Philadelphia National Bank, 374 U.S. 321, 350-351 (1963); California r: FPC, 369 U.S. 482. 485 (1962). indeed, our cases have specif- ically included the sale of services within § 1. E.g., American Medical Assn. v. United States, 317 U.S. 519 (1943); Radovich v. National Football League, 352 U.S. 445 (1957). Whatever else it may be, the examination of a land title is a service: the exchange of such a service for money is "commerce" 1*7881 in the most common usage of that word. It is no disparagement of the prac- tice of law as a profession to acknowledge that it has this business aspect, nil and § l of the Sherman Act S "(ojn its face... shows a carefully studied attempt to bring within j**20141 the Act every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states." United States v. South -Eastern Undenvriters Assn., supra, at 553.1 n 17 The fact that a restraint operates upon a profes- sion as distinguished from a business is, of course, relevant in determining whether that particular re- straint violates the Sherman Act. It would be unre- alistic to view the practice of professions as inter- changeable with other business activities, and auto- matically to apply to the professions antitrust con- cepts which originated in other areas. The public service aspect, and other features of the professions, may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently. We intimate no view on any other situation than the one with which we are confronted today. (***231 In the modern world it cannot be denied that the activ- ities of lawyers play an important part in commercial in- tercourse, and that anticompetitive activities by lawyers may exert a restraint on commerce. D In Parker v. Brown, 317 U.S. 341 (1943), the Court held that in anticompetitive marketing program which 421 U.S. 773, *788; 95 S. Ct. 2004, **2014; ^� 1975 U.S. LEXIS 13, '**23; 44 L. Ed. 2d 572 J "derived its authority and its efficacy from the legisla- tive command of the state" was not a violation of the Sherman Act because the Act was intended to regulate private practices and not to prohibit a State from impos- ing a restraint as an act of government. hi., of 350- 352; Olsen v. Smith, 195 US. 332, 344-345 (1904). Respondent State Bar and respondent County Bar both seek to avail themselves of this so-called state -action ex- emption. [*789) Through its legislature Virginia has au- thorized its highest court to regulate the practice of law. n18 That court has adopted ethical codes which deal in part with fees, and far from exercising state power to au- thorize binding price fixing, explicitly directed lawyers not "to be controlled" by fee schedules. n 19 The State Bar, [*790] a state agency by law, n20 argues that in is- suing fee schedule reports and [***2.3] ethical opinions dealing with fee schedules it was merely implementing the fee provisions of the ethical codes. The County Bar, although it is a voluntary association and not a [**2015] state agency, claims that the ethical codes and the activi- ties of the State Bar 'prompted' it to issue fee schedules and thus its actions, too, are state action for Sherman Act purposes. n18 Virginia Code Ann. § 54-18 (1972) pro- vides: "Rules and regulations defining practice of law and prescribing codes of ethics and disciplinary procedure. - The Supreme Court of Appeals may, from time to time, prescribe, adopt, promulgate and amend rules and regulations: '(a) Defining the practice of law "(b) Prescribing a code of ethics governing the professional conduct of attorneys at law and a code of judicial ethics. '(e) Prescribing procedure for disciplining, sus- pending, and disbarring attorneys at law." In addition, the Supreme Court of Virginia, has inherent power to regulate the practice of law in that State. Buttor, v. Day, 204 Wi. 547, 132 S.E. 2d 292 (1963). See Lithrop v. Donohue, 367 U.S. 820 (1961). n19 In 1938 the Supreme Court of Virginia adopted Rules for the Integration of the Virginia State Bar, and Rule 11, § 12 dealt with the proce- dure for setting fees. Among six factors that court directed to be considered in setting a fee were "the customary charges of the Bar for similar services." The court also directed that "[i[n determining the customary charges of the Bar for similar services, it is proper for a lawyer to con - Page 43 LEXSEE sider a schedule of minimum fees adopted by a Bar Association. but no lawyer should permit himself to be controlled thereby or to follow it as his sole guide in determining the atnount of his fee." Rules for Integration of the Virginia Slate Bar, 171 Va. xvii, xxiii. (Emphasis supplied.) In 1970 the Virginia Supreme Court amended the 1938 rules in part, and adopted the Code of Professional Responsibility, effective January 1, 1971. 211 1h. 295 (1970). Certain of its provi- sions also dealt with the fee -setting procedure. In EC 2-18 lawyers were told again that fees vary ac- cording [o many factors, but that "[s)uggested fee schedules and economic reports of state and local bar associations provide some guidance on the sub- ject of reasonable fees." 211 lh_ at 302. In DR 2-106 (B), which detailed eight factors that should be considered in avoiding an excessive fee, one of the factors was "[t]he fee customarily charged in the locality for similar legal services." DR 2-106(B)(3). 211 lit., at 313. n20 See supra, at 776 n. 2. [***251 The threshold inquiry in determining if an an- ticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the State acting as sovereign. Porker v. Brown, 317 US., at 350-352; Continental Co. v. Union Carbide, 370 U.S. 690. 706-707 (1962). Here we need not inquire further into the state -action question because it cannot fairly be said that the State of Virginia through its Supreme Court Rules required the anticom- petitive activities of either respondent. Respondents have pointed to no Virginia statute requiring their activ- ities; state law simply does not refer to fees, leaving reg- ulation of the profession to the Virginia Supreme Court; although the Supreme Court's ethical codes mention ad- visory fee schedules they do not direct either respondent to supply them, or require the type of price floor which arose from respondents' activities. 1*791) Although the State Bar apparently has been granted the power to is- sue ethical opinions, there is no indication in this record that the Virginia Supreme Court approves the opinions. Respondents' arguments, at most, constitute the con- tention that their activities 1'*'261 complemented the objective of the ethical codes. In our view that is not state action for Sherman Act purposes. It is not enough that, as the County Bar puts it, anticompetitive conduct is "prompted" by state action; rather, anticompetitive activities must be compelled by direction of the State acting as a sovereign. The tact that the State Bar is a state agency for some limited purposes does not create an antitrust shield that allows it to foster anticompeti- (- r ) 0 L .i Page 44 421 U.S. 773, *791; 95 S. Cf. 2004, **2015; LEXSEE 1975 U.S. LEXIS 13. `26; 44 L. Ed. 2d 572 tive practices for the benefit of its members, n21 Cf. Gibson v. Bern1hili, 411 U.S. 564, 578-579 (1973). The State Bar, by providing that 1*7921 deviation from County Bar minimum fees may lead to disciplinary ac- tion, has voluntarily joined in what is essentially a pri- vate anticompetitive activity, and in that posture cannot claim it is beyond the reach of the Sherman Act. n22 Porker v. Brown, supra, at 351-352. Its activities re- sulted in a rigid price floor from which petitioners, as consumers, (**20161 could not escape if they wished to borrow money to buy a home. n21 The District Court stated that the State Bar acted in only a 'minor role" as far as the price fixing was concerned, 355 F. Supp., at 496, and one mem- ber of the Court of Appeals panel was prepared to exonerate the State Bar because its participation was so minimal as to be insufficient to impose Sherman Act liability. 497 F. 2d, at 21 (Craven, J., concur- ring and dissenting). Of course, an alleged partici- pant in a restraint of trade may have so insubstantial a connection with the restraint that liability under the Sherman Act would not be found, see United States v. National Assn. of Real Estate Boards, 339 U.S., at 495; however, that is not the case here. The State Bar's fee schedule reports provided the impe- tus for the County Bar, on two occasions, to adopt minimum -fee schedules. More important, the State Bar's ethical opinions provided substantial reason for lawyers to comply with the minimum -fee schedules. Those opinions threatened professional discipline for habitual disregard of fee schedules, and thus attor- neys knew their livelihood was in jeopardy if they did so. Even without that threat the opinions would have constituted substantial reason to adhere to the sched- ules because attorneys could be expected to comply in order to assure that they did not discredit them- selves by departing from professional norms, and perhaps betraying their professional oaths. n22 The State Bar also contends that it is pro- tected by the Eleventh Amendment. See Edelman v.. Jordan. 415 U.S. 6.51 (1974). Petitioners dispute this contention, and the District Court had no occa- sion to reach it in view of its holding. Given the record before us we intimate no view on the issue, leavine it for the District Court on remand. ***2�1 Ill We recognize that the States have a compelling in- terest in the practice of professions within their bound- aries, and that as part of their power to protect the pub- lic health, safety, and other valid interests they have broad power to establish standards for licensing practi- tioners and regulating the practice of professions. We also recognize that in some instances the State may de- cide that "forms of competition usual in the business world may be demoralizing to the ethical standards of a profession." United States v. Oregon State Medical Societv, 343 U.S. 326, 336 (1952). See also Semler v Oregon State Board of Dental Eratniners, 294 U S. 608, 611-613 (1935). The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering jus- tice, and have historically been "officers of the courts." See Sperry v. Florida ev rel. Florida Bar, 373 U.S. 379, 383 (1963): Cohen v, Hurlev, 366 U.S. 117, 123-124 (1961); Law Students Research Council v, Vbdmond, 401 U.S. 154, 1*7931157 (1971). In holding that certain anticompetitive conduct by lawyers js within the reach (***281 of the Sherman Act we intend no diminution of the authority of the State to regulate its professions. The judgment of the Court of Appeals is reversed and the case is remanded to that court with orders to remand to the District Court for further proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE POWELL took no pan in the consid- eration or decision of this case. �9 t'�U L Page 3 1 428 U.S. 579 printed in FULL format. CANTOR, DBA SELDEN DRUGS CO. v. DETROIT EDISON CO. No. 75-122 SUPREME COURT OF THE UNITED STATES 428 U.S. 579; 96 S. Cf. 3110, 1976 U.S. LEXIS 4: 49 L. Ed. 2d 1141: 1976-1 Trade Cas. (CCH) P60,947; 15 P.U.RAth 401 Argued January 14, 1976 July 6, 1976 PRIOR HISTORY: CERTIORARI TO THE UNITED petitive, regulated, immunity, electric, sovereign, inter - STATES COURT OF APPEALS FOR THE SIXTH state, customer, plurality, light -bulb, electricity, raisin, CIRCUIT marketing, restrain, pre-empted, regulating, treble, in- tend, competitive, agricultural, repeal, exempt, unreg- ulated commerce, bulb, exemption, monopoly, tariff, anticom- SUMMARY: A Michigan druggist who sold electric light bulbs sued a Michigan electric utility for federal antitrust violations by virtue of the utility's lamp exchange program under which it supplied its residential customers with free light bulbs when their bulbs burned out. The United States District Court for the Eastem District of Michigan entered summary judgment for the utility on the ground that although its lamp exchange program predated state regulation of electric utilities, the %lichigan Public Service Commission had approved the utility's tariff including the omission of any separate charge for bulbs, and the tariff could not be changed without the Commission's approval, so that the lamp exchange program was exempt from antitrust liability (392 FSupp 1110). The United States Court of Appeals for the Sixth Circuit affirmed without opinion (513 F2d 630). On certiorari, the United States Supreme Court reversed and remanded. In an opinion by Stevens, J., expressing the views of five members of the coup, it was held (in Pans I and III of the opinion) that neither the approval of the tariff nor the fact that it could not be terminated without Commission approval implied an antitrust exemption. Stevens, J., joined by Brennan, White and Marshall, JJ., also expressed the view (in Parts II and IV of the opinion) that the case was not controlled by Parker v Brown, 317 US 341, 87 L Ed 315, 63 S Cr 307, and that the extent of any state action exemption from the antitrust laws should be decided by case -by -case adjudication of specific controversies. Burger, Ch. J., concurred in the judgment and in all except Parts 11 and IV of the opinion, as to which he declared that Parker v Brown, supra, cannot be limited to suits against state officials. Blackmun, J., concurred in the judgment on the grounds that inconsistent state laws are pre-empted by the Sherman Act, and that state -sanctioned anti -competitive activity must fall if its potential harms outweigh its benefits. Stewart, J., joined by Powell and Rehnquist, 1J., dissented on the :round that the utility's compliance with the tariff is immune from antitrust liability. LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition: <=5> APPEAL AND ERROR §1408 summary judgment Headnote: < = 6 > ( I ] On certiorari to review the affirmance of summary judgment for the defendant, the United States Supreme Court will Page 4 428 U.S. 579, 96 S. Ct. 3110, LEXSEE 1976 U.S. LEXIS 4, ***; 49 L. Ed. 2d 1141 resolve doubts in favor of the plaintiff to the extent that the facts are disputed. < =7> RESTRAINTS OF TRADE AND MONOPOLIES §9 state action -- Headnote: < = 8 > [21 State authorization, approval, encouragement or participation in restrictive private conduct confers no antitrust immunity. < =9 > RESTRAINTS OF TRADE AND MONOPOLIES § I I utilities -- Headnote: < = 10 > [3A] < = I I > (313] The federal antitrust laws are applicable to electrical utilities. < = 12 > RESTRAINTS OF TRADE AND MONOPOLIES §9 state regulation -- effect Headnote: < = 13 > [41 The mere possibility of conflict between state regulatory policy and federal antitrust policy is an insufficient basis for implying an exemption from the federal antitrust laws. < = 14 > RESTRAINTS OF TRADE AND MONOPOLIES §9 state regulation -- effect -- Headnote: < = 15 > [51 Assuming that there are situations in which the existence of state regulation should give rise to an implied exemption from the federal antitrust laws, the standards for ascertaining the existence and scope of such an exemption must be at least as severe as those applied to federal regulatory legislation. < = 16 > RESTRAINTS OF TRADE AND MONOPOLIES §20 regulated industries -- Headnote: < = 1.7 > 16A1 < = 18 > [6131 The relevant aspect of the agency's jurisdiction must be sufficiently central to the purposes of the enabling statute so that implied repeal of the antitrust laws is necessary to make the regulatory scheme work before the antitrust laws will be deemed impliedly repealed. < = 19 > RESTRAINTS OF TRADE AND MONOPOLIES §7 immunity -- Headnote: < = 20 > [7A] < = 21 > [7131 Implied antitrust immunity is not favored, and can be justified only by a convincing showing of clear repugnancy between the antitrust laws and the regulatory system. < =22 > STATUTES §229 implied repeals -- Page 5 428 U.S. 579, *; 96 S. Ct. 3110, *; LEXSEE 1976 U.S. LEX1S 4, ***; 49 L. Ed. 2d 1141 Headnote: < =23> [8A] < =24 > [8131 The cardinal rule, applicable to legislation generally, is that repeals by implication are not favored. <=25> RESTRAINTS OF TRADE AND MONOPOLIES §44 electric utility -- Headnote: < =26> 191 Neither a state's approval of an electric utility's tariff embodying no separate charge for light bulbs nor the fact that the program may not be terminated until a new tariff is filed is a sufficient basis for implying an exemption from the federal antitrust laws for that program. <=27> RESTRAINTS OF TRADE AND MONOPOLIES §9 exemptions -- Headnote: <=28> [10A] <=29> [1081 The absence of an exemption from the antitrust laws does not mean that those taws have been violated. SYLLABUS: [***I Respondent, a private utility that is tote sole supplier of electricity in southeastern Nfichigan, also furnishes its residential customers, without additional charge, with almost 50% of the most frequently used standard -size light bulbs under a longstanding practice antedating state regulation of electric utilities. This marketing practice for light bulbs is approved, as part of respondent's rate structure, by the Michiean Public Serlice Commission, and may not be changed unless and until respondent tiles, and the Commission approves, a new tariff. Petitioner, a retail druggist selling light bulbs, brought an ac- tion against respondent, claiming that it was using its monopoly power in the distribution of electricity to re- strain competition in the sale of light bulbs in viola- tion of the Sherman Act. The District Court entered a summary judgment against petitioner, holding on the authority of Porker v. Brown, 317 U.S. 341, that the Commission's approval of respondent's light -bulb mar- keting practices exempted the practices from the federal antitrust laws, and the Court of Appeals affirmed. Held: Neither :Michigan's approva! of respondent's present tar- iff nor the fact that the light -bulb-exchange (***21 pro- gram may not be terminated until a ne-w tariff is filed, is sufficient basis for implying :in exemption from the federal antitrust laws for that program. Pp. 592-598. (a) The State's participation in the decision to have a light -bulb exchange program is not so dominant that it is unfair to hold a private party responsible for its conduct in implementing the decision, but rather the respondent's participation in the decision is sufficiently significant to require that its conduct, like comparable conduct by un- regulated businesses, conform to applicable federal law. Pp. 592-595. (b) Michigan's regulation of respondent's distribution of electricity poses no necessary conflict with a federal requirement that respondent's activities in competitive markets satisfy antitrust standards. Merely because cer- tain conduct may, be subject to state regulation and to the federal antitrust laws does not necessarily mean that it must satisfy inconsistent standards, but, even assum- ing inconsistency, this would not mean that the federal interest must inevitably be subordinated to the State's; moreover, ever, assuming that Congress did not intend the antitrust laws to apply to areas of the economy [***31 primarily regulated by a State, the enforcement of the antitrust laws would not be foreclosed in an essentially unregulated area such as the electric light -bulb market. Pp. 595-598. 513 F. 2d 630, reversed and remanded. STEVENS, J.. delivered the opinion of the Court, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, and in which (except as to Parts 11 and IV) BURGER, C.1., joined. BURGER, C.J., filed an opin- ion concurring in the judgment, and concurring in part, post, p. 603. BLAC'K`IUN, J., tiled an opinion con- curring in the judgment, post, p. 605. STEWART. J., tiled it dissenting opinion, in which POWELL and REHNQUIST. JJ., joined. post. p. 614. COUNSEL: Burton I. Weinstein argued the cause for petitioner. With him on the briefs were Robert A. Holstein. Michael L. Sklar. and David L. Nelson. George D. Revcraft argued the cause for respondent. With him on the brief were Donald I. Baker, Leon S. Cohan. and Dean J. Landau. Solicitor General Bork argued the cause for the United 428 U.S. 579, *; 96 S. Ct. 3110, **; 1976 U.S. LEXiS 4, ***3; 49 L. Ed. 2d 1141 States as amicus curiae urging reversal. With him on [***4] the brief were Assistant Attorney General Kauper, Barry Grossman, and Carl D. Lawson. Howard J. Triener,s argued the cause for Michigan Bell Telephone Co. et al. as arnici curiae urging. affirmance. With him on the brief were Theodore N. Miller and C. John Buresh. * I Sumner J. Katz tiled a brief for the National Association of Regulatory Utility Commissioners as amicus curiae urging affirmance. IUDGES: Burger, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist, Stevens. OPINIONBY: STEVENS OPINION: [*5811 [**31131 MR. JUSTICE STEVENS delivered the opinion of the Court. n+ n+ Parts 11 and IV of this opinion are joined only by MR. JUSTICE BRENNAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL. in Parker v. Brown, 317 U.S. 341, the Court held that the Sherman Act was not violated by state action dis- placing competition in the marketing of raisins. In this case we must decide whether the Parker rationale im- munizes private action which has been approved [***51 by a State and which must be continued while (lie state approval remains effective. The Michigan Public Service Commission pervasively regulates the distribution of electricity within the State and also has given its approval to a marketing prac- tice which has a substantial impact on the otherwise un- regulated business of distributing electric light bulbs. Assuming, arguendo, that the approved practice has un- reasonably restrained trade in the light -bulb market, the District Court nl and the Court of Appeals n2 held, on the authority of Parker, that the Commission's ap- proval exempted the practice from the federal antitrust laws. Because we questioned the applicability of Parker to this situation, we granted certiorari, 423 U.S. 821. We now reverse. nl 392 F. Stipp. 1110 (ED Mich. 1974). n2 513 F. 2d 630 (CA6 1975). Page 6 LEXSEE Petitioner, a retail druggist selling light bulbs, claims that respondent is using its monopoly power in the dis- tribution of electricity to restrain competition in the sale of bulbs in violation 1 ***61 of the Sherman Act. n3 Discovery 1*5821 and argument in connection with de- fendant's motion for summary judgment were limited by stipulation to (lie issue raised by the Commission's approval of respondent's light -bulb -exchange program. We state only the facts pertinent to that issue and assume, without opining, that without such approval an antitrust violation would exist. To (he extent that the facts are dis- puted, we must resolve doubts in favor of the petitioner since surnmary judgment was entered against him. We first describe respondent's "lamp exchange program," we next discuss the holding in Parker v. Brown, and then we consider whether that holding should be ex- tended to cover this case. Finally, we comment briefly on additional authorities on which respondent relies. n3 Petitioner's complaint asserts that respondent's light -bulb -exchange program violates 3 2 of the Sherman Act, 15 U.S.C. § 2, and § 3 of the Clayton Act, 15 U.S.C. J 14. In his brief in this Court, petitioner has also argued that the program consti- tutes unlawful tying violative of § 1 of the Sherman Act. The complaint seeks treble damages and an injunction permanently enjoining respondent from requiring the purchase of bulbs in connection with the sale of electrical energy. The complaint purports to be filed on behalf of all persons similarly situated, but the record contains no indication that the plain- tiff moved fora class determination pursuant to Fed. Rule Civ. Proc. 23 (cf. ...7 Respondent, the Detroit Edison Co.. distributes elec- tricity and electric light bulbs to about five million people in southeastern Michigan. In this marketing area. respondent is the sole supplier of electricity, and supplies consumers with almost 50'T of the [**311.31 standard -sire ligh( bulbs they use most frequently. n4 Customers are billed for the electricity they consume, but pay no separate charge for light bulbs. Respondent's rates, including the omission of any separate charge for bulbs. have been approved by the Michigan Public Service Commission, and may not be changed without the Commission's approval. Respondent must, there- fore, continue 1115831 its lamp -exchange program until it tiles a new tariff and that new tariff' is approved by the Commission. L t i Page 7 428 U.S. 579, *583; 96 S. Ct. 3110. **3114: LEXSEE 1976 U.S. LEXIS 4, ***7: 49 L. Ed. 2d 1141 n8 Of this amount, 5 2.363,328 was paid to the n4 Respondent does not distribute fluorescent three principal manufacturers of bulbs from whom lights or high -intensity discharge lamps; if bulbs of respondent made Il5 purchases: the ether S 17f,672 those types were included, respondent's share of the represented costs incurred to the use of respondent's market would only be abut 23`C. personnel and factlties m cam mg out the program. - n9 according to respondent the effect of the pro - Respondent, or a predecessor, has been following gram Is to save consumers about $3 million a year. the practice of providing (" 81 Itrttited amounts of since the bulbs they nary receive at a cost of S light bulbs to its customers without additional charge . ,835.000 would cost them about 5 6 million in the since 1886. n5 In 1909 the State of Michigan be- retail market. gan regulation of electric utilities, n6 In 1916 the [***101 Michigan Public Service Commission first approved a tariff filed by respondent setting forth the lamp -supply The distribution of electricity in Michigan is per - program. Thereafter, the Commission's approval of re- vasively regulated by the Michiean Public Service spondent's tariffs has in_luded implicit approval of the Commission. AMichigan statute n10 vests the lamp -exchange program. In 1964 the Commission also Commission with "complete power and jurisdiction to approved respondent's decision to eliminate the program regulate all public utilities in the state...." The statute for large commercial customers. n7 The elimination of confers express power on the Commission "to regulate the service for such customers became effective its part all rates, fares, fees, charges, services, rules, conditions of a general rate reduction for those customers. of service, and all other matters pertaining to the for - oration, operation, or direction of such public utilities." n5 Under respondent's practice, new residential Respondent advises us that the heart of the Commission's "'furnishing... customers are provided with bulbs in "such quart function is to regulate the [on electricity Cities as may be needed" for ail of their permanent for the production of light, heat or power....'" nl 1 fixtures; thereafter, respondent replaces residential customers' burned out Ge__ht bulbs in proportion to n10 Mich. Comp. Laws § 460.6 (1970). r ftheir estimated use of electricity for lighting. The f nl l See Brief for Res ondent ! l; Mich. Coin p p' customer incurs no direct charge for such bulbs at the f Laws § 460.501 (1970). time they are furnished to him, but normally turns in any burned -out bulbs to obtain a new supply. n6 See Mich, Comp. Laws §§ 460.551, 460.559 The distribution of electric light bulbs in Michigan (1970). is unregulated. The statute creating the Commission n7 Apparently many commercial customers use contains no direct reference to light bulbs. Nor, as relatively large quantities of fluorescent lighting and far as we have been advised, does any other Michigan therefore have less interest in the bulb -exchange pro- [**31151 statute authorize the regulation of that busi- gram. ness. [***III Neither the Michigan Legislature, nor the Commission, has ever made any specific investiga- [***9] lion of the desirability of a lamp-e.echang_e program or of In 1972 respondent provided its residential customers its possible effect on competition in the light -bulb mar - with 18,56.3,381 bulbs at a cost of $2,835,000. n8 In its get. Other utilities regulated by the Michigan Public accounting to the Michigar� Public Service Commission, accounting Service Co nut follow the practice of pro pro- respondent included this amount as a portion of its cost viding bulbs to their costumers at no 1*5851 additional of providing service to its customers. Respondent's ac charge. The Con unission's approval of respondent's de- counting records reflect no direct prom as a result of cision to maintain such a program does not, therefore, the [*5841 distribution of bulbs. The purpose of the implement any statewide policy relating to light bulbs. program, according to respondent's executives, is to in- We infer that the State's policy is neutral on the ques- crease the consumption of electricity. The effect of the tion whether a utility should, or should not. have such program, according to petitioner, is to foreclose coin- a program. petition in a substantial segment of the light -bulb mar- Although there is na statute. Commission rule, or pol- ket.0 icy which would prevent respondent from abandoning the program merely by tiling a new tariff providing for 1-. 4) 428 U.S. 579, *585; 96 S. Cl. 3110, **3115; 1976 U.S. LEXIS 4, ***11; 49 L. Ed. 2d 1141 a proper adjustment in its rates, it is nevertheless ap- parent that while the existing tariff remains in effect, respondent may not abandon the program without vi- olating a Commission order, and therefore without vi- olating state law. it has, therefore, been permitted by the Commission to carry out the program, and also is required to continue to do so until an appropriate filing f ***121 has been made and has received the approval of the Commission. Petitioner has not named any public official as a party to this litigation and has made no claim that any repre- sentative of the State of Michigan has acted unlawfully. II In Parker v. Brown the Court considered whether the Sherman Act applied to state action. The way the Sherman Act question was presented and argued in that case sheds significant light on the character of the state - action concept embraced by the Parker holding. The plaintiff, Brown, was a producer and packer of raisins; the defendants were the California Director of Agriculture and other public officials charged by California statute with responsibility for administer- ing a program for the marketing of the 1940 crop of raisins. The express purpose of the program was to restrict competition among the growers and maintain prices in the distribution (15861 of raisins to packers. n12 Nevertheless, in the District Court, Brown did not argue that the defendants had violated the Sherman Act. He sought an injunction against the enforcement of the program on the theory that it interfered with his constitutional right to engage in interstate com- merce. (*** 131 Because he was attacking the consti- tutionality of a California statute and regulations having statewide applicability, a three -judge District Court was convened.nl3 With one judge dissenting, the District Court held that the program violated the Commerce Clause and granted injunctive relief, n14 n12 'The California Agricultural Prorate Act au- thorizes the establishment, throusih action of state officials, of programs for the marketing of agricul- tural commodities produced in the state, so as to restrict competition among the growers and main- tain prices in the distribution of their commodities to packers. The declared purpose of the Act is to 'conserve the agricultural wealth of the State' and to 'prevent economic waste in the marketing of agricul- tural products' of the state." .317 U.S., air 346. "The declared objective of the California Act is to prevent excessive supplies of agricultural corn - rage 8 LEXSEE modities from 'adversely affecting' the market, and although the statute speaks in terms of 'economic sta- bility' and 'agricultural waste' rather than of price, the evident purpose and effect of the regulation is to 'conserve agricultural �kealth of the state' by rais- ing and maintaining prices. but 'without permitting unreasonable profits to producers.' § 10." Id., at 355. n 13 Title 28 U.S. C. § 2281 has been consistently read by this Court as authorizing a three -judge court only when the state statute which is sought to be enjoined is of a general and statewide application. Moody v Flowers, 387 U.S. 97, 101. n 14 Article 1, § 8, cl. 3, of the United States Constitution provides: "Congress shall have Power... To regulate Commerce with foreign Nations, and among the sev- eral States, and with the Indian Tribes...." ***141 The defendant state officials took a direct appeal to this Court. Probable jurisdiction [**31161 was noted on April 6, 1942, and the Court heard oral argument on the Commerce [*5871 Clause issue on May 5, 1942. In the meantime, on April 27, 1942, the Court held that the State of Georgia is a "person" within tile meaning of § 7 of the Sherman Act and therefore entitled to maintain an action for treble damages. Georgia v. Evans, 316 U.S. 159. Presumably because the Court was then concerned with the relationship between the sovereign States and the antitrust laws, it immediatefv set Parker v. Brown for reareuntent n15 andon its own motion, requested the Soli�itor General of Ihe (.`nited States to file a brief as amicus curiae and directed the parties to discuss the question whether the California statute was rendered in- valid by the Sherman Act. nl6 n I5 The Court also asked the parties to con- sider whether the Agricultural Adjustment Act, as amended, or any other Act of Congress, invalidated ilia California program. The supplemental briefs noted that the California program had been adopted with the collaboration of officials of tite United States Department of Agriculture, and had been aided by loans from the Commodity Credit Corporation rec- ommended by the Secretary of Agriculture. These facts were emphasized in portions of '%4r. Chief Justice Stotte's opinion discussing the Agricultural Adjustment Act and the Commerce Clause, see 317 P ell 41) 0 Q. 0 4 0 428 U.S. 579, *587; 96 S. Ct. 3110, **3116; 1976 U.S. LEXIS 4, ***14; 49 L. Ed. 2d 1141 U.S., a! 357, 358-359, 368, but were not men- tioned in connection with the Cotlrt'S discussion of the Shennan Act. n16 The first order entered in the Supreme Court Journal on Monday, %lay 11, 1942, provided: "No. 1040. W.B. Parker, Director of Agriculture, et al., appellants, v. Porter L. Brown. This cause is restored to Elie docket for reargurnent on October 12 next. In their briefs and on the oral argument counsel for the parties are requested to discuss the questions whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Act, the Agricultural Adjustment Act as amended, or any other Act of Congress. The Solicitor General is requested to file a brief as amicus curiae and, if he so desires, to participate in the oral argument." Journal, O. T. 1941, p. 252. Page 9 LEXSEE in his supplemental brief the Attorney General of 1*5881 California n17 advanced three arguments against using tite Sherman Act as a basis for upholding the in- junction entered by the District Court. He contended (1) that even though a State is a "person" entitled to main- tain a treble damage action as a pl;untitf, Congres, never intended to subject a sovereign State to the provisions of the Sherman Act; (2) that the California program did not, in an,, event, violate the tederal statute; and t3) that since no evidence or argument pertaining to the Sherman Act had been offered or considered in the District Court, the injunction should not be sustained on an antitrust the- ory. n18 n17 The Honorable Earl Warren, later Chief Justice of the United States. n18 In the index to his supplemental brief, the California Attorney General outlined his discussion of the Sherman Act in these words: "The Sherman Anti -Trust law and the California raisin pro- gram 35 "1. is a state subject to the Sherman Act? 35 112, Does the state seasonal program for raisins violate the. provisions of the Sherman Act? 48 "(a) The Sherman Act is circumscribed by the rule of reason 53 "(b) Federal legislation as exempting state program from anti-trust laws. 60 113. May the California raisin program be enjoined in the present action? 64" ***16 In his brief for the United States as amicus curiae, the Solicitor General did not take issue with the appel- lants' first argument. He contended that the Califomia program was inconsistent with the policy of the Sherman Act, but expressly disclaimed any argument that the State of California or its officials had violated federal law. n 19 [**3117] Later in his brief the Solicitor General drew an [*5891 important distinction between economic ac- tion taken by the State itself and private action taken pursuant to a state statute permitting or requiring indi- viduals to engage in conduct prohibited by the Sherman Act. The Solicitor General contended that the private conduct would clearly be illegal but recognized that a different problem existed with respect to the State itself. n20 It was the latter problem that was presented in the Parker case. n19 Al p. 59 of its brief, the Government stated: "The Sherman Act does not in terms define its scope in so far as it applies to the activities of state governments. But nothing in the Act precludes its application to programs sponsored by the states. Sections I and 2 prohibit unlawful conduct by 'per- sons,' and the word 'person,' as defined in Section 7, in some connections at least, may include a state. Georgia r. Events, 316 U.S. 159. "But the question we face here is not whether �1� t 428 U.S. 579, *589, 96 S. Ct. 3110. **3117; 1976 U.S. LEX1S 4, ***16; 49 L. Ed. 2d 1141 California or its officials have violated the Sherman Act, but whether the state program interferes with the accomplishment of the objectives of the federal statute." n20 At p. 63 of its brief, the Go%crnrnent stated "A state statute permitting, or requiring, dealers in a commodity to combine so as to limit the supply or raise the price of a subject of interstate commerce would clearly be void. The question here is whether a state may itself undertake to control the supply and price of a commodity shipped in interstate commerce or otherwise restrain interstate competition through a mandatory regulation. 1***171 This Court set aside the injunction entered by the District Court. In the portion ofhis opinion for the Court discussing the Sherman Act issue, Mr. Chief Justice Stone addressed only the first of the three arguments ad- vanced by the California Attorney General. The Court held that even though comparable programs organized by private persons would be illegal, the action taken by state officials pursuant to express legislative command did not violate the Sherman Act. n21 n21 "But it is plain that the prorate program here was never intended to operate by force of individual agreement or combination. It derived its author- ity and its efficacy from the legislative command of the state and was not intended to operate or become effective without that command. We find nothing in the language of the Sherman Act or in its his- tory which suggests that its purpose was to restrain a state or its officers or agents from activities di- rected by its legislature. In a dual system of gov- ernment in which, under the Constitution, the states are sovereign, save only as Congress may constitu- tionally subtract frorn their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress. "The Sherman Act makes no mention of the state as such, and gives no hint that it was intended to restrain state action or official action directed by a state. "There is no suggestion of a purpose to restrain state action in the Act's legislative history. "the spon- sor of the bill which was ultimately enacted as the Sherman Act declared that it prevented only 'busi- ness combinations.' 21 Cong. Rec. 2562, 2457; Page 10 LEXSEE see also lid.1 at 2459. 2461. That its purpose was to suppress combinations to restrain competition and attempts to monopolize by individuals and corpora- tions, abundantly appears from its legislative history. "The state in adopting and enforcing the prorate program made no contract or agreement and entered into no conspiracy in restraint of trade or to establish monopoly but, as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit. Olsen v. Smith, 195 U.S. 332, 344-13145, cf. Lowenstein v. Evans, 69 F. 908, 910. " 317 U.S., at 350-352. ***18 1*5901 This narrow holding made it unnecessary for the Court to agree or to disagree with the Solicitor General's view that a state statute permitting or requiring private conduct prohibited by federal law "would clearly be void." n22 The Court's narrow holding also avoided any question about the applicability of the antitrust laws to private action taken under color of state law. n22 See n. 15, supra. Unquestionably the term "state action" may be used broadly to encompass individual action supported to some extent by state law or custom. Such a broad use of the term, which is familiar in civil rights litigation, n23 is not, 1*5911 however, what ,Mr. Chief Justice Stone de- scribed in his Parker opinion. He carefully selected lan- guage which plainly 1**31181 limited the Court's hold- ing to official action taken by state officials. n24 n23 See Monroe v. Pape, 365 U.S. 167 172-187; Adickes v. Kress & Co.. 398 U.S. 144. 188-234 (BRENNAN, J.. concurring in part and dissenting in part). n24 In his three -page discussion of the Sherman Act issue in Parker v. Brown, Mr. Chief Justice Stone made 13 references to the fact that state action was involved. Each time his Imtguage was carefully chosen to apply only to official action, as opposed to private action approved, supported. or even directed by the State. Titus, his references were to i, l ) "the legislative command of the state," and (2) "a state or its officers or agents from activities directed by its legislature," 317 U.S., tit 350; and to (3) "a state's control over its officers and agents," (4) "the state as such," (5) "state action or ofticial action directed a) J M ti F v V 428 U.S. 579, *591; 96 S. Ct. 3110. **3118. 1976 U.S. LEXIS 4, *i*18; 49 L. Ed. 2d 1141 by a state," and (6) 'state action," id., at 351; and to (7) "the state command to the Commission and to the program committee," (8) "state action," (9) the state which has created the machinery for es- tablishing the prorate progam," t 10) "it is the state, acting through the Commission, which adopts the program...," (1 t) "[tlhe state itself exercises its leg- islative authority," (121 "[t;he state in adopting and enforcing the prorate program...," and tinally (13) as sovereign, imposed the restraint as an act of gov- ernment...," id., at 352. The cumulative effect of these carefully drafted references unequivocally differentiates between of- ficial action, on the one hand, and individual action (even when commanded by the State), on the other hand. In this case, unlike Parker, the only defendant is a pri- vate utility. No public officials or agencies are named as parties and there is no claim that any state action vio- lated the antitrust laws. Conversely, in Parker there was no claim that any private citizen or company had vio- lated the law. The only Sherman Act issue decided was whether the sovereign State itself, which had been held to be a person within the meaning of § 7 of the statute, was also subject to its prohibitions. Since the case now before us does not call into question the legality of any [*5921 act of the State of Michigan or any of its officials or agents, it is not controlled by the Parker decision. IiI In this case we are asked to hold that private conduct required by state law is exempt from the Sherman Act. Two quite different reasons might support such a rule. First, if a private citizen has done nothing more than obey the command of his state sovereign, it would be unjust to conclude that fie has thereby offended federal law. Second, if the State is already regulating an area of the economy, it is arguable that Congress did not intend to superimpose the antitrust laws as an additional, and perhaps [***20] contlictin;, regulatory mechanism. We consider these two reasons separately. We may assume, arguendo, that it would be unacceptable ever to impose statutory liability on a pang who had done nothing more than obey a state command. Such an assumption would not decide this case, if, indeed, it would decide any actual case. For typically cases of this kind involve a blend of private and public decisionmaking. n25 The Court has already decided that state authorization, n26 approval, n27 encouragement, n28 or [*593) participa- tion n29 in restrictive private [1*3119[ conduct confers no antitrust immunity. And in Schwegnnann Bros. v. Page I I LEXSEE Calvert Corp., 341 U.S. 384. the Court invalidated the plaintiff's entire resale price maintenance program even thoueh it was effective throughout the State only be. cause the Louisiana statute imposed a direct restraint on retailers who had not ,tgned fair trade azreements.n30 n25 Indeed, in Parker y. Brown itself, there was significant private participation in the formulation and effectuation of the proration program. As the Court pointed out, approval of the program upon ref- erendum by a prescribed number of producers was one of the conditions for effectuating the program. See ibid. n26 "it cannot be said that any State may give a cor- poration, created under its laws, authority to restrain interestate or international commerce against the will of the nation as lawfully expressed by Congress." Northern Securities Co. v. United Stares, 193 U.S. 1917, 3.16. n27 In the Parker opinion itself, the Court pointed out that a State does not give immunity to those who violate the Sherman Act "by declaring that their ac- tion is lawful." 317 U.S., at 351. n28 "Respondents' arguments, at most, constitute the contention that their activities complemented the objecu�e of the ethical codes. In our view that is not state action for Sherman .act purposes. it is not enough that. as the County Bar puts it, anticompet- itive conduct is 'prompted' by state action; rather, anticompetitive activities must be compelled by di- rection of the State acting as a sovereign," Goldfarb v. Virginia State Bar. 421 US. 773, 791. n29 See Continental Co. v. Union Carbide, 370 U.S. 690; cf. also Union Pacific R. Co. v. United States. 313 L'.S. 450, cited in Parker v Brown, supra, at 352. nit) Thus, although the private decision to enforce a statewide fair trade program was not only approved by the State, but actually would ha%e been ineffec- tive without the statutory command to nonsigners to adhere to the prices set by the plaintiff, the rationale of Parker v. Brown did not immunize the restraint. Quin the: contrary, in his opinion for the Court Mr. Justice Douglas cited Parker for the proposition that private conduct was forbidden by the Sherman Act even though the State had compelled retailers to fol- low a parallel price policy. He said: "Therefore, w hen a state compels retailers it) follow a parallel price policy, it demands proate conduct which the Sherman Act forbids. See Parker v. Brown, 317 a 428 U.S. 579, *593, 96 S, Ct. 3110, **3119; 1976 U.S. LEXiS 4, ***20; 49 L. Ed. 2d 1 141 U.S. 341, 350. " 341 US., at 339. [***211 in each of these cases the initiation and enforcement of the program under attack involved a mixture of private and public decisionmaking. In each case, notwithstand- ing the state participation in the decision, the private pan, exercised sufficient freedom of choice to enable the Court to conclude that he should be held responsible for the consequences of his decision. The case before us also discloses a program which is the product of a decision in which both the respondent and the [*594] Commission participated. Respondent could not maintain the lamp -exchange program with- out the approval of the Commission, and now may not abandon it without such approval. Nevertheless, there can be no doubt that the option to have, or not to have, such a program is primarily respondent's, not the Commission's. n31 Indeed, respondent initiated the program years before the regulamry agency was even created. There is nothing unjust in a conclusion that respondent's participation in the decision is suffi- ciently significant to require that its conduct implement- ing the decision, like comparable conduct by unregu- lated businesses, conform to applicable federal law. n32 Accordingly, even though f ***221 there may be cases in which the State's participation in a decision is so dom- inant [*5951 that it would be unfair to hold a private party responsible for his conduct in implementing it, this record discloses no such unfairness. n31 We recently described an analogous exercise of a public utility's power to make business deci- sions subject to Commission approval in Jackson v. Metropolitan Edison Co., 419 U.S. 345: "The nature of governmental regulation of private utilities is such that a utility may frequently be re- quired by the state regulatory scheme to obtain ap- proval for practices a business regulated in less detail would be free to institute without any approval from a regulatory body. Approval by a state utility com- mission of such a request from a regulated utility, where the Commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the Commission into 'state action.' At most, the Commission's failure to overturn this practice amounted to no more than a determination that a Pennsylvania utility was auihorized to employ such a practice if it so desired. Respondent's ex- ercise of the choice allowed by state law where the Page 12 LEXSEE initiative comes from it and not from the State, does not make its action in doing so 'state action' for pur- poses of the Fourteenth Amendment." Id.. at 357. ( Footnote omitted. ) n32 `or is such a conclusion even arguably in- consistent with the underlying rationale of Parker v. Drown. For in that case California required every raisin producer in the State to comply with the prora- tion program, whereas Michigan has never required anv utility to adopt a lamp -exchange program. ***731 Apart from the question of fairness to the individual who must conform not only to state regulation but to the federal antitrust laws as well, we must consider whether Congress intended to superimpose antitrust standards on conduct already being regulated under a different stan- dard. Amici curiae forcefully contend that the compet- itive standard imposed by antitrust legislation [**31201 is fundamentally inconsistent with the "public interest" standard widely enforced by regulator• agencies, and that the essential teaching of Parker v. Brown is that the federal antitrust laws should not be applied in areas of the economy pervasively regulated by state agencies. There are at least three reasons why this argument is unacceptable. First, merely because certain conduct may be subject both to state regulation and to the fed- eral antitrust laws does not necessarily mean that it must satisfy inconsistent standards; second, even assuming in- consistency, we could not accept the view that the federal interest must inevitably be subordinated to the States; and finally, even if we were to assume that Congress did not intend the antitrust laws to apply to areas of the economy primarily regulated by a j' 241 State, that assumption would not foreclose the enforcement of the antitrust laws in an essentially unregulated area such as the market for electric light bulbs. Unquestionably there are examples of econonllc re,:ulatiun in which the very purpose of the government control is to avoid the conse- quences of unrestrained competition. AerlcUltural mar- keting programs. such as that in%ol%ed in Parker, were of that character. But all economic regulation does not nec- essarily suppress competition. On the contrary, public utility regulation typically 115961 assumes that the pri- vate firm is a natural monopoly and that public controls are necessary to protect the consunler from exploitation. n33 There is no logical inconsistency between requiring such a firm to meet regulcuory criteria insofar as it is ex- ercising its natural monopoly powers and also to comply with antitrust standards to the extent that it engages in business aetivity in competitive areas of the economy. n3.1 Thus, llichigail's regulation of respondent's distri- �'C r20 428 U.S. 579, *596; 96 S. Ct. 3110, **3120, 1976 U.S. LEXIS 4, ***24; 49 L. Ed. 2d 1141 bution of electricity poses no necessary conflict with a federal requirement that respondent's activities in com- petitive markets satisfy antitrust standards, n35 n33 As `1R. JUSTICE STEWART pointed out in his dissenting opinion in Otter Tail R)wer Co. v. United States, 410 US. 366. ?S9, the "very reason for the regulation of private unhiy rates -- by state bodies and by the Commission -- is the inevitability of a monopoly that requires price control to take the place of price competition." n34 Commenting on a possible conflict between federal regulatory policy and federal antitrust policy we have repeatedly said "'(r1cpeal [of the antitrust laws] is to be regarded as implied only if necessary to make the... [Act] work, and even then only to the minimum extent necessary.'" Id., at 391, quot- ing Silver v. New lbrk Stock Exchange, 373 US, 341. 357. n35 Indeed, since our decision in Otter Tail Power Co. v United States, supra, there can be no doubt about the proposition that the federal antitrust laws are applicable to electrical utilities. Although there was dissent from the particular application of the statute in that case, there was no dissent from the basic proposition that such utilities must obey the federal antitrust la,.vs. [***251 The mere possibility of conflict between state regulatory policy and federal antitrust policy is an in- sufficient basis for implying an exemption from the fed- eral antitrust laws. Congress could hardly have intended state regulatory agencies to have broader power than fed- eral agencies to exempt private conduct from the antitrust laws.n36 Therefore, assuming that there are [**31211 situations in [*5971 which the existence of state regula- tion should give rise to an implied exemption, the stan- dards for ascertaining the existence and scope of such an exemption surely must be at least as severe as those applied to federal regulatory legislation. n36 Respondent does not argue that state regula- tion provides a stronger justification for an implied exemption than federal regulation. On the contrary, respondent relies heavily on Gordon v. New York Stock Exchange, 422 US. 659, in which the Court upheld the fixed commissions of the stock exchange as an integral part of the effective operation of the Securities Exchange Act of 1934. The inapplica- bility of that case is manifest from NIR. JUSTICE STEWART'S brief concurring opinion in which he Page 13 LEXSEE stated: "The Court has never held, and does not hold to- day, that the antitrust laws are inapplicable to anti- competitive conduct simply because a federal agency has jurisdiction over the acts 'ties of one or more of the defendants. An implied repeal of the antitrust laws may be found only if there exists a 'plain re- pugnancy between the antitrust and regulatory pro- visions.United States r. Philadelphia Nat. Bank, 374 U. S. 321, 351. "The mere existence of the Commission's re- serve power of oversight with respect to rules ini- tially adopted by the exchanges, therefore, does not necessarily immunize those rules from antitrust at- tack.... The question presented by the present case, therefore, is whether exchange rules fixing mini- mum commission rates are 'necessary to make the Securities Exchange Act work.'" Id., at 692-693. The lamp -supply program is by no means compara- bly imperative in the continued effective functioning of Michigan's regulation of the utilities industry. [***261 The Court has consistently refused to find that regulation gave rise to an implied exemption without first determining that exemption was necessary in order to make the regulatory Act work, "and even then only to the minimum extent necessary." n37 n37 See n. 34, supra. Recent cases make it clear that the relevant "'aspect of the agency's jurisdiction must be sufficiently central to the purposes of the en- abling statute so that implied repeal of the antitrust laws is 'necessary to make the [regulatory scheme] work.'" Robinson, Recent Antitrust Developments: 1975. 31 Record of N.Y.C.B.A. 38, 57-58 (1976). In United States v. National Assn. of Securities Dealers, 422 US. 694, 719-720, the Court pointed out: "Implied antitrust immunity is not favored, and can be justified only by a convincing showing of clear re- pugnancy between the antitrust laws and the regula- tory system. See, e.u_ United Snares v. Philadelphia .Vat. Bank. 374 US., at 348; United States v. Borden Co., 308 US. 188, 197-206 (1939). " These cases are, of course, consistent with the "car- dinal rule," applicable to legislation generally, that repeals by implication are not favored. Posadas ►, National City Bank. 296 U.S. 497, 503, I"..271 115981 The application of that standard to this case inexorable requires rejection of respondent's claim. For L 428 U.S. 5,9, *598; 96 S. Ct. 3110. **3121: 1976 U.S. LEXIS 4, ***27: 49 L. Ed. 2d 1141 Michigan's regulatory scheme does not conflict with fed- eral antitrust policy and, conversely, if the federal an- titrust laws should be construed to outlaw respondent's lighibulb-exchange program, there is no reason to be- lieve that Michigan's regulation of its electric utilities will no longer be able to function effectively. Regardless of the outcome of this case, Michigan's interest in reg- ulating its utilities' distribution of electricity will be almost entirely unimpaired. \1e conclude that neither Michigan's approval of the tariff filed by respondent, nor the fact that the larnp•exchange program may not be terminated until a new tariff is filed, is a sufficient ba- sis for implying an exemption from the federal antitrust laws for that program. n38 n38 Of course, the absence of an exemption from the antitrust laws does not mean that those laws have been violated. IV The dissenting opinion voices [***281 the legitimate concern that violation of the antitrust laws by regulated companies may give rise to "massive treble damage li- abilities." This is an oft -repeated criticism of the in- evitably [*5991 imprecise language of the Sherman Act and of the consequent difficulty in predicting with cer- tainty its application to various specific fact situations. n39 The far-reaching value of this basic part of our law, however, has enabled it to withstand such criticism in the past. n40 n39 It is this concern which has repeatedly prompted the introduction of bills which, if adopted, would make the award of treble damages in an- titrust litigation discretionary rather than manda- tory. See Report of the Attorney General's National Committee to Study the Antitrust Laws 378-380 (1955). See also, e.g., H.R. 978, 85th Cong., 1st Sess. (1957); H.R. 190, 87th Cong., 1st Sess. (1961). n40 "As a charter of freedom, the Act has a gen- erality and adaptability comparable to that found to be desirable in constitutional provisions. it does not go into detailed definitions which might either work injury to legitimate enterprise or through particular- ization defeat its purposes by providing loopholes for escape. The restrictions the Act imposes are not the ' chanical or artificial. Its general phrases, interpreted to attain its fundamental objects, set up the essential standard of reasonableness. They call for vigilance in the detection and frustration of all efforts unduly Page 14 LEXSEE to restrain the free course of interstate commerce, but they do not seek to establish a mere delusive lib- erty either by making impossible the normal and fair expansion of that commerce or the adoption of rea- sonable measures to protect it from injurious and de- structive practices and to pr01710te competition upon a sound basis," Appalachian Coals, Inc. v United States. 2,38 U.S. 344. 359-300. ***,91 The 1*'*31221 concern about treble -damage liability has arguable relevance to this case in two ways. if the hazard of violating the antitrust laws were enhanced by the fact of regulation, or if a regulated company had engaged in anticompetitive conduct in reliance on a jus- tified understanding that such conduct was immune from the antitrust laws, a concern with the punitive aspects of the treble -damage remedy would be appropriate. But neither of those circumstances is present in this case. When regulation merely takes the forni of approval of a tariff proposed by the company. it surely has not increased the company's risk of violating the law. The [*6001 respondent utility maintained its lamp -exchange program both before and after it was regulated. The approval of the program by the Michigan Commission provided the company with an arguable defense to the antitrust charge. but did not increase its exposure to li- ability. Nor can the utility fairly claim that it was led to be- lieve that its conduct was exempt from the federal an- titrust laws. A claim of immunity or exemption is in the nature of an affirmative defense to conduct which is oth- erwise assumed to be unlawful. This Court has [***301 never sustained a claim that otherwise unlawful private conduct is exempt from the antitrust laws because it was permitted or required by state law. fit the Court's most recent consideration of this sub- ject, it described the defendant's claim with pointed precision its "this so-called state -action exemption." Goldfarb v. 1 irgmia State Bar. 421 U.S., 773, 788. The Court then explained that the eluestion whether the anticomprnuve activity hail born rryuirrd by the State acting as soverei_n was the "threshold inquiry" in de- (ernining, whether it uas state action of the type the Sherman Act was not meant it) proscrbe.n41 Certainly that careful use: of lattgelas!C could not have been read as a guarantee that compliance with any state requirement would autot77atiCally confer 1'ederal antitrust immunity. n4l "The threshold inquiry in determining if an anticompetitive activity is state action of the type 428 U.S. 579, *600, 96 S. Ct. 3110. **3122; 1976 U.S. LEXIS 4, ***30; 49 L. Ed. 2d 1 141 the Sherman Act was not meant to proscribe is whether the activity is required by the State acting as sovereign. Parker v. Broirn, 317 U.S., at 350-352; Continental Co. v. Union Carbide, 370 U.S. 690, 706-707 (1962)." 421 U.S., at 790. [***311 The dissenting opinion in this case makes much of the obvious fact that Parker v. Brown implicitly held that California's raisin -marketing program was not a viola- tion of the Sherman Act. That is, of course, perfectly [*601] true. But the only way the legality of any pro- gram may be tested under the Sherman Act is by de- termining whether the persons who administer it have acted lawfully. The federal status: proscribes the con- duct of persons, not programs, and the narrow holding in Parker concerned only the legality of the conduct of the state officials charged by law with the responsibil- ity for administering California's program. What sort of charge might have been made against it -Le various private persons who engaged in a variety of different activities implementing that program is unknown and unknow- able because no such charges were made. n42 Even if the state program had been held unlawful, such a holding would not necessarily have supported a claim that private individuals who had merely conformed their conduct to an [**3123j invalid program had thereby violated the Sherman Act. Unless and until a court answered that question, there would be no occasion to consider an af- firmative [***32j defense of immunity or exemption. n42 Indeed, it did not even occur to the plain- tiff that the state officials might have violated the Sherman Act; that question was first raised by this Court. Nor could respondent justifiably rely on either the holding in Eastern R. Conf. v. Noerr Motors, 365 U.S. 127, or the reference in that opinion to Parker. n43 The holding in Noerr was that the concerted activities of the railroad defendants in opposing legislation favorable to the plaintiff motor carriers was not prohibited by the Sherman Act. The case did not involve any question of either liability or exemption for private action taken in compliance with state law, n43 Actually the reference was primarily to United States v. Rock Royal Co-op., 307 U.S. 533, and only secondarily to Porker. See 365 U.S., at 136 it. 15. Moreover, nothing in the Noerr [***331 opinion im- Page 15 LEXSEE plies that 1 *6021 the mere fact that a state regulatory agency may approve a proposal included in a tariff, and thereby require that the proposal be implemented until a revised tariff is tiled and approved, is a sufficient rea- son for cunferriniz, antitrust immunity on the proposed conduct. The passage quoted in the dissent, post, at 622, sets up an assumed dichotomy between a restraint imposed by governmental action. as contrasted with one imposed by private action, and then cites United States v. Rock Royal Co-op., 307 U.S. 533, and Parker for the conclusion that the former does not violate the Sherman Act. n44 That passing reference to Parker sheds no light on the significance of state action which amounts to lit- tle more than approval of a private proposal. It surely does not qualify the categorical statement in Parker that "a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declarine that their action is lawful." 317 U.S., at 351. Yet the dissent would allow every state agency to grant precisely that immunity by merely including a direction to engage in the proposed conduct in an approval order. n45 n44 "We accept, as the starting point for our con- sideration of the case, the same basic construction of the Sherman Act adopted by the courts below -- that no violation of the Act can be predicated upon mere attempts to influence the passage or enforcement of laws. It has been recognized, at least since the land- mark decision of this Court in Standard Oil Co. v. United States, 1 221 US. 1.1 that the Sherman Act forbids only those trade restraints and monopoliza- tions that are created, or attempted, by the acts of 'individuals or combinations of individuals or cor- porations.' Accordingly. it has been held that where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action. no violation of the Act can be made out." (Rock Royal and Parker are then cited in the foot- note which is omitted.) 365 U.S.. at 135-136. n45 MR. JUSTICE STENVART's analysis rests largeik out the dubious assumption that if each of several steps in the implementation of an anticom- petitive program is lawful, the entire program must be equally lawful. [** 341 1*6031 :SIR. JUSTICE STEWART's separate opinion possesses a virtue which ours does not. It announces a simple rule that can easily be applied in any case in which a stye regulatory agency approves a proposal and orders a regulated company to comply �ti nth it. No matter k 428 U.S. 579, *603; 96 S. Ct. 3110. **3123; 1976 U.S. LEXIS 4, ***34; 49 L. Ed. 2d 1141 what the impact of the proposal on interstate commerce, and no matter how peripheral or casual the State's inter- ests may be in permitting it to go into effect, the state act would confer immunity from trebic-datruaees liabil- ity. Such a rule is supported by the a holesome interest in simplicity in the regulation of a complex economy. In our judgment, however, that interest is heavily out- weighed by cite fact that such a rule rna� give a host of state regulatory agencies broad po«er io grans exemp- tions from an important federal law for reasons wholly unrelated either to federal policy or even to any neces- sary significant state interest. Although it is tempting to try to fashion a rule which would govern the decision of the liability issue and the damages issue in all future cases presenting 1**31241 state -action issues, tic believe the Court should adhere to its settled policy of giving concrete meaning to the general language 1***35) of the Sherman Act by a process of case -by -case adjudication of specific controversies. Since the District Court has not et addressed the ques- tion whether the complaint alleged a violation of the an- titrust laws, the case is remanded for a determination of that question and for such other proceedings as may be appropriate. Reversed and remanded. CONCURBY: BLACKNIUN; BURGER (In Part) CONCUR: MR. JUSTICE BLACK,`IUN, concurring in the judgment. MR. CHIEF JUSTICE BURGER, concurring in the judgment and in all except Pans li and IV of the Court's opinion. I concur in the judgment and in all except Pans Ii and IV of the Court's opinion. I do not agree, however, that Parker v. Brown, .317 U S..341 (194.3), can logically be limited to suits against state officials, in interpreting Parker, the Court has heretofore focused on the chal- lenged activity, not upon the identity of the parties to the suit's "The threshold inquiry in determining if an anticom- petitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the State acting as sovereign." Goldfarb v. Virginia State Bar, 421 U. S. 117.3, 790 (1975) 1***361 i i (emphasis added),I If Parker's holding were limited simply to the nonliabil- ity of state officials, then the Court's inquiry in Goldfarb as to the County Bar Association's claimed exemption could have ended upon our recognition that the orra- Page 16 LEXSEE nization «as "a voluntary association and not a state agency. ." 411 U. S.. at 790. Yet. before determin- ing that there was no exemption from the antitrust laws, the Court proceeded to treat the Association's contention that its action. having been "prompted" by the Site Bar, %kas "state action for Sherman Act purposes." (bid. The readin. of Parker in Part It is unnecessary to the result in this casei that decisi(�n snnpl}' does trot address the precise issue raised by the present case. There was no need in Parker to focus upon the situation where the State, in addition to requiring a public utility "to meet regulatory criteria insofar as it is exercising its natural monopoly powers," ante, at 596, also purports, without any independent regulatory purpose, to control the util- in's activities in separate, competitive markets. Today the Court correctly concludes:S "The Commission's approval of respondent's decision to maintain 1***37) such a program does not , . .im- plement any statewide policy relating to light bulbs. We infer that the State's policy is neutral on the question (*6051 whether a utility should, of should not, have such a program." Ante, at 585 (emphasis added).! To find a "state action" exemption on the basis of Michigan's undifferentiated sanction of this ancillary practice could serve no federal or state policy. .Mr. Justice Blackmun, concurring in the judgment. I agree with the Court insofar as it holds that the fact that anticunipetitive conduct is sanctioned, or even re- quired, by state law does not of 'itself put that conduct beyond the reach of the Sherman Act. Since the opposite proposition is the ground on which the Court of Appeals affirmed the dismissal of this suit, 1 also agree that its judgment must be reversed. My approach, however, is somewhat different from that of the Court. I As to the principal question in the case, that of the Sherman Aci's pre-emptive el'I'M upon inconsistent state laws, it is. as the dissent points out, one of congressional intent. No one denies tha, Congress could, if it wished, override those state laws «hose operation would sub- vert the federal policy of free competition in interstate commerce. in 1*1*381 discerning that intent, however, I find somewhat less assistance in the legislative his- tory than does the dissent. It is true that the framers of the Sherman Act expressed 1-31251 the view that certain areas of econumic activity were left entirely to state regulation. The dissent quotes several of these ex- pressions Post, at 032.634, A careful reading of those statements reveals, however. that they little more than reflect the then -prevailing. view that Congress lacked the !� L 428 U.S. 579, *605: 96 S. Cf. 3110. **3125; 1976 U.S. LEXIS 4, ***38; 49 L. Ed. 2d 1141 power, under the Commerce Clause, to regulate eco- nomic activity that was within the domain of the States. The Court since then has recognized a greatly expanded Commerce Clause ["6061 power. Arguably, the Sherman Act should have remained contlned «'ithin the outlines of that power as it ,vas thought to exist in 1890, on the theory that if Congress believed it could not regulate any more broadly, it must not have attempted to do so. But that bridge already has been crossed, for it has been held that Congress intended the reach of the Sherman Act to expand along with that of the commerce power. Hospital Building Co. v. Rev Hospital Trustees, 425 U.S. 738, 743 n, 2 (1916), and cases cited. Our question in this case [***391 is one that the Sherinan Act's framers did not directly confront or ex- plicitly address: What was to be the result if the ex- panding ambit of the Shern;an Act should bring it into conflict with inconsistent state law? But it seems to me that this bridge also has been crossed. in Schwegmann Bros. v. Calvert Distillers Corp., 341 V.S. 384 (1951), the issue was whether the Sherman Act permitted en- forcement of a Louisiana statute requiring compliance by liquor retailers with resale price agreements to which they were not parries, but which had been entered into by other retailers with their wholesale suppliers. The Court held the Louisiana statute unenforceable; there is no plausible reading of that decision other than that the statute was pre-empted by the Sherman Act. n I Northern Securities Co. v. United States, 193 U.S. 197 (1904), is to the same effect. The defenders of the railroad hold- ing company attacked in that case argued that it was beyond the Sherman Act's reach because it was lawful under the corporation [*6071 laws of New Jersey. The holding company was nonetheless held unlawful, and, to that extent, the law of New Jersey was forced to give way.n2 Indeed, I suppose [***401 that some degree of state -law pre-emption is implicit in the most fundamen- tal operation of the Sherman Act. if a State had no an- titrust policy of its own, anticompetitive combinations of all kinds would be sanctioned and enforced under that State's general contract and corporation law. Yet, there has never been any doubt that if such combinations of- fend the Sherman Act, they are illegal, and state laws to that extent are overridden. n3 n1 The Court expressly stated in Schwegmann: 'The fact that a state authorizes the price fixing does not, of course, give immunity to the scheme, absent approval by Congress." And again: "[W1hen a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids." 341 U.S., at 386, 389. Page 17 LEXSEE n2 The argument that New Jersey law exempted Northern Securities Company from the Sherman Act was thoroughly canvassed in the plurality opinion. 193 U.S.. at 344-351, it was rejected for the rea- son "than no State can endu,,% any of its corporations, or any combination of its citizens, with authority to restrain interstate or international commerce, or to disobey the national %%ill as manifested in legal en- actments of Congress." Id., rti 350. n3 In passing, we may cast at least a sidelong glance at a related area of federal trade regulation -- that of the patent laws. Although the federal statute is no more explicit on the point than is the Sherman Act, see 35 U.S.C. § 100et seq., it clearly pre-empts state laws that purport either to expand on or to in- fringe the federal patent monopoly. See, e.g., Lear, Inc. v. Adkins, 395 U.S. 653 (/969); Sears, Roebuck & Co. v. Stiffel Co.. 376 U.S. 225 (1964); Compco Corp. i. Dav-Brite Lighting. 376 US. 234 (1964). Congress itself has given support to the view that in- consistent state laws are pre-empted by the Sherman Act. Were it the case that state statutes held complete sway, Congress would not have found it necessary [**3126] in 1937 to pass the Miller-T-ydings Fair Trade Act, 50 Stat. 693. arnendin-, the Sherman Act, specifically ex- empting from the latter's operation certain price main- tenance agreements sanctioned by state law.15 U.S.C. 1. There are other instances of Congress' acting to protect state -sanctioned anticompetitive schemes from the Sherman 1*6081 Act. in response to Schwegmann, see H.R. Rep. No. 1437, 82d Cong., 2d Sess., 1-2, Congress in 1952 passed the McGuire bill, 66 Stat. 632, extending the Miller-Tvdings exemption to state statutes that enforced resale price agreements against nonsign- ers. 15 U.S.C.y~[ 45 (a)(2) to 15). A similar enactment is the McCarron -Ferguson Act of 1945, 59 Stat. 34, ex- empting from federal statures "an} law enacted by any State for the purpose of regulating the business of insur- ance," with provision that the Sherman Act, and other named federal statutes, should ;ippl%to that business af- ter a specified date "to the extent that such business is not [***421 regulated by State law." 15 U.S.C. § 1012 (b). n4 These express grants of Sherman Act immunity seem significant to me. As the Court stated in United States t: Borden Co., 308 U.S. /SS, 201 (1939), constru- ine, the immunity t!ranted to certain a_reentents by the Agricultural Marketing 116091 Agreement Act of 1937, "[ilf Congress had desired to ,rant any further immunity, Corraress doubtless Mould h:ne Saud So." 428 U.S. 579, *609; 96 S. Ct. 3110, **3126; 1976 U.S. LEXiS 4, ***42., 49 L. Ed. 2d 1141 n4 The McCa-ran-Ferguson Act was passed in reaction to the holding in Diired Stares v. Underwriters Assn.. 32" S. 533 t1944), that the business of insurance is "commerce" within the meaning of the Sherman Act.Coneress' ekpressed concern was that the application of that Act would "greatly impair or nullify the regulation of insurance by the States," bringing to a halt their "e.xperimcnta- tion and investigation' In the area. l he Act ,vas vig- orously endorsed by Governors and insurance com- missioners of "almost all of the States." The Justice Department, in opposing the ,McCarran-Ferguson Act, specifically argued that Raker v. Brawn, 317 U.S. 341 (1943), made the legislation unnecessary because it immnunized the insurance business insofar as it was regulated by the States. Congress was not so sure: "Parker v. Brown dealt with a State commission authorized by State statute to enforce a program in conformity with, if not supplementary to, a Federal statute. Obviously, all State regulation concerning insurance does not and would not fall in such a cat- egory." S. Rep. No. 111'_, 78th Cong., 2d Sess., 5 (1944). See also S. Rep. No. 20, 79th Cong., 1st Sess., 1-3 (1945): H.R. Rep. No. 873, 78th Cong., 1st Sess., 7 (1943). H.R. Rep. No. 143, 79th Cong., 1st Sess., 4 (1945). ***431 I also agree with IvfR. JUSTICE STEVENS that the particular anticompetitive scheme attacked in this case must fall despite the imprimatur it claims to have re- ceived from the State of ;Michigan. To say, as i have, that the Sherman Act generally pre-empts inconsistent state laws is not to answer the much more difficult ques- tion as to which such laws are pre-empted and to what extent. I fear ti:ere are no easy solutions, though several suggest themselves. It cannot be decisive, for example, simply that a state law, goes so far as to require, rather than simply to au- thorize, the anticompetitive conduct in question. The Court accepted this as a prerequisite to antitrust immu- nity in Goldfarb is Virginia State Bar, 421 U.S. 773, 790 (1975), but it cannot alone be sufficient. The whole is- sue in Schwegmann was whether the State could require obedience to a fixed resale price arriutgement. Similarly, compliance with an anticompetitive contract, or adher- ence to an illegal corporate combination, might well be "required" by a State's general contract and corporation law. Page 18 LEXSEE Neither can it be decisive that a particular statesanc- tioned scheme was initiated by the private actors rather than [***441 by the State. I see no difference in the degree of private initiation as between the marketing ar- rangement approved in Purker e. Brotta, 317 U.S. 341 (1943) (and properly approved, I think, for reasons set forth below), and the resale price maintenance scheme disapproved in Schwegmann. In each case the particu- lar 1" 31271 scheme uas Initiated by the private actors at the invitation of a general statute, with which they may or may 1*6101 riot have had anything to do. The same was true in Northern Securities, and the same is true here. To be sure, there is a certain rough justice, as well as an appearance of simplicity, in a rule based upon who actually is responsible: for the scheme in ques- tion, but 1 fear that both the justice and the simplicity would prove illusory in the rule's actual application. Every state enactment is initiated, in its way, by its ben- eficiaries. it would scarcely make sense to immunize only those powerful enough to speak entirely through their governmental representatives, or, for that matter, to stifle such speech with the threat that it will destroy antitrust immunity. Moreover, the process of enactment is likely to involve such a complex interplay between those [***451 regulating and those regulated that it will be impossible to identify the true "initiator." A final, ostensibly simple, solution that i find wanting %yould be to insist only on some degree of affirmative articulation by the State of its conscientious intent to sanction the challen_ed scheme, and its reasons therefor. This also is it tempting solution, particularly in this case, where there is little to suggest tat least in recent years) that the Michigan Public Service Commission has even actively considered the light -bulb tie-in, much less ar- ticulated a justification for it. let such a solution would also lead to perverse results. A regulation whose jus- tification was too plain to require explication would be vulnerable: a questionable one could be immunized if its proponents had the skill or influence to generate the proper legislative histon,. And. of course, deciding how much "affirmative articulation" of state policy is enough is not a simple matter. I would apply au least for now%, a rule of reason, taking it as a general proposition that state -sanctioned anticom- petitive activity must fall like any other if its potential harms outweigh its benefits. This does not mean (*61 11 (***461 that state -sanctioned and private activity are to be treated alike. The former is different because the fact Of state sanction tigures powerfully in the calculus of harm and benefit, if, for example. the Justification for the scheme lies in the protection of health or safety, the strength cif that ju;tilica tion is forcefully attested to by the existence of a slate enacument. I would assess thejus- r , ct 0 3 — t2 Page 19 428 U.S. 579, *61l; 96 S. Ct. 3110. **3127: LEXSEE 1976 U.S. LEXiS 4, ***46: 49 L. Ed. 2d 1141 tifications of such enactments in the same way as is done in equal protection review, and where such justifications are at all substantial (as one would expect them to be in the case of most professional licensing or fee -setting schemes, for example, cf. Ois.n v. Snuth, 195 U.S. 332 (1904)), 1 would be reluctant to Lind the restraint unrea- sonable. A particularly strong justification exists for a state -sanctioned scherne if the State in effect has substi- tuted itself for the forces of competition, and regulates private activity to the same ends sought to be achieved by the Sherman Act. 1 hus, an anticompetitive scheme which the State institutes on the plausible ground that it will improve the performance of the market in fos- tering efficient resource allocation and low prices can scarcely [***47] be assailed. One could not doubt the legality of Detroit Edison's electric power monopoly; the fear of such a monopoly is primarily its tendency to charge excessive prices, but its prices in this instance are controlled by the State. No doubt such a rule of reason will crystallize, as it is applied, into various per se rules relating to certain kinds of state enactments, such as the regulation of the classic natural monopoly, the public utility. We should not shrink in our general approach, however, from what seems to me our constitutionally mandated task, one of- ten set for us by conflicting federal and state laws, and that is the balancing of implicated federal and state in- terests with a view to assuring that when these are truly in conflict, the former prevail. [*612] The dissent's fears on this score appear to me to be exaggerated. The balancing of harm and benefit is, in general, a process with which federal courts are well acquainted [**3128] in the antitrust field. The special problem of assessing state interests to determine whether they are strong enough to prevail against supreme fed- eral dictates is also a familiar one to the federal courts. Indeed, a state action that [ ** *481 interferes with compe- tition not only among its own citizens but also among the States is already subject under the Commerce Clause to much the same searching review of state justifications as is proposed here. See, e.g., Dean Milk Co. v. Madison, 340 U.S. 349, 354 (1951� (state restriction on sale of milk not locally processed held invalid because "reason- able and adequate alternatives [were] available" to pro- tect health interests); Southern Pacific Co. v. Arizona, 325 U.S. 761, 770-784 (1945) (state restriction of train lengths held invalid under the Commerce Clause because .the state [safetyl interest is outweighed by the interest of the nation in an adequate, economical and efficient railway transportation service"). III By these standards the present case does not seem a difficult one. The light -bulb tie-in presents the usual dangers of such a scheme, principally that respondent will extend its monopoly from the sale of electric power into that of light bulbs, not because it sells better light bulbs, but because its lk,ht bulbs are the ones customers must pay for if they are to halve light at all. See R Areeda, Antitrust Analysis 569-570 (2d ed. 1974). On the record before 1 `491 us the scheme appears to be unjustified. No doubt it originated as a means to pro- mote electric power use, but it is difficult to see why a tie-in (rather than an optional, promotional light -bulb sale) was necessary [ *6131 to that end even in the 19th century, laving aside the question whether the promotion of greater electric power use remains today a plausible public goal. Respondent would justify the scheme on the ground of consumer savings, its light bulbs assert- edly being cheaper and better than those commercially available. Brief for Respondent 7-9, 41-42. But again, a tie-in is not necessary to pass along these savings. A tie-in is only necessary in order to force consumers to pay for light bulbs from Detroit Edison rather than someone else. But there is no indication that one light bulb does not tit the socket as well as another, or that the sale of light bulbs is in any way crucial to respon- dent's successful operation. Conceivably, ;Michigan's aim is the very extension of the monopoly, born of a preference for having light bulbs supplied by one whose prices are alreads regulated. But ending competition in the light -bulb market cannot be accepted as in ad- equate state 1 ***501 objective without some evidence -- of which there is not the least hint in this record -- that such competition is in some way ineffective. For all that appears, light -bulb marketing. unlike electric power production, is not a natural monopoly, nor does it im- plicate health or safety, nor is it beset with problems of instability or other flaws in the competitive market. n5 [*6141 This is [**31291 what I take it the Court means when it says the electric light -bulb market is "essentially unregulated," and on that understanding I agree with its conclusion. It is conceivable that respondent may show, upon further evidence, a sufficient justification for the scheme, but it certainly has not done so as yet. n6 n5 The approach described in the text is en- tirely consistent with the result reached in Parker V. Brown. Wildly fluctuating aaricultural prices are a prime candidate for some collective scheme that interrupts free competition in order to bring badly needed stability; under the State's close supervision, as was the rase in Parker, the scheme seems entirely reasonable. I see no reason to disapprove the holding of Parker, therefore, and to the extent that the plural- ity, by stressing the identity of the state defendants Page 20 428 U.S. 579, *614, 96 S. Ct. 31 10, **3129; LEXSEE 1976 U.S. LEXIS 4, ***50; 49 L. Ed. 2d 1141 in that case, intimates that a different result might have been reached had the raisin growers themselves been sued, I cannot agree. Neither can I agree w tilt the dissent, however, that Parker must be taken to stand for the broad propo- sition that a State can immunize any conduct from the application of the Sherman Act. It is true, as the dissent points out, that there arc statements arguably to that effect in Parker, but the opinion is hardly un- ambiguous on the point. The Court a!so observed in that case that "a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful." 317 U.S., ar 351. Moreover, if we must choose be- tween Parker's more categorical statements and the seemingly contrary statements in Schwegmann and Northem Securities, see nn. I and 2, supra, I prefer the latter, as more in keeping with the actual holdings of those cases. n6,ti111. JUSTICE STEVENS states that there may be cases in which "the State's participation in a deci- sion [to adopt the challenged restraint] is so dominant that it is unfair to hold a private party responsible for his conduct in implementing it." Ante, at 594- 595. 1 agree that a defense based on fairness may be available. I would not, however, rule it out in this case, as the Court'sopinion does. The parties, like the court below, so far have addressed them- selves only to the question whether petitioner's suit is completely barred by Parker v. Brown and the Michigan Public Service Commission's approval of the challenged tie-in. I would confine our present de- cision to that question alone, leaving consideration of a fairness defense to the lower courts on remand, and making only these two further observations: First, I take it that a defense based on fairness would be a defense to a. damages recovery but not injunctive relief. The latter, of coarse, presents no danger of unfairness. Moreover, as MR. JUSTICE STEVENS implies by his emphasis on not unfairly holding a private party "responsible," the defense rests on the theory, not that the challenged restraint is legal, but that since the defendant has committed no voluntary act in implementing it, he cannot be said to have violated any law. The same would not be true of acts following a judgment that the restraint is in fact illegal, and the state law to that extent in., valid. Second, 1 would hope that consideration will be given on remand to allowing a defense against dam- ages wherever the conduct on which such damages would be based was required by state law. Such a rule would comport with the theory that a defendant should not be held "responsible" in damages for con- duct as to which he had no choice, by which I do not mean to rule out other possible grounds for such a rule. See Posner, The Proper Relationship Between State Regulation and the Federal Antitrust Laws, 49 N. Y. UL. Rev. 693, 728-732 (1974). it would also eliminate what seems to me the extremely unfair pos- sibilit that during a particular period -- and it could be a regulatory lag during which the rtgulatee was attempting to change the state mandate -- the regu- lates could be required by state law to conform to a course of conduct for which he was all the while accumulating treble -damages liability under federal law, [`**511 DISSENTBY: STEWART DISSENT: SIR. JUSTICE STEWART, with whom vIR. JUSTICE POWELL and MR. JUSTICE [***531 REHNQUIST join. dissenting. The Court today holds that a public utility company, pervasively regulated by a state utility commission, [*6151 may be held liable for treble damages under the Sherman Act for engaeine in conduct which, under the requirements of its tariff, it is obligated to perform. I respectfully dissent from this unprecedented application of the federal antitrust laws, which will surely result in disruption of the operation of every state -regulated pub- lic utility company in the Nation and in the creation of "the prospect of massive treble damage liabilities" nl payable ultimately by the companies' customers. nl Posner, The Proper Relationship Between State Regulation and the Federal Antitrust Laws, 49 N.Y.U.L. Rev. 693, 728 (1974). The starting point in analyzing this case is Parker v. Brown, 317 U.S. 341, While Parker did not create the "so-called state -action exemption" n2 from the federal antitrust laws, n3 it is 1 * *31301 the case that is most fre- quently 146161 cited for the proposition that [***541 the "1Shennanl Act was intended to regulate private prac- tices and not to prohibit a State from imposing a restraint as an act of government."Gold farb v. Virginia State Bar, 421 U.S. 773, 788. The plurality opinion would hold that that case decided only that "the sovereien State it- self," ante, at 591, could not be sued under the Sherman Act. This view of Parker, which would trivialize that case to the point of overruling; it, n4 fliers in the face of 428 U.S. 579. *616; 96 S. Cf. 3110, **3130, 1976 U.S. LEXIS 4, ***54; 49 L. Ed. 2d 1141 the decisions of [*6171 this Court that have interpreted or applied Parker's "state action" doctrine, and is un- supported by the sources on which [tie plurality relies. n2 Goldfarb v. Virginia State Bar, 42' U.S. 773, 788. n3 The progenitor of that doctrine in this Court was Olsen v. Smith, 195 U.S. 332, a decision relied on by Parker to support the proposition that when a State, acting as sovereign, imposes a restraint on com- merce, that restraint does not violate the Sherman Act. Parker v. Brown, 317 U.S., at 352. Olsen involved a challenge to the validity of a Texas law fixing the charges of pilots operating in the port of Galveston and prohibiting all but duly coninnissioned pilots from engaging in the pilotage business. The Court rejected the argument that the Texas pilotage statutes were "repugnant... to the laws of Congress forbidding combinations in restraint of trade or corn- merce," 195 U.S., at 339: "The contention that because the commissioned pi- lots have a monopoly of the business, and by com- bination among themselves exclude all others from rendering pilotage services, is also but a denial of the authority of the State to regulate, since if the State has the power to regulate, and in so doing to appoint and commission, those who are to perform pilotage services, it must follow that no monopoly or combination in a legal sense can arise from the fact that the duly authorized agents of the State are alone allowed to perform the duties devolving upon them by law. When the propositions just referred to are considered in their ultimate aspect they amount simply to the contention, not that the Texas laws are void for want of power, but that they are unwise. If an analysis of those laws justified such conclusion -- which we do not at all imply is the case -- the rem- edy is in Congress, in whom the ultimate authority on the subject is vested, and cannot be judicially af- forded by denying the power of the State to exercise its authority over a subject concerning which it has plenary power until Congress has seen tit to act in the premises." Id., at 3. 4-345. n4 If Parker v. Broo.4n, supra, could be circum- vented by the simple expedient of suing the private party against whom the State's "anticompetitive" command runs, then that holding would become an empty formalism, standing for little: more than the proposition that Porter Brown sued the wrong par- ties. MR. JUSTICE BLACK;viUN in a separate opin- Page 21 LEXSEE ion today states that he sees "no reason to disapprove the holding of Parker" ante, at 613 n. 5, but then proceeds to do precisely that. The holding in Parker was that "Itlhe state in adopting and enforcing the prorate program... unposed Jai restraint as an act of government which the Sherman Act did not under- take to prohibit.' 317 U.S., at 352. MR. JUSTICE BLACKMUN's position is that the Sherman Act does prohibit all state -imposed restraints ti hich do not sat- isfy the Sherman Act's "rule of reason" -- a view quite different from the holding in Parker. The fact that the result in Parker could have been reached by a different route -- by a holding, for instance, that the prorate restraint was "reasonable" within the mean- ing of the Sherman Act or was impliedly exempted by the Agricultural ,Marketing Agreement Act of 1937 -- is simply irrelevant. i am puzzled by MR. JUSTICE BLACKMUN's willingness to emasculate Parker, which the Court indicated to have continued vitality just this Term. See Virginia Pharmacy Bd. v. Virginia Consumer Council, 425 U.S. 7.38, 770. It seems to me that such a step is inconsistent not only with the leg- islative history of the Sherman Act but also with well -settled principles of stare decisis applicable to this Court's construction of federal statutes. See Edelman v. Jordan. 415 U.S. 651, 671 n. 14. If those principles preclude the reconsideration of an antitrust exemption which is in every sense an "aberration" and an "anomaly," Flood v. Kuhn, 407 U.S. 258, 282, then a fortiori they preclude the re- examination of an exemption that coincides with a clear expression of congressional intent. ***55 As to those sources, I would have thought that ex- cept in rare instances an analysis of the positions taken by the parties in briefs submitted to this Court should play no role in interpreting its written opinions. n5 A 1*6181 contrary rule would permit the "plain meaning" of our decisions to be qualified or even overridden by their "leztslatio e history" - i.e.. briefs submitted by the contending parties. The legislative history of congres- sional enactments is useful in discerning legislative in- tent, because that history emanates from the same source as the le�tislation itself and is thus directly probative of the intent of the draftsmen. The conflicting views pre- sented in the adversary briefs and aruments submitted to this Court do not bear an analogous relationship to the Court's final product. n5 A different approach is, of course, called for IL 428 U.S. 579, *618; 96 S. Cf. 3110. **3130; 1976 U.S. LEXIS 4, ***55; 49 L. Ed. 2d 1141 in interpreting this Court's summary dispositions of appeals. See generally Hicks v. Miranda, 422 U.S. 332, 345 n. 14: Pon Authority Bondholders Protective Comm. v. Port of New York Authority, 387 F.2d 259, 262 (CA'_). [***56) But assuming. arguendo, that it is appropriate to look behind the language of Parker v. Brown, supra, 1 think it is apparent that the plurality has distorted the positions [**31311 taken by the State of California and the United States as amici curiae. The question presented on rear- gument in Parker was "whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Act...." Ante. at 587 n. 16. 'Ilhis phrasing indicates that the precise issue on which the Court sought reargument was whether the California statute was pre- empted by the Sherman Act, not whether sovereign States were immune from suit under the Sherman Act. The State of California and the Solicitor General cer- tainly understood this to be the principal issue. As the plurality opinion correctly notes, the supplemental brief filed by the State of California in response to the ques- tion posed by this Court advanced three basic arguments. And as it further notes, this Court's decision in Parker rested on the first of those arguments. But what the plu- rality fails to acknowledge is that California's first argu- ment was in principal part a straightforvard contention [*619] that the Sherman [***57) Act was not intended to pre-empt state regulation of intrastate commerce, n6 n6 California's argument began with a statement of the principle that the Federal Government and the States -- "sister sovereignties," Supplemental Brief for Appellants 35 in Parker v. Brown, O.T. 1942, No. 46 -- are each "supreme" when legislating "within their respective spheres." "The subject of Federal power is still 'commerce,' -- not all commerce, but commerce with foreign na- tions and among the several states." Id., at 35- 37. Incorporating by explicit reference its preced- ing argument with respect to whether the Federal Agricultural Adjustment Act of 1938 pre-empted the California statute, id., at 38, and proceeding from the premise that the subject matter of the California law was intrastate commerce within the jurisdiction of the State, California contended that "it should never be held that Congress intends to supersede or suspend the exercise of the police powers of the States unless its purpose to effect that result is clearly manifested." Ibid. California added that "[s[uch an intent should be even more clear and express when Page 22 LEXSEE it serves not only to suspend the police powers, but to subject the sovereignty of the State to the inhibi- tion and penalties of Congressional action." Id., at 38.39 The plurality's position todaN seems to be that be- cause the State of California placed panicular empha- sis on the fact that the proscriptions of the Sherman Act, if applicahle, would run directy against the State, California's argument in the first part of its brief was simply and solely that "Congress never in- tended to subject a sovereign State to the provisions of the Sherman .Act...." Ante, at 588. Yet, as the preceding quotations show, California's argument in the first part of its brief dovetailed two interrelated themes: First, that state regulation of intrastate com- merce was not pre-empted by the Sherman Act and, second, that the framers of the Sherman Act did not intend its proscriptions to run directly against the sovereign States. It was the first of these themes that California deemed priman•. Near the close of the first part of California's brief appeared the follow- ing passage: "To hold the State within the prohibition of the Sherman Act in the present instance would result in prohibiting it from exercising its otherwise valid police powers. This Court has repeatedly and em- phatically stated that 'it should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the State, even when it may do so, unless its purpose to ef- fect that result is clearly manifested.'" Supplemental Brief for Appellants 47-48 in Parker v. Brown, O.T. 1942, No. 46 (footnote omitted). ***58 With respect to the amicus brief of the United States, [*620[ tlhe plurality opinion states that the "Solicitor General did not take issue with the appellants' first ar- gument." Ante, at 588. Indeed, the plurality says, the Solicitor General "expressly disclaimed any argument that the State of California or its officials had violated federal law." {bid. In support of this assertion, the plu- rality opinion quotes the following language from p. 59 of the Solicitor General's brief in Parker: S "'[-f[he question we face here is not whether California or its officials have violated the Sherman Act, but sshether the state program interferes with the accom- plishment of the objectives of the federal statute.'" Ante, at 589 n. 19.1 This statement by the Solicitor General was indeed correct, because the question on which the Court had S3 wi4o - Page 23 428 U.S. 579, *620, 96 S. Ct. 3110. **3131; LEXSEE 1976 U.S. LEXIS 4, ***58; 49 L. Ed. 2d 1 141 requested supplemental briefing was "whether the state statute involved is rendered invalid by the action of Congress in passing the Sherman Act," not "whether California or its officials have violated 1*r31321 the Sherman Act...." As the Solicitor General noted in the very next sentence, "[a1 state law may be superseded as conflicting with a federal statute irrespective [***591 of whether its administrators are subject to prosecution for violation of the paramount federal enactment." n7 The Solicitor General then proceeded [*6211 to take strenu- ous issue with the principal contention advanced in the first part of the relevant section of California's brief -- that the framers of the federal icgislation had not in- tended to pre-empt state legislation like the California Agricultural Prorate Act. n8 n7 This distinction was properly drawn, as is ap- parent from decisions in the labor law context. A State or political subdivision thereof is not normally subject to the prohibitions of the National Labor Relations Act, 49 Stat. 4-19, as amended, 29 U.S.C. § 151 et seq. See, e.g., NLRB v. Natural Gas Utility Dist., 402 U.S. 600, But it certainly does not fol- low that sovereign enactments of the State may not be deemed pre-empted by the federal legislation. San Diego Unions v. Garmon, 359 U.S. 236; Garner v. Teamsters, 346 U.S. 485. n8 The Solictor General began his analysis with the following statement: "A state statute permitting, or requiring, dealers in a commodity to combine so as to limit the supply or raise the price of a subject of interstate commerce would clearly be void. The question here is whether a state may itself undertake to control the supply and price of a commodity shipped in interstate commerce or otherwise restrain interstate competition through a mandatory regulation.' Brief for United States as Amicus Curiae 63 in Parker v. Brown, O.T. 1942, No, 46. He then acknowledged that "Jilt seems clear that Congress, when it enacted the statute, did not in- tend to deprive the states of their normal 'police' powers over business and industry.... For exam- ple, in the field of public utilities, a state can un- doubtedly regulate rates without running afoul of the Sherman Act notwithstanding the fact that the rate regulation may embrace interstate commerce." Id., at 63-64 (footnotes and citations omitted}. But, the Solicitor General continued, "(allthough Congress plainly did not regard local laws in these fields as incompatible with the Sherman Act, we believe that the same cannot be said when the state statute is de- signed directly to control the competitive aspects of an industry in a manner which will have more than local effect." Id.. at 6.1-65. This was the critical portion of the Solicitor General's aneument, which sought to draw a delicate distinction between accept- able police power legislation, such as public utility regulation, and pre-empted police power legislation, such as that designed explicitl} to suppress compe- tition affecting interstate commerce. ***601 Thus, it is clear that the plurality has misread the po- sitions taken by the State of California and the Solicitor General in Parker v. Brown. The question presented to the Court in Parker was whether the restraint on trade ef- fected by the California statute was exempt [*6221 from the operation of the Sherman Act. That was the ques- tion addressed by the Solicitor General and, in principal part, by the State of California. And it was the ques- tion resolved by this Court in its holding that "[tlhe state in adopting and enforcing the prorate program made no contract or agreement and entered into no conspiracy in restraint of trade or to establish monopoly but, as sovereign, imposed the restraint as an act of government which the Sherman Act did not undertake to prohibit." 317 L'.S.. at 352. The notion that Parker decided only that "action taken by state officials pursuant to express legislative com- mand did not violate the Sherman Act," ante, at 589, and that that "narrow holding... avoided any question about the applicability of the antitrust laws to private action" taken under command of state law, ante, at 590, is thus refuted by the very sources on which the plu- rality opinion 1***611 relies. That narrow view of the Parker decision is also refuted by the subsequent cases in this Court that have interpreted and applied the Parker doctrine. In Eastern R. Conf. v. Noerr Motors, 365 U.S. I1_7, for instance, the Court held that no violation of the Sherman Act could be predicated on the attempt by pri- vate persons to influence the passage or enforcement of state laws regulating 1**31331 competition in the truck- ing industry. n9 The Court took as its starting point the ruling in Parker v. Brown that "where a restraint upon trade or monopolization is the result of valid governmen- tal action, as opposed to private action, no violation of the Act can be made out." 3b5 U.S., at 136, The Court 1 "6231 � trwed it as "equally clear that the Sherman Act does not prohibit two or more persons from associating toocther in an attempt to persuade the legislature or the executive to take particular action with respect to a law 428 U.S. 579, *623; 96 S. Ct. 3110. `*3133; 1976 U.S. LEXIS 4, ***61; 49 L. Ed. 2d 1141 that would produce a restraint or monopoly." Ibid. A contrary ruling, the Court held, "would substantially im- pair the power of government to take actions through its legislature and executive that operate to restrain trade." Id., at 137. Surely, if a rule permitting 1`621 Sherman, Act liability to arise from lobbying by private parties for state rules restricting competition would impair the power of state govemments to impose restraints, then a fortiori a rule permitting Sherman Act liability to arise from private parties' compliance with such rules would impair the exercise of the States' power. But as the Court in Noerr correctly noted, the latter result was foreclosed by Parker' s holding that "where a restraint upon trade or monopolization is the result of valid governmental action, as opposed to private action, no violation of the Act can be made out." 365 U.S., at 136. n9 The only exception is where the attempt to influence state regulation is a "sham" aimed at 'harass[ing] and deterr[ingj... competitors from having 'free and unlimited access' to the agencies and courts....' California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515. Litigation testing the limits of the state -action exemp- tion has focused on whether alleeed anticompetitive con- duct by private [***631 parties is indeed "the result of" state action. Thus, in Goldfarb v. Virginia State Bar, 421 U.S. 773, the question was whether price fixing practiced by the respondents was 'required by the State acting as sovereign, Parker v. Brown, 317 U.S., at 350-352...." Id., at 790. The Court held that the "so- called state -action exemption," id., at 788, did not pro- tect the respondents because it "cannot fairly be said that the State of Virginia through its Supreme Court Rules required the anticompetitive activities of either respon- dent.... Respondents' arguments, at most, constitute the contention that their activities complemented the objec- tive [*6241 of the ethical codes. In our view that is not state action for Sherman Act purposes. it is not enough that, as the County Bar puts it, anticompetitive conduct is 'prompted' by state action; rather, anticompetitive ac- tivities must be compelled by direction of the State acting as a sovereign." Id., at 790-791. The plurality's view that Parker does not cover state -compelled private con- duct flies in the face of this carefully drafted language in the Goldfarb opinion. Parker, Noerr, and Goldfarb point unerringly to the proper disposition [***641 of this case. The regulatory process at issue has three principal stages. First, the util- ity company proposes a tariff. Second, the Michigan Page 24 LEXSEE Public Service Commission investigates the proposed tariff and either approves it or rejects it. Third, if the tariff is approved, the utility company must, under com- mand of state law, provide service in accord with its re- quirements until or unless the Commission approves a modification. The utility company thus engages in two distinct activities: it proposes a tariff and, if the tariff is approved, it obeys its terms. The first action cannot give rise to antitrust liability under Noerr and the second -- compliance with the terms of the tariff under the com- mand of state law -- is immune from antitrust liability under Parker and Goldfarb. n 10 n10 The Court's reliance on Jackson v. Nfetropolitan Edison Co., 419 U.S. 345, is mis- placed. There the Court held that a utility's discon- tinuance of service to a customer for nonpayment of bills was not "state action" sufficient to trigger the protections of the Due Process Clause of the Fourteenth Amendment. The petitioner had argued that because the State Public Utility Commission had approved that practice as a part of the respon- dent's general tariff, the termination was "state ac- tion" for Fourteenth Amendment purposes. Id., at 354. The Court disagreed, holding as follows: "The nature of governmental regulation of private utilities is such that a utility may frequently be required by the state regulatory scheme to obtain approval for practices a business regulated in less detail would be free to institute without any approval from a reg- ulatory body. .approval by a state utility commis- sion of such a request from a regulated utility, where the Commission has not put its own weight on the side of the proposed practice by ordering it, does not transmute a practice initiated by the utility and approved by the Commission into 'state action.' At most, the Commission's failure to overturn this prac- tice amounted to no more than a determination that a Pennsylvania utility was authorized to employ such a practice it' it so desired. Respondent's exercise of the choice allowed by state law where the initiative conics from it and not from the State, does not make its action in doing so 'state action' for purposes of the Fourteenth Amendment." Id., at 357 (footnote omitted). This constitutional holding has no bearing on whether a utility's action in compliance with a tariff which it proposed is exempt from Sherman Act lia- bility. The latter is it question of legislative intent, not constitutional law, and must be answered on the basis of a separate line of authority -- namely, deci- sions such as Parker and Noerr which have construed 428 U.S. 579, *624, 96 S. Ct. 3110, **3133; Page ZS LEXSEE 1976 U.S. LEXIS 4, ***64; 49 L. Ed. 2d 1 141 the Sherman Act. ***65 [*6251 The [**31341 plurality's contrary view would effectively overrule not only Parker but the entire body of post -Parker case law in this area, including Noerr. With the Parker holding reduced to the trivial proposi- tion that the Sherman Act was not intended to rm d,- rectly against state officials or governmental entities. the Court would fashion a new two-part test for deter- mining whether state utility regulation creates immunity from the federal ant;tnist law. The first part of the test would focus on whether subjecting state -regulated utili- ties to antitrust liability would be "unjust." The second part of the test would look to whether the draftsmen of the Sherman Act intended to 'superimpose" antitrust standards, and thus exposure to treble damages, on con- duct compelled by state regulatory laws. THE CHIEF JUSTICE accedes to the new two-part test, at least where the State "purports, without any indepgndent regulatory purpose, to control [a] utility's activities in separate, competitive [*6261 markets." ante, at 604. The new immunity test thus has the approval of a majority of the Court in instances where state -compelled anticom- petitive practices are deemed "ancillary" to the [***661 State's regulatory goals. nl I rr11 I disagree with THE CHIEF JU'STICE's con- clusion that Michigan's policy is "neutral" with respect to whether a utility should have a lamp - exchange program. See n. 26, infra. Moreover, I think it is apparent that insistence on statutory ar- ticulation of a state "purpose" to regulate activities performed incident to the provision of a "natural monopoly" service will lead to serious interference with state regulation. See ibid. With scarcely a backward glance at the Noerr case, the Coun concludes that because the utility company's "participation" in the decision to incorporate the lamp - exchange program into the tariff was "sufficiently sig- nificant," there is nothing "unjust" in concluding that the company is required to conform its conduct to federal antitrust law "like comparable conduct by unregulated busirtesses...." Ante, at 594. This attempt to distin- guish between the exemptive force of mandatory state rules adopted w the behest of private parties and those adopted pursuant [***671 to the Stale's unilateral deci- sion is flatly inconsistent with the rationale of Noerr. There the Court pointedly rejected "[a] construction of the Sherman Act that would disqualify people front tak- ing a public position on matters in which they are finan- cially interested" because such a construction "would... deprive the government of a valuable source of infor- mation and, at the same time, deprive the people of their right to petition in the very instances in which that [**31351 right may be of the most importance to them.' 365 U.S., at 139. n l _2 n 1 2 1s the CUurt noted to Nocrr, the scheme at is- sue in Parker required popular initiative. 365 U.S., at 137-138. n. 17. And as it further noted, Parker itself expressly rejected the argument that the ne- cessity for private initiative affected the "program's validity under the Sherman Act...." ld., at 137, 1*6271 Today's holding will not only penalize the right to petition but may very well strike a crippling blow at state utility regulation. As the Court seems to acknowledge, [***681 such regulation is heavily depen- dent on the active participation of the regulated parties, who typically propose tariffs which are either adopted, rejected, or modified by utility commissions. But if a utility can escape the unpredicatable consequences of the second arm of the Court's new test, see infra, this page only by playing possum -- by exercising no "option" in the Court's terminology, ante, at 594 -- then it will surely be tempted to do just that, posing a serious threat to efficient and effective regulation. The second arrtt of the Court's new immunity test, which apparently comes into play only if the utility's own activity does not exceed a vaguely defined threshold of "sufficient freedom of choice," purports to be aimed at answering the basic question of whether "Congress intended to superimpose antitrust standards on conduct already bent, regulated" by state utility regulation laws. Ante, at 595. Yet analysis of the Court's opinion reveals that the three factors to which the Court pays heed have little or nothing to do with discerning congressional in- tent. Rather, the second arm of the new test simply cre- ates a vehicle for ad hoc judicial determinations of the substantive [***691 validity of state regulatory goals, which closely resembles the discarded doctrine of sub- stantive due process. See Ferguson v. Skrtpa, 372 U.S. 7'_6. The Court's delineation of the second arm of the new test proceeds as follows. apart from the "fairness" ques- tion, the Court states, them are "at least three reasons" why the li_aht-bulb program should not enjoy Sherman Act immunity. Ante. at 595. "First," the Court ob- serves, "merely because certain conduct may be subject both to state regulation and to the federal antitrust laws does not nccessarily mean that it must satisfy 1*6281 in- consistent standards...... lbid. That is true �enough as anaajj Page 26 428 U.S. 579, *628; 96 S. Ct. 31 to, **3135; LEXSEE 1976 U.S. LEAS 4, ***69; 49 L. Ed. 2d 1141 ` abstract proposition, but the very question is whether the s utility's alleged "tie" of light bulb sales to the provision of electric service is immune from antitrust liability, as- suming it would constitute an antitrust violation in the absence of reeulation. n 13 Second, the Court states, "even assuming inconsistency, we could not accept the view that the federal interest must inevitably be subor- dinated to the State's...." Ibid, The Court toes on to amplify this rationale as follows: "The mere possibil- ity of conflict between state regulatory [***70] policy and federal antitrust policy is an insufficient basis for implying an exemption from the federal anittrust laws. Congress could hardly [**3136] have intended state reg- ulatory agencies to have broader power than federal agencies to exempt private conduct from the antitrust laws. Therefore, [*629] assuming that there are situa- tions in which the existence of state regulation should give rise to an implied exemption, the standards for as- certaining the existence and scope of such an exemption surely must be at least as severe as those applied to fed- eral regulatory legislation. "The Couri has consistently refused to find that regulation gave rise to an implied i exemption without first determining that exemption was necessary in order to make the regulatory act work, 'and j ever then only to the minimum extent necessary.' "The application of that standard to this case inex- orably requires rejection of respondent's claim." Ante, at 596-598 (foo(notes omitted).1 n 13 The Court seems to indicate at one point that it would be improper to "superimpose" antitrust lia- bility on state regulatory schemes aimed at suppress- ing competition and raising prices. See ante, at 595 ("Unquestionably there are examples of economic regulation in which the very purpose of the govern- ment control is to avoid the consequences of unre- strained competition. Agricultural marketing pro- grams, such as that involved in Parker, were of that character"). But some state regulation, the Court continues, aims not at suppressing competition, but rather at duplicating the effects of competition -- i.e., keeping prices down. With respect to state regula- tion of the latter type, the state scheme will not afford an exemption to the extent the regulated party is en- gaged in "business activity in competitive areas of the economy.' Ante, at 596 (footnote omitted). This rationale will not bear its own weight. If compliance with a state program aimed at suppress- ing competition in nonmonopoly industries -- i.e., raisin production -- cannot give rise to Sherman Act liability, then surely compliance with a state program aimed at controlling the terms and conditions of ser- vice performed incident to the provision of a *natural monopoly" product cannot give rise to treble dam- ages. .**711 The Court's analysis rests on a mistaken premise. The "implied immunity" doctrine employed by this Court to reconcile rite federal antitrust laws and federal regulator) - statutes cannot, rationally, be put to the use for which the Court would employ it. That doctrine, a species of the basic rule that repeals by implication are disfa- vored, comes into play only when two arguably incon- sistent federal statutes are involved. "'Implied repeal" of federal antitrust laws by inconsistent state regulatory statutes is not only "'not favored.'" ante, at 597-598, n. 37, it is impossible. See U.S. Const., Art. V1, cl. 2. A closer scrutiny of the Court's holding reveals that its reference to the inapposite "implied repeal" doctrine is simply window dressing for a type of judicial review radically different from that engaged in by this Court in Gordon v. New York Stock Exchange, 422 U.S. 659, and United States v. Philadelphia National Bank, 374 U.S. 321. Those cases turned exclusively on issues of statutory construction and involved no judicial scrutiny of the abstract "necessity" or "centrality" of particular [*630( regulatory provisions. Instead, the federal reg- ulatory ulatory statute was accepted (***7_, as a given, as was the federal antitrust law. The Court's interpretative ef- fort was aimed at accommodating these arguably incon- sistent bodies of law, not at second-guessing legislative judgments concerning the "necessity" for including par- ticular provisions in the regulatory statute. The Court's approach here is qualitatively differ- ent. 'rile State of Michigan. through its Public Service Commission, has decided that requiring Detroit Edison to provide "free" light bulbs as a tern and condition of service is in the public interest. Yet the Court is prepared to set aside that policy determination: "The lamp -supply program is by no means... imperative in the continued effective functioning of Michigan's regu- lation of the utilities industry." Ante, at 597 n. 36 (em- phasis added). Even "if the federal aruitrust laws should be construed to outlaw respondent's light -bulb -exchange program, there is no reason to believe that Stichigan's reeulation of its electric utilities will no longer be able to function effectively. Regardless of the outcome of this case. Michigan's interest in regulating its utilities' distribution of electricity will be almost entirely unim• paired." Ante, at 598 (emphasis 1' 73( added). The emphasized language in these passages shows that the Court is adopting an interpretation of the Sherman Act which will allow the federal judiciary to substitute Page 27 428 U.S. 579, *630; 96 S. Ct. 3110. **3136; LEXSEE 1976 U.S. LEXiS 4, ***73; 49 L. Ed. 2d 1141 its judgment for that of state legislatures and adminis- trative agencies with respect to whether particular anti- competitive regulatory provisions are "'sufficiently cen- tral,'" ante, at 597 n. 37, to a )udicial conception of the proper scope of state unlit% regulation. The content of those "purposes,'" ibid.. which the Court will suffer the States to promote derives presumably from the man- date of the Sherman Act. On this assumption -- and no other is plausible -- it becomes apparent [ *b 31 [ that the Court's second reason for extending the .Sherman. Act to cover the light -bulb program, when divested of inap- posite references to the federal implied [**3137[ repeal doctrine, is merely a restatement of the third rationale, which the Court phrases as follows: "[F[inally, even if we were to assume that Congress did not intend the an- titrust laws to apply to areas of the economy primarily regulated by a State, that assumption would not foreclose the enforcement of the antitrust laws in in essentially unregulated area such as [***74[ the market for electric I ight bulbs." Ante, at 595. This statement raises at last the only legitimate question, which i� whether Parker erred in holding that Congress, in enacting the Sherman Act, did not intend to vitiate state regulation of the sort at issue here by creating treble -damages exposure for activities performed in compliance therewith. The Court's rationale appears to be that the draftsmen of the Sherman Act intended to exempt state -regulated utilities from treble damages only to the extent those utilities are complying with state rules which narrowly reflect the "typica[l] assumption) that the [utility[ is a natural monopoly" and which regulate the utility's "nat- ural monopoly powers" as opposed to its 'business ac- tivity in competitive areas of the economy." Ante, at 595-596 (footnotes omitted). Furhermore, such regu- lation must be "'sufficiently central'" to the regulation of natural monopoly powers if it is to shield the regulated party from antitrust liability. Ante, at 597 n. 37. Ties Delphic reading of the Sherman Act, which is unaided by any reference to the language or legislative history of that Act, is, of course, inconsistent with Parker v. Brown. Parker [***75) involved a state scheme aimed at artificially raising the market price of raisins. Raisin production is not a "natural monopoly." if the limits of [*632j the state -action exemption from (lie Sherman Act are congruent with the boundaries of "natural monopoly" power, then Parker was wrongly decided. But the legislative history of the Shermrur Act shows conclusively that Parker was correctly decided. The floor debates and the House Report on il.e proposed leg- islation clearly reveal, as at least one commentator has noted, that "Congress fully understood the narrow scope given to the commerce clause" in 1890. n1 3 This un- derstanding is, in many ways. of historic interest only, because subsequent decisions of this Court have "per- mitted the reach of the Sherman Act to expand along with expanding notions of congressional power." ni5 But the narrow view taken by the Members of Congress in 1890 remains relevant for the limited purpose of as- sessing their intention regarding the interaction of the Sherman Act wid state economic regulation. n14 Slater, Antitrust and Government ,Action: A Formula for Narrowing Parker v. Brown, 69 Nw. U.L. Rev. 71, 84 (1974). See, e.g., 20 Cong. Rec. 1 169 (1889) (remarks of Sen. Reagan); id., at 1458 (remarks of Sen. George); 21 Cong. Rec. 2467 (1890) (remarks of Sen. Hiscot:0: id., at 2469-2470 (remarks of Sen. Reagan); id.. at 2566 (remarks of Sen. Stewart); id., at 2567 (remarks of Sen. Hoar); id., at 2600 (remarks of Sen. George). n15 Hospital Building Co. Y. Rex Hospital Trustees, 425 U.S. 738. 743 n. 2. ***76[ The legislative history reveals very clearly that Congress' perception of the limitations of its power un- der the Commerce Clause was coupled with an intent not to intrude upon the authority of the several States to regulate "domestic" commerce. As the House Report stated: S "it will be observed that the provisions of the bill are carefully confined to such subjects of legislation as are clearly within the legislative authority of Congress. "No attempt is made to invade the legislative authority [*633[ of the several States or even to occupy doubtful grounds. No system of laws can be devised by Congress alone which would effectually protect the people of the United States against the evils and oppression of trusts and monopolies. Congress has no authority to deal, gen- erally, with the subject within the States, and the States have no authority to legislate in respect of commerce between the several States or with foreign nations. [**31381 "It follows, therefore, that the legislative au- thority of Congress and that of the several States must be exerted to secure the suppression of restraints upon trade and monopolies. Whatever legislation Congress may enact on this subject, within [***77[ the limits of its authority, will prove of little value unless the States shall supplement it by such auxiliary and proper legis- lation as may be within their legislative authority." n16 n16 H.R. Rep, No. 1707, 51st Cong.. Ist Sess., I (1890) (emphasis added). 428 U.S, 579, 0633; 96 S. Ct. 3110. **3138; ' 1976 U.S, LEXIS 4, ***77; 49 L. Ed. 2d 1 141 Similarly, the floor debates on the proposed legisla- tion reveal an intent to "[g[o as far as the Constitution permits Congress to go," n17 in the words of Senator Sherman, conjoined with an intent not to "interfere with" state -law efforts to "prevent and control combinations within the limit of the State.' n18 Far from demon- strating an intent to pre-empt state laws aimed at pre- venting or controlling combinations or monopolies, the legislative debates show that Congress' goal was to sup- plement such state efforts, themselves restricted to the geographic boundaries of the several States. As Senator Sherman stated: 'Each State can deal with a cornbina- tion within the State, but only the General Government can deal [*634[ with combinations reaching not only the [***78] several States, but the commercial world. This bill does not include combinations within a State...." n19 Indeed a preexisting body of state law forbidding combinations in restraint of trade provided the model for the federal Act. As Senator Sherman stated with respect to the proposed legislation: "It declares that cer- tain contracts are against public polic}, null and void. It does not announce a new principle of law, but applies old and well -recognized principles of the common law to the complicated jurisdiction of our State and Federal Government. Similar contracts in any State in the Union are now, by common or statute law, null and void." n20 n17 20 Cong. Rec. 1167 (1889). n18 21 Cong. Rec. 2456 (1890) (emphasis added). n19 Id., at 2460. n20 Id., at 2456. It is noteworthy that the body of state jurisprudence which formed the model for the Sherman Act coexisted with state laws permitting regulated industries to oper- ate under govemmental control in the public interest. Indeed, state regulatory laws [***791 long antedated the passage of the Shernimi Act and had, prior to its passage, been upheld by this Court against constiiutional attacks. n21 Such laws were an integral part of state efforts to regulate [*6351 competition to which Congress turned for guidance in barring restraints of interstate commerce, and it is clear that those laws were left undisturbed by the passage of the Sherman Act in 1890. For, as congres- sional spokesmen expressly stated, there was no intent to 'interfere with" state laws regulating domestic com- merce or "invade the legislative authority of the several States...." Page 28 LEXSEE n21 See Munn v. Illinois. 9-1 U.S. 113. 125 ("Under [the policel powers the government regu- lates the conduct of its citizens one towards another, and the manner in which each shall use his own prop- erty, when such regulation becomes necessary for the public good. In their exercise it has been custom- ary in England from time immemorial, and in this country from its first colonization, to regulate fer- ries, cunrtrton carriers, hackmen, bakers, millers, whariingers, innkeepers, &c., and in so doing to fix a maximum of charge to be made for services rendered, accommodations furnished, and articles sold. To this day, statutes are to be found in many of the States upon some or all these subjects; and we think it has never yet been successfully contended that such legislation came within any of the constitu- tional prohibitions against interference with private property"). ..*Sol As previously noted, the intent of the draftsmen of the Sherman Act not to intrude on the sovereignty of the States was coupled with a full and precise understanding of the narrow scope of congressional power under the Commerce Clause, as it was then interpreted by deci- sions of this Court. Subsequent decisions of the Court, however, have permitted the "jurisdictional" reach of the Sherman Act to expand 1**31391 along with an ex- panding view of the commerce power of Congress. See Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 7-13 n. 2. and cases cited therein. These deci- sions, based on a determination that Congress intended to exercise all the power it possessed when it enacted the Sherman Act, n22 have in effect allowed the Congress of 1890 the retroactive benefit of an enlarged judicial conception of the commerce power. n23 n22 E.g., United States v. Frankfort Distilleries, 324 U.S. 293, 298; United States v. Underwriters Assn., 322 U.S. 533, 558; Atlantic Cleaners & Dvers v. United States, 286 U,S. 427, 435. See also United States v. American BItN.. Ntaint. Industries, 422 U.S. 271. 278: Gulf Oil Corp. v. Copp Paving Co.. -419 U.S. 186. 194-195. n23 See Hospital Building Co. v. Rex Hospital Trustees. 425 U.S., at 743 n. 2: Gulf Oil Corp. v. Copp Paving Co., supra, at 201-202; Mandeville Island Farms v, American Cnstal Sugar Co., 334 U.S. 19, 229-235. [***gll It was this retroactive expansion of the jurisdictional 00 -'`<�0 Page 29 428 U.S. 579, *635; 96 S. Ct. 3110, **3139; LEXSEE 1976 U.S. LEXiS 4, ***81; 49 L. Ed. 2d 1141 reach of the Sherman Act that was in large part respon- sible for the advent of the Parker doctrine. Parker in- volved a program regulating the production of raisins [*636] within the State of California. Under the origi- nal understanding of the draftsmen of the Sherman Act, such in -state production, like in -state manufacturing, would not have been subject to the regulatory power of Congress under the Commerce Clause and taus not within the "jurisdictional" rcich of the Sherman Act. See United States v. E. C. Knight Co., 156 U.S. 1. If the state of the law had remained static, the Parker problem would rarely, if ever, have arisen. As stated in Northern Securities Co. v, United States, 193 U.S. 197, the operative premise would have been that the "Anti - Trust Act... prescribe[dl... a ntle for interstate and international commerce, (not for domestic commerce,)" id., at 337. The relevartt question would have been whether the anticompetitive conduct required or per- mitted by the state statute was in restraint of domes- tic or interstate commerce. If the former, the conduct would have been beyond the reach of the Sherman Act; if [***821 the latter, the conduct would probably have violated the Sherman Act, regardless of contrary state law, on the theory that "[nlo State can, by... any... mode, project its authority into other States, and across the continent, so as to prevent Congress from exerting the power it possesses under the Constitution over in- terstate and international commerce. or... to exempt its corporation engaged in interstate commerce from obe- dience to any rule lawfully established by Congress for such cormerce." Id., at 345-346. But the law did not remain static. As one commen- tator has put it: "By 1942, when Parker v. Brown was decided, the interpretation and scope of the commerce clause had changed substantially. With the development of the 'affection doctrine' purely intrastate events" -- like state -mandated anticompetitive arrangements with respect to in -state agricultural production or in -state pro- vision of utility services -- "could be regulated [*6371 under the commerce clause if these events had the requi- site impact on interstate commerce." n24 This develop- ment created a potential for serious conflict between state statutes regulating commerce .vhich, in 1890, would have been considered "domestic' [***831 but which, in 1942, were viewed as falling within the jurisdictional reach of the Sherman Act. To have held that state statutes requiring anticompetitive arrangements with respect to such commerce were pre-empted by the Sherman Act would, in effect, have transformed a generous principle of judicial construction -- namely the "retroactive" ex- pansion of the jurisdictional reach of the Sherman Act to [**31401 the limits of an expanded judicial concep- tion of the commerce power -- into a transgression of the clearly expressed congressional intent not to intrude on the regulatory authority of the States. n 24 Slater, supra, n. 14. at 85. The "state action" doctrine of Parker v. Brown, as clarified by Goldfarb, represents the best possible ac- commodation of this limiting intent and the post-1890 judicial expansion of the jurisdictional reach of the Sherman Act. Parker's basic holding -- that the Sherman Act did not intend to displace restraints imposed by the State acting as sovereign -- coincides with the expressed legislative [***84) goal not to "invade the legislative authority of the several States...." Goldfarb clarified Parker by holding that private conduct, if it is to come within the state -action exemption, must be not merely "prompted" but "compelled" by state action. Thus re- fined, the doctrine performs the salutary function of iso- latine those areas of state regulation where the State's sovereign interest is, by the State's own judgment, at its strongest, and limits the exemption to those areas. n25 n25 NIR. JUSTICE BLACKNIUN expresses the view that the Court answered the question of "what was to be the result if the expanding ambit of the Sherman Act should bring it into conflict with incon- sistent state law" in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, and that the answer it Pave was that anv state regulatory statute "incon- sistent" with the judicially expanded Sherman Act was pre-empted. Ante, at b06. But the opinion in Schwegmann -- which did not purport to modify or overrule Parker -- is most plausibly read as resting on a post-1890 expression of congressional intent, the Miller-Tydings Act. See infra, at 639. Even as- suming, however, that Schwegmann conflicted with Parker, then surely the most significant aspect of that conflict is that Congress did not allow it to persist, as Schwegmann was soon legislatively overruled by the enactment of the McGuire bill, 66 Stat. 632, 15 U.S.C.§ 45(a)(2)(5). 1-851 [ *6381 Beyond this the Court cannot go without dis- regarding the purpose of the Sherman Act not to disrupt state regula1ON laws. n26 Congress, of course, can alter its 1 16391 original intent and expand or contract the categories of state law which may permissibly im- pose restraints on competition. For example, in 1937 Congress passed the Stiller-Tydin,s Act which attached a proviso to § I of the Sherman Act permitting. resale price maintenance contracts where such contracts were 428 U.S. 579, *639; 96 S. Ct. 3110. **3I40; 1976 U.S. LEXiS 4, ***85; 49 L. Eel. 2d 1141 permitted by applicable state law. This proviso was in- terpreted in [**31411 Schwegmann Bros. v, Calvert Distillers Corp., 341 U.S. 384, not to permit a State to enforce a law providing that all retailers within a State were bound by a resale price maintenance con- tract executed by any one retailer in the State. As the Court today notes, Parker -- and the legislative judg- ment embodied in the 1890 version of the Sherman Act -- would, standing alone, have seemed to immunize the state scheme. Ante, at 593. But Congress was thought to have struck a new balance in 1937 with respect to a spe- cific category of state -imposed restraints. Accordingly, the Court in Schwegmann determined congressional in- tent concerning [***86] the permissible limits of state restraints with respect to resale price maintenance by reference to the later, and more specific, expression of congressional purpose. n27 n26 The Court states at one point that the omission of a "direct reference to light bulbs" in the statute cre- ating the Michigan Public ServiceVornmission indi- cates that the State's policy is 'neutral on the ques- tion whether a utility should, or should not, have such a program." Ante, at 584, 585. This statement seems to suggest that the Court considers the speci- ficity with which a state legislature deals with partic- ular regulatory matters to be relevant in determining whether agency action respecting such matters repre- sents a sovereign choice, entitled to deference under the Sherman Act. This suggestion overlooks the fact that Michigan's policy, far from being "neutral," is, as announced in Mich. Comp. Laws § 460.6 (1970), to vest an ex- pert agency "with complete power and jurisdiction to regulate all public utilities in the state...." That agency is "vested with power and jurisdiction to reg- ulate all rates, fares, fees, charges, services, rules, conditions of service and all other matters pertain- ing to the formation, operation or direction of such public utilities. It is further granted the power and jurisdiction to hear and pass upon all matters pertain- ing to or necessary or incident to such regulation of all public utilities, including electric light and power companies...." Ibid. (emphasis added). If a state legislature can ensure antitrust exemption only by eschewing such broad delegation of regula- tory authority and incorporating regulatory details into statutory law, then there is a very great risk that the State will be prevented from regulating ef- fectively. For as this Court has repeatedly observed in another context, "[d[elegation... has long been recognized as necessary in order that the exertion of legislative power does riot become a futility.... Page 30 LEXSEE [TJhc effectiveness of both the legislative and ad- ministrative processes would become endangered if ithe leeislaturel were under the... compulsion of fill- ing in the details beyond the liberal prescription [of requiring the making of 'just and reasonable' rates and regulating in the 'public interest'l here. Then the burdens of minutiae would be apt to clog the ad- ministration of the law and deprive the agency of that flexibility and dispatch which are its salient virtues." Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398. n27 The decision in Schwegmann rested primarily on a detailed analysis of the legislative history of the Miller-Tydings Act. 341 U.S., at 390.395. •**871 [*6401 There has been no analogous alternation of the original intent regarding the area of state regulation at issue here. indeed, to the extent subsequent congres- sional action is probative at all, it shows a continuing intent to defer to the regulatory authority of the States over the terms and conditions of in -state electric utility service. Thus, § 201(a) of the Federal Power Act, 16 U.S.C. § 824(a), provides in relevant part that "Federal regulation... [is] to extend only to those matters which are not subject to regulation by the States." The Court's opinion simply ignores the clear evidence of congressional intent and substitutes its own policy judgment about the desirability of disregarding any facet of state economic regulation that it thinks unwise or of no great importance. In adopting this freewheeling ap- proach to the language of the Sherman Act the Court creates a statutory simulacrum of the substantive due process doctrine I thought had been put to rest long ago. See Ferguson v. Sktupa, 372 U.S. 726. n28 For the Court's approach contemplates the selective interdiction of those anticompetitive state regulatory measures that are deemed not "central" to the [***881 limited range of regulatory goals considered "imperative" by the federal judiciary. n28 See Verkuil, State Action, Due Process and Antitrust: Reflections on Parker v, Brown, 75 Col. L. Rev. 328 (1975). Henceforth, a state -regulated public utility company must at its peril successfully divine which of its countless and interrelated tariff provisions a federal court will ul- timately consider "central" or "imperative." If it guesses wrong, it may be subjected to treble damages as a penalty for its compliance with state law. w` ' v) ,.t 140 s 772 F. Supp. 1225 printed in FULL format. WILLIAMS ELECTRIC COMPANY, INC., Plaintiff, v, HONEYWELL, INC., et al., Defendants Case No. 46-0-1374-RV UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA, PENSACOLA DIVISION 772 F. Supp. 1225; 1991 U.S. Dist. LEXIS 10659; 1991-1 Trade Cas. (CCH) P69,473 April 16, 1991, Decided April 16, 1991, Filed COUNSEL: JAMES E. MOORE, ESQ.. MOORE & MOORE, P.A., Niceville, Florida, Kimberly Cornelson, Esq., NI. Jerome Elmore, Esquire, BONDURANT, NIIXSON & EL4IORE, Atlanta. Georgia. HONEYWELL: Hal K. Litchford, Esquire, LITDHORD, CHRISTOPHER & MILBRATH, Professional Association, Orlando, Florida, Paul A. Koches, Esquire, Joseph Brooks, Esquire, Popham, Haik, Schnobrich & Kaufman, Ltd., Washington, D.C. Electric Company and William W. Harmon: Robert P. Gaines, Esquire, BEGGS & LANE, Pensacola, Florida. John Geis and Honeywell, Inc.: William C. Owen, Esquire, CARLTON, FIELDS, WARD, EMMANUEL, SMITH, CUTLER & KENT, P. A., Tallahassee, Florida. JUDGES: Roger Vinson, United States District Judge OPINIONBY: VINSON OPINION: [*1227] ORDER GRANTING SUMMARY JUDGMENT ROGER VINSON. UNITED STATES DISTRICT JUDGE Pendin! in this case are several motions, including the motion to dismiss, or in the alternative for summary Judgment. tiled by defendants Honeywell and Geis. (Doc. 184). For the reasons stated below, that motion is GRANTED as to all counts except Counts XIX and 1 XX, and Counts X1X and XX are DISMISSED, without prejudice. 1. FACTUAL BACKGROUND. Page 7 The factual record in this case is voluminous. For the sake of brevity, I discuss many of the factual details in this opinion only as they become relevant, with this very brief review of the factual setting as background. Defendant Honeywell installed the Energy Management Control System (EMCS) at Sheppard Air Force Base, Texas (Sheppard), prior to the events in this case. The EMCS contract between the United States Air Force and Honeywell required that Honeywell alone could perform work on certain aspects of the EMCS for all future work done on the EMCS system. Plaintiff alleges that the contract required only recommendations from Honeywell, and only on certain limited aspects of future EXICS work. Plaintiff won a later general contract for work at Sheppard. Section 13A of this contract dealt with the EMCS system. Honeywell had unsuccessfully bid on this section. There were five listed items nl within Section 13A which the Air Force later required to be done by Honeywell. n 1 Some pans of the record refer to six listed items. The exact number is irrelevant to any pending mo- tion. Williams wanted to perform all of the Section 13A work itself. It quoted cost estimates below S 100.000, some as low as S 30,000, to do the work. Honeywell, however, also wanted to perform all of Section 13A work itself. Williams alleges that Honeywell threatened the Air Force with withdrawal of its warranties if it gave any part of Section 13A to Williams. The Air Force then told Williams it had to use Honeywell for the live listed items within Section 13A. Dal — I idll J Page 8 772 F. Supp. 1225, *1227; 1991 U.S. Dist. LEXIS 10659; F.Supp. 1991-1 Trade Cas. (CCH) P69,473 Williams further alleges that Honeywell then illegally tied its performance of the five listed items to getting all of the Section 13A work. Because of the Air Force's re- quirement that HoncvurlI pert rrn the five listed items, and Honcywclt's general "market po«er," Williams was forced to use Honeywell for all of the Section 13A work. Honeywell estimated the cost of the work to be S 410,000, a tiE�ure W'ilharns char<_es is grossly exorbitant. The Air Force's oriumnai cost estimate aas S 107,000, an amount close to W'ilhartu' later estimate. Honeywell then sent in its cost estimate, allegedly to "justify its price," and the Air Force later revised its cost ['1228] estimate to over S 400,000 in accord with Honeywell's estimate. Honey%ell also required that defendant J. V Clark Electric Company, Inc. (Clark) be used as a sub -sub- contractor on Section 13A work. Clark would receive a portion of the S 410,000. Williams alleges that Clark conspired with Honeywell in this way: lioneywell would do the above -alleged thinks to force Williams to use Honeywell on Section 13A: Hone�well would insist on usin: Clark as sub -subcontractor: Clark would use only Honeywell products as it performed its portion of the work. n2 n2 Williams and Honeywell both took their dis- pute to the Air Force, which eventually decided chat if Williams did not agree to Honeywell's con- ditions, it would be in breach of its contract with the Air Force. Before bringing this suit, Williams appealed this decision to the Armed Services Board of Contract Appeals (ASBCA). The ASBCA appeals were settled on January 28, 1988. Under the terms of the settlement, the government paid Williams S 365.2 11.75. Williams clam s that, as a result of all of this, it had to pay out S 410,000 for a job it could have performed itself for approximately S 30,000. Williams claims a loss in profits of S 680.000. It also claims a loss in operattri,2 capital that reduced its bonding capacity. It alleges that the redUCtion in operating capital forced it to forego earning credit for making early payments, and in some cases forced it to make late payments and pay late. fees. Williams also complains of lost business op- portunity. and a loss in business reputation caused by the late payments. The total of damages Williams seeks is S'_ million. �Vdlranis is suing Honeywell and one of its officers John Gets (Geis) n3; and Clark and one of its officers William Warren Harmon (Harmon). In addition to var- ious antitrust claims under federal n4 and state n5 law, Williams alleges state law torts, including tortious in- terference with contract, n6 fraud n7, and violation of the Texas Deceptive Trade Practices Act. n8 n3 Movants Honeywell and Geis will sometimes be referred to collectively as "Honeywell." n4 Counts I through Vb. n5 Counts VI through XI11. n6 Counts XIV and XV. n7 Counts XVI through XVIII. n8 Counts XIX and XX. II. LEGAL STANDARD. A motion for summary judgment should be granted when "the pleadings, depositions, answers to interroga- tories and admissions on file, together with the affi- davits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law•." Rule 56(c), Fed. R.Civ.P. An issue of fact is "material" if it might affect the out- come of the case under the governing law. Anderson v. Liberty Lobby, Inc., 477 U. S. 242. 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). It is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. See Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). "The movinc, party is entitled to judgment as a mat- ter of law if the nonmoving party cannot sufficiently show an essential element of the case to which the non- moving party has the burden of proof." Cornelius v. Town of Highland Lake, 880 F. 2d 248, 251 (11th Cir. 1939), cert. denied sub nom., Spears v. Cornelius, U.S. , I10 S. Ct. 1784, 108 L. Ed. 2d 785 (1990). However, summary judgment is improper "if a reason- able fact tinder could draw more than one inference from the facts. and that inference creates a genuine issue of material fact." Id. On a summary judgment motion, the record and all inferences that can be drawn from it, must be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Cr. 993, 8 L. Ed. 2d 176 (1962). Furthermore, the court must consider the entire record in the case, not just those pieces of evidence which have been singled out for at - ell �J~ i �rU IL Page 9 ' 772 F. Supp. 1225, *1228; 1991 U.S. Dist. LEXIS 10659; F.Supp. 1991.1 Trade Cas. (CCH) P69,473 tention by the parties. See Ciinkscoles v. Chevron USA. Inc.. 831 F.-Id 1565. 1570 (11th Cir. 1957). ("12291 111. ANTiTRUST i'viMUNITY. (A.) Federal Antitrust Liability. Defendants argue that they are immune from antitrust liability because, in en- tering into the: contractual arrangement challenged by Williams, then acted at the direction of federal officials. who are therrtselyes immune from antitrust liability. In considering their argument, i am mindful that "repeals of the antitrust laws by implication . are strongly disfavored." Ouer Tail Fbxer Co. v. United States, 410 U. S. ,366, 372. 93 S. Cr. 102 2, 35 L. Ed. 2d 359 (1973). citing United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 350-351, 83 S Ct. 1715, 10 L. Ed. 2d 915 t1963t. However, it appears well -settled that federal agencies and their officials actin-, in their official capacity are im- mune from federal antitrust liability. See United States v. Cooper Corp. , 312 U.S. 600, 606. 61 S. Ct, 742, 85 L. Ed. 1071 (1941). Sakamoto i. Dury Free Shoppers, Ltd., 764 F2d 1285 t9th Or 1985). cert. denied, 475 US. 1081, 106 S. Cr. 1457, 89 L. Ed. 2d 715 (1986); Dept. of hater & Fbi er v. Bonneville Fewer Administration, 759 F 2d 684 (9th Cur. 1985); Sea - Land Service, Inc. v. Alaska Railroad, 212.4pp, D.C. 197, 659 F. 2d 243 (D.C. Cir. 1981), cert, denied, 455 CS. 919, 102 S. Ct. 1274, 71 L. Ed. 2d 459 (1982); Feldman v. Gardner. 213 ,4pp. D.C. 119, 661 F.2d 1295 (D.C. Cir. 1981). cert. granted sub nom. District of Columbia Court of Appeals v. Feldman, 458 U.S. 1105, 102 S. Ct. 3481, 73 L. Ed. 2d 1365 (1932), vacated on other -,rounds, 460 U.S. 462, 103 S. Ct. 1303, 75 L. £d. 2d 206 (1983). The case law relating to the immunity of private par- ties dealing v itti the federal government is somewhat more sparse. Two opinions of the Supreme Court of the United States support the extension to private actors act- ing within the direction of the federal agency. In Gordon v. Vel, )brk Stack F_rchange, 422 U.S. 659, 95 S. Ct. 259, 45 L. Ed. 2d 463 (1975). a unanimous Court held that eehrre CorlLress ,aye the Securities and Exchange Conunission the power to approve stock exchanges' sys- tem of ti.xed commission rates. the Commission and the stock exchan�,.es were immune from antitrust liability. 422 US at 689-690. SinitlarI%, to Oured States v. Nat'l Assoc. of Securines Dealers, 422 C'. S. 694, 95 S. Ct. 2427. 45 L. Ed. 2d 486 (1975i. the Court held that where Congress empowered the SEC to approve certain self-imposed hor- izontal restrictions on the transferabdit} of mutual fund shares, the mutual funds, broker -dealers. and other pri- vate parties involved were immune under the antitrust laws. I believe these cases support the proposition that private parties are shielded from federal antitrust liability where their actions were regulated by a federal regula- tory agency acting pursuant to congressional authority, and the action in question was authorized or directed by that regulator} agency. Defendants cite a case from within this circuit support- ing their view. In .Medical Assn v Schweiker, 554 F Sapp. 955, 966 6W.D. Ala. 1983). the Middle District of Alabama held that: . . .private parties to the extent they are acting at the direction or with the consent of federal agencies also fall outside the pale of the (Sherman) act's prohibition. (emphasis added). The Eleventh Circuit affirmed the Middle District in a per curiam opinion, Medical Assn v. Heckler, 714 F. 2d 107. 108 (1101 Cir. 1983). Defendants also rely upon Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (1V.D. Ga. 1986), aff'd, 844 F.2d 1538 (llth Cir. 1988), in which the Rural Electrification Administration (REA) required REA cooperative generating and transmitting ("G & T") wholesale suppliers of electricity to enter into "all -requirements" sales contracts with its REA co- operative retail electricity distributors as a condition for receiving federal loans. The contracts required the dis- tribution co-ops to buy all their non -self -generated elec- tricity from or through the "G & T" REA cooperative. This, of course, would be in violation of the antitrust laws, but for the REA's "all -requirements" mandate. In the Public Utility Regulatory Policies Act of 1978 ("PURPA"), Congress mandated that (*12301 all elm- tric utilities were obligated to buy electricity from non - utility self -generators of electricity. Greensboro Lumber Co. is such a self -generator, and it sought to have the lo- cal REA distribution cooperative (which was the electric Wilily serving its area by state regulation) purchase its excess electric energy and capacity in accordance with PURPA. The distribution cooperative declined to do so, and Greensboro Lumber asked the court to declare the REA cooperative's refusal to purchase as, among other things, a violation of the federal antitrust laws. The dis- trict court granted summary judgment for the REA coop- eratives on the ground that they were: imn;une from fed- eral antitrust liability, citing the former Fifth Circuit's opinion in Alabama Power Co. v. Alabama Electric Cooperative, Inc., 394 F.2d 672 (5th Cir.), cert, de- nied, 393 U.S. 1000, 89 S. Ct. 488. 21 L. Ed. 2d 465 (1968), The Eleventh Circuit affirmed summary judgment for the defendants despite a disputed issue of 6) . ......... I 772 F. Supp. 1225. *1230, 1991 U.S. Dist. LEXIS 10659: 1991.1 Trade Cas. (CCH) P69,473 fact on the details of REA policy, "because there is no substantial doubt that the REA required the contracts at issue in this particular case." Greensboro Lumber Co. v. Georgia Power Co.. 844 F: 2d 1538, 1541 (11th Cir. 1988) (emphasis added}. But see Hecht v. Pro -Football, Inc., 144,4pp. D.C. 56, 444F2d 931, 934n. 6 (D.C. Cir. 1971). .4lahama A_i er Co. V. 11abanta Electric Cooperatite, 1nc., supra, dealt with similar REA- mandated all -requirements contracts. The former Fifth Circuit affirmed dismissal of the antitrust claims brought against the private defendants in that c.4se, holding that the contracts "were the result of valid governmental ac- tion and, hence, not violative of the antitrust laws." 394 F 2d at 673, 676-677. 'Xilliams attempts to distinguish Greensboro Lumber Co. and Alabama Po%ver Co. on a number of grounds. First, it notes that the REA had a "long-standing pol- icy" of requiring the type of contract in question. See Greensboro Ltunbcr Co., supra, 844 F.2d at 1540- 1541. Williatas argues at length that?here was no gov- ernmental policy in effect requiring "sole -sourcing" on ENICS systems. See doc. 1941, plaintiff's response to Honeywell's motion, at 72-84. n9 But it is only the dis- trict court that relies upon such a government policy. The Eleventh Circuit explicitly dismisses the existence of a policy as unimportant, ruling in that instance that immu- nity attached because "there is no substantial doubt that the REA required the contracts at issue." Greensboro Lumber Co., supra, 844 F. 2d at 1541. n9 Honeys;ell responds, also at length, by arguing that the ATC "Policy Letter No. 4" represented such a "policy. " Because I conclude that the existence of a "policy" is not a prerequisite, I need not decide this issue. Nor does Alabama Power Co. require the exis- tence of a "policy." While the opinion refers to the REA's "customary and long-established practice" of all -requirements contracts, it apparently does so only to sho« that such contracts are not beyond an "outer perimeter" of the REA's statutory authority. Alabama Power Co., supra, 394 F.2d at 676. The clear implica- tion is that as long as the required contractual arrange- ment is within the "outer perimeter" of statutory author- ity, immunity attaches both to the federal agency man- dating the anticompetitive action and the private party doim! it See id. at 676-677. The existence of a long- standin, policy is not the touchstone. Williams nest points out that the district court's opin- Page 10 F.Supp. ,on in Greensboro Lumber Co. emphasized Congress' knowing acquiescence in the REA's "long-established practice" of compelling all -requirements contracts. 643 F. Supp. at 1364. Pointing to authority from other circuits requiring specific congressional consent to any creation of antitrust immunity, n10 Williams argues that the "REA" cases are distinct. n10 See, e.g., .`'onheastem Tel. Co. v. American Tel. & Tel. Co.. 651 F2d 76. 82 (2d Cir. 1981) (unless a regulatory scheme is "so pervasive that Congress must be assumed" to have intended an- titrust immunity, immunity exists only when "an agency, acting pursuant to a specific Congressional directive, actively regulates the particular conduct challenged") (emphasis added). I agree that there may be reasons to re-examine the "REA" cases in other factual [*1231) contexts, but Greensboro Lumber Co. and Georgia Power Co. are the law of this circuit. Moreover, there is general congres- sional authorization for the Air Forge's contract action at issue here. In the Armed Services Procurement Act [10 U.S.C. § 2301 et seq], Congress has explicitly granted the Air Force (and all Department of Defense agencies) authority to make determinations in the procurement process like those made in this case by McNeely. Title 10, United States Code, Section 2304(c) speci- fies the situations in which a "head of an agency may use procedures other than competitive procedures." Section 2303(a)(4) lists the Air Force as such an "agency," and Section 231 1 authorizes an agency head to delegate any power (with an exception that does not apply here) un- der the chapter. See also § 2321(t) (authorizing the con- tracting officer to validate a contractor's restrictions on the use of proprietary data). These provisions are ad- ministratively implemented in the Federal Acquisitional Regulations. [See 48 C.F.R., Part 6, Subpart 6.3] If base contracting officer McNeely is viewed as hav- ing originally ordered sole sourcing only as to the five listed items. and then having expanded that order to include all of the Section 13A work to resolve the Williams -Honeywell dispute, that action may also en- joy explicit congressional authorization. Section 2310 empowers the agency head or his designee to issue "de- terminations and decisions" relating to contract disputes, which is exactly what tilcNeely issued as the final reso- lution of the dispute. In sum, i conclude that the law of this circuit is that when a federal agency or official is authorized by laic to, and does, direct or require a nun -government party's 772 F. Supp. 1225, *1231: 1991 U.S. Dist. LEXIS 10659; 1991-1 Trade Cas. (CCH) P69,473 anticompetitive conduct, the non -government party act- ing pursuant to that direction or requirement is immune from federal antitrust liability. in this case, the Armed Services Procurement Act provides authorization for the Air Force's direction to X illianis. .As the Eleventh Circuit has held, immunity attaches it' "there is no sub- stantial doubt that the (zoFcriintcnt agency) required the contracts at issue in this particular case." Greensboro Lutnher Co >. Georgia A2wer Co., 8.4 F.2d 1538, 1541 (11th Cir. 1988). Williams does riot deny that the Air Force eventually "required" it to subcontract with Honeywell and Clark. See amended complaint, paras. 3.7a & 3.14(i). indeed, Williams must have taken this position in Williams' ASBCA proceedings acainst the Air Force, which ul- timately resulted in the Air Force paying Williams an additional S 365,211.75. Ho�yevcr, at the heart of Williams' claims are two allegations which arguably bring Honeywell outside the protection of any immu- nity. First, Williams alleges that the Air Force required only that Honeywell perform the five listed items in Section 13A. Thus, it was Honeywell (not the Air Force) that used that limited requirement to force Williams to hire Honeywell for all of Section 13A. Second, Williams alleges that Honeywell coerced the Air Force into issu- ing this requirement through illegal means. Thus, it was really Honeywell• not the Air Force, that forced this contractual arrangement. I discuss these in turn. (B). The Air Force Required Williams to let Honeywell do the Section 13A Work. The language of Section 13,A, on its face, indicates that only certain designated portions of that Section require Honeywell's participation. Except for perfornung the "necessary in- terface with the central equipment," that participation is limited to "recommendations" and "supervision." See doc. 194. Ex. 15 (Section 13A), esp. paras. 2.1 - 2.1.5, 5.1, and 7. Honeywell's purported perception of its duties under the contract was broader. Based in pan on what it contends was Air Force policy regarding ENICS systems, it maintained that it needed to do all the work in Section 13A. The plaintiff presents substantial evidence that the government accepted the narrower interpretation. In a letter written to Florida's then Senator, Lawton Chiles, whose office had inquired into the contract dispute on behalf of Honev%vell. Colonel Albert L. Barbero, in the office of the [*1232] Secretary of the Department of the Air Force. stated: With the exception of paragraph 2.1.3, Williams Electric is free to do the work itself or to subcontract with Page 11 F.Supp. whomever it chooses, provided that Williams Electric or its subcontractor complies with the contractual require- ment to accomplish work under the recommendations of Honeywell. The requirement in paragraph 2.1.3 that the necessary interface with Central equipment be fur- nished by Honeywell is to insure compatibility with the existing system and to avoid the possible unsanctioned acquisition of proprietary data . . . It appears that Honeywell's offer to Williams Electric is for some of the work that Williams would be able to perform them- selves. Honeywell seems to have included not only the supervision requirement, but also much of the actual work required. Doc. 194, Ex. 5 (emphasis added). Similarly, Major Jerald Stubbs, Trial Attorney for the Air Force, issued a memo to Sheppard's contracting of- ficer on August 30, 1983, which stated: We have reviewed Honeywell's proposal of 3 June 1983. This proposal apparently embraces all the work specified in Section 13A of the Specification, not just the more limited functions specified for Honeywell in the five subparagraphs. This is beyond what the Government Specification requires of Williams Electric. If Honeywell is not willing to perform anything less than the totality of Section 13A, the government may have a very difficult situation in prevailing before the Board on this appeal. Id., Ex. 27, at 3, 7 (emphasis added). Finally, the Deputy Director of Contracting, ATC Headquarters, Randolph AFB, sent a telegram to Sheppard on June 25, 1983, regarding the Williams con- tract. The telegram states: In summary, with the exception of the contractual re- quirement contained in Section 13A, paragraph 2.1.3 of the contract, Williams is not required to issue a subcon- tract to Honeywell or anyone else. id., Ex. 28. Plaintiffs also subnvt the testimony of Colonel Cecil Underwood, a retired Air Force officer with over 26 years' experience in government contracting and pro- curement, and a purported expert in that field. After a re- view of the pertinent documents in this case, Underwood concluded that: (1) the contracting officer never deter- mined that all the ENICS work was to be sole sourced; (2) under the contract, Williams was free to perform all the Section 13A work, beyond the five listed items, by itself; and (3) Williams need not have subcontracted with Honeywell for the five listed items -- it could have sim- ply performed them with Honeywell's recommendations or supervision. Id., Ex. 25.1 Honeywell nonetheless insisted in its negotiations with Williams that Williams (a) subcontract with Honeywell for all of Section 13A, and (b) subcontract with Clark 1 /r L 772 F. Supp. 1225, *1232; 1991 U.S. Dist. LEXIS 10659; 199 1 -1 Trade Cas. (CCH) P69,473 as well. There is evidence suggesting that the alterna- tive for Williams was to breach its contract with the Air Force, which made Williams responsible for ensur- ing that Honeywell supervised the listed items of FMCS work. To support its view, 1-lonev,.ycll presents the testimony of (I ) Kenneth McNecly, the Sheppard base contracting officer, (2) Edward 1l. Ling. a mechanical engineer at ATC, and tat Jerry M. Morgan, the base engineer who drafted Section 13A, all of whom say that Section 13A required Honc) .cll to perform or recommend (appar- ently at its choosing) all of Section 13A. See attachment to doc. 184, Exs. A-C. These conclusions are based in pan on ATC's "Policy Letter No. 4," which instructed Air Force personnel to: Insure that all . . . contracts for building modifica- tion or repairs that require connection or reconnections to existing FMCS be specified as sole source to the origi- nal EMCS vendor for the connection and hardware. Id., Ex. E (emphasis ad&d). On the one hand, the testimony of all the witnesses ac- tually involved at Sheppard support Honeywell, while Williams' witnesses are all essentially "outside" consul- tants. On the other hand, Williams' three [•1233] non - expert witnesses were actually involved in the contract dispute process, and most importantly, the plain lan- guage of Section 13A seems to contradict Honeywell's argument. Ultimately, however, the Air Force's final decision on the matter was expressed in a single document. Everything else represents the review process leading up to that document. That document is the October 7, 1983, letter from Sheppard Contracting Officer Kenneth McNeely to Williams, expressing the base contracting officer's final "determination and direction." The letter makes clear that, as far as the Air Force was concerned, Williams was required to let Honeywell perform all the listed items in Section 13A: lbu hay e stated that Hon(n,tivell refuses to agree to a sub- contract limited to the six items specified for Honeywell in Section 13A, and that Honeywell instead insists on a subcontract encompassing most of Section 13A. If that is the case . . . then you must make such an arrangement with Honeywell. . . . If the only way is to subcontract with Honeywell, then that is what you must do. Doc. 194, plaintiff's memorandum, Ex. 41, at 3, (emphasis added). Page 12 F.Supp. would have allowed Williams to perform Section 13A work other than the "six" listed items if Honeywell has not insisted on doing all the Section 13A work itself. The issue then narrows down to who forced Williams to enter into the contractual arrangement at issue -- Honeywell or the Air Force'? In answering this question, there are two possible in- terpretations of McNeely's letter. The first possibility is that it shows Honeywell to be responsible for forcing itself on Williams for all of Section 13A, because it ex- ploited its monopoly on the six listed items to expand the subcontract. Under such an interpretation, immunity would not apply. The other possible interpretation is that the ulti- mate responsibility for contract construction was the Air Forces, as final arbiter. The letter shows that it adopted HonevweWs recalcitrance: "then that is what you must do." Oniy the Air Force had actual authority over Williams, and it knowingly used that authority to force Honevwell on Williams. Without the Air Force's enforcement power to back it up, Honeywell's hard bar- gaining would not have borne fruit. Thus, it cannot be denied that the Air Force required the contractual ar- rangement in question. Such a conclusion equates to a finding of immunity for Honeywell. I find the second interpretation to be the only legal construction that is possible under the undisputed facts. The Air Force bears the final responsibility for bringing about the contractual arrangements at issue in this case, because the Air Force was the final arbiter of the par- ties' contractual dispute. The posture of the Williams - Honeywell dispute forced the Air Force to side with either one or the other, and it sided with Honeywell. By stating that, "If the only way [to obtain Honeywell's par- ticipation on the six listed items) is to subcontract with Honeywell, then that is what you must do," the Air Force was directing Williams to contract with Honeywell. As a result, "there is no substantial doubt that [the Air Force] required the contracts at issue in this particular case." Greensboro Lumber Co., supra, 844 F.2d at 1541. (C.) Coercion of the Air Force by Honeywell. Williams also argues that Honeywell coerced the Air Force into making the determination that it did by threat• ening to withdraw its warranties on the EIMCS system. Although the antitrust immunity cases discussed above do not address such conduct, I believe that such coer- cion, if established, would disqualify Honeywell from antitrust immunity. This argument is, in most respects, identical to the plaintiff's "who required" contention, just discussed. McNecly's letter demonstrates that the Air Force Williams asserts that the conduct allegedly used by I�F:rtlJ 772 F. Supp. 1225, *1233; 1991 U.S. Dist. LEXIS 10659; 199 1 -1 Trade Cas. (CCH) P69,473 Honeywell as leverage against McNeely is conduct that is illegal under the antitrust laws. [*12341 The record does contain some evidence from which it may he inferred that Floncywell applied im- proper pressure on the Air Force. In a letter dated April 29. 1983. to Mary Teague at Sheppard :fir Force Base Honeywell, through Geis, informed the government that if an "outside contractor" tied into the base -wide EMCS, Honeywell "can no longer be held responsible for the remaining warranty on our system." Doc. 194. Ex. 33. The letter cited concerns that the work of "outside contractors" might lead to "improper connections" and "impedance mismatches" which could "severely damage the EINICS system" and "result in system failure." Id. It urged Sheppard to "take whatever steps are necessary to prevent our having to take action to present additional liability to Honeywell." Id. Several days later, citing this "danger" of voiding the warranties, Air Force Engineer George Acton is- sued a memo forbidding Williams personnel from work- ing on Honeywell "DGP's," and ordering that "only Honeywell personnel will be permitted to work on the EMCS items." Doc. 194, Ex. 35, at 1. Plaintiffs submit the testimony of Roger Haines, a pur- ported expert in EMCS work, who expressed the opinion that Honeywell's position on its warranties was "unrea- sonable," and that its stated concerns about damage to its EMCS systems from the work of other contractors was "exaggerated." Doc. 194, Ex. 17, at paras. 18, 22. Honeywell reiterated its position in a September 20, 1983, letter to Teague at Sheppard Air Force Base. Responding to an inquiry from the Air Force about Honeywell's willingness to perform on!y the specified items within Section 13A, Honeywell conditioned such limited work on an exclusion of its "responsibility for damage to the base wide EMCS system," as well "any responsibility for a working system, or anv warranty." Id., Ex. 40. The Williams -Honeywell -Air Force communications culminated in Sheppard Air Force Base Contracting Officer MlcNeels's final determination and direction let- ter, which had the appearance of remaining neutral, but had the practical effect of siding with Honeywell. At bast, this evidence might conceivably create a gen- uine issue of fact on whether Honeywell attempted to improperly influence Honeywell, but I find that there is no genuine issue on whether Honeywell's attempted "coercion" had any effect on the Air Force's decision. The United States Air Ford is a major consumer of these kinds of products and sersices, with enormous economic Pagc 13 F. Supp. "clout" in the market; certainly, much more "clout" than Honeywell. The kind of coercion. allegedly practiced by Honeywell would have more serious future repercus- sions for Honevwcil tan for the Air Force. The At, Force also has extensive resources, including a large staff of knowledgeable civilian and military experts in the relevant fields. It is simply not reasonable to in- fer that it was being either intimidated or duped in the manner alleged by Honeywell. As a part of the Air Force, Sheppard AFB benefits from this clout and expertise. All the evidence from the Sheppard personnel involved supports the conclu- sion that Honeywell had nothing to do with their deci- sion. McNeely denies acting out of a sense of coercion. See doc. 184, at 18-20, 23-24, Asked at deposition about Honeywell influence on his decisions, McNeely answered, "You've got to be kidding me. No contractor tells me what to do." Id., Ex. C, at 48-49. He specifi- cally denied that Honeywell brought any "pressure" on Sheppard personnel to reach the decision announced in his October 17. 1983, determination and direction letter. Id. at 56. According to McNeely, the "sole basis" for the deci- sion was ATC Policy Letter No. 4. Id. at 50. Similar explanations come from the other Sheppard AFB person- nel who took positions favoring Honeywell. See Ling dep., attachment to doc. 184, Ex. A, at 25 (Engineer Ling concluded independently that all of Section 13A should be performed by Honeywell, and was never ap- proached by Honeywell with respect to this decision); Morgan dep., attachment to doc. 184, Ex. H, at 2 (Engineer Morgan interprets specifications as requiring Honeywell for all of Section 13A; states [*1235] that specifications "were not written because of some war- ranty situation on the existing system."). According to Ling, McNeely, and Morgan, although Policy Letter No. 4 was written after Williams and Honeywell entered into the contract in question, the letter expressed a pre- existing position of the ATC office. Id., Exs. A at 23-26 (Ling); B at 50-51 (Morgan); and C at l3 (Mcneely). Taken as a whole, the evidence on this question fails to create a genuine issue of material fact. Thus, Williams' "coercion" claim is not sufficient to prevent Honeywell from invoking the recognized antitrust im- munity. Accordingly, Honeywell's rnotion for sum- mary judgment is GRANTED as to the federal antitrust claims, Counts I through V. (D.) State Antitrust Immunity. Defendants' federal antitrust immunity is dispositive of the claims under the Florida Antitrust .act of 1980 as well (Counts VI through Kill). Section 542.20., Florida Statutes, provides that conduct exempt under the federal antitrust laws is also L aJaJ � � ivV 772 F. Supp. 1225, *1235, 1991 U.S. Dist. LEXIS 10659; 1991-1 Trade Cas. (CCH) P69,473 exempt under the Florida act. See Falls Chase Special Taxing Dist. v. Ciry of Tallahassce, 788 F2d 711. 712 n. 4 Ulth Cir. 1986): Auron v. Dade Cit1. 783 F2d 1009. 1010 n. I filth Cir. 1986): Sebring 0111lies Comm'n v. Home Savings Assoc., 508 So. 'd 26, 28 (Fla. 2d DC4 1937). Accordingly. defendants are en. titled to summary judgment on the state antitrust claims set out in Counts VI through X111. V. LIABILITY ON NON -ANTITRUST THEORIES. Honeywell also moves for summary judgment on all of the remaining state law claims. Each will be discussed in turn. n 1 l nl I Honeywell argues that a finding of antitrust immunity would compel summary judgment on the remaining state law claims as well. The cases it cites are inapposite, however. They either extend to state law claims (1) the Noerr-Pennington "first amendment" antitrust immunity (for petitioning the government for anticompetitive ends), or (2) the im- munity of governmental employees. I have found no case addressing the question of whether the im- munity of private parties acting at the direction of federal governmental agencies also extends to related state (non -antitrust) law claims. (A.) Tortious Interference, Count XIV is a claim against Honeywell, Geis, Clark, and Harmon for tor- tious interference with a business relationship. Count XV is a claim against the same defendants for tortious interference with contractual relations. These counts al- lege that Honeywell tcrtiously interfered in the follow- ing ways: (I) refusing to provide the Air Force with warranties on its ESiCS work at Sheppard AFB if the Air Force allowed Williams to perform any work on Section 13A; (2) insisting that Williams subcontract with Clark; (3) illegally tying Honeywell EMCS war -rarities with the purchase of Honeywell equipment and services for five items listed in Section 13A; and (4) insisting that Williams grant Honeyweil a construction subcon- tract to perform the work of Section 13A. Doc. 172, paras . 17.1-18.4. r,1 2 n 12 It is clear from this list of allegations that Williams brings these tortious interference claims for more than just Honeywell's conditional refusal to subcontract for the listed Section 13A items. Therefore, Honeywell's very brief argument that a business may refuse to contract with a party for any reason sufficient to itself cannot dispose of' the tor- tious interference counts. See doc. 184, at 55 n.88. Page 14 F. Supp, Tortious interference with a business relationship and tortious interference with contractual relations are "basi- cally the same cause of action" under Florida law. Smith V. Ocean State Bank, 335 So. 2d 641. 642 (Fla. 1st DC4 1976). "The only material difference appears to be that in one there is a contract and in the other there is only a business relationship." Id. in order to prove a tortious interference claim, the plaintiff must demon- strate (1) the existence of a business (or contractual) relationship under which the plaintiff had legal rights; (2) an intentional and unjustified interference with the relationship; and (3) damage to the plaintiff as a result of the tortious interference with that relationship. See Ad- lbntage Telephone Directory Consultants, Inc. v GTE Directories, 849F. 2d 1336, 1348-1349 UIth Cir. 1987) (applying Florida law). [*1236] Honeyw•elt argues that it is entitled to judg- ment as a matter of law on this claim because it was involved, as a subcontractor, in the contractual and busi- ness relationship at issue. It is true that no tortious inter- ference action can be brought against one who is a party to the underlying contract or business relationship. A defendant seeking the shelter of this rule must be a party to "the business relationship allegedly interfered with." Genet Co. v. Anheuser-Busch, Inc., 498 So. 2d 683, 684 (Fla. 3d DCA 1986); see also Rabren a Gulf Towing Co., 434 So. 2d 340, 341 (Fla. 2d DCA 1983); Ethyl Corp. v. Balter, 386 So. 2d 1220, 1224 (Fla. 3d DCA 1980), review denied, 392 So. 2d 1271 (Fla.), cert. denied, 452 U.S. 955, 101 S. Ct. 3099, 69 L. Ed. 2d 965 (1981). The business (or contractual) relationship with which Honeywell is alleged to have interfered was Williams' relationship with the Air Force. Honeywell became an active party to this relationship or contract once it be- came a subcontractor for all of Section 13A. But the very tortious acts complained of are ones allegedly commit- ted by Honeywell to force its w•ay into the contract as a subcontractor. In the cases cited by Honeywell, the defendant was already a party to a contract with plain- tiff when it committed the allegedly tortious acts. See Genet, supra; Rabren v. Gulf Towing Co., Inc., 434 So. 2d 340 (Fla. 2d DCA 1983). Thus, if Honeywell's participation arose solely as a subcontractor through the alleged tortious interference, it cannot be fairly charac- terized as already a party to the contract, But prior to the allegedly tortious acts, Honeywell un- deniably had a business relationship with the Air Force, stemming from its initial ENICS installation and agree- ments regarding its maintenance. Sloreover, Honeywell was expressly incorporated into Williams' contract with Page 15 772 F. Supp. 1225, *1236: 1991 U.S. Dist. LEX1S 10659, F.Supp. 1991-1 Trade Cas. (CCH) P69,473 the Air Force in Section 13A. Section 13A undeni- ably required some level of participation by Honeywell, i.e., "recommendations" and "supers ision" on the listed items in that section. Accordineiy, it w•as a party to both the contractual and business relationship in ques- tion. Honeywell's motion is GRANTED with respect to the tontous interference claims in Counts XIV and XV. (B.) Common Law Fraud. Counts XVI and XVII are claims of Florida common law fraud. Count XVI alleges that Honeywell (1) misrepresented its cost of labor, (2) charged Williams for work that was performed at other jobs: (3) falsely represented that it would provide certain material and work under Section 13A; (4) falsely repre- sented that Sheppard's base -wide ENICS system was op. erational; (5) stated that it was installing new equipment at the switching station when it in fact reused equip- ment already on site; (6) charged Williams for materi- als that Honeywell had been paid to provide under its 1976 contract with the government: and (7) falsely repre- sented that information, and materials sought by Williams was confidential and proprietary. nl3 Count XVII al- leges that Honeywell, alone with Clark, falsely repre- sented to the Air Force that the cost of the work they were performing under Section 13.A was approximately S 410,000. when their own internal records showed that the cost was under S 50.000. n 13 See amended complaint, doe. 172, para. 19.3(d) (allegation (7)); para. 19.3(c)-(d) (all other allegations). Although the panics have not done so, it is important to distinguish between the two types of fraudulent acts alleged here. First. Williams alleges that Honeywell charged Williams for things it never provided Williams. This constitutes fraud during the course of the perfor- mance of the contract. Second, Williams alleges that Honeywell fraudulently induced the Air Force to require Williams to subcontract with Honeywell and Clark, at a price considered outrageous by Williams, Count XVI alleges both types of fraud: allegation (7) relates to in- ducement, while allegations ( 1) through (6) relate to per- forman,,e. Count XVII contains only inducernent alle- gations. (' 12371 Tale elements of fraud in Florida are: (1) a false statement concerning a material fact; (2) the repre- sentor's knoMedge that the representation is false; (3) an intention that the representation induce another to act on it: and (-t) reliance on the representation to the injury of the other party. Johnson v. Davis, 480 .So. 2d 625, 627 (Fla. i985): Barroso v. Respiraton Care Set -vs., 518 So. 2d 373. 376 (Fla. 5th DCA 1987) (cited by Honeywell). 1. Florida's "Economic Loss" Rule. Though the par- ties have not raised the issue, 1 think the "economic loss" rule described in ,4F'b1 Cot,. v. Southern Bell Telephone & Telegraph Co., 515 So. 2d 180 (Fla. 1987), and Florida [bwer & Light Co. v. Y�stinghouse Elect. Corp., 510 So. 2d 899 (Fla. 1987), merits discus- sion with regard to these fraud claims. In AFM Corp., supra, the Court held that without evidence of personal injury or properly damage, a purchaser of services can- not raise negligence ton claims flowing from a breach of contract to recover solely economic damages. Although AF;N Corp. and Florida Power & Light involved neg- ligence claims in a contract context, two more recent cases suggest that the economic loss rule also applies to fraud claims. See Interstate Securities Corp. v. Hayes Cotp., 920 F.2d 769, 775-777 (llth Cir. 1991); J. Batten Corp. v. Oakridge Inv. 85, 546 So. 2d 68 (Fla. Sth DC4 1989). J. Batten Corp., supra, is factually analogous to the circumstances here. In that case, a general contractor sued the property owner in a construction project under a mechanic's lien and asserted additional claims for breach of contract and fraud. The mechanic's lien claim simply alleged that the owner still owed the contractor money on the project. Id, of 69. The fraud claim alleged that the owner had refused to pay for certain work, and then induced the contractor to complete construction based on the owner's fraudulent representation that it would pay the amount due. Id. The trial court dismissed the contractor's fraud claims. Florida's Fifth District Court of Appeal affirmed, citing AFM Corp., supra; Lewis v. Gutharr, 428 So. 2d 222 (Fla. 1982); and John Brown Automation, Ire. v. Nobles. 537 So, 2d 614 (f7a. 2d DCA 1988), J. Batten Corp. suggests that the economic loss rule applies in this case. However, the Court in AFM Corp. reaffirmed the rule in Lewis v. Guthanz, supra, that re- covery in tort is nonetheless possible in a contract context if the plaintiff proves that a tort "distinguishable from or independent of the breach of contract" was committed: A breach of contract, alone, cannot constitute a cause of action in tort .. , It is only when the breach of contract is attended by some additional conduct which amounts to some independent ton that such breach can constitute negligence. AFM Corp., supra, 515 So. 2d at 131 (emphasis added), quoting Electronic Security Systems Corp. v. Southern Bell Telephone and Telegraph Co., 482 So. 2(1518 (Fla. 40 140 772 F. Supp. 1225. *1237, 1991 U.S. Dist. LEXIS 10659; 1991-1 Trade Cas. (CCH) P69,473 3d DCA 1986), interstate Securities Corp. v. Haves Corp., supra, is the most recent Eleventh Circuit application of the Florida's economic loss rule. interpreting Florida law in that case, the court suggested that Florida law may bar all fraud claims where the plaintiff has a contract remedy. 920 F 2d at 776-777. citing J. Batten Corp. v. Oakridge inv., supra. Applying similar analysis to the ton of breach of fiduciary duty, but suggesting the rule would not apply to the ton of defamation, id. at 776 n. 11, the court appeared to analyze the "independent tort" exception on a tort -by -tort basis. However, I conclude that Interstate Securities Corp., which involved fraud in the perfornance of a contract, is distinct from the fraud in the inducement claim in this case. The distinction is critical, for the essence of the "economic loss" rule is that contract law and tort law are separate and distinct, and the coups should maintain that separation in the allowable remedies. There is a danger that tort remedies could simply engulf the con- tractual remedies and thereby undermine the reliability of commercial transactions. Once the contract has been made, the parties should be governed by it. [*12381 Fraud in the inducement, however, addresses a situation where the claim is that one party was tricked into contracting. It is based on pre -contractual conduct which is, under the law, a recognized tort. n14 n14 See Burron v. Linonpe Co., 556 So. 2d 1126, 1128 (Fla. 3d DCA 1989) ("Fraud in the inducement and deceit are independent tons for which compen- satory and punitive damages may be recovered), cit- ing Spraybern• v. Sheffield Aiao & Trzrck Senv , inc., 422 So, 2d 1073 (Fla. I st DCA 1982) ( "One who has been fraudulently induced into a contract may elect to stand by that contract and sue for damages for the fraud"); accord, Gold v 1161koivir, 430 So. 2d 556, 557 (Fla. 3d DCA 1983), review denied, 437 So. 2d 677 (Fla. 1983); see also Wi lis v. South Florida Savings Bank, 574 So. 2d 1108 (Fla. 2d DCA 1991) t recognizing fraud in the inducement claims indepen- dent of contract clairtvs, without discussion of eco- nomic loss rule); Lou Brachrodt Chevrolet, Inc. v, Savage, 570 So. 2d 306, 308 (Fla. 4th DCA 1990) (same); Yanks v. Burnett, 563 So. 2d 776, 777 (Fla. 3d DCA 1990) (same). In the Florida "economic loss" rule cases dealing with fraud, either the conduct of the defendant is "inextrica- ble from the events constituting a breach of contract," n15 or tort damages are not separate from the contract Page 16 F.Supp. damages. n16 Typically, alternative fraud claims are precluded. n17 n15 See, e.g., John Brown Automation, inc. v. Nobles, 537 So. 2d 614, 617-618 (Fla. 2d DCA 1988). n16 See, e.g., Rolls v. Bliss & "Alitray. Inc., 408 So. 2d 729, 237 (Fla. 3d DCA 1981). n 17 See Lake Placid Holding Co. v. Paparone, 508 So. 2d 372, 376 (Fla. 2d DCA 1987) (con- spiracy by defendants to defraud broker out of her commission; fraud and breach of fiduciary duty claims arose from same conduct constituting breach of brokerage commission contract): Aferril Lynch v. Anderson, 50I So. 2d 635, 638 (Fla. I st DCA 1987) (conspiracy by defendant broker to cover up its fail- ure to timely execute plaintiff's sell order, and to "foist" resulting loss on plaintiff; no tortious conduct alleged independent of conduct constituting breach of parties' agreement): and Taylor v Kenco Chem. & ,Mfg. Corp., 465 So. 2d 581, 588-590 (Fla. 1st DCA 1985) (defendant diverted business income to avoid prepayment provision of promissory -note, fraud arose from same conduct which constituted the breach of contract). But see Mrren v. Monahan Beaches Jevvelry Center; Inc., 548 So. 2d 870, 873 (Fla. 1st DCA 1989) (seller's post -sale concealment that diamond ring was fake constituted subsequent tort of fraud independent of contractual breach). Significantly, though, at least one Florida appellate court has emphasized that the misrepresentation involved must be "associated with the performance of the con- tract" to be within the economic loss rule. John Brown Automation, Inc. v, Nobles, 537 So. 2d 614, 618 (Fla. 2d DCA 1988) (emphasis in original). Although I view the Florida law in this area as not en- tirely clear, I conclude that "economic loss" rule bars a fraud recovery with respect to the claims of fraud in the performance. Here, Williams claims that Honeywell failed to disclose these fraudulent billings, falsified records, etc., thereby covering up its breach. This is fraud in the performance, and is barred by the economic loss rule. Williams "inducement" claims, however, are not subject to summary judgment on this ground. 2. The Element of Reliance. With regard to the fraud claims and notwithstanding the "economic loss" rule, Honeywell also correctly notes that Williams entered the contract under protest, disputing the representations i Page 17 772 F. Supp. 1225, *1238; 1991 U.S. Dist. LEXIS 10659; F.Supp. 199 1 -1 Trade Cas. (CCH) P69,473 made by Honeywell to induce the :fir Force to require Honeywell's participation in tl!e contract. Therefore, argues Honeywell, Williams could not have relied on Honeywell's alleged misrepresentations. Williams contends, however, [fiat Honeywell know- ingly made material misrepresentations which induced the Air Force to require Williams to act to Williams' detriment. According to Williams, the fact that the party relying on the misrepresentation (tree Air Force) and the party suffering damage as a result ( Williams) are distinct parties shouid not be fatal. I have found no Florida case law directly on point. The various enumerations of the elements of fraud found in the Florida cases generally employ wording which suggests that there must be reliance by the plaintiff. The only Florida case cited by Williams, Joseph v. Vonnan La Porre Realty, Inc., 508 So. 2d 497 (Fla. 3d DCA 198,1 is distinct. [*1239) In Joseph, the defendant, an agent of a realty broker, made misrepre- sentations to a swimmin; pool inspection company hired by the buyers. The inspection company erroneously re- ported that the pool was free from defects, a fact on which the buyers relied to their detriment. The court R reversed the dismissal of the buyers' fraud claim against ~µ the defendant, because the plaintiffs had relied on the inspection company's misrepresentation, which in turn had relied on the defendant's misrepresentation. Id. at 497. The plaintiffs, therefore, "relied through their agent on . . . misrepresentations." Id. (emphasis added). Obviously, that is not the situation here. Plaintiff also relies upon a Georgia case, Florida Rock & Tank Lines, Irc. v Moore, 258 Ga. 106, 365 S. E.2d 836, 837 (1988). There, the defendant had lied to Exxon about his intent to pay for some gasoline, causing Exxon to instruct the plaintiff to deliver the gasoline to the de- fendant. The plaintiff was allowed to directly sue the defendant for fraud. Specifically addressing the "familiar precept that ac- tual fraud must be based upon a misrepresentation made to the actual defrauded oany, and relied upon by the defrauded pany." the Georgia court held that misrepre sentations made to a third party with the ultimate intent of causing the plaintiff harm satisfied the reliance ele- ment and stated a claim for fraud. Florida Rock & Tank Lines, Inc. v, Moore, supra, 365 S.E.2d at 837. Under Florida's "economic loss" rule, the facts of this case seem to support only a contract claim for payment of the gasoline, and, therefore, would not support a tort claim for fraud. Even if a tort claim is appropriate however, it seems to me [flat this case is also an "agency" the- ory case, like Joseph. The plaintiff was deceived by the defendant through the defendant's misrepresentations to Exxon, which was an agent of the plaintiff's. In both of these cases, the four elements of fraud were met and the plaintiff was deceived into action. That is not the situation here. Honeywell relies also upon Barroso v. Respiratory Care Services, Inc., 518 So. 2d 373 (Fla. 5th DCA 1987). In Barroso, misrepresentations made to a hospital by the defendant resulted in higher costs in a contract be- tween the hospital and the plaintiff. The court reversed a jury verdict for the plaintiff, stating that "the asserted 'fraud' was not directed against [plaintiff]; rather it was directed against [the hospital] and the public, who are not complaining." Id. at 377. This case is arguably distinct. Since the plaintiff in that case was a participant in the overall fraud, the fraud could not possibly have been directed against the plaintiff. Immediately after the language quoted above, the court notes this fact, con- cluding that "this is a case of the pot suing the kettle for being black." Id. It is not necessary for me to rely upon Barroso, however, for the law in Florida seems to fully support a requirement that the plaintiff must have relied upon the misrepresentation, as the defendants contend. I conclude that a plaintiff must have relied on a defen- dant's misrepresentations and must have been deceived by them in order to maintain a Florida fraud cause of action. Therefore, the fraud in the inducement claim of Count XVII, and the similar claim outlined in subpara- graph (d) of Count XVI, are insufficient under Florida law. Since the remainder of Count XVI is barred by the Florida economic loss rule, the net result is the elimina- tion of both fraud counts. Accordingly, Honeywell's motion for summary judgment is GRANTED as to Counts XVI and XVII. (C.) Civil Conspiracy. Count XVIIi alleges a claim for civil conspiracy, presumably under Florida common law, against Honeywell, Clark, Geis and Harmon. In Florida, actionable civil conspiracy must be based on an existing independent wrong or tort that would constitute a valid cause of action if con-urnitted by one actor. See, e.g., Churnrca v. Miami Jai -Alai, Inc., 353 So. 2d 547, 550 (Fla. 1977); Dozier & Gap Poin Co., Inc. v. Dille��, 518 So. 2d 946 (Fla. Isr DCA 1988); American Diversified Ins. Servs., [tic. v. Union Fidelity (*12401 Life Ins. Co., 439 So. 2d 904 (Fla. 2d DCA 1983). Although I have found no case stating this point exactly, logic decrees that the independent wrong or tort should be a Florida tort. As previously discussed, there is no independent valid cause of action for a single actor under Florida law. Instead, plaintiff seeks to claim a conspir- acy based upon an alleged violation of a Texas statute. To bring a Florida law civil conspiracy claim which is { Page 18 772 F. Supp. 1225, *1240; 1991 U.S. Dist. LEXIS 10659; F.Supp. 1991-1 Trade Cas. (CCH) P69,473 derivative of a Texas statutory civil claim would require the application of the law of two different states to the same alleged tor-tious conduct. Thus, if Count XVIII al- leges a Florida law cause of action, it must be dismissed. Although the amended complaint does not title Count XVIII as a Florida law claim, I conclude that it is. The plaintiff's own memorandum acknowledges that the con- spiracy claim arises under Florida law. See doc. 194, at 161-I64. Further, in paragraph 21.7 of the complaint, the plaintiff's factual allegations are of conduct that oc- curred in Florida. Accordingly, defendant's motion is GRANTED with respect to Count XVIII. (D.) Texas Deceptive Trade Practices Act. Finally, Counts XIX and XX assert claims under the Texas Deceptive Trade Practices Act (DTPA), Tex. Bus. & Comm. Code § 17.505(a) (Vernon 1988). Among other things, this Act provides "relief for consumers" by pro- viding a right of action for "deceptive trade practices" by a seller. Id. at § 17.50ta)(3). "Deceptive trade practices" are defined by Section 17.46(b). which iden- tifies over 20 separate deceptive trade practices. Section 17.50(b)(1) gives consumers a right to actual damages and provides for treble damages against a seller whose acts are "comrrutted knowingly." Honeywell argues that Williams has failed to furnish sufficient notice as required under the Act. The DTPA provides that, "as a prerequisite to filing a suit seeking damages . . . a consumer shall give written notice to the person at least 30 days before filing the suit . .". Id. at § 17.50A(3) (emphasis added). Williams' original com- plaint did not contain a claim under the Act. Williams first alleged such a claim in its amended complaint filed March 28, 1989. Formal notice was provided defen- dants on January 6, 1989, over 30 days prior to adding the claim. Honeywell cites Boyd Intl, Ltd. a Honevwell, Inc., 837 F. 2d 1312 (5th Cir, 1988) in support of its argu- ment that Count IX should be dismissed. In Boyd, the original complaint contained a DTPA claim, but formal notice was not sent until six days after the original com- plaint was filed. More than thirty days after notice was sent, plaintiff filed an amended complaint asserting a new theory under the Act. id. at 1313. The Fifth Circuit agreed with Honeywell that the notice provided was insufficient, and reversed an award based on the amended DTP. claim. But see Minor v. Aland, 775 S. W. 2d 744 (Tex. App. 1989). However, a preliminary issue is whether this court has jurisdiction over a Texas statutory claim in this case. Williams' assertion of causes of action under Florida law seemingly have made Florida law applicable. To raise a Texas law claim for essentially the same underlying conduct seems implausible. Now that I have determined that there are no viable Florida law claims in the case, the inappropriateness of to ing a Texas law claim in a Florida diversity action also seems apparent. Therefore, the claims of plaintiff under the DTPA are DISMISSED, without prejudice. V1. CONCLUSION For the reasons stated above, Honeywell's motion for summary judgment is GRANTED as to all claims ex- cept those under the Texas Deceptive Trade Practices Act, and judgment shall be entered accordingly, with taxable costs against the plaintiff. Counts XIX and XX are DISMISSED, without prejudice. DONE AND ORDERED this 16th day of April, 1991. Page 41 t 499 U.S. 365 printed in FULL format. CITY OF COLUMBiA et al. v. ONINI OUTDOOR ADVERTISING, INC. No, 89-1671 SUPREME COURT OF THE UNITED STATES 499 U.S. 365; 111 S. Ct, 1344: 1991 U.S. LEXIS 1858: 113 L. Ed. 2d 382: 59 U.S.L.W. 4259; 1991-1 Trade Cas. (CCH) P69,378: 91 Cal. Daily Op. Service 2266; 92 Cal. Daily Op. Service 2366; 91 Daily Journal DAR 3723 November 28. 1990, Argued April 1, 1991, Decided e PRIOR HISTORY: [*-*I] tive, conspiracy, billboard, municipality, ordinance, CERTIORARI TO THE UNITED STATES COURT Sherman Act, immunity, zoning. municipal, sham, lob- r OF APPEALS FOR THE FOURTH CIRCUIT. bying, monopoly, exemption, competitor, authorize, ex- ) empt, spacing, state -action. restrain, lawful, motive. DISPOSITION: 891 F. 2d 1127, reversed and remanded. sovereign, commerce, federalism, facto, sewage, autho- 1 rization, output CORE TERMS: antitrust, regulation, anticompeti- F < =2> View References < =3 > Turn Off Lawyers' Edition Display i DECISION: Federal antitrust laws held inapplicable to actions of (1) city which enacted billboard zoning ordinances, and (2) company which controlled relevant billboard market and which lobbied for ordinances. s SUMMARY: In 1981, a Georgia corporation began erecting billboards in and around the city of Columbia, South Carolina. In response, a South Carolina corporation --which had been in the billboard business in Columbia since the 1940s, and which controlled more than 95 percent of the relevant market in the Columbia area --met with city officials to seek the enactment of zoning ordinances that would restrict billboard construction. The South Carolina corporation was owned by a fanily whose members enjoyed close relations with the city's political leaders. In 1982, the city council passed an ordinance which imposed a moratorium period on billboard construction in the city, except as Specifically authorized by the council. After this ordinance was m%altdated by a state court on federal and state constitutional grounds, the city council passed a new ordinance which restricted the size, location, and spacing of billboards. Two months later, the Georgia corporation tiled suit in United States District Court against both the South Carolina corporation: and the city. The Georgia corporation alleged that the city's billboard ordinances (1) violated (a) 1 and 2 of the Sherman Act ("15 USCS 1, 2), and (b) South Carolina's unfair trade practices simute; and (2) were the result of an ui(iconipetitive conspiracy between city officials and the South Carolina corporation which stripped both parties of any immunity from the: federal antitrust laws which the\ otherwise might have enjo\cd. A jury returned general verdicts against the city and the South Carolina corporation on both the federal and state claims. The city and the South Carolina corporation moved for judgment nomithstanding the verdicts. and the District Court --finding that the activities of both parties were outside the scope of the federal antitrust laws --granted the motion. On appeal, the United States Court of Appeals for the Fourth Circuit (1) reversed thejudgment of the District Court, and (2) reinstated the jury verdicts on all counts 6891 F2d 1127). j On certiorari, the United States Supreme Court reversed and remanded. In an opinion by Scalia, 1.. joined by Rehnquist, Ch. J., and Blackmun. O'Connor, Kennedy, and Souter, 1J., it was held that (1) the ordinance restricting the size, location, and spacing of billboards was entitled to immunity from the federal antitrust laws, where state statutes (a) authorized the city, through the exercise of its zoning power, to regulate file size, location, and spacing of billboards. and (b) clearly articulated a state policy to authorize the city's anticompetitive conduct in connection with its regulation: aa�� ; Page 42 499 U.S. 365. *: I I I S. Ct. 1344, **; LEXSEE 1991 U.S. LEXIS 1858, "**1; 113 L. Ed, 2d 38-1 (2) there was no "conspiracy" exception to the rule. under Parker v Brmin iI943) 317 US 341. 87L Ed 315. Eta S Ct 307, that the Sherman Act did not apply to anncompetime restra(n(s imposed by the states as an act of government, and any governmental action that qualified as state acnon--with (tic possible exception of instances where the state acts not in a regulatory capacity, but as a commercial participant in a gr%en market --was ipso facto exempt from the operation of the federal anntrust lass: tat the "sham" c�cepnon to (lie rule, under Eastern R. Presidents Conference v Noerr Motor Freight, lnc. (i46%) 355 US 127, 5 L Ed 2d 4O4, 81 S Ct 523, that the federal antitrust laws do not regulate the conduct of private individuals in seeking anticompetitive action from state governments --which exception applies to situations in sshich persons use the governmental process, as opposed to the outconle of that process, as an anticompetitive weapon--,�as inapplicahle to the South Ca1-01ina corporation under the circttms(ances; (4) there was no "conspiracy" exception to the Noerr rule; and (5) the Supreme Court would remand the case for further proceedings, so that the Court of Appeals could determine (a) whether there should be a new trial with respect to only the private anticompetitive actions allegedly engaged in by the corporation, and (b) the effect of the Supreme Court's holding on the claim under, the South Carolina unfair trade practices statute. Stevens, J., joined by White and Marshall, IJ., dissenting, (1) agreed that (a) there was no "conspiracy" exception to the Parker rule when a state acted in a nonprop rietan capacity, and (b) the "sham" exception to the Noerr rule did not apply to the South Carolina corporation's conduct in the case at hand; but (2) expressed the view that the Court of Appeals' judgment should be affirmed as to both the city and the South Carolina corporation, because (a) the city's economic regulation of the billboard market pursuant to a general state grant of zoning power was not exempt from antitrust scrutiny, and (b) a private party's agreement with selfishly motivated public officials was sufficient to remove the antitrust immunity that protected private lobbying under the Noerr rule. LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition: < = 8 > RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 >' immunity of municipality -- billboard ordinance -- Headnote: <=9> [IAJ <=10> [1B) <=11> [ICJ A municipality's enactment of an ordinance which restricts the size, location, and spacing of billboards is entitled to immunity from the federal antitrust laws, where state statutes (1) authorize the municipality, through the exercise of its zoning power, to regulate the size, location, and spacing of billboards, and (2) clearly articulate a state policy to authorize the municipality's anticompetitive conduct in connection with the municipality's regulation, since an ordinance containing such restrictions necessarily protects existing billboards against some competition from newcomers. (Stevens, White, and Marshall, JJ., dissented from this holding.) < =12> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 state -action exemption -- "conspiracy" exception -- Headnote: < =13 > [2A] < =14 > 12Bj < =15 > [2C[ There is no "conspiracy" exception to the rule that the Sherman Act (15 USCS I et seq.) does not apply to anticompetitive restraints imposed by the states as an act of government; any governmental action that qualities as state action --with the possible exception of instances where the state acts not in a regulator capacity, but as a commercial participant in a given market --is ipso facto exempt from the operation of the federal antitrust laws; chile a state does not ;ive immunity to those who violate the Sherman Act by authorizing them to violate it or by declaring that their action is lawful, the Sherman Act cannot be interpreted so as to allow plaintiffs to look behind the actions of state sovereigns in order to base claims on perceived conspiracies to restrain trade. (Stevens, White. and Marshall, J1., dissented in part from this holding.) < = 17 > RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 exemption for private individuals' interaction with government -- "sham" exception - Headnote: < = 18> [3A) < =19> [3B[ < =20> 13Cj S9_ l�20 L 499 U.S. 365, *; 1 1 i S. Ct. 1344, **; 1991 U.S. LEXIS 1858. ***1: 113 L. Ed. 2d 382 Page 43 LEXSEE The "sham" exception to the rule that the federal antitrust laws do not regulate the conduct of private individuals in seeking anticompetitive action from state governments -Much exception encompasses situations in which persons use the governmental process, as opposed io the outcorne of that process, as an anticompetitive weapon --is inapplicable to a corporation in the billboard business which interacted with a municipality's officials for the purpose of delaying a competitor's entry into the market through the enactment of zoning ordinances, because t t) the corporation had set out to disrupt the competitor's business relationships not thnw,h the yer,r process of lobbying, or of causing the officials to consider zoning measures, but rather through the ordinances, which 'Acre the ultimate product of that lobbying and consideration, (2) the delay in the competitor's entry into the market was not sought to be achieved by only the lobbying process itself, and (3) denial of rneanin2ful access by the competitor to the appropriate administrative arld legislative fora of the municipality --although possibly rendering the manner of lobbying improper or even unlawful --does not necessarily render the lobbying process a "sham" for purposes of the Sherman Act (15 USCS / et seq.). <=22> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 exemption for private individuals' interaction with government -- "conspiracy" exception -- Headnote: <=23> 14A] <=24> (4131 There is no "conspiracy" exception to the rule that the federal antitrust laws do not regulate the conduct of private individuals in seeking anticompetitive action from state governments, because (1) it would be impracticable or beyond the scope of the antitrust laws to identify and invalidate lobbying by private individuals that has produced selfishly motivated agreement with public officials, and (2) if a conspiracy is limited to one that involves some element of unlawfulness beyond mere anticompetitive motivation, invalidation of the private 'individuals' conduct would have nothing to do with the policies of the antitrust laws. (Stevens, White, and Nlarshall, JJ., dissented from this holding.) F i f <=25> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 municipalities -- immunity -- determining authority under state law -- Headnote: < = 26 > I5] For purposes of determining whether a municipality has acted beyond its delegated authority under state law, so as not to be immune from application of the federal antitrust laws, it is necessary to adopt a concept of authority broader than what is applied to determine the legality of the municipality's action under state law. i < =27> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 municipalities -- immunity -- regulatory authority -- Headnote: < =28> (6A] < =29> I6131 In order for a municipality to assert its immunity from application of the federal antitrust laws with respect to regulation by the municipality, there must be (1) authority to regulate under state law --although the municipality need not be able to point to a specific, detailed legislative authorization --and (2) authority to suppress competition, which requires clear articulation of a state policy to authorize anticompetitive conduct by the municipality in connection with its regulation; a state statute delegating authority to suppress competition need not exphcidy permit the displacement of competition, f and it is enough if such suppression is the foreseeable result of what the statute authorizes. t. i < =30> COURTS §95.5 purpose of governmental action -- constitutional question - Headnote: < =31 > 17A1 < =32> (7131 In cases which involve a challenge to an action taken by governmental officials, the United States Supreme Court will apply a subjective test to determine whether the officials thought that the action was in the public interest only where (1) a constitutional question is presented, and (2) tile very nature of the question requires such :ul inquiry. 499 U.S. 365, *; I t l S. Ct, 1344, **: 1991 U.S. LEXIS 1858. ***1: 113 L. Ed. 2d 382 < =33> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 state action -- motive -- Page 44 LEXSEE Headnotc: < = 34 > 181 Where an action complained of is that of the state itself, the action is exempt from antitrust liability regardless of the state's motives in taking the action. < = 35 > BRIBERY § l action in public interest -- Headnote: < =36> [91 A mayor is guilty of accepting a bribe even if, in the public interest, the mayor would and should have taken the same action for which the bribe was paid. <=37> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 political activities -- Headnote: < =38> [ 101 Insofar as the Sherman Act (15 USCS I et seq.) sets up a code of ethics at all, it is a code that condemns trade restraints, not political activity. <=40> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 exemption for private individuals' interaction with government -- Headnote: < =41 > [ I I A) < =42 > [ 1 1131 The federal antitrust laws do not regulate the conduct of private individuals in seeking anticompetitive action from the government with the intent to restrain trade; such laws, tailored as they are for the business world, are not appropriate for application in the political arena, and it is irrelevant that a private party's political motives are selfish; the policing of the legitimate boundaries of procedural and other means used by lobbyists or applicants who seek to have their opponent ignored is not the role of the Sherman Act (15 USCS I et seq.) when such defensive strategies are conducted in the context of a genuine attempt to influence governmental action. <=44> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES §9 exemption for private individuals' interaction with government -- "sham" exception --- Headnote: < =45 > [ 121 A "sham' exception to the rule that the federal wititrust laws do not regulate the conduct of private individuals in seeking anticompetitive action from the government exists for situations in which persons use the governmental process, as opposed to the outcome of that process, as an anticompetitive weapon. such as where a person files frivolous objections to the license application of a competitor, with no expectation of achie%ing denial of the license, but simply in order to impose expense and delay; for purposes of this exception, a "sham" situation involves ❑ party whose activities arc not genuinely aimed at procuring favorable government action, but does not involve a party who genuinely seeks to achieve a governmental result through improper means. <=46> APPEAL §1692.2 remand -- issue not decided -- misconception as to law -- Headnote: < =47 > [ 13A[ < =48 > [13B) L 499 U.S. 365, *; 1 I I S. Cf. 1344, **; 1991 U.S. LEXIS 1858, ***1: 113 L. Ed. 2d 382 Page 45 LEXSEE in light of the United States Supreme Court's holding that a private corporation is entitled to immunity from the federal antitrust laws for its activities relating to the enactment by a municipality of certain billboard ordinances, the United States Supreme Court --upon reversing a Federal Court of Appeals decision which had reinstated a jury's general verdict that the corporation had violated 1 and _' of the Sherman Act (15 USCS 1, _') and a state unfair trade practices statute --wilt remand the case for further proceedings, so that the Court of Appeals can determine ( 1) whether there should be a new trial with respect to only the private ;ulncotnpetlu�c actions --such as trade libel, the setung of artificially low rates, and inducement to breach of contract --allegedly engaged in by the corporation; and (2) the effect of the Supreme Court's holding on the claim against the corporation under the state unfair trade practices statute. where the Court of Appeals had ruled that (a) the comoranon had conspired to restrain competition in violation of federal antitrust law, and (b) such conspiracy was "tantamount" to a violation of the state statute. < =50> APPEAL § 1585 < =5i > NEW TRIAL §7 reversal -- error in instructions and verdict -- Headnote: < = 5 2 > [ 141 On appellate review, a jury's general verdict against a private corporation and in favor of its competitor, based on instructions that erroneously permitted the assessment of liability against the corporation, under the federal antitrust laws, for seeking the enactment by a municipality of certain billboard ordinances, cannot be permitted to stand; however, the competitor will be entitled to a new trial if (1) the evidence was sufficient to sustain a verdict solely on the basis of the corporation's private anticompetitive actions --such as trade libel, the setting of artificially low rates, and inducement to breach of contract --and (2) the theory of liability as to such other actions has been properly preserved. SYLLABUS: After respondent Omni Outdoor Advertising, Inc., entered the billboard market in petitioner Columbia. South Carolina, petitioner Columbia Outdoor Advertising, Inc. (COA), which controlled more than 957� of the market and enjoyed close relations with city officials, lobbied these officials to enact zoning ordinances restricting billboard construction. After such ordinances were passed, Omni filed suit against petitioners under §§ I and 2 of the Sherman Act and the State's Unfair Trade Practices Act, alleging, inter alia, that the ordinances were the result of an anticompetitive conspiracy that stripped petitioners of any immunity to which they might otherwise be enr,tled. After Omni obtained a jury verdict on all counts, the District Court granted petitioners' motions for judgment notwithstanding the verdict on the: ground that their activities were outside the scope of the federal antitrust laws. The Court of Appeals reversed and reinstated the verdict. Held: I. The city's restriction of billboard construction is immune from federal [***21 antitrust liability under Porker v. Brown, 317 U.S. 341, 352 -- which held that principles of federalism and state sovereignty render the Sherman Act inapplicable to anticompetitive restraints imposed by the States "as an act of government" -- and subsequent decisions according Parker immunity to mu- nicipal restriction of competition in implementation of state policy, see, e. g., Hattie v. Eau Claire, 471 U.S. 34. 38. Pp. 370-379. tat The Court of Appeals correctly concluded that the city was prima facie entitled to Parker immunity for its billboard restrictions. Although Parker immunity does not apply directly to municipalities or other political subdivisions of the States, it does apply where a mu- nicipality's restriction of competition is an authorized implementation of state policy. South Carolina's zoning statutes unquestionably authorized the city to regulate the size, location, and spacing of billboards. The ad- ditional Parker requirement that the city possess clear delegated authority to suppress competition, see, e. g., Nallie, snpra, ar 40-42, is also met (***31 here, since suppression of competition is at the very least a foresee- able result of zoning regulations. Pp. 370-373. (b) The Court of Appeals erred, however, in applying a "conspiracy" exception to Parker, which is not sup- ported by the language of that case. Such an exception would swallow up the Parker rule if "conspiracy" means nothing more than a,reement to impose the regulation in question, since it is both inevitable and desirable that public officials agree to do what one or another `soup of private cinzens urges upon them. It would be similarly impractical to limit "conspiracy" to instances of govern- mental "corruption," or governmental acts "not in the public interest"; virtually all anticompetitive; regulation is open to ;uch charges and tltc risk of unfavorable ex A lo 03— l;20 S Page 46 499 U.S. 365, *: I l t S. Ct. 1344. ** LEXSEE 1991 U.S. LEXIS 1858, `3: 113 L. Ed. 2d 382 post facto judicial assessment would impair the States' ability to regulate their domestic commerce. Nor is it appropriate to limit "conspiracy" to instances in which bribery or some other violation of state or federal law has been established, since the exception would then be unrelated to the purposes M' the Sherman Act, which condemns trade restraints, not political activity. With the possible [***41 exception of the situation in which the ,Shale is acting as a ma. ket participant. any action that qualifies as state action is ipso facto exempt from the operation of the antitnst laws. Pp. 374-379, 2. COA is immurie from liability for its activities relating to enactment of the ordinances under Eastern Railroad Presidents Conference v.. Voerr Valor Freight, Inc., 36S U.S. 127, 141, which states a corollary to Parker: The federal antitrust laws do not regulate the conduct of private individuals in seeking anticompen- live action from the government. The Court of Appeals erred in applying the "sham" exception to the Noerrdoc- trine. 'This exception encompasses situations in which persons use the governmental process itself -- as opposed to the outcome of that process -- as an anticompetitive weapon. That is not the situation here. California Motor Transport Co. v. Trucking Unlitrted, 404 U.S. 508, 512, distinguished. Omni's suggestion that this Court adopt a "conspiracy' exception to Noerr immunity is rejected for largely the sarne reasons that prompt the Court to reject such an exception [* *51 to Parker. Pp. 379-38a. 3. The Court of Appeals on remand must determine (if the theory has been properly preserved) whether the evidence was sufficient to sustain a verdict for Omni based solely on its assertions that COA engaged in pri- vate anticompetitive actions, and whether COA can be held liable to Omni on its state -law claim. P. 384. COUNSEL: loci 1. Klein argued the cause for petition- ers. With him on the briefs were Paul NI. Smith, Roy D. Bates, James S. hleggs, David W. Robinson 11, and Heyward E. McDonald. A. Camden Lewis argued the cause for respondent With him on the brief was Randall M. Chastain. * * Charles Rothfeld, Benna Ruth Solomon, and Peter J. Kalis filed a brief for the National League of Cities et al. as amici curiae urging reversal. Steven C, McCracken, Maurice Baskin, and John R. Crews filed a brief for .associated Builders and Contractors, Inc., as amicus curiae urging affir- mance. Eric M. Rubin and Walter E. Diercks filed a brief for the Outdoor Advertising Association of America, Inc., as amicus curiae. JUDGES: Scalia, 1., delivered the opinion of the Court, in which Rehnquist, C.1., and Blackmun, O'Connor, Kennedy, and Souter, 11., joined. Stevens, 1.. 1***61 filed a dissenting opinion, in which White and 'Marshall, 1J., joined, post, p. 385. OPINIONB1' SCALiA OPINION: 1*36711** 13471 This case requires us to clar- ify the application of the Sherman Act to municipal gov- ernments and to the citizens who seek action from them. Petitioner Columbia Outdoor Advertising, Inc. (COA), a South Carolina corporation, entered the bill- board business in the city of Columbia, South Carolina (also a petitioner here), in the 1940's. By 1981 it con- trolled more than 95 C of what has been conceded to be the relevant market. COA was a local business owned by a family with deep roots in the community, and en- joyed close relations with the city's political leaders. The mayor and other members of the city council were personal friends of COA's majority owner, and the com- pany and its officers occasionally contributed funds and free billboard space to their campaigns. According to re- spondent Omni Ourdoor Advertising, Inc., these benef- icences %kere part of a "longstanding" "secret anticom- petitive agreement" %~hereby "the City and COA would each use their lsicl respective power and resources to protect . . . COA's monopoly position," in return for which "City Council 1***71 members received ad- vantages made possible by COA's monopoly." Brief for Respondent 12. 16. 1.3681 in 1981. Omni, a Georgia corporation, be- gan erecting billboards in and around the city. COA responded to this competition in several ways. First, it redoubled its own billboard construction efforts and modernized its existing stock. Second -- according to Omni -- it took a number of anticompetitive private ac- tions, such as offering artificially low rates, spreading untrue 'Ind malicious runiors about Omni. and attempt - mg, to induce Omni's customers to break their contracts. Finally (and this is what ;ivies rise to the issue we address today), COA execuuyes nv_t \%ith cite officials to seek the enactment of zonin-g ordinances that would restrict billboard construction. COA logs not ;clone in urging this course: concerned about the city'% recent explosion of billboards• a number of citizens. including writers of article, 1"13481 and editorials in local newspapers, advocated restrictions. in the ,print of 1982. the city council passed an or- ad�� eo.�.i Page 47 499 U.S. 365. *368; 11 ► S. Ct. 1344, **13.18; LEXSEE 1991 U.S. LEXIS 1858, ***7; 113 L. Ed. 2d 382 dinance requiring the council's approval for every bill- board constructed in downtown Columbia. This "as later amended to impose a 180-day moratorium on the [***81 construction of billboards throughout the city, except as specifically authorized by the council. A state court invalidated this ordinance can the ground that its conferral of unconstrained discretion upon the city council violated both the South Carolina and Federal Constitutions. The cite then requested the State's re- gional planning authority to conduct a comprehensive analysis of the local billboard situation as a basis for developing a final, constitutionally valid, ordinance. In September 1982, after a series of public hearings and numerous meetings involving city officials, Omni, and COA (in all of which, according to Omni, positions con- trary to COA's were not genuinely considered), the city council passed a new ordinance resticting the size, lo- cation, and spacing of billboards. These restrictions, particularly those on spacing, obviously benefited COA, which already had its billboards in place; they severely hindered Omni's ability to compete. . [*3691 In November 1982, Omni filed suit against COA and the city in Federal District Court, charging that they had violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, [***9] 2, nl as well as South Carolina's Unfair Trade Practices Act, S. C. Code Ann. § 39-5-140 (1976). Omni con- tended, in particular, that the city's billboard ordinances were the result of an anticompetitive conspiracy between city officials and COA that stripped both parties of any immunity they might otherwise enjoy from the federal antitrust laws. In January 1986, after more than two weeks of trial, a jury returned general verdicts against the city and COA on both the federal and state claims. It awarded damages, before trebling, of S 600,000 on the § I Sherman Act claim, and S 400,000 on the § 2 claim. n2 The jury also answered two special interroga- tories, finding specifically that the city and COA had conspired both to restrain trade and to monopolize the market. Petitioners moved for judgment notwithstand- ing the verdict, contending among other [*3701 things that their activities were outside the scope of the federal antitrust laws. [n November 1988, the District Court granted the motion. nl Section l provides in pertinent part: "Every contract, combination in the form of trust or other- wise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." 15 U. S. C. § I. Section 2 provides in pertinent part: "Every per- son, who shall monopolize, or attempt to monopo- lize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guiity of a felony." 15 U. S.C.§2. v 1-101 n2 The monetary damages in this case were as- sessed entirely against COA. the District Court hav- ing ruled that the city was immunized by the Local Government Antitrust Act of 1984, 98 Stat. 2750, as amended, 15 U. S. C. §§ 3.1-36, which exempts local governments from paying damages for violations of the federal antitrust laws. Although enacted in 1984, after the events at issue in this case, the Act specifi- cally provides that it may be applied retroactively if .the defendant establishes and the court determines, in lieltt of all the circumstances .. . that it would be inequitable not to apply this subsection to a pending case." 15 U. S. C. § 35(b). The District Court de- termined that it would be, and the Court of Appeals refused to disturb that judgment. Respondent has not challenged that determination in this Court, and we express no view on the matter. A divided panel oi'the United States Court of Appeals for the Fourth Circuit reversed the judgment of the District Court and reinstated the jury verdict on all counts. 891 F. _d 1127 (1989). 1 ***ill We granted certiorari. 496 U.S. 935 (1990). 11 in the landmark case of Parker :. Brown, 317 U.S. 3.71 (19.13). we rejected the contention that a program restricting the marketing of privately produced raisins, adopted pursuant to California's Agricultural Prorate Act, violated 1-13491 the Sherman Act. Relying on principles of federalism and state sovereignty, we held that the Sherman Act did not apply to anticompetitive re- straints imposed by the States "as an act of government." 317U.S..tit 3 2. Since Parker emphasized the role of sovereign States in a federal system, it was initially unclear whether the governmental actions of political subdivisions enjoyed similar protection. In recent years, we have held that Parker immunity does not apply directly to local govern- men(s, see Nalltr v. Eau Claire. 471 US, 3.1, 38 (1935); Coninumm Cwmuruutic•arrous Co. r. Boulder, 455 U.S. 40, 50-51 t / 982). LajaYette t. Louisiana fbiver & Light Co., 435 US. 359. 412-413 (1978i (plurality opinion). [***121 We have recognized, however, that a munici- pality's restriction of competition may sometimes be an authorized implementation of state policy, and have ac- 499 U.S. 365, *370; 111 S. Cf. 134.1, **1349; 1991 U.S. LEXIS 1858, ***12; 113 L. Ed. 2d 382 corded Parker immunity where that is the case. The South Carolina statutes under which the city acted in the present case authorize municipalities to regulate the use of land and the constn;ction of buildings and other struc- tures within their boundaries. n3 It is undisputed that, as a matter 1*3711 of state lacy, these statutes authorize the city to regulate the size, location, and spacing of bill- boards. It could be argued, however, that a municipality acts beyond its delegated authority, for Parker purposes, whenever the nature of its regulation is substantively or even procedurally defective. On such an analysis it could be contended, for example, that the city's regula- tion in the present case was not "authorized" by S. C. Code Ann. § 5-23-10 (1976), see n. 3, supra, if it was not, as that statute requires, adopted "for the purpose of promoting health, safety, morals or the general wel- fare of the community." As scholarly commentary has noted, such an expansive interpretation of the Parker - defense authorization (***13) requirement would have unacceptable consequences. n3 S. C. Code Ann. § 5-23-10 (1976) ("Building and zoning regulations authorized") provides that "for the purpose of promoting health, safety, morals or the general welfare of the community, the legisla- tive body of cities and incorporated towns may by ordinance regulate and restrict the height, number of stories and size of buildings and other structures." Section 5-23-20 ("Division of municipality into districts") provides that "for any or all of such pur- poses the local legislative body may divide the mu- nicipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of this article. Within such districts it may regulate and restrict the erection, construction, re- construction, alteration, repair or use of buildings, structures or land." Section 6-7-710 ("Grant of power for zoning") provides that "for the purposes of guiding develop- ment in accordance with existing and future needs and in order to protect, promote and improve the public health, safety, morals, convenience, order, appearance, prosperity, and general welfare, the governing authorities of municipalities and counties may, in accordance with the conditions and proce- dures specified in this chapter, regulate the location, height, bulk, number of stories and size of buildings and other structures. . . . The regulations shall . . . be designed to lessen congestion in the streets; to secure .safety from tire, panic, and other dangers, to promote the public health and the general welfare, to Page 48 LEXSEE provide adequate light and air; to prevent the over- crowding of land; to avoid undue concentration of population; to protect scenic areas; to facilitate the adequate provision of transportation, water, sewage, schools. parks. and other public requirements.' ***14 "To be sure, state law 'authorizes' only agency de- cisions that are substantively and procedurally correct. Errors of fact, law, or judgment by the agency are not 'authorized.' Erroneous acts or decisions are subject to [*372) reversal by superior tribunals because unautho- rized. If the antitrust court demands unqualified 'au- thority' in this sense, it inevitably becomes the standard reviewer not only of federal agency activity but also of state and local activity whenever it is alleged that the governmental body, though possessing the power to en- gage in the challenged conduct, has actually exercised its power in a manner not authorized by state law. We should not 1 *` 13501 lightly assume that Lafayette's au- thorization requirement dictates transformation of state administrative review into a federal antitrust job. Yet that would be the consequence of making antitrust li- ability depend on an undiscriminating and mechanical demand for 'authority' in the full administrative law sense." P. Areeda & H. Hovenkamp, antitrust Law P '_ 1 _2.3b, p. 145 (Supp. 1989). We agree with that assessment, and believe that in order to prevent Parker from undermining the very interests [***151 of federalism it is designed to protect, it is nec- essary to adopt a concept of authority broader than what is applied to determine the legality of the municipality's action under state law. Wee have adopted an approach that is similar in principle, though not necessarily in precise application, else.%here. See Stump v. Sparkman, 435 U.S. 349 (1978). It suffices for the present to con- clude that here no more is needed to establish, for Parker purposes, the city's authority to regulate than its unques- tioned zoning po,.ver over the size, location, and spacing of billboards. Besides authority to re_ulate, however, the Parker defense also requires ;authority to suppress competition -- more: spectfic;ally. "Tar articulation of a state: police to authorize anticompetitive conduct" by the municipality in connection with its regulation. Hallle, 471 US.. tit 40 (internal quotation omitted). We have rejected the contention that this requirement can be met only it the delegating statute explicitly permits the dis- placement of competition, see id., tit 41-42. 1*373) It is enough, we have held, ) I — 161 if suppression of compe- tition is the "foreseeable result" of what the statute au- thorizes. id., tit 42. That condition is amply met here. 499 U.S. 365, *373; 111 S. Cf. 1344. **1350: 1991 U.S. LEXIS 1858. ***16; 113 L. Ed. 2d 382 The very purpose of zoning regulation is to displace unfettered business freedom in a manner that regularly has the effect of preventing normal acts of competition, particularly on the part of ncN% entrants. A municipal ordinance restricting the size, location, and spacing of billboards (surely a common forth of zonings necessar- ily protects existing billboards against some competition from newcomers. n4 n4 The dissent contends that, in order successfully to delegate its Parker immunity to a municipality, a State must expressly authorize the municipality to en- gage (1) in specifically "economic regulation," post, at 388, (2) of a specific industry, post, at 391, These dual specificities are without support in our prece- dents, for the good reason that they defy rational implementation. If, by authority to engage in specifically "eco- nomic" regulation, the dissent means authority specifically to regulate competition, we squarely re- jected that in Hallie y. Eau Claire, 471 U.S. 34 (1985), as discussed in (ext. Seemingly, however, the dissent means only that the State authorization must specify that son of regulation whereunder "de- cisions about prices and output are made no( by in- dividual firms, but rather by a public body." Post, at 387. But why is not the restriction of billboards in a city a restriction or. the "output" of the local bill- board industry'' It assuredly is -- and that is indeed the very gravamen of Onini's complaint. It seems to us that the dissent's concession that "it is often difficult to differentiate economic regulation from municipal regulation of health, safety, and welfare," post, at 393, is a gross understatement. Loose talk about a "regulated industr-y" may suffice for what the dissent calls "antitrust parlance," post, at 387, but it is not a definition upon which the criminal liability of public officials ought to depend. Under the dissent's second requirement for a valid delegation of Parker immunity -- that the authoriza- tion to regulate pertain to a specific industry -- the problem with the South Carolina statute is that it used file generic term "structures," instead of con- ferring its regulatory authority industry -by -industry (presumably "billboards," "movie houses," "mobile homes," "T4' antennas," and every other conceivable object of zoning regulation that can be the subject of a relevant "market" for purposes of antitrust analy- sis). To describe this is to refute it. Our precedents not only fail to suggest, but positively reject, such an approach. "The municipality need not 'be able to point to a specific, detailed legislative authoriza- Page 49 LEXSEE (ion' in order to assert a successful Parker defense to an antitrust suit." Hallie, 471 U.S., at 39 (quoting Lafgyerre y. Louisiana Power & Light Co., 435 U.S. 389, 415 (1978)). ***17 1*3741 The Court of Appeals was therefore correct in its conclusion that the city's restriction of billboard construction was prima facie entitled to Parker immu- nity. The 1 ** 13511 Court of Appeals upheld the jury verdict, however, by invoking a "conspiracy" exception to Parker that has been recognized by several Courts of Appeals. See, e. g., Whitworth v. Perkins, 559 F. 2d 378 (CAS 1977), vacated, 435 U.S. 992, aff'd on rehear- ing, 576 F. 2d 696 (1978), cert. denied, 440 U.S. 911 (1979). That exception is thought to be supported by two of our statements in Parker: "We have no question of the state or its municipality becoming a participant in a private agreement or combination by others for re- straint of trade, cf. Union Pacific R. Co. v. United States, 313 US. 450. " Parker, 317 US., at 351-352 (emphasis added). "The stare in adopting and enforc- ing the prorate program made no contract or agreement and entered into no conspiracy in restraint of trade or to establish monopoly 1***181 but, as sovereign, im- posed the restraint as an act of government which the Sherman Act did not undertake to prohibit." Id., at 352 (emphasis added). Parker does not apply, according to the Fourth Circuit, "where politicians or political en- tities are involved as conspirators" with private actors in the restraint of trade. 891 F. 2d, at 1134. There is no such conspiracy exception. The rationale of Parker was that, in light of our national commitment to federal- ism, the general language of the Sherman Act should not be interpreted to prohibit anticotnpetiiive actions by the States in their governmental capacities as sovereign reg- ulators. The sentences from the opinion quoted above simply clarify that this immunity does not necessarily obtain where the State acts not in i regulatory capacity but as a commercial 1,3751 participant in a given mar- ket. That is evident from the citation of Union Pacific R. Co. %. United States, 313 CS. 4i0 (1941), which held unlawlul under the Elkins Act certain rebates and concessions made by Kansas City, Kansas, in its capac- ity as the owner and operator J-1191 of a wholesale produce market that was integrated with railroad facili- ties. These sentences should not be read to suggest the general proposition that eyen go�crnnncntal regulatory action may be deemed private and therefore subject to antitrust liability -- when it is taken pursuant to a con- spiracy with private parties. fhe impracticality of such I principle is evident if, for purposes of the exception, �- 0"Z t_ Page 50 499 U.S. 365, *375, 1 t 1 S. Ct. 1344. **1351; LEXSEE 1991 U.S. LEXIS 1858, ***19; 113 L. Ed. 2d 382 "conspiracy" means nothing more than an agreement to impose the regulation in question. Since it is both in- evitable and desirable that public officials often agree to do what one or another group of private citizens urges upon them, such an exception would virtually swallow up the Parker rule: All anncompctiiiyc regulation would be vulnerable to a "conspiracy" charge. See Areeda & Hovenkamp, supra, P 203.3b, at 3.1, and n. I; Elhauge, The Scope of Antitrust Process, 104 Nan. L. Rev. 667, 704-705 (1991). n5 n5 The dissent is confident that a jury composed of citizens of the vicinage will be able to tell the difference between "independent municipal action and action taken for the sole purpose of carrying out an anticompetitive agreement for the private party.' Post, at 395-396, No doubt. But those are merely the polar extremes, which like the geographic poles will rarely be seen by jurors of the vicinage. Ordinarily the alleLzation will merely be (and the dissent says this is enough) that the municipal action was not prompted "exclusively by a concern for the general public interest,' post, at 387 (emphasis added). Thus, the real question is whether a jury can tell the difference -- whether Solomon can tell the difference -- between municipal -action -not -entirely -independent - because -based -pa; tly-on-agreement-with -private-parties that is lawful and municipal -act ion-no(-ent i rely -independent -because - based -part ly-on -agree ment -with -private-parties that is unlawful. The dissent does not tell us how to put this question coherently, much less how to answer it intelligently. "Independent municipal action" is unobjectionable, "action taken for the sole purpose of carrying out an anticompetitive agreement for the private party" is unlawful, and everything else (that is, the known world between the two poles) is un-addressed. The dissent contends, moreover, that "the instruc- tions in this case, fairly read, told the jury that the plaintiff should not prevail unless the ordinance was enacted for the sole purpose of interferin4 with ac- cess to the market." Post, at 396, n. 9 (emphasis added). That is not so. The sum and substance of the jury's instructions here was that anticompetitive municipal action is not lawful when taken as part of a conspiracy, and that a conspiracy is "an agreement between tiro or more persons to violate the law. or to accomplish an otherwise lawful result in an un- lawful manner." App. 79. Although the District Court explained that "it is perfectly lawful for any and all persons to petition their government," the court immediately added, "but thev may not do so as a part or as the object of a conspiracy.' Ibid. These instructions, then, are entirely circular: An anticom- petitive agreement becomes unlawful if it is pan of a conspiracy, and a conspiracy is an agreement to do something unlawful. The District Court's observa- tion, upon which the dissent places so much weight, that "it'by the evidence you find that 1COA1 procured and brought about the passa-ge of ordinances solely for the purpose of hindering, delaying or otherwise interfering with the access of fomnit to the market- ing area involved in this case . . . and thereby conspired, then, of course, their conduct would not be excused under the antitrust laws," id., at 81, see post, at 387, n. 2, is in no way tantamount to an instruction that this was the only theory upon which the jury could find an immunity -destroying "conspir- acy. " 1*3761 1-13521 Omni suggests, however, that "con- spiracy" might be limited to instances of governmen- tal "corruption," defined variously as "abandonment of public responsibilities to private interests," Brief for Respondent 42, "corrupt or bad faith decisions," id., at 44, and "selfish or corrupt motives," ibid. Ultimately, Omni asks us not to define "corruption" at all, but sim- ply to leave that task• to the jury. "at bottom, however, it was within the jury's province to determine what con- stituted corruption of the governmental process in their community. " id., at 43. Onini's amicus eschews this em- phasis on "corruption," instead urging us to define the conspiracy exception as encompassing any governmen- tal act "not in the public interest." Brief for Associated Builders and Contractors, Inc.. as Amicus Curiae 5. 1*3771 A conspiracy exception narrowed along such vague lines is similarly impractical. Few governmental actions are immune from the charie that they are "not in the public interest" or in some sense "corrupt." The California marketing, scheme at issue in Parker itself, for example. can readily be viewed as the result of a "conspiracy" to put the 1-211 "private" interest of the State's raisin -,ro%%crs aboic the "public" interest of the State's consumers. The fact is that virtually all regu- lation benefits some segments of the society and harms others; and that it is not universally considered contrary to the public good if the net economic loss to the losers exceeds the net economic gain to the winners. Parker was not written in wrorance of the reality that determi- nation of "the public interest" in the manifold areas of government regulation entails not merely economic and mathematical analysis but value judgment, and it was not meant to shift that judenient from elected officials 499 U.S. 365, *377; 111 S. Ct. 134.1, **1352. 1991 U.S. LEXIS 1858, ***21; 113 L. Ed. 2d 382 to judges and juries. If the city of Columbia's decision to regulate what one local newspaper called "billboard jungles," Columbia Record, Nlay 21, 1982, p. 1-1-A. col. 1; App. in No. 88-1388 (CAA), p. 3743, is made subject to ex post facto judicial assesstrrent of "the public interest," with personal liability of cif)' officials a possible consequence, we will have gone far to "compro- mise the States' ability to regulate their domestic com- merce," Southern Motor Carriers Rrue Conference, Inc. u United States, 471 US. 43, 56 (1985). 1***22) The situation would not be better, but arguably even worse, if the courts were to apply a subjective test: not whether the action was in the public interest, but whether the of- ficials involved thought it to be so. This would require the son of deconstruction of the governmental process and probing of the official "intent" that we have consis- tently sought to avoid. n6 "Where the action complained [*378] of . . . was that of the State itself, the action is exempt from antitrust liability regardless of the State's motives in taking the action." Hoover v. Rotnvin, 466 US, SSS, 579-5801**13531 (1984). See also Llewellptr v. Crothers, 765 F. 2d 769, 774 (CA9 1985) (Kennedy, 1.). n6 We have proceeded otherwise only in the "very limited and well-defined class of cases where the very nature of the constitutional question requires [this] inquiry." United Stares v. O'Brien, 391 U.S. 367, 383, n. 30 (1968) (bill of attainder). See also Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 268. n. 18 (1977) (race -based motivation). [***231 The foregoing approach to establishing a "con- spiracy" exception at least seeks (however impractically) to draw the line of impermissible action in a manner rel- evant to the purposes of the Sherman Act and of Parker: prohibiting the restriction of competition for private gain but permitting the restriction of competition in the pub- lic interest. Another approach is possible, which has the virtue of practicality but the vice of being unrelated to those purposes. That is the approach which would con- sider Parker inapplicable only if, in connection with the governmental action in question, bribery or some other violation of state or federal law has been established. Such unlawful activity has no necessary relationship to whether the governmental action is in the public inter- est. A mayor is guilty of accepting a bribe even if he would and should have taken, in the public interest, the same action for which the bribe was paid. (That is fre- quently the defense asserted to a criminal bribery charge -- and though it is never valid to law, see, e. g., United States %,. Jannotti, 673 F. 2d 578. 601 1CA3) (en bane cert, denied, 457 U.S. 1106 (1982), (***241 it is o ten plausible in fact.) When, moreover, the regulato body is not a single individual but a state legislature city council. there is even less reason to believe thw violation of the la(by bribing a minority of the dec sionmakers) establishes that the regulation has no vali public purpose. Cf. Fletcher v. Peck. 6 Cranch 87, I (1810). TO use unL•twful political influence as the test legality of state regulation undoubtedly vindicates (in rather blunt wav) principles of good government. S the statute we are cor;swing is not directed to that en Congress has passed other laws aimed [*3791 at co bating corruption in state and local governments. Se e. g.. 1S U. S. C. 1951 (Hobbs Act). "Insofar (the Sherman Actl sets up a code of ethics at all, it is code that condemns trade restraints, not political acti ity." Eastern Railroad Presidents Conference v. Noe Motor Freight, hie., 365 U.S. 127. 140 (1961). P these reasons, we reaffirm our rejection of any interpr Cation of tilt, Sherman Act that would allow plaintiffs t look behind the 1"*251 actions of state sovereigns t base their claims on "perceived conspiracies to restrai trade," Hoover, 466 U.S., at 580. we reiterate tha with the possible market participant exception, any a tion that qualities as state action is "ipso facto . . exempt from the operation of the antitrust laws," id., 568. This does not mean. of course. that the States ma exempt private action from the scope of the Sherma Act; we in no way qualify the well -established principl that "a state does not give immunity to those who via late the Sherman Act by authorizing them to violate it or by declaring that their action is lawful." Parker, 31 U.S., at 351 (citine Northern Securities Co. v. Unitei States, 193 U.S. 197. 332, 344-347 (1904)). See als, Sclnvegmann Brothers v. Calvert Distillers Corp., 34 U.S. 384 0951). f- e t Y ry F Or 1 at t d 30 of _ a tit d. m- , zs I a v- rr or e- 0 0 n , c- at r" � n [ P Iii While Parker recognized the States' freedom to en- gagc in atincompetinve regulation. it did not purport to immunize from antitrust h3bilit} the private parties who urge them to engage in anticompetitive 1''*261 regula- tion. Howcyer, it is ob4 iously peculiar in a democracy, and perhaps in derogartun of (he constitutional right "to petition the Goyernnrcrit for a redress of grievances," U.S. Const., Arndt. I . to establish a category of lawful state action that citizens are not permitted to urge. Thus, beginning with Eastern Railroad Presidents Conference v Noerr.tlotor Freight. Inc., supra, we have developed 1"13541 a corollary to Parker. The: federal antitrust laws also do not regulate the amduct of private individ- uals in seeking 1.3801 anticompetitive action from the -overnmem. This doctrine, like Parker, rests ultimately upon a recognition that the antitrust laws, "tailored as 7 cth) CIO 0 "+ / -,00 Iii While Parker recognized the States' freedom to en- gagc in atincompetinve regulation. it did not purport to immunize from antitrust h3bilit} the private parties who urge them to engage in anticompetitive 1''*261 regula- tion. Howcyer, it is ob4 iously peculiar in a democracy, and perhaps in derogartun of (he constitutional right "to petition the Goyernnrcrit for a redress of grievances," U.S. Const., Arndt. I . to establish a category of lawful state action that citizens are not permitted to urge. Thus, beginning with Eastern Railroad Presidents Conference v Noerr.tlotor Freight. Inc., supra, we have developed 1"13541 a corollary to Parker. The: federal antitrust laws also do not regulate the amduct of private individ- uals in seeking 1.3801 anticompetitive action from the -overnmem. This doctrine, like Parker, rests ultimately upon a recognition that the antitrust laws, "tailored as 7 cth) CIO 0 "+ / -,00 499 U.S. 365, *380: 1 1 1 S. Ct. 1344, ** 1354; 1991 U.S. LEXIS 1858, ***26; 113 L. Ed. 2d 382 they are for the business world, are not at all appropriate for application in the political arena." ,Noerr, supra, at 141. That a private parry's political motives are selfish is irrelevant: "Noerr shields from the Sherman Act a concerted effort to influence public offctals regardless of intent or putpose." .cline IV)rhe°rs %. Pennington, 3,31 US. 657, 670 (1965). Noerr recognir.ed, however, what [***27) has come to be kno\vn as the "sham" exception to its rule: "There may be situations in which a pub- licity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is ac- tually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application of the Sherman Act would be justified.".365 U.S., at 144. The Court of Appeals concluded that the jury in this case could have found that COA's activi- ties on behalf of the restrictive billboard ordinances fell within this exception. In our view that was error. The "sham" exception to Noerr encompasses situa., (ions in which persons use the governmental process -- as opposed to the outcome of that prot:ess -- as an an- ticompetitive weapon. A classic example is the filing of frivolous objections to the license application of a competitor, with no expectation of achieving denial of the license but simply in order to impose expense and delay. See California Motor Transport Co. v. Trucking Unlimited, 404 US. 508 (1972). A "sham" situation involves a defendant whose activities are "not [***281 genuinely aimed at procuring favorable government ac- tion" at all, Allied Tighe & Conduit Corp. v. lndian Head, Inc., 486 U.S. 496, 500, n. 4 (1988), not one "who 'genuinely seeks to achieve his governmental re- sult, but does so through improper means,'" id., at 508, n. 10 (quoting Sessions Tani: Liners, inc. v. Joor Mfg., inc., 827F. 2d 458, 465, n. 5 (C.49 1987)). [*381J Neither of the Court of Appeals' theories for application of the "sham" exception to the facts of the present case is sound. the court reasoned, first, that the jury could have concluded that COA's interaction with city officials "was actually nothing more than an at- tempt to interfere directly with the business relations [sic) of a competitor.'" 891 F. 2d, (it 1139 (quoting Noerr, supra, at 144). This analysis relies upon lan- guage from Noerr, but ignores the import of the critical word "directly." Although COA indisputably set out to disrupt OrnniIs business relationships, it sought to do so not through the very process of lobbying, or of causing the city council to consider [***291 zoning measures, but rather through the ultimate product of that lobby- ing and consideration, viz., the zoning ordinances. The Court of Appeals' second theory was that the jury could have found "that COA's purposes were to delay Omni's entry into the market and even to deny it a meaningful ac- Page 52 LEXSEE cess to the appropriate city administrative and legislative fora." 891 F 2d, at 1139. But the purpose of delaying a competitor's entry into the market does not render lobby- ing activity a "sham," unless (as no evidence suggested was true here) the delay is sought to be achieved only by the lobbying process itself, and not by the govern- mental action that the lobbying seeks. "If Noerr teaches anything it is that an intent to restrain trade as a result of Elie government action sought . . . does not fore- close protection." Sullivan, Developments in the Noerr Doctrine. 56 Antitrust L. J. 361. 362 (1987). As for "denying . . . meaningful access to the appropriate city administrative and legislative fora," that may ren- der the manner of lobbying improper or even unlawful, 1 **) 3551 but does not necessarily render it a "sham." We did hold ("**301 in California Motor Transport, supra, that a conspiracy among private parties to monopolize trade by excluding a competitor from participation in the regulatory process did not enjoy Noerr protection. But California Motor Transport involved a context in which the conspirators' participation in the governmental pro- cess was itself claimed (o be a 1 *3821 "sham," employed as a means of imposing cost and delay. ("It is alleged that petitioners 'instituted the proceedings and actions . . . with or without probable cause, and regardless of the merits of the cases.'" 404 U.S., at 512.) The holding of the case is limited to that situation. To extend it to a context in which the regulatory process is being invoked genuinel\. and not in a "sham" fashion, would produce precisely that conversion of antitrust law into regulation of the political process that we have sought to avoid. Any lobbyist or applicant, in addition to getting himself heard, seeks by procedural and other means to get his opponent ignored. Policing the legitimate boundaries of such defensive strategies, when they are conducted in the context of a genuine 1" 311 attempt to influence governmental action, is not (he role of the Sherman Act. In the present case, of course, any denial to Omni of "meaningful access to the appropriate city administra- tive and legislwive fora" was achieved by COA in the course of an attempt to influence governmental action that, far front being a "sham." was if anything more in earnest than it should have been. If the denial was wrongful there may be other remedies, but as for the Sherman Act, the Noerr exeniption applies. Omni urges that it, as we ha%e concluded. the "sham" exception is inapplicable, we should use this case to rec- oe.nize another exception to Noerr immunity -- a "con- spiracy" exception, which kyuuld apply when govern- ment officials conspire with a private party to employ government action as a means of stifling competition. \4'e nave left open the possibility of such an exception, see, C. g.. Allied Tabe, supra, ar 502, n. 7, as have L 120 499 U.S. 365, *382; 111 S. Ct. 1344. **1355. 1991 U.S. LEXIS 1858, ***31; 113 L. Ed. 2d 382 a number of Courts of Appeals. See, e. g., Obenrdorf v. Denver, 900 F. 2d 1434. 1440 (C.110 1990); First American Title Co. of South Dakota r. South Dakota Land Title Assn., 714 F 2d 1439. 1-146, n. 6 (CAS 1983). [***321 cent, denied, 464 U.S. 1042 (1984). At least one Court of Appeals has affirmed the exis- tence of such an exception in dicta, see Duke & Co. v. Foerster. 521 F. 2d 1277. 12S2 (C•13 1975), and [*383] the Fifth Circuit has adopted it as holding, see Affiliated Capital Corp, v. Houston, 735 F 2d 1555, 1566-1568 (19S4) (en bane). Giving full consideration to this matter for the first time, %ve conclude that a "con- spiracy" exception to Noerr must be rejected. We need not describe our reasons at length, since they are largely the same as those set forth in Part It above for reject- ing a "conspiracy" exception to Parker. As we have described, Parker and Noerr are complementary expres- sions of the principle that the atuitrust laws regulate busi- ness, not politics; the former decision protects the States' acts of governing, and the latter the citizens' participa- tion in government. Insofar as the identification of an immunity -destroying "conspiracy" is concerned, Parker and Noerr generally present two faces of the same coin. The Noerr-invalidating conspiracy [***331 alleged here is just the Parker -invalidating conspiracy viewed from the standpoint of the private -sector participants rather than the governmental participants. The same factors which, as we have described above, make it impractica- ble or beyond the purpose of the antitrust laws to identify and invalidate lawmaking that has been infected by self- ishly motivated agreement %with private interests likewise make it impracticable or beyond that scope to identify and invalidate lobbying that has produced selfishly mo- tivated agreement with public officials. "It would be unlikely that any effort to influence legislative action could succeed unless one or more members [** 13561 of the legislative body became . . . 'co-conspirators'" in some sense with the private party urging such ac- (ion, Metro Cable Co. v. CATV of Rockford, Inc., 516 F 2d 220. 230 (C.17 1975). And if the invalidat- ing 'conspiracy` is limited to one that involves some element of unlawfulness (beyond mere anticompetitive motivation), the invalidation would have nothing to do with the policies of the antitrust laws. In Noerr itself, where the private party "deliberately deceived the public [***341 and public officials" in its successful lobbying campaign, we said that [*3841 "deception, reprehensible as it is, cart be of no consequence so far as the Sherman Act is concerned." 365 U. S., of 145. IV Under Parker and Noc:rr, therefore, both the city and COA are entitled to immunity from the federal an- titrust laws for their activities relatine to enactment of the ordinances. This determination does not entirely resolve Page 53 LEXSEE the dispute before us, since other activities are at issue in the case with respect to COA. Omni asserts that COA engaged in private anticompetitive actions such as trade libel, the setting of artificially low rates, and inducement to breach of contract. Thus, although the jury's general verdict against COA cannot be permitted to stand (since it was based on instructions that erroneously permitted li- ability for seeking the ordinances, see Sunkist Growers, Inc. v, lt'inckler & Smith Citrus Products Co., 370 US. 19, 29-30 (1962)), if the evidence was sufficient to sustain a verdict on the basis of these other actions alone, and if this theory of liability has been properly preserved. Omni would 1***351 be entitled to a new trial. There also remains to be considered the effect of ourjudgment upon Omni's claim against COA under the South Carolina Unfair Trade Practices Act. The District Court granted judgment notwithstanding the verdict on this claim as well as the Sherman Act claims; the Court of Appeals reversed on the ground that "a finding of con- spiracy to restrain competition is tantamount to a find- ing" that the South Carolina law had been violated, 891 F. 2d, at 1143. Given our reversal of the "conspiracy" holding, that reasoning is no longer applicable. We leave these remaining questions for determination by the Court of Appeals on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. DISSENTQY: STEVENS DISSENT: [*3851 Justice Stevens, with whom Justice White and Justice Marshall join, dissenting. Section I of (lie Sherman Act provides in part: "Every contract. combination in (lie form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal." )5 U. S. C. 3 1 1-361 (emphasis added). Ahhough rye hase previously recognized that a com- pletely literal interpretation of the �yurd "every" cannot have been intended by Congress, ill file Court today carries 1- 13571 this recognition to an extreme by de- ciding that agreements between Municipalities, or their officials, and private parties to use the zoning power to confer exclusive privileges in a particular line of com- merce are beyond the reach of ; I. History, tradition, and the facts of this case all demonstrate that the Court's attempt to create a "better" and less inclusive Sherman Act, cf. West Virginia (*3861 University Hospitals, Inc. v. Cagy. 499 U.S. 83, 101 (1991 ). is ill advised. nl Constrain') the statute in the light of the com" S- 9 - 499 U.S. 365, *386, 111 S. Ct. 1344. **1357; 1991 U.S. LEXIS 1858, `36: 113 L. Ed. 2d 382 nton law concerning contracts in restraint of trade, we have concluded that only unreasonable restraints are prohibited. "One problem presented by the language of § 1 of the Sherman Act is that it cannot mean what it says. The statute says that 'e�cry' contract that restrains trade is unlawful. But, as Mr. Justice Brandeis per- ceptively rioted, restraint is the very_ essence of every contract; read literally, 3 I would outlaw the entire body of private contract law. 'Yet it is that body of law that estabiishes the enforceability of commer- cial agreements and enables competitive markets -- indeed, a competitive economy -- to function effec- tively. "Congress, however, did not intend the text of the Sherman Act to delineate the full meaning of the statute or its application in concrete situations. The legislative history makes it perfectly clear that it expected the courts to give shape to the statute's broad mandate by dra\k ing on common-law tradition. The Rule of Reason. :with its origins in common- law precedents long antedating the Sherman Act, has served that purpose. . . . (The Rule of Reason) focuses directly on the challenged restraint's impact on competitive conditions." National Society of Professional Engineers v. United States, 435 U.S. 679, 687-688 (1978) (footnotes omitted). We have also confined the Sherman Act's man- date by holding that the independent actions of the sovereign States and their officials are not covered by the language of the Act. Parker v. Brown, 317 U.S. 341 (1943). ***37 I As a preface to a consideration of the "state action" and so-called "Noerr-Pennington" exemptions to the Sherman Act, it is appropriate to remind the Court that one of the classic common-law examples of a prohibited contract in restraint of trade involved an agreement be- tween a public official and a private party. The public official -- the Queen of England -- had granted one of her subjects a monopoly in the making, importation, and sale of playing cards in order to generate revenues for the crown. A competitor challenged the grant in The Case of Monopolies, I I Co. Rep. 84. 77 Eng. Rep. 1260 (Q. B. 1602), and prevailed. Chief Justice Popham explained on behalf -of the bench: "The Queen was . . . deceived in her grant; for the Queen . . . intended it to be for the weal public, and Page 54 LEXSEE it will be employed for the private gain of the patentee. and for the prejudice of the weal public; moreover the Queen meant that the abuse should be taken away, which shall never be by this patent, but potius the abuse will be increased for the private benefit of the patentee, and therefore . . , this Brant is void jure Regio.' Id., at [***381 87a; 77 Eng. Rep., at 1264. In the case before us today, respondent alleges that the city of Columbia, South Carolina, has entered into a comparable agreement to give respondent a monopoly in the sale of billboard advertising. After a 3-week trial, a jury composed of citizens of the vicinage found that, despite the city fathers' denials, there was indeed such an agreement, presumably motivated in part by past favors in the form of political advertising, in pan by friendship, and in part by the expectation of a benefn- cial future relationship -- and in any case, not [*3871 exclusively by a concern for the eeneral public interest. n2 Today the Court acknowledges the anticompetitive consequences of this and sirnilar agreements but decides that they should be exempted from the coverage of the Sherman Act because it fears that enunciating a rule that allows the motivations of public officials to be probed may rrtean that innocent municipal officials may be ha- rassed with baseless charges. The holding evidences an unfortunate lack of confidence in our judicial system and will foster [*113581 the evils the Sherman Act was desiened to eradicate. n2 The jury returned its verdict pursuant to the following instructions given by the District Court: "So if by the evidence you find that that person involved in this case procured and brought about the passage of ordinances solely for the purpose of hin- dering, delaying or otherwise interfering with the access of the Plaintiff to the marketing area involved in this case . . . and thereby conspired, then, of course, their conduct would not be excused under the antitrust laws. "So once again an entity may engage in . le- =itimate lobbying . to procure legislation even if the monye behind the lobbying is anticompetitive. "If you find Defendants conspired together with the intent to foreclose the Plaintiff from meaningful access to a legitimate decision making process with regard to the ordinances in qucstiun. then your ver- dict ��ould be for the PL:urttiff on that issue." App. 81. so-iA,� 499 U.S. 365, *387; 111 S. Ct. 1344, **1358; 1991 U.S. LEXiS 1858, ***39; 113 L. Ed. 2d 382 There is a distinction between economic regulation, on the one hand, and regulation designed to protect the pub- lic health, safety, and environment. in antitrust parlance a "regulated industry" is one in which decisions about prices and output are made not by w.dividual firms, but rather by a public body or a coliecti%c process subject to governmental approval. Economic regulation of the motor carrier and airline industries was imposed by the Federal Govc:-nment in the 1930's: the "deregulation" of those industries did not eliminate all the other types of regulation that continue to protect our safety and en- vironmental concerns. [*388] The antitrust laws reflect a basic national pol- icy favoring free markets over regulated markets. n3 In essence, the Sherman Act prohibits private unsuper- vised regulation of the prices and output of goods in the marketplace. That prohibition is inapplicable to spe- cific industries which Congress has exempted from the antitrust laws and subjected to regulatory supervision over price and output decisions. Moreover, the so-called "state -action" exemption from the Sherman Act reflects the Court's understanding that Congress did not intend [***401 the statute to pre-empt a State's economic reg- ulation of commerce within its own borders. n3 "The Sherman Act reflects a legislative judg- ment that ultimately competition will produce not only lower prices, but also better goods and services. 'The heart of our national economic policy long has been faith in the value of competition.' Standard Oil Co. v. FTC, 340 U.S. 231. 248 [(1951)]. The assumption that competition is the best method of allocating resources in a free market recognizes that all elements of a bargain -- quality, service, safety, and durability -- and not just the immediate cost, are favorably affected by the free opportunity to se- lect among alternative offers. Even assuming occa- sional exceptions to the presumed consequences of competition, the statutory policy precludes inquiry into the question whether competition is good or bad." National Society of Professional Engineers, 435 U.S., at 695. The contours of the state -action exemption [***411 are relatively well defined in our cases. Ever since our decision in Olsen v. Smith, 195 U.S. 332 (1904), which upheld a Texas statute fixing the rates charged by pilots operating in the Port of Galveston, it has been clear that a State's decision to displace competition with economic regulation is not prohibited by the Sherman Act. Parker v. Brown, 317 U.S. 341 (1943), the case most frequently identified with the state -action exemption, involved ade- Page 55 LEXSEE vision by California to substitute sales quotas and price control -- the purest form of economic regulation -- for competition in the market for California raisins. In Olsen, the State itself had made the relevant pric- ing decision. in Parker, the regulation of the marketing of California's [*3891 1940 crop of raisins was admin- istered by state officials. Thus, when a state agency. or the State itself, eneaees in economic regulation, the Sherman Act is inapplicable. Hoover v. Ronwin, 466 U.S. 558, 568-569 (1984); Bates v. State Bar of Arizona. 433 U.S. 350, 360 (1977). Underlying the 1***421 Court's recognition of this state -action exemption has been respect for the funda- mental principle of federalism. As we stated in Parker, 317 U.S., at 35L "in a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." However, this Court recognized lone ago that the def- erence due States within our federal system does not extend fully to conduct undertaken by municipalities. Rather, all sovereign authority "within the geographical I1* 13591 limits of the United States" resides with "the Government of the United States, or [with[ the States of the Union. Thera: exist within the broad domain of sovereignty but these two. There may be cities, coun- ties. and other organized bodies with limited legislative functions, but they are all derived from, or exist in, sub- ordination to one or the other of these." United States v. Kagama, 118 U.S. 375, 379 (1886). Unlike States, municipalities do not constitute [***43] bedrocks within our system of federalism. And also unlike States, municipalities are more apt to promote their narrow parochial interests "without regard to ex- traterritorial impact and regional efficiency." Lafayette v. Louisiana Po%scr & Lieltt Co.. 435 U.S. 389, 404 (1978): see also The Federalist No. 10 (J. Madison) (de- scribing the greater tendency of smaller societies to pro- mote oppressive and narrow interests above the common good). "If municipalities were free to make economic choices counseled solely by their own parochial inter- ests 1*3901 and syithout re_ard to their anticompetitive effects, a serious chink in the armor of antitntst protec- tion would be introduced at odds with the comprehen- sive national police Congress established." Lafayette Y. Louisiana Power & Lghi Co.. 435 U.S. at 408, Indeed, "in light of the serious economic dislocation which could result if cities were free to place their own parochial in- terests above the Nation's economic goals reflected in the antitrust laws, . . . we are especially unwilling to 499 U.S. 365. *390, 1 It S. Ct. 1344. **1359; 1991 U.S. LEXIS 1858, ***43; 113 L. Ed. 2d 382 presume that Congress intended to exclude anticompet- itive municipal action from their [***441 reach." Id., at 412-413. n4 n4 In Owen v. City of Independence, 445 U.S. 622 (1980). this Court recognized that "notwithstanding [42 U. S. C.1 § 1983's expansive language and the ab- sence of any express incorporation of common-!aw immunities, we have, on several occasions, found that a tradition of immunity was so firmly rooted in the common law and was supported by such strong policy reasons that 'Congress would have specifi- cally so provided had it wished to abolish the doc- trine.' Pierson v. Ray. 386 U.S. 547, 555 (1967)." Id., at 637. Nevertheless, the Court refused to find a firmly established immunity enjoyed by municipal corporations at common law for the torts of their agents. "Where the immunity claimed by the de- fendant was well established at common law at the time (42 U. S. C. [ § 1983 was enacted, and where its rationale was compatible with the purposes of the Civil Rights Act, we have construed the statute to incorporate that immunity. But there is no tradition of immunity for municipal corporations, and neither history nor policy supports a construction of § 1983 that would justify" according them such immunity. ld., at 638. See also Will v. Michigan Dept. of State Police, 491 U.S. 58, 70 (1989) ("States are protected by the Eleventh Amendment while municipalities are not . . ."). [***4S[ Nevertheless, insofar as municipalities may serve to implement state policies, we have held that economic regulation administered by a municipality may also be exempt from Sherman Act coverage if it is enacted pur- suant to a clearly articulated and affirmatively expressed state directive "to replace competition with regulation." Hoover, 466 U.S., at 569. However, the mere fact that a municipality acts within its delegated authority is not sufficient to exclude its anticompetitive behavior from the reach of the Sherman Act. [*3911 "Acceptance of such a proposition -- that the general grant of power to enact ordinances necessarily implies state authoriza- tion to enact specific anticompetitive ordinances -- would wholly eviscerate the concepts of 'clear articulation and affirmative expression' that our precedents require." Community Communications Co. v. Boulder, 455 U.S. 40, 56 (1982). { Accordingly, we have held that the critical decision to substitute economic regulation for competition is one that must be made by the State. That decision must be Page 56 LEXSEE articulated with sufficient clarity to identify the industry [***461 in which the State intends that economic regu- lation shall replace competition. The terse statement of the reason why the municipality's actions in Hallie v. Eau Claire, 471 U.S. 34 1**13601 (1985), was exempt from the Sherman Act illustrates the prim: 'They were taken pursuant to a clearly articulated state policy to re- place competition in the pro% rston of sewage services with regulation." Id.. at 47. n5 n5 Contrary to the Court's reading of Hallie, our opinion in that case emphasized the industry -specific character of the Wisconsin legislation in explaining why the delegation satisfied the 'clear articulation' requirement. At issue in Hallie was the town's inde- pendent decision to refuse to provide sewage treat- ment services to nearby towns -- a decision that had been expressly authorized by the Wisconsin legisla- tion. 471 U.S., at 41. kVe wrote: "Applying the analysis of Lai'ayette v. Louisiana Power &Light Co., 435 U.S. 389 (1978), it is suf- ficient that the statutes authorized the City to provide sewage services and also to determine the areas to be served." id., at 42. "Nor do we agree with the Towns' contention that the statutes at issue here are neutral on state policy. The Towns attempt to liken the Wisconsin statutes to the Home Rule Amendment involved in Boulder, ar- auing that the 1isconsin statutes are neutral because they leave the City free to pursue either anticompet- itive conduct or tree -market competition in the field of sewage services. The analogy to the Home Rule Amendment involved in Boulder is inapposite. That Amendment to the Colorado Constitution allocated only the most general authority to municipalities to govern local affairs. We held that it was neutral and did not satisfy the 'clear articulation' component of the state action test. The Amendment simply did not address the regulation of cable television. Under home rule the municipality was to be free to decide even, aspect of policy relating to cable television, as well as policy relating to any other field of regula- tion of local concern. Ilere. in contrast, the State has specifically authorized %Visconsin cities to pro- vide sewage services and has delegated to the cities the express authority to take action that foreseeably will result in anticompetitive effects. No reason- able argunterit ran be made that these statutes are neutral in the same way that Colorado's Home Rule Amendment was." id., at 43. «'e rejected the argument that the delegation was L 499 U.S. 365, *391; III S. Ct. 1344, **1360, 1991 U.S. LEXIS 1858, ***46; 113 L. Ed. 2d 382 insufficient because it did not expressly mention the foreseeable anticompetitive consequences of the city of Eau Claire's conduct, but %ve surely did not hold that the mere fact that incidental anticompetitive con- sequences are foreseeable is sufficient to immunize otherwise unauthorized restrictive agreements be- tween cities :utd private parties. [***47] [*392] 11I Today the Court adopts a significant enlargement of the state -action exemption. The South Carolina statutes that confer zoning authority on municipalities in the State do not articulate any state policy to displace competition with economic regulation in any line of commerce or in any specific industry. As the Court notes, the state statutes were expressly adopted to promote the "'health, safety, morals or the general welfare of the community,'" see ante, at 370, n. 3. Like Colorado's grant of "home rule" powers to the city of Boulder, -they are simply neutral on the question whether the municipality should displace competition with economic regulation in any industry. There is not even an arguable basis for con- cluding that the State authorized the city of Columbia to enter into exclusive agreements with any person, or to use the zoning power to protect favored citizens from competition. n6 Nevertheless, under the guise of acting [*393] pursuant to a state legislative grant to regulate health, safety, and welfare, the city of Columbia in this case enacted an ordinance that amounted to economic regulation of the billboard marker, as the Court recog- nizes, [***48] the ordinance "obviously benefited COA, which already had its billboards in place . . . [and] severely hindered Omni's ability to compete." Ante, at 368. n6 The authority to regulate the "'location, height, bulk, number of stories and size of buildings and other structures," see ante, at 371, n. 3 (citation omitted), may of course have an indirect effect on the total output in cite billboard industry, see ante, at 373-374, n. 4, as sell as on a number of other industries• but the Court surely misreads our cases when it implies that a general grant of zoning power represents a clearly articulated decision to authorize municipalities to enter into agreements to displace competition in every industry that is affected by zon- ing regulation. Concededly, it is often difficult to differentiate eco- nomic regulation from municipal regulation of health, safety, and welfare. "Social ]** 1361 ] and safety regu- Page 57 LEXSEE lation have economic impacts, and economic regulation has social and safety effects." D. l-Ijelmfelt, Antitrust and Regulated [**1491 Industries 3 (1985), It is never- theless important to determine when purported general welfare regulation in fact constitutes economic regula- tion by its purpose and effect of displacing competition. "An example of economic regulation which is disguised by another stated purpose is the limitation of advertising by lawyers for the stated purpose of protecting the public from incompetent lawyers. Also, economic regulation posing as safety regulation is often encountered in the health care industry." Id., at 3-4. In this case, the jury found that the city's ordinance ostensibly one promoting health, safety, and welfare was in tact enacted pursuant to an agreement between city officials and a private party to restrict competition. In my opinion such a finding necessarily leads to the conclusion that the city's ordinance was fundamentally a form of economic regulation of the billboard market rather than a general welfare regulation having incidental anticompetitive effects. Because I believe our cases have wisely held that the decision to embark upon economic regulation is a nondelegable one that must expressly be made by the State in the context of a specific industry in 1-501 order to qualify for state -action immunity, see, e. g., Olsen v. Smith, 195 U.S. 333 (1904) (Texas pi- lotage 1*3941 statutes expressly re,ulated both entry and rates in the Port of Galveston): Parker v. Brown, 317 U.S. 341 t 1943) (California statute expressly authorized the raisin market regulatory program), I would hold that the city of Columbia's economic regulation of the bill- board market pursuant to a general state grant of zoning power is not exempt from antitrust scrutiny. n7 n7 A number of Courts of Appeals have held that a municipality which exercises its zoning power to further a private agreement to restrain trade is not entitled to state -action immunity. See, e. g., Westborough Mall, Inc. v. Cape Girardeau, 693 F. ?d 733, 746 (CAS 1982) ("Even if zoning in gen- eral can be characterized as 'state action,' . . . a conspiracy to thwart normal zoning procedures and to directiv injure the plaintiffs by illegally depriv- ing theta of their property is not in furtherance of any clearly articulated state policy"); Whitworth v. Perkins, 559 F. _'d 378. 379 XA5 1977) ("The mere presence of the zoning ordinance does not necessarily insulate the defendants from inntrus, liability where, as here. the plaintiff' asserts that Elie enactment of the ordinance was itself a part of the alleged conspiracy to restrain trade"). � -- �'20 499 U.S. 365, *394; 111 S. Ct. 1344, **1361; 1991 U.S. LEXIS 1858, ***51; 113 L. Ed. 2d 382 Underlying the Court's reluctance to find the city of Columbia's enactment of the billboard ordinance pur- suant to a private agreement to constitute unauthorized economic regulation is the Court's fear that subject- ing the motivations and effects of municipal action to antitrust scrutiny will result in public decisions being "made subject to ex post facto judicial assessment of the public interest.'" Ante, at 377, That fear, in turn, rests on the assumption that "it is both inevitable and desirable that public officials often agree to do what one or another group of private citizens urges upon then]." Ante, at 375. The Court's assumption that an agreement between private parries and public officials is an "inevitable" pre- condition for official action, however, is simply wrong, n8 Indeed, I am [*3951 persuaded that such agreements are the exception rather than the rule, and that they are, and should be, disfavored. The mere fact that an official body adopts a position that is advocated by a private lob- byist is plainly not sufficient to establish an agreement [**1362] to do so. See Fisher v. Berkeley, 475 U.S. 260, 266-267 (1956); [***521 cf. Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 541 (1954). Never_heless, in many circumstances, it would seem reasonable to infer -- as the jury did in this case -- that the official action is the product of an agreement intended to elevate particular private interests over the general good. n8 No such agreement was involved in Hallie v. Eau Claire, 471 U.S. 34 (1985). In that case the plaintiffs challenged independent action -- the de- termination of the service area of the city's sewage system -- that had been expressly authorized by Wisconsin legislation. The absence of any such agreement provided the basis for our decision in Fisher v. Berkeley, 475 U.S. 260, 266-267 (1986) ("The distinction between unilateral and concerted action is critical here. . . . Thus, if the Berkeley Ordinance stabilizes rents without this element of concerted action, tNe program it establishes cannot run afoul of § I "). [**•531 In this case, the city took two separate actions that protected the local monopolist from threatened competi- tion. It first declared a moratorium on any new billboard construction, despite the city attorney's advice that the city had no power to do so. When the moratorium was invalidated in state -court litigation, it was replaced with an apparently valid ordinan c- that clearly had the effect of creating formidable barriers to entry in (tie billboard Page 58 LEXSEE market. Throughout the city's decisionmaking process in enactine the various ordinances. undisputed evidence demonstrated that Columbia Outdoor Advertising, inc., had met with city officials privately as well as publicly. As the Court of Appeals noted: "Implicit in the jury ver- dict was a finding that the city was not acting pursuant to the direction or purposes of the South Carolina statutes but conspired solely to further COA's commercial pur- poses to the detriment of compe ntiun in the billboard industry." 891 F. 2d 1127, 1133 (CA4 1989). Judges who are closer to the trial process than we are do not share the Court's fear that juries are not capa- ble of recognizing the difference between independent [***541 municipal action and action taken for the sole purpose of carrying out an [*396] anticompetitive agree- ment for the private party. n9 See, e. e., in re Japanese Electronic Products Antitrust Litigation, 631 F. 2d 1069, 1079 (CA3 1980) ("The law presumes that a jury will find facts and reach a verdict by rational means. It does not contemplate scientific precision but does contem- plate a resolution of each issue on the basis of a fair and reasonable assessment of the evidence and a fair and rea- sonable application of the relevant legal rules"). indeed, the problems inherent in determining whether the actions of municipal officials are the product of an illegal agree- ment are substantially the same as those arising in cases in which the actions of business executives are subjected to antitrust scrutiny. MO n9 The instructions in this case, fairly read, told the jury that the plaintiff should not prevail unless the ordinance was enacted for the sole purpose of in- terfering with access to the market. See n. 2, supra. Thus, this case is an example of one of the "polar extremes," see ante, at 375, n. 5, that juries -- as well as Solomon -- can readily identify. The mixed motive cases that concern the Court should present no problem if juries are given instructions compara- ble to those given below. When the Court describes my position as asstnnimg that municipal action that was nut prompted "exclustvel� by a concern for the general public interest" is enuugit to create antitrust liability, ibid., it simply iuriores the requirement that the plaintiff must prove that the municipal action is the product of an anticompetitive agreement with private parties. Contrary to our square holding in Fisher v, Berkeley. 475 U.S. 260 (1986), today the: Court seems m assume that municipal action which is not entirely immune from antitrust scrutiny will automatically violate the antitrust laws. 1**"551 n 10 "Thereare many obstacles to discovering con- L MOR 499 U.S. 365, *396: 111 S. Ct. 1344, **1362: 1991 U.S. LEXIS 1858, `55: 113 L. Ed. 2d 382 spiraeies, but the most frequent difficulties are three. First, price -fixers and similar miscreants seldom ad- mit their conspiracy or agree in the open. Often, we can infer the agreement only from their behav- ior. Second. behavior can some(imes be coordinated without any communication or other observable and reprehensible behavior. Third, the causal connection between an observable, controllable act -- such as a solicitation or meeting -- and subsequent parallel ac- tion may be obscure." 6 P. Areeda, Antitrust Law P 1400, at 3-4 (1986). See also Turner, The Definition of Agreement un- der the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L. Rev. 655 (1962)(dis- cussing difficulties of condemning parallel anticom- petitive action absent explicit agrecment among the parties). [*3971 The difficulty of proving whether an agree- ment motivated a course of conduct should not in itself intimidate this Court into exempting those illegal agree- ments that are 1**13631 proved by convincing evidence. Rather, the Court should, [***561 if it must, attempt to deal with these problems of proof as it has in the past -- through heightened evidentiary standards rather than through judicial expansion of exemptions from the Sherman Act. See, e. g., Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (al- lowing summary judgment where a predatory pricing conspiracy in violation of the Sherman Act was founded largely upon circumstantial evidence): Monsanto Co. v. Spray -Rite Service Corp., 465 U.S. 752, 768 (1984) (holding that a plaintiff in a vertical price-fixing case must produce evidence which "tends to exclude the pos- sibility of independent action"). Unfortunately, the Court's decision today converts what should be nothing more than an anticompetitive agreement undertaken by a municipality that enjoys no special status in our federalist system into a lawful ex- ercise of public decision making. Although the Court correctly applies principles of federalism in refusing to find a "conspiracy exception" to the Parker state -action doctrine when a State acts in a nonproprietary capacity, it errs in extending the state -action [***571 exemption to municipalities that enter into private anticompetitive agreements under the guise of acting pursuant to a gen- eral state grant of authority to regulate health, safety, and welfare. Unlike the previous limitations this Court has imposed on Congress' sweeping mandate in $ 1, which found support in our common-law traditions or our system of federalism, see n. 1, supra, the Court's wholesale exemption of municipal action from antitrust Page 59 LEXSEE scrutiny amounts to little more than a bold and disturbing act ofjudtcial legislation 1*3981 which dramaticaliv cur- tails the statutory prohibition against "every' contract in restraint of trade. n I I n 1 I As the Court previously has noted: "In 1972, there were 62.437 different units of local government in this country. Of this number 23,885 were special districts which had a defined goal or goals for the provision of one or several services, while the remaining 38,552 represented the number of counties, municipalities, and townships, most of which have broad authority for general governance subject to limitations in one way or another imposed by the State. These units may, and do, participate in and affect the economic life: of this Nation in a great number and variety of ways. When these bodies act as owners and providers of services, they are fully capable of aggrandizing other economic units with which they interrelate, with the potential of serious distortion of the rational and efficient allocation of resources, and the efficiency of free markets which the regime of competition embodied in the antitrust laws is thought to engender." Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 407-408 (1978) (footnotes omitted). [***581 IV Just as I am convinced that municipal "lawmaking that has been infected by selfishly motivated agreement with private interests," ante, at 383, is not authorized by a grant of zoning authority, and therefore not within the state -action exemption, so am I persuaded that a pri- vate party's agreement with selfishly motivated public officials is sufficient to remove the antitrust immunity that protects private lobbying under Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and dine Workers v. Pennington, 381 U.S. 657 (1965). Although I agree that the "sham" exception to the Noerr- Penn ington rule exempting lob- bying activities from (lie antitrust laws does not apply to the private petitioner's conduct in this case for the reasons stated by the Court in Part III of its opinion, I an; satisfied that the evidence in (lie record is sufficient to support the jury's finding that a conspiracy existed between the private party and (lie municipal officials in this case so as to remove the private petitioner's con- duct from the scope of Noerr-Pennington antitrust im- munity. 1'**591 Accordingly, I would affirm 1*3991 the judgment of the: Court of Appeals as to both the city of [** 13641 Columbia and Columbia Outdoor Advertising, L_ i20 'Tyl 499 U.S. 365, *399; 111 S. Ct. 1344. **1364, 1991 U.S. LEXIS 1858. ***59; 113 L. Ed. 2d 382 Inc. I respectfully dissent. ' 52 FLt 6^9 SOUTHERN RKPORTE H; 2d 1,fF LIES Insurance c}352.2 Under terms of certificate of tn,ur.uice providing coverage While student was tr;ti.rl- ing "in the charge and presence ut duly - delegated sc^nooi atahonues" or m istci P,h- vy providing coverage once school activity ­is sponsored and supervised by duly del•�gmed school authorities," group accIdent policy provided no coversg► for accident which vc- curred while student, who had made hie own travel al•rangetmentb, was traveling home af- ter bazeball practice. Roy D. Wasson. Nliam), for appellTnt. Hinshaw & Culbertson and Jotseph T. Kis• nano, `slramt. for appellee. Before HliBBART. GERSTEN and GODERICH, JJ PER CURfA,m. Adolfo E. Roblero, 9s surviving patent and personal representative of the Estate of Jorge Enrique Roblero, appeals frorn an or- der granting 11nai surnmary judgment in fa- vor of the defendant, Amencan Genera) Group Insurance Company of Florida (Amer- ican Generall. We affirm The personal representative filed a declm-- atory judgment action seeking to establish coverage pursuant to a group accident policy. The certificate of insurance provides cover- age while a student is traveling "in the charge and presence of duty -delegated school authorities " .Nloreover, the master policy provides coverage when the school activity ••is sponsored and supen-,3ed by duly dele- eated school authorities " In the instant case, the undisputed facts indicate that the accident occurred while Jorge Roblero, a s:uden', tivas t.raveling home .after basebal! practice avid that he made his own travel arrangements. Nioreover, there is no indication that any school official paruc- ipttted in, made, or authorzed these travel aurangerner,t3. Theso after school' travel ttr� rangernent9 -ere not "sponsored and super- ,,-ised by duly -delegated school authorities" and the student was not traveling "in the charge and presence of duly -delegated schoo) authorities." According::r, under the terms of cither the p4;shcy ur the certificate or incur. aru•c. the trial court correctly granted final zsunuri,tr-)• Judgment in favor of A.rneriean General Affrmed. w p i ell ltyMlt� lY'i/iM Jack J. GREENBERG, M.D,, et al., Appellants, V. :•JOi'VT SINA1 MEDICAL CENTER OF GREATER MIAMI, INC., etc., et al., Appellees. No. 92-1919. District Court of Appeal of Florida, Third District, Dec. 14. 1993. Rehearing Denied Jan. 28, 1994. Physicians brought action against hospi- tA and department chairman, alleging con- tract and tort claims in connection with al- leged interference with physicians' profes- sion. The Circuit Court, Dade County, Sid- ney 13. 5hxpiro, J., dismissed, and physicians appealed. The Distant Court of Appeal, Nesbitt, J., held that: (1) physicians stated claim for tortlous interference with advanta- geous business relationships, despite claim that allegations, on their face, gave rise to defense of privilege of competition; (2) physi- cians properly alleged conspiracy to interfere with business relationships, but failed to al- lege tort of conspiracy through abuse of eca nomic power; (3) physicians failed to stpte restraint of trade claim; and (4) trial court improperly dismissed on exhaustion grounds physicians' breach of contract and 'breach of implied covenant of good faith claims. Affirmed in part. reversed in part and remanded. U i 0. 1. flamageit Florida's purchaser of p ing in , fc. has been no ; property other limit-% plaintiffs flnmic lnRtes t they may have Sce pub[: for other jut tnttioru. 2. Torte G;-a Florida's c apply where tc contract was c: 3. Negligence Pursuant tc negligence coup, contract and did property dama� 4, Torts (:-10(1 Under Flor tort of "tortioui geouz busineab : of business relat: has rights; der. tionship; intentic ence with relatic damage.x to claim Ste publi-.a for other jud:: intuocs. 5. Torts c-12 Under Flon interference wit' lationships" gene tortiously interfe- able at will. as t: relationship wil: '-erzrurrable at %- petitor has pr ,-. to acquire busin•: petitor proves t. ccnipetition, he committed tort 6. Torts -Z:-26i 1 Phyeiciana• a tablished and rna ness relationships '✓!tb (atyj. i Snal r *%merican K.D.. "ENTER 1NC, Tlorida, 19, -inat hospi- aging Bon- n with al - is' profes- �unty, Sid. physiciansf Appeal, ins stated advanta- pite claim ve rise to (Z) physi- interfere led to al- .s¢ of eco- to state ria1 court grounds breach of "n part and GREENBERG v. MOUNT SINAI MEDICAL CENTER Fla. 253 cite n 619 sold 252 Ma.App. J Met. 1993) 1. Damages cz-$6 cians and patients they had previously opetr- Florida's "economic loss rule" prohitrits ated on, that defendants knew of those rela- purchaser of product or service from recover- tionships, and that defendants had rntentlon- ing in tort for economic losses when there ally and unjuatifiedly interfered with those has 'peen no personal injury or damage to relattiorQhips, resulting in physicians suffer - property other, tl:an product itself; rule thus ing damages, stated cause of action under units plaintiffs U-ying to recover purely eco- Florida law for "tortfous interference with non -de losses to whatever contrart remedy advantageous business relataonshipe," despite they may have. claim that allegations gave rise to defense of See publication Words and Phrases privilege of competition. for oa r. judicial constn:ctions and def. utitlow. 2. Torts 4- 6 Florida's economic loge rule does not apply where tort independent of breach of contract was committed. 3. Negligence 1-103 Pursuant to Florida's economic loss rule, negligence count; which arose from breach of contract and did not allege personal injury or property damage were properly dismissed, 4. Torts a— 10(1) Under Florida law, elements comprising tort of "tortious interference with advanta- geouB business relationships" are; existence of business relationship under which claimant has rights; defendant's knowledge of rela- tionship; intentional and unjustified interfer- ence nzth relationship; by third party; and damages to claimant caused by interference. See publication words and Phrases for other judicial constructions and def. initloru. 5. Torts 0512 Under Florida law, action for "tortious interference with advantageous business re- lationships" generally will not lie where party tortiously interferences with contract termin- able at will, a8 there i6 only expectancy that relationship will continue when contract is terminable at will; in such situation, com- petitor has privilege of interference in order to acquire businesa for himself and, if corn- petitor proves that interference was la'xful competition, he v^11 not be found to have committed tort. 6. Torts a-26(l) 7. Conspiracy 9-2 Under Florida law, action for conspiracy to inter. -ere with one's profession requires combination of two or more persons or entJ- ties, having common purpose, seeking to ac- complish underlying tort of interference. - 8. Conspiracy (r-8 Under Florida law, corporation ordinari- Iv cannot conspire with its own directors, officers or emplove", as corporation acts through thotse individuals, but exception ex- iet; when individual has independent person- al stake, apart from that of corporation, in achieving object of conspiracy. 9. Conspiracy e-18 Under Florida lave, physicianm properly alleged conspiracy by hospital and deput- ment chairman to interfere with physicians' business relationships with referring physi- cians and patierta; physicians alleged that hospital, chairman and other named and un- named coconspirators had independent per- sonal stakes in achieving object of conspira- cy, and that chairman and other conspirators were employees of hospital for some pur- poses, but not employees for other purposes. 10. Conspiracy T-18 Under Florida law, physicians' complaint faced to allege tort of conspiracy to interfere with business re]atioruhipa t-},rough abuse of economic power against hospital and depart- ment chairman, absent aJegation of unique amalgamation of power by virtue of conspira- tors' combination, which could not be pos- see6ed by individual. 11. Conspiracy ¢=8 Physicians' allegations that they had es- Tort of conspiracy through abuse of eco- tabllshed and maintained advantageous busi- nomic power is actionable under Florida law ne.ss relationships with both referring physi- where plaintiff can show some peculiar power ft 2 f'la. 629 SO THF;itN KF:1't)H1'F:N, 'Id +t:Kll✓5 of cucrcion 1ws5esi;vd hy conspirAty s by %ir- tue of their combination, which could nut be possessed by individual. 12. Monopolles c:r2gt6.3) Physicians failed to state restraint of trade claim against hospital and department chuff r,an in conr,ecuen %v'ith alleged con,.,pu•a- cy to interfere w-ith phyaiciana' profesFion. including business "lationshaps with refer- ting physicians and patients, as physicians failed to allege either per se violation or anticompetitive efiects of defendants' actions on cardiovascular -surgery market, as op- posed to physician's practice. West's F.S.A. 36 t-42.18, 542.Z2. 13. Monopolies---2N(6.3) Complaint which does -not allege per sc violation of Florida statute prohibiting con- tract.s. combinations or conspu-acies in re- straint of trade or commerce must contain three elements: specifically defined market, allegation that defendants possessed ability to effect price or output, and allegation that plaintiff's exclusion from market affected or -as intended w affect pace or supply of goods in market, it ie nct enough to allege that plaintiff was injured but, rather, there must be allegation of harm to competition in general. West'e F S.A. § 542.18. 14. Monopolies t:->12(1.I), 170.12) "Per se violation" of Florida statute pro- hibiung contracts, combinauons or conspira- cies in restraint of trade or commerce is one which requires no proof of anticompetitive effector and is limited to praclicea which are presumed to affect market, such as price- fbdrg. prnup boycotta and customer alloca- tions. West's F S.A § `42,18 15. hospitals 'rah Trial court improperly dismissed on ex- hausticn grounds phy-eiciana' Florida law, breach of contract Sind breach of implied covenant of good faith cWrne against hospi- tal, as remedy prcv-ided by hospital bylaws did not sow for money damages. 16. iiospitais a6 Under Florda taw, hospital bylaws, when approved and adopted by governing board, become binding and enforceable con- tr•.wt txtween hospital and phyeicians com- prir iriX rnedicnl atnff. 17. Administrative Low and Procedure q-229 111ainuff 41 not be required to pursue and exhaust administrative remedies where they :are not adequate. 'hack, Hanzman, Ponce, Tucker & GiUesple and dark D. Greenberg, Charies R. Lipeon, Cooper & Wolfe and Sharon Wolfe and Bar- har a A. Silverman, Miami, for appellants. Podhuzst, Orseck, Josefeberg, Eaton, Meadow, Ohn & Perwin and Joel W. Perwin, Kenny, tiachwalter, Seymour, Arnold, Critchlow & Spector and Scott E, Perwin, 1liami, for appellees. Before NES5177, FERGUSON and GODE-RICH, JJ. NESBITT, Judge. This is an appeal from the diamiesal with prejudice of plaintiffs' third amended com- plaint. We afL'rrn in part aad reverse in Part. Plaintiffs. Drs. Greenberg and Yahr, are cardiac surgeons. Dr. Jack J. Greenberg was chairman of the department of thoracic and cardiovascular surgery at the defendant hospital, Mount Sinai 1iedlcal Cent-er Odt. Sinai). in Miami, for twenty-three years, and Dr. William Z. Yahr has been associated with Dr. Greenberg for the past eighteen years. When Dr. Greenberg resided as chairman of the department, both he and Dr. Yahr continued to maintain staff privileges at Mt_ Sinai. Thereafter, pit. Sinai appointed de- fendant Dr. Donald Williane as chairman or the department. Acccrding to plaintiffs, after Dr. Williams' Jppoantment, they began experiencing diffi- culty in obtaining operating room time and hospiul Personnel to assist them in the oper- ating room, particularly perfusioniat.s who niairitain a patient's .uculaticn by mechanical means during open heart surgery. They also claimed that defendants had influenced pa- tients to see Dr. Williams instead of plain- tiffs, had offered inducements to referring l,h'v%insr, in.trsd of Pent pant cuccd de pl;dntiffx at Alt. Si: clea for p procedure Flaintif nei and I plaint coy ference vv ships, civ ence wit: ships, rep breach of fair (ieali: breach o covenant Sinai. T! complaint triel tour plaint wit 11-31 ,,it, Sinn: common-1 economic prohibits vice fron losses wh ry or do product i Aas'n a ( So 2d 124 em Btu 1 r387): f riighouae 1987)• T to rerove- "'damagr pair and uct- or c any chin other prc 1216, qua ncta L: lura.L,Re tract rer., not, hove of the b AF.V Cc W Jrn- procedure to Pume dies where & Gillespie R. Lipcon, e and Bar. appellaota. ;, Eaton, V. Perwin, Arnold, :. Penvn, and `ssal with Jed com- :verSe in se thoracic ;efendant ter (ANIt- 'are, and .ted with n years. Itairman r. Yahr s at Mt. -:ted de- rrnan of Williams' :g ate and .e oper- a who hanical ey also -ed pa- : plain- ferring GREEN 3ERG v, MOUNT SINAI }MEDICAL CENTER Fla. Clt►n 629 4old 252 iFL&.Ar•r. J Dist. 1993) physiciana to send patients to Dr. Willia.-na Se, Sys. Corp. v. Southern Bell TeL and T'd instead of plaintiffs, and refused to honor the Co., 482 Sold 618, 619 (Fla. ad DCA 19M, reconunendations of referring physiciane who ecc pc»eraily American Mydical Intl, Inc u sent patienUs to plaintiffs Plaintiffs also ac- SchrUer, 56Q So.2d 947 (Fla. 44% DCA 1991) cured defendants of telling patients that (an bane), revieu., dirmtved, 6U Sold M plaintiffs no longer practiced cardiac surgery (F1a.1992). In the. instant case, except for st fit. Sinai, and of setting up various obsta- the negligence counts, plaintiffs have aileW clee for plaintiffs to perform even emergency torts independent of the alleged breach of procedures. conLxact. Since the negligence counts arise FWntif1'3 filed a complaint against Mt. Si- nai and Dr. t'f LW21-1s. L;lrmately. the COm- plaint consisted of counts for tor'aous inter- ference with advantageous business relation- ships, ciNil conspiracy for tortious interfer- ence with advantageous business relnUon- ships, restraint of trade, breach of contract, breach of implied covenant of good faith and fair dealing, and negligence. The counts for breach of contract and breach of implied covenant of good faith were Limited to Mt. Sinai. The defendants moved to dismiss the complaint, and after three amendments, the trial court dismissed the third amended com- plaint with prejudice. I1-31 As a threshold matter, we address Mt. Sinai's arg-.unert that all of plaintiffs' common-law tort claims are barred by the economic loss rule. The economic lose rule prohibits the purchaser of a product or ser- vice from recovering in tort for economic losses when there has been no personal lnlju- ry or damage to property other than the product itself. Cana Clara Condominium A.W?t v. Charley T'oppinu and Sons, Ins., 620 So.2d 1244 (F1a.1993): AFM Corp. v. South- ern Bell Tel. & TeL Co.: 515 So.2d 180 (Fla. 1987); Florida Power & Light Co. v. West- inghame Eleo. Corp„ 510 So.2d 899 (Fla. 1987). The rule thus limits plaintiffs trying to recover purely economic losses, defined as " `damages for inadequate value, coats of re- pair and replacement of the defective prod- uct, or consequent loss of profits --without any claim of persorai injury or dammge to other property,"' Casa Oa o, 620 So.2d at 1246, quoting Note, Economic Loss in Prod- urta LtaMlrty Jurisprudence, C43 Cc- Ium.L.Rev. 917, 91.8 (1966), to whatever con- tract rernedy they may have. The rule does not, however, apply where a tort independent of the breach of contract wad corttrnitted. AFhf Copp.. 615 So.2d at 151; Electronic from the breach of contract and cio not aueg8 personal injury or property damage, we af- fumt the teal court's order dismissing those countz. (4, 5) Next, we address plaintiffs' claim for tortzous interference with advantageous business relationahips. Elements comprl&g this tort are: 1) the exi9tence of a business' relationship under which the claimant has rights; 2) the defendant's knowledge of the relationship; 3) an intentional and unjustified interference with the relationship; 4) by a third party; and 5) damages to the claimant caused by the interference. Tamiam.i Trail irowrs, Inc. v. Cotton, 463 So.2d 1126, 1127 (F1a.1985); Sloan v S= 505 So.2d 526, 627- 28 (Fla. 3d DCA 1987). The general rule is that an action for tortious interference will rot lie where a party tortiously interferea with a contract terminable at will. Peres u Rivera, 5a4 So2d 914, 916 (Fla- 3d DCA 1988). This is eo because when a contract is terminable at will there is only an expectancy that the relationship will continue. In such a situation, a competitor has a privilege of in- terference in order to acquire the business for himself. Wackenhut Corp. v. Maimanz, 389 So.2d 6S6, 6b9 (Fla. 4th DCA 1980), retriero denied, 411 So.2d 383 (F1a.1981). If a competitor provea that the interference was lawful competition he will not be found to have cornmitted the tart. Unistar Corp, u Child 415 So.2d 738, 734-35 (Fla. M DCA 1992). [61 Defendants argue that the trial court granted the motion to dismiss because the zllegationa, on their face, gave rise to the defen.e of a prMlege of competition. Plain- tiffs alleged that they had established and maintained advantageous business relation- ships %vzth both referruig physicians and pa- ueuts they had previously operated on, that defendants knew of these relationships, that a�> 256 1-1.e 6_29 S017MERN }tk;1 ORTLU. 2d 51AUES dOen<i,tr,t� h-0 IntentIOnMlk ,rnd 11rt7tutilieel- 1y interfered .%ith the rv)atlon�hip i, and th +t theme had yulfered damages at .i remelt. We hold plaintiffs' ollegationa sufflcient to meet the rerluirement_s necessary to state a cause of action for intentional interference. Srhet- ir+ r. Arnericari Nedre<:1 I;n'1. ! rr.. 502 So.2d 1'l(iS. 1rt2 (E-la sth DCA), re( wiv de,tied, 613 So.2d 1060 (Fla .19,87); Lan:lor u. b'te,pc-re We(v.Wipff ,Nernonal Hos}i. 497 So.2d 1261. 1263 (Fla. 5th DCA 1986): Wackrahirt Corp. 389 So.2d at 65,q After such a prima fa�;e sho-Mrig, the burden then shirts to the defen- dants to jusufy the intererence. Since in reviewing a motion, to dismasg µ-e must accept the µ-ell-plead allegation:+ of the complaint as trine, Culler v Boars olf Regfyi . 459 So'2(1 413, 414 (Fla. 1st DCA 19S4)• the trial court en•ed in dismissing this count based on prlvi- lege. See Weisfeid v Piterseil S-honl Cory, 623 So.2d 515, 515 (Fla 3d DCA 1993) (whether the ph%• Iegr defense exists is a question of fact which must be resolved at trial). Thus, we reverse the trial court's diamis:sal of this count. (7,81 We next address plaintiffs' count for civil conspiracy for tortious interference with advantageous businc.ss relationships, which includes allegations for conspiracy through abuse of economic power An action for conspiracy to interfere with one's profes- sion requires a combination of two or more persona or entities, having a common pur- pose, seeking to accomplish the underlying tort of interference. Hitckner v. Lcnuer Flor- ida Keys Ho.ip, Disc.. 403 So.2d 1025, 1029 (Fla. 3d DCA 1981). review drnied, 41L Sold 463 (F1a.1982). Ordinarily, a corporation cannot conspire µ-.th its own directors, offi- cers, or employees since the corporation acts through these individuals. Hackett v ,4fetro- pohtan Gen. Nosh, 422 Sold 986. 988 n. 2 (Fla. 2d DCA 1982); Bucky,er, .103 So.2d at 1029. However, an exception exiEts when the individual has an independent personal stake, apart from that of the corporation, in achieving the cbject of the conspiracy. Buckner, 4W So 2d at 1029. [9-111 We Curd that plaintiffs properly alleged a conspuacy to interfere with busi- ness relationships We determined above that plaintiffs properly alleged the underly- Ing tort of intertcrence Fuither, plaintiffs aileKerl that Mt SwRi, Dr. Willlarrie and oth. cr named and unnamed coconspirators had independent personal atahes in achieving the ahiect of the conspiracy. Mvreover, it was-IIIeKed that Dr. %4'il]iam5 and the other named end unnamed coconspirators were employees of Mt_ Sinai for some purposes but not employees for other Purposes. The complaint failed to allege, however, the tort of conspiracy through abuse of econnmic power. Such a tort is actionable where a piainuff con show some peculiar power of coercion possessed by the conspirators by .zinue of their combination, which could not be possessed by an individual, f:hurruca v. .11lo1ni .i<cz-A,ai. Inc.. 3W Sold 647, 6b0 (Fla 1977) We find that such a unique amal- gamation of power wat not alleged. But see Margolin v Mcrton F. Plant Hosp. Ass'yi, 342 So.2d 1090 (Fla. 2d DCA 1977), 021 Plaintiffs' complaint also included a claim that defendarsta conspired to restrain trade in violation of sections 542.18 and 542: 22, Florida Statutes (1991), and related stat- utes. Section 642.18 provides that "(elvery contract, combination, or conspiracy in re- straint of trade or commerce in this state is unla,4ul." The section ir, patterned after section 1 of the Sherman Antitivst Act, and has as its purpose "to complement the body of federal law prohibiting restraints of trade or commerce in urder w foster effective com- petition." § 542,16, Fla.Stat. (1991); Hack- ctG 422 So.2d at 986. The complaint, in sum, alleges that Mt. Sinai conspired with the head of cardiology, and a perfusionist, among others, to exclude Dm. GrYenberg and Yahr from practicing at Mt. Sinai and to awry patients to Dr. Wilharms. Defendants challenged the count on two gzounds: 1) it failed to allege a multiplicity of economic actors; -arid 2) it alleged neither a per se violation of section 542.18 nor the anti -competitive effects of de- fer.danta' conduct on the market. Pec.iuse the multiplicity of actors ugu- merit has been sufficiently rejected in our discussion relating to the conspiracy count, we now consider defendants' second point, the plaintiffs' failure to allege either a per se C GREENBERG v. MOUNT S14NAI MEDICAL CENTER Fla, 257 Cit. n 629 5e,74 233 (Fla.App. 3 Dist. 1413) violation or anti-cornpedtive effects of defen- the market "as distinct from the prosperity dants' actions on the market. We agree with of the two sellers." Id at 666. defendants' analysis and thus conclude the restraint of trade count waa properly dis- rrissed belmv. (13, 141 "Antitrust laws are for the pro- tection of competition, not primarily for the protaction of individual competit,ora." St Pe- tentmrg Ya.cltt Charters, 467 So.2d 1028, 1047 (Fla. 2d DCA 1989). A complaint which does not allege a per se t violation must in stun contain three elenients: a) a specifIcally defined market, L.A Draper & Sons v. Wheelabrneor-Frye, Inc., 735 F-2d 414, 4,1Z (11th Cir.1984); b) an allegation that defen- dants possessed the ability to affect price or output; and c) an allegation that plaintiff`s exclusion from the market did affect or was intended to affect the price or supply of goo& in that market. It is not enough to allege that plaintiffs were injured; there must be an allegation of harm to competition in general. Roberte'e Waikiki U-Drivet Inc v. Budget Rent-A-Car Sbe., Inc., 732 F.2d 1403, 1408 (9th Cir.1984); Itfanufacturing Research Corn. v. Greenlee Tool Co., 693 F2d 1037, 10,i3 (lath Cir.1982)- One court has expressed thia requirement as follows: The legislators who passed the Sherman Act did not make ordinary business torts federal torts for wtuch treble damages could be recovered.... Their concern ... was with practices that by making markets lees competitive hurt the people buying from or selling to the ftrms in those mar- kets. To injure . , , one or two competi- tors in a market will not, if there are many competitors in that market, have much ef- fect on conaumers or anyone else besides the competitors in question. Sutl(/i, Inc. v. Donavan Cos., 727 F.2d 648, 655 (7th Cir.1984). The Sutlif court af- firmed the dismissal of an antitrust complaint stating tbat the plaintiff failed to allege inju- ry in the antitrust senee because the corn- p!aint failed to show how weakening, or even destroying, plaintiffs business would it�iuty 1. A per ae violation is one which rcquire5 no proof of ann•compewive effcct and is limltcd to practices which arc presumed to affect the ma: kec such as price-fixing, group boycotts, and cus- FL.Ct i02?-6Zp1So 2a--1 7 A careful reading of the instant complaint &monstratea no allegations of injury to the market- This failure to alege epec0c injury to the cardiovascular -surgery market, as op- posed to Dr. Greenberg's practice, is fatal to this cause of action. See tfavoco of Am., Ltd v. Shell Oil Ca, 626 F2d 549, 5.54 (7th Cir.1980) (to state a claim under the Sher- man Act it is necessary to allege the market - wide anti -competitive effects of defendant's acts). Thus, the restraint of trade count was properls, dismissed. (15, 161 Finally, the trial court erred in dismissing plaintiffo' claims against Mt. Sinai for breach of contract and breach of implied covenant of good faith. Hospital bylaws, when approved and adopted by the govern ing board, become a binding and enforceable contract between the hospital and the physi- cians comprising the medical staff. LauArr, 497 So.Zd at 1264. Plaintiffs alleged that the hospital breached the contract by, inter ail" denying them the use of hospital based per- fuaionists and by restricting and interfering with their access to hospital based servioee, including opfrvtWg rooms and operating room personnel. PlaintifSe sought money damages as a result. The trial court dis-. missed both counts for plaintiffs' fa(lure to = tmhaust administrative remedies. [17) A plaintiff will not be required to pursue and exhaust administrative remedies where they are not adequate. Southern Bell Tel. & Tel Co. v. Mobile. Anse Corp.. 291 So 2d 199, 201 (F1a.1974); Winter Springs Dev. Corp. v. Florida Power Corp., 402 So.2d 1225, 1228 (Fla. 6th DCA 1981), Here, plain- tiffs sought money damages for lilt. Sinai's alleged breach of contract. Since the reme- dy provided by the bylaws does not allow for money damages, the trial court acted im- properly in dismissing both the breach of contract and breach of implied covenant of good faith counts on exhaustion grourids. Fernandez v. Vazquez. 397 So.2d 1171 (Fla- torncr allocations. St Pereriburg Yacht Charrara, [tic t. Morgan Yacht, !ric., 457 So.2d 1028. 1040 (Fla. Zd DCA 1984) None of chose activities 13 alleged to this cast., LI cJ d r',r ii r,. 2 jK Fla. S19 SOUT1I F R N E+ F;VORTER. 2d SERIF %N 3d OCA )9,Sl) (a hart v', K,xtii (a,th i-oper.t- tion is an impl)td condition prvc(-dcnt to pvr. forrnancc of it cur.trucv. For the fotvgoing re+uons, the order Ifis- nussing the plaintiffs' third amende(t corn. plaint is affirmed in part, reversed in pam, and remanded far farther Invicecdings M O ll\ MN+�11 f(71IM T Belle TARKEN, Appellant. v, STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee. No. 93-1138. District Court of Appeal of Florida, Third District_ Dec. 14, 1993. Rehearing Venied Jan. 11, 1994. Action N•as brought against state to re. cover damages for personal injuries. The Circuit Cmirt, Dade County, Murray Crold- mar., J., dismissed for lack of prosecution. and plaintiff appealed. The District Court of Appeal, Nesbitt, J., held that suit was prop- erly dismissed for failure to prosecute. Affirmed. Pretrial Procedure ¢-590.1 Personal injury suit wah properly dis- missed for failure to prosecute one year after court had stayed action based upon fact that wane case had been voluntarily dismissed and outstanding cost judgment against plain- tiff remained unpaid; plaintiff had complete Control over stay, and thus entry of stay did not preclude dismissal for lack of prosecu• taon. West's F S.A_ RCP Rule 1.420. Bennett S. Cohn, West Palm Beach, for appellant. pd)1\ & Weisnenborn and Charles 1'++Py, Miami, for appellee. lleforc SCHWARTG. C'.J., and NFSBITT :Ind GODERIC;H, .I'l NESSITT, Judge Un January 24, 1992, Belie Tarken filed a personal injury action against the Depart- ment of Transportation (DOT). DOT filed a motion to stay proceedings or, February 11, IS)f12, based upon the fact that the same case had been vviunt.arily dismissed and an out, standing coat judgment against Tarken re- mair)ed unpaid. On February 19. 1992, the lower court entered the order granting UUT'e motion to stay. On March 26, 1993, DOT moved to dismiss for lack of prosecu- tion. We affirm the lower court's dismissal of the case by order dated April 19, lJi'98. The instant cue requires the application of Florida Rule of Civil Procedure 1.420 which provides: (e) Failure to Prueecute. A11 actions irs which it appears on the face of the record that no activity by tiling of pleadings, or- der of court or otherwise has occurred for a period of one year shall be dismissed by the court on its o%-n motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order hao been flied or a party shows good cause m writing at least Ave days before the hearing or the motion why the action should remain pending. Mere inaction for a period of less than one year shall not be sufficient ca,.ise for dismissal for failure to prosecute. Tarken argues that the trial court's order staying proceedings pending payment of costb became the basis for the exception to the one (1) year time limit for failure to prosecute. We agree with the department's position that the lower court acted reason- ably, where the appellant had failed to take any action regarding the case for a full year after entr i, of the court -ordered stay. Tarken cites Dolan t, Hartford lnsumncc Co., %6 So 2d 316. 31" (Fla. 4th DCA 1990). rrtnflu df• cares citec effectively mltaed for ever. dealt ings over In the Ins complete the trial c Rule 1 some Vic one yea costs itr. sought lacked t being d Here, the extend th- Tess of hF own eotryr icat Ctr., Thus, we preclude Import:: stant ai&: miss for critical pc. Lion is pr. If a part: benefit of the ctatUt, can go on otherwise litigant a favorsb)e delay, to I his case. Accord; firmed. i 39TH CASE cf Le l printed in FULL format. '.BEY CL rZ ASSCC:A,ES, L:MITEZ PAR—,NthSH:F, a Florida .invited tartnereh_F, S?:,ti:: H'=L GRCU.', 1N:, a Z:cnnectic'at CL -1 ASSOC:ATES, L:X::EO Pi.. \EnG !: :' ...._-. ASS0'-:r+7iS. a Connecticut oeneral _;. , ...,.r . :c. SPA;E Eh h .Fi MAS RASW-SSEN, LAI S:VCE ... 5:....., F. any dual genera' rac` Y1Y C:,:.'S ASS7::A7ES, Fla:ntiffE, vs. ���.1Y.. C:F._,�, t__Gh . tlh.. �, :]ti^� }:. �:'a.EEKV♦ \•C JRGE S+ riE Lc Fa, ;'r'E EpU;:_ GFC!T., a rinziva unincorporated conviTT£:E, a FL..r lce A HART �" xZPliRG, ALB=1T C;RREN' :01,,7N ,^,t LCNGPCAT KEY, FLORIDA. a ^i;:.,_c_ps: ccrperat-cn . and CER:.,:h PERSONS :RESENTLY .lase tic i:N1 E:. STA7ES . 1SAR:C': C %7F.: FOR THE MIDOL,E ZISTRICT OF ;992 U.S. Oxat L,EXIS 3152; 1992-1 Trade Cae. (CCH) P69,818; 6 Fla. Law W. Fed. V 51 March 17, 1992, :ec_ded :ISPOSIT:C::: I°i) WASTED :N PART AND DENIED IN FART. :�EN:ED. DENIED. DENIED :ORE :EPMS partnership, contractual. conspiracy, teen, partner, definite, ause of action.. aouse of prx eea, c^urae of conduct, leave tc amend. mayor, us:n.ess relaticns.`,ip, ant _rue: -ec= color of state _aw•, nen-eerntrac.ing, allure tv etate, ..,-nopc_ize, r..�..__]pal.ty, puni_1ve lama=es, malicious, _n.s; _refailed tu eta:e, frame, ..,._denzc.-re, oeneral ay :chic, civil _ ahts, official co:duc; EL: FCR KEY C`UB A—gG0CIATES, LIM:TEO PARTNERSH:P, a Florida limited :ership, pa:ntiff, LIMITED FARTNERSHIP, a Florida limited partnership, lai..^,tiff, SHANNON HOTE1. CROUP, a Connecticut corporation and general partner of :ey Club Atsoci.ates, slain_iff _.M:T_D PARTyERGiEIP/KEY C:.L-E ASSOC:AT2S, a .,..nest_ '-_ oeneral par_nership, plaintiff, W. Si'.A',TE ET,GAV, individual general ar_ner of Y.e;, Club Asec iates, plaintiff, THOMAS RAS.fJSSE:�, .ndi-r:duai general -nar =` R. sm::x:R . an indi%"dual eneral =a.-_-er cf ::e. Club ;,ssoc.ate5, plaintiff. TH�:,YAS R. an ndividual general partner of Key Club Aecoc]ates, plaintiff, Jim D. Syprett, }-pret , Meshad, Rcen_c:-� a _itw, P.A., 1900 Ringl_ng Blvd., Sarasota, FL 34236, 13/35S _"%1. CR EDWIN }; BT_r''ON', defen?ant, John Pope Harllee, -:1, 'Par-ce & Porces, P.A 20_ H. Mana-tee Ave , 6ra�en.tcn. FL 342C5, Steven. J. Chase, Abel, and, Brown, Russell 6 Ccllier, C:artered, P.O. Box 4994e, 240 S. Pineapple ve., Sarasota, FL 34230-6948, USA, 813/366-6660. FOR P.OHERT O'BP.IEN, defendant, imberly Alaric Said, Harllee & Poroes, P.A., (•21 P. O. Box 9320, radenton, FL 34206, 813/74e-3770, John Pope Marilee, III, Harlee & Por?es, A., 12C5 W. Mana',ce AvE.. Bradenton, FL 342C'5. 613/758-3770. --CF. E?=[JRY H. ITZBERG, KiatLeriy A1a:io Bald, Kimberly Alario Bald, Harilee & Porges, F.A., GE 17 1992 U.S. D%pt- LEX:S 31S. ., 1992-1 Trade Cas. t"Cli) P69,81,o 6 Fla Law W, Fed. D S1 P J. E-:x 932:, Zra:!entcn, F-- 34206, 813,748-37-G. 7chn Pcpe Rarilee, 13'"'k t:r--eS, P A., 12,'5 W Xa--atee AVe 34:�5, hs' tefentant K-7i--tpr-v A*:ar: Bald, Xari'lee r. --crces, =.A., 7 Z C t z: 4 2 C 5 . 7 c.�n Pcz e Ha :- I Pe A M3na_ c e Ave r a d c cn , F 3472S, S 3 '7'7 C ,R A rs,F 7 F'_ F S�P%'en Chase. A.t e:. Bard. Pro 5 e a r z e e x F 'z L ncarp 1 e A Sara rc t a F-- 2 4 2 E G4 F USA, R A L c --- IF F E F N defezda,,-- , S_e%-Qn : C."are, Akel, Bant, Brown, Box 4954q, 24C 5 F;ne-a;:p' e Ave. . Sarasota, ,`SA. F12"IE6_66co F3R KSY T,114W OF, defendant, Steven J. :hale. A-til. Sand, Brown. Fussell & Collier, C-arterQd, ; Q. Zkcx 49948, 240 S. ineapple Ave.. Saraeoca, F� 34:30-6945, USA, E S A .pi"NIONSY: E;-:ZASETH A K C %, A C H E V I C H C&DER ON DEFF-YDAINTS' MOTIONS TO DISMISS OR FOR MORE DEFINITE STATEMENT AIS70 re case --s tefcze the vourt on Zefendantsl scvaral mot:ons. A. '4kRT i1LTRZBUFG %'nereinafter A.LBERT GREEN thereinafter "Greenlli, 7CWN OF ,ONGBOA7 KEY, FLCRIPA khe-,e,.nafter "Town") , moved to dismiss or for morn .efinite etatement on November 6, 1991 !docket 3, :2) - Plaintiffs' response was iled on Mevemter !,^, 1991 (doCkot 171 . Cefendants, EnW:N K. BIRON, ROBERT 1,BF:EN, F. AIN-D 3ED.-RC5E S. HELLER hereinafzer collectively the ;iron --efendants-T dismiss -or for morn definite statement or. November 1591 (C'cCket 5, 1,) . Plaintiffs' response was filed :ece-nber 10, 1951 (docket ci . 7he ::ZFF57;--N7S, :c Gt-.;,ke on N--ve7te.- 6, :99: (docket 15; :aintif-'e, respc.-.ze was !.c-er.--z•�er tzlo::Xet 13) complaint contains the following counts: terference wit, contractual relationships, 2) interference with business elationohipa, 3) conepiracy to interfere with contractual and business ela:ionshiVs, 4) abuae of process, 5) violation of the Florida Aztitrust Act, :a. Stet. 542, and 6) violatic.n. of the Civil Rights Act 42 U.S.C. 1983. -4) :,:Ie za5t was ter. rezo feteral. Court by t!le B:RO1; or the tasis t a:!e=ed under 42 U.S.C. 1953. Beca-jae the related state claims rise under a ccTmon r. cle s of operative fact, they attach as pendant claims. ibbs Uni-ed Mine Workers, 353 U.S. 715 (1966) 1 Conflicts of 4-a,.,• doctrine andatea that federal course follow this forum State's B!.-betantive law and ederal procedural law. Erie R.R. v. Tompkins, 304 U.S. 64 (191E) All De,-Eendante move to 6:srriss Plaintiffe, SKANNON MOTEL GROUP, INC., KEY LUB ASSOC:ATES, W. SHA-NE CAGAN, THOMAS RASKUSSEN, LAURENCE R. SM'.T14 JR., and i40MAS R. HOLMES for lack of standing. Defendants GREEN and WURZ9U-RG move to ismiss counts 1,2-1, and 5 claim or, in the alternative, I for failure to state a :at Plaintiffs be reaulzed to file a Tore definite Statement to enable efendancs to frame a proper answer to the complaint. Defendants GREEN, 99- 720 f PAGE :.8 19%2 U.S. Dist LEXI '.3Z, 199Z Trade Cae. (CCti) PQ�,912; t la. Law K. Fed. Z 51 K:RZPL-Rv, and TchT; move to d:e,r,iss cCunt 6 fcr failure to state a �r tte alternative. that Pla_nt,llfe re .c d claim _n be .�virea f_.e a :-e e Lnite s_..te-:ent �. -rjer fcr :�e_endants ::acne a cFe_ snare= tc the _crE.a_nt S E r.e E;' N ^Eie��."'S r.•,cvQ tc d:e-,.ss ,C;L73 $!✓,:Ti: `:. _a:7K -he Es:R..t. �E L.(�i�ti�'_ mC..p t� S _ i a:: ccL:nte fc:' fai!.-re elate a C1d _t.', cr. in. the alternative, that { r;aintiffs to requiter! ._ f - a r:cre d*o:jnjte state -rent in. cider fcr re:endanty tc frame a rrcrar -east _ then:FCN to strike request fcr =......five F refe:.dants re•,e "Cr .r.e a,a=d cf a.F;!_cable at_-_ne; s fees in _re e--ent 7 { A ccc-+pla_nt Fheu:d not e die -:erred fcr failure to state a claim unleee it spt•ears beyond deL_�t that the p:alnt.f_ can p:c.e no set of facts that weld entitle h:-n relief. Ccnley v. v.Nson, 355 '.?.5. 41 (:95 ? A ..ial `roar_ r- ._^g On a M'^.,to d:,.iss, _e re3cs~ired to view the cola:nt~in the _:ght1 post fati•orabletothe Plaintiff Scheuer v. Knode6, 416 U _ S . 232 19741 , Tc.e i zomplaint need only provide fair nctize of the claim and orcu:ds upon which It rests and need not pro%-e the m•hc:e case. Faulk v City of Orlando, 731 F.Zd 787, i FLA;N 1-F5 F-AVE STI;Qi-IINZ Defendants all assert that the ncn-contracting parties lack standing to -. reue the ir.3ta nt clai-e. -'e`_endants assert that the non -contracting parties isle z.,_y 11.egel? vaoue re:at. ..s _p. with KEY C:X? A. SOC:ATES Lim: F:) ! ARTN'aF.Sr.:c, which are _ne .f_::e ! to establish standing. Defendants cite } .:at-= v. Gulf O._ ccrp , 764 F.2d 138_, _387 r,llth Cir. _9F5� in wh.,ch a ,rpera:e cff_ce: act_ _n hie :w: _dui: capacity, lacked etandi^_ tc cSeeute ant:._ et C-alm based an a corporate rig''t of action because his .;-:.v!dua:�c-a-rs were tc^ _esote. ':he facts as alleged in the iris -ant case can iezing.::shed from Palazzo in that ti:e non -contracting parties are all , :a: partners of KEY C:.L-B ASSOCIATES, LIMITED PAR'=NF.RSHIP or its predecessor sartnerahip, KEY CLUB ASSOCIATES (paragraphs 3-9) and therefore have*a greater nterect in that, generally, partnerships have no other Identity apart from the dent.cy of the partners. Florida idA' specifically a:lowa general partners and .artr.ersh_ps to be named plaintiffs in litigation over real property which is ,caned by the cartnerehip. :n.:n%ale zany N.V. v. Three :rlands C c. i:6 .c. 4:.. ✓=H _96_) i Ohave nCO:II _rSt Hank, N.A. v. Zd Z: 5 SF:a. _rd DCA iyb5i t Because t-e claims of tt_ee General partnere are not remote but identical to --e claims of the partnereh:p and its predecessor partnership, the Court f_nda at the con -contracting partied do have standing. NC)T LEFECT=','E FOR FAILURE TO ATTACH CONTRACT All Defendants assert that the instant complaint should be dismissed as efect:ve because a copy of the contract between Plaintiffa and the sellers of he property is not attached. Goshen veneer Co. v, G. 6 A. Aircraft, :no., 3 1 R.C•. 344 ,C G. Fa :544), deals with a dispute between parties to a i t: j i E tk f ` t f i 99- '729 1 4 l PAGE 19 199: U.S. Lest LEXi _52. , 1992-_ Trade C6P (CCH) la. maw W, red D �1 ccn.rac_, and 'cI S that a:thcLch defenYant _e entit- ed know "'ether the agree".e.-ts alleaed were Ora: cr ark zFn j-:3_..__ff has t.^,e cucting thi:"r' ae eXh_�"- C_ f'Ie'' n t:;A,, d=_ter:i - the-'- ,I effec.. ,y.. _.. rant cauee Lf actiz�.. .. ~^ht tv rlai._.fs .e nc. cne .� _n.c:^PrTP7, Z7_ f _ J37PE der he a _tut .,or tarnaaes carped ty _..te.fere-.:Q with :l:a c.ntrac. y t', :9 inr._ee :he _ c_a_.._ alle_es the _e•a: e:_ec.e "'.`.^_re �:a a c_.,_ra-- . �. ills c, ,:',._chase �f , - -ez p,3:a::Sr h 2; ,:%e Zefen. an te, who kere RC. Cart -lee to the cor,t_eCt, attempted tc ticc, cC ir.te::e_R with the trar.eaCticn, tti' a C_'urPe ,.a ,,,nd..ct -es-ems tO prevvnt we: A;' the gale .-f the prcpl ty ie.'Khlt:t A. paragrapn :4) . e_endsnts acted the e,..-c.-.t of the W;a,r.ti fs _'n t-at the ...:den and expenve r.: rerfc_„ nce cf the ....lac!: w-e_e area"._} ...crease (para�rap e 4M uItirately occurred is e%- .de ice of _te ccr..zactua_ existence a'eretcre. the Lc,"rt finds that the complaint is not defect:.•:e rpr Want of an attar: ev C-r; cf thQ cc:...:act' C_N.—R =C *,At;, AN' SUSINE55 RE_ATION$H:PS �U:rN S 'a b :Z .he elements for tvrtiou3 interference with a contractual cr buninees re"ati..r.ship are: 1' the vxzetence of a contractual or 'usiness relationship jnder which the , _a:miff has _ecal ^' .s, 2. an ...tent., na: and .usti`_ied Lnterference w•.t- ,,:at .star_ ns =p the defendant; and, 3) damage to the :ia:ntif_ as a res-It ice treach of that contractual or business relations:h:.p. R.C. riilton Assoc. inc v. Stan M:sial and Sicgies, F.2d 9 7 (_1th _SF.3t. ':here _s nc ,•91 cause cf action fc_ _rterference which .e only neg:ice :t cr cc^=ed' spits:. F.tnyl Ccrp. v. Baiter, 386 So 2d 1220 (Fla.. _a s_ff.,c_en_ _cr a proper wamage allegation, that the coats of aerfor-manse were _r.ereased by t.`.e ai e_-td interference, by defendants, of the :on�ract e z tue:zess re:at_,.nehip. Fat: s Dr -:as, Ir v. So:._r.ern Bel: .e:enczn� inn! e:e ra; c .. _-_ :_ <C_, 2C5 tF:a. 3r3 ZCA .SSA) the ec�rt `ourd da^a_es _n .-at act'_.,r's ty Paul a neceeeitated additional burden and :xpenee ty Southern in t:,e pez:crmance of Southernle concracts its r-hone Gu_s..._bers This Court .`.as a:rea-,iy determined that the complaint supports the first �1Hr,er.t, an allegation of ccntractual cr bucinecc relationship. "he _-e=ant complain_ alleaec that the BiRON DEFENDANTS intentionally :paragrap' 32, 3s) interfered with the Plaintiff's contractual sr b•be_reas e,atP a c:.,.rse cf paragraph 241 tnat rendered the :er,cr^.ance cf�..: e co:•.__-ac_ rcre b:._den some (paragraph 31, 4^:) even though the -being On. .he property occurrad ar scheduled. The Ccu2't finds that Plaintiffs have alleged a course of action :or r.terfe:ence •:01 with contractual or business relationships against the While the instant complaint does allege that the actions of WURZBURG and RED wane u:3ust.fied, unprivileged, intentional, knowing, and malicious paragraphe 32, 33, 4:. 42), the cemplaint does not allege any specific rdividuai co.nd"ct by VURMJRG or GREEN other than in the course of their fficia: capacit_s6 as mayor and town comirass_one.. official conduct is 99 IJ2V DACE 20 199; U S. Dist EXIS 3152, `'; 1992-1 Trade Cas. k� H) p69,e18; 6 Fla. Law N. Fed. D 51 prctecte-4 un-`er F:a. Stat. -66 Z8 IS. ;a) 1_967,1. Therefore, the Court finds that F:aint:-Efr nave faired t0 state a cause cf action for interference with .r --us.ness relat_cnsniTs a.ainet Defenda:-,.s nL'FZE::FG cr Gn?f:N, and :\', Sr:F✓+C' :�TEnFERa W:Tfi N;n:,�, AL OR EUSIVESS ;)ELAT.JNSi i;S The a.ct cf a c.:il ccnspiracy ae not the eo.^.agiracy itsc.f, but the civil rc, rich -e Uc.-:e chr0ug the conspiracy tl..at resulte in dar.aSe to the r:a. riff: an act which ccnstit'.:tes nc around cf acts n -=airs. one ;terser. :annc-t to the :-ae.e cf a ci--1 ac__.,, fcr cc.nsr.racy. Liapzaa ,,, A'.:goustlS, ;- 5ti 5c ti•.a. _95i.' ..ewe:er. an _nz:erenden- tor, cf c_ner.racy .s a____natle '.`.en ' a _e_.._._ _an ehew ecme ptc:ul_a: pe-er of coerzion ;ossesseo ty the ce^spits~ere by virt,-,c cf their comtinat_cr, which power an _nd-v:dca'- cold not reset. Suctner ..ewer F'lcr:da Keys Hospital List_ 403 5o Id _C:9, 1:29 (Fla. 3rd DCA 19E1, ':his independent tort of ccr.sylracy, has _een :abe:ed EC^-nomic ..o}cot American Civers.fied :nc se� ice, Irc. v. _pion Fidelity Life :ne. Cc., 139 50. 2d 904. 906 ;Fla. 2d DCA 19e3). Wtereas the compsaint Aces allege that the individual defendants ccr.spired to :arass an.. _,,.....date .':e rlai;,_.ffe tc prevent the Bale of the pro;erty at .ss•.:a Far3cra:`.s 24 2-3: .ne co7np.ain_ does not allege the i:p_u_.ar power of _oercion t;at the Defentants i:ould have as a group as opposed to that held by S. v one 1.^......v. dl:di cr eat__ '. Therefc.e, the Ccurt that Plaintiffs have al:eoed a cause of action for _nep._a car-.. onder_y ,g .ertious .ter!erence with ccntraccuai cr ",s:ness~rt:at_ ne s eoairGt the SIR,-N ;ZFENDANTS. Plaintiffs have failed to :le_c a c r_:alive caane c_ action for ronepiracy against tsJRZS'FC, and GREEN. The Ccur. finds Plaintiffs have failed to allege the elements necessary to iead a: independent cause of action for conspiracy aga;nsc all ndan_s. "e Co'-;rt grants leave to amend. ABUSE OF PROCESS - COUNT IV 7^,e ele7vnta neceaeary to state a cause of action for ab•.:se of process are: ne defendant made an illegal, improper or perverted use of process, 2) the :efPndant had ulter:cr motives in exercising such process: and 3) ae a rest of __n ___.on t:: e Far. cf :ne defendant, the p:a...____ suffered danage. e:.a-ronn :.ova river- .y, 5=2 so. :d 105 .^SJ ;Fla. 4t.'1 DCA :587t The fret element is modified in that there is no abuse of process when it is used c accomplish t::e result for which it was created regardless of the ,lterior :t:ve. r.ar.;.ngL0. , 4E8 30. 2a .163, _.E5 iFla. ?_d DCA -984i . The tort f mai:cio::s Yresncucion is concerr.ea with maliciously causing process to issue, hereas the cort of abuse of process is concerned with the use of process after t iasuea. i',arty v. Gers , 501 So. 2d 87, 89 (Fla. 1st DCA 1987). The elements f mal:c..o•-s prnaecution are: 1) the commencement or continuation of an original :•vil or c_,....na! judicial proceeding; 2) its (1:3) legal causation by the rooant defendant against the plaintiff; 3) its bona fide termination in favor 99-- `10 FAGS 21 1 !992 V.S. Liet, t5 3152, *; 1992-1 Trade Cos. (CCH) P69,8i9; 6 Fla. :Taw W. Fed. C 51 l of the plaintiff; 4'• the absence for prcbatle cause for each presec-_tl_r.; the `z'esencecralize: find, E{ tea: aces cf'.:,._T.1::_. ..egal standards re2..-ti _ F.al..• -. Fee Far.•cE_ 6 A v E :a:1. '5 :;C 2� 412 414' tiFla { .".5t p .:a:n is `cunde�_ ab:se c`_ propose a=a_r.st the L':R_-. :EF_fi__;-C::S �para--raph -t', tut it c nta.ns�r.c allecat_on of )( abuse e: F.roceee4a;te_ _ss::ar.ce The complaint pleads a-a1_cieus pzcaecution I .�'.aGinC7n al_c?at.cns of : eftnda nss ..._C:at iC. of a :rl'. Ca9 lawauiz paracrap`e <4ae 24a_, i Tnc Ceti_t flnCs tnat the ailecaticns in Count IV tail to state a ,.:aim for st•..se Cf Yr:ceee a=alnSt the 2;p The Court cants lea-fe to w-end. CCLPIT V ,he :_.ric:n da An!:itr,.5t A-, Capter 542. Florida Statutes (1969), patterned j aster t`e^federal ar.__....:et laws and pursuant to =42.32, great weig is to be even to t..e inte:p:etit_c:r.E -__ t`e federal courts relating to comparable j federal er.tltrunt ecatutes. Section 542.1E _s the i*:.41 ce_r.terpart to Section _ of the Sherman .i :. St. yacht C arters v. %Mzrgari Yacht, 457 So. 2d :02e, s .v�.`i' la. 24 :)CA 1°cG` Under 542.16 (Restraint of Trade sr Commerce:, a :laint_f. muet allege: ,) a conspiracy existed a song the defendants In which ho; came tc a meet_no of the minds; 2, to undertene an illegal, anti -competitive act: 2) the cor.3uct had the effect of in;arino competitior, in .r.e rnartet ace. b` ,;nrezzcna1-_'v restraining trade cr com-coerce, and. 5) f _al..__f:-==ere= soft ec�no,_c _^;ury caueeu by t^e ill acts o; :e iefendant_ Peld~,an �~ :ace:eon :ere_lal koapital, 5%= p^ SupF. _HOC, _GCS 'STD. a`__ d, l _ <"d 64" filch C.. 1965'. cezz. den < V.S. 1Z�Z9 E t plai.ntiffe, complaint alleges that through the formation of several i.zati_n2 ,the Ecr-1 ty Group, The Course and Land Society, and The Course and r a..., Socle;:y e_ganizLzg Comm:tree, paragrap:-:e 15-17) , the E?RCN DEFE.`4;;A'w'TS and € ',7RZ9URG as -mayor, CAHEh ae commi3sior.er, and TOWN (paragraph 24a), illegally :oaspired. :h_.s, conspiracy allegedly attempted to unreasora'ly restrain trade or .. ..Qvul' ize i'-51 Trade lcaraQrazh5 E:. 621 _„ a way that caused infury to t.. _a.n..ffs (pa_egraph 64; hi8 it,ury was ca•.;Sed by Takin3 the closing on the G ;paracrap. 24af -his a= e_ecccnep:racy k, _ raraw_ac. 74 :Ud_ cut .c_ _im_teo to, allecedYaccnrcptsrto improperly assign :owti'5 First Fight of ef_sal 'Yarayrap. 24c _ss.e r%a Lc.ous process tparagraph 24ae) and to cause ncreased expense and b_rden in the performance o: the con -rapt tpara.raph 2Cx, 4a_l. Alle?ed interference wlth comYCti__on^the R.arket DldLe was created � a-eino t`i new c•.ner3 of the property to face _.._:eased hardetiz in the � *erat._n ;f , :e__ va..__re in that obtalning financing and debt service L,o•ald ce m.possitle !paragra;,n 24ae) . P. The Noerr-Pennington Doctrine, which protects cor.certed efforts by private rdlvid,;&Is, to restrain or monopolize trade through the petition of government ff-'ciale ?es „Gt ap: lv wher. the complaint aslues actior.e that are coop@ same. CL:at cannot be deemed a valid effort to influence government action,720 S ti t f. i I t l ti- 1g52 L•.S Di. L.EXIS ?:... 19?2 Trade Cas. ;CCU:: ;69,618, c r:a. Law W. =ed =1 e3 ._:e a ,:c7. i. Ccrc v. :n,ian lean, inc 4eiE 5. 452. 499 ,19?8 . : -_ a =s.V- a::eze= ..`:it -he BIR,:N �EF`C:eti::5 Qrca-y'.ed tC FQ- -e - '.ti: a" Y_e"er tC.e ba:P. of the t.r=rent.• LV _ mlng .ass. zht' R:gh. F.f:L6a: he 4 - __ _- fcr=e t`,e r":a:..__`:s ee:l. _ .he c: -`ecty .c the -ara_:ai . 24- a;.s_e a c.a:.. Ln�er 542.:9 (M.cnopcl_zat:cr.. tr.e ce nte;par. :o sec_.cr. 2 ;� 5.`:Pt.^•?S-..'.__._.:S` A--- P.1'._6t alle" e: :! as a! ree'.e:: z;e:,X�+e two i ,_ -._rA G'.:_„_QE, . 3 C,vziE1C intent to :' l�e. ?? overt dC,B .,...sera:.=e C_ -Ile a:_ECeC ..,1-.eCbi _raCy: an'°, 41 a dandercus prc:a_ • C: �Iacksc, Memo. -.a: tics ta', 5'_ r. 8�^t F_a. .?c5 of:'d, -52 F. 2d E4' !..tG _r• _??_, cer '7h: S _ ! re ._.._ dor._.fae: a- alleged agreement and an a__egec c.er the conspi_ac, a. a:laaa`..c.. ^f spec:£:_ intent ct __xe _6 fc -d in para-.raph 61, s.:rported by .;a ai.ecat:c-s _: paragraY; 24:. r`:alnt:ffe claim that the 3:n.7N D'a-E��F.T:S sought tc force the save ct:e Harborside Golf & Tennis Faci:ities to Defendants. Atl dl:�ga.:or, cf a ,ar.ge:sue probability of auccees may be found generally the detailed caurse of ccnd•_ct in oaragraphc 24, 61 and ee3. Mcre a^ec.,f c _s^ ..a d__AC3: _.. in par3=ra h Z. x the f.-.a-=_3_ ..6?E N.....;ve�' _.^.e '' to interfere.- w_th the CGn[raCt, S _n-reiLaC r:e de xF:_ and S l,c0o.000 in add:ticnal expenses, al_=at_c::c area:_eae an__trLz_ -_..mar. s :n= ..nze ma:1 fac..,_'c. __ F. .d 9"'4. c__ .r. .._.ran e. :`%e _;Ct:a:. :3 S.ec a,'C CCn__,.BC , rara;rarls ♦ :_.. ..._-�.et :c e__ec_ - e a .__.___ . __at__-s w.zhcut de__neat.- a r=-_._ t!:e e'_e:.wa cc-cl re_eive fa:. .._._=ecf _ ne in ..e-••.bard'e, the instant cam,p;e:..^t t to:-6 names ac`_.:rs an'd dates of rpec.f:_ acts wh4ch Defen`a-ta na;.ece::e fa:_ ' __ace the Colarz finds that P.alrti.`fs have a:Ieoed a cause of action Florida ;nt_t=ust violations against the K RDN h;zwe•er. the or-p:ai fa:.s to Include specific al':eoatic. s i•_t: of any coral.., t of _ is:de of eta_-tor__y protected cf`, _al The cf CiVil ;:Cnalttee for damages against any local c--•:ernme`t et_'_ ial { _ '=".r.`_Pe `.._ C.___.3_ _.......�,. .:, :.`.e S=Gp.E 4: .ao•::,_ 3'..�.._-_tti'. _es .ra:b:ted i ct_!,e efo.e, the Cc-r., finds that Pla.:vM-fs�have failed rto'state a cause of ana:nst WU ZEJRn and CF.r=*: e C :a-ts e dlsTiss as to ?ZH':RV and L=E"' with leave To state a claim under 42 U.S.C. 1923, a plaintiff must allege an i ntrincement cr deprivation of a sedera: right '-y someone acting- under color of :ate law. Soczar v. Manatee Hospitals & Health Systers, Inc.. 731 F. Supp. :42. _9ti5 v D. F:a. _990' •:'Ye ♦tr:at .ae°_.._..... Sf -n-4e' -'___ __ elate w' a =optad in Monroe v. Pape, 365 J.S. 167 _961),^includes liabi_.ty fcr all e PAGE, 23 15y2 J.C. ;st. :1S 3152, :.99�-; •trade Cas. 11CC141 P69,818, 6 Fla Law W Fed. L 51 in an c.`f:c_al CaPA`__t.• whether authorized cy law cr in v:clst_= .aw. M_..:c _ __.e? ^•a, he _ e1 fur :�:at_ a cf c`v-__;_` e un er Sec.. tcn C'%.I! :19:.ts t� _ah~ar na: _._e'a. tilt nc' 1°i scle:v the !-ao:_e cf .BAD •dr.at P_^er_C_ ._. e.. ..crt c: ScC:al Seri'iceS, 43E ...5. 652 _9"6` A .`.e.. '': C .ta lima: a`sC::C; It}' _n deC_s1Cn rna-:n>. + P•?:"�a::F: .. __..�..,7:3169 ­'-aC Pr. 'ate ..nd-I'vidua.8 Tray he .0 a;:t Ln ner C,` st3o ` law the :n_:ivl'ftul- .._ a •,'Illful state Cr _te a.:en;e. V. S;ar.<S, 445 t $"�4 :=E:. ,..... �•e e'.1,naice are nc., aval'_a!:�:e a^alnet f rie�pert Fa:t S. �.4'. 15P1; aha: PIa_...._f:e have dep ec C_.._ra=.. and __ _rer . _'::_s, e-.a: _ _e a:,' cue F: uses (paracrap`. and f�:thsr ,:lsge3 .• �aTsge __4_r..a already d:roused;. :he detailed ccuree of conduct, ^e; n.,_ e.x`._ e`_ter fr:)m .:aycr i,=rr.:_:A� on ZIWT. scat-cner ba grea`_ ,,ere -as scr.ething we ccLld do to fists �-.e sate f the ge-f cc tool and continuos a•_th allega_icne in :aragraph <"4 which :ece that Do'.en�Sante ccn4_fired to Interfere and make mere :urdeneome Flaintif.s' perforMance of its contractual (120) duties in order :e cause .. .. rerfc-*•+rice of the contract and deprivation of Plaintiffs' rights. :aragraph~Z4 centa:aa s;e_ific dates of alleeed violations and names of those t~at t?:e al:ecec ._c:at :e acts were r= u ncer c _ cf state law and ty h-e f:rat authority tr.d^t.".at t:•.e were w-illful participants In these jc..,_ actions a:._ ._ an,. _,:!rt'"•v ru _ect to Inc-uFi-C.^.,. _...,tat.- _--• _a:.. dues a;:ego :hat t...e a:t;cne Of WU-m 7 and ;RE_., ..ere^Intentiona:, knowina, and ma-IC1011:8 raragrap-:; _ _- ��. t o cc-p.a,nt does not a:le?•e any s=ec•f n�:c„ _:d: COG.._.. .:.�•^W-.7:B,_n; Cr otter ::'Ian in t!:e co-urse of their _.al capac:t:ee as mayor and town ccmnlse;.oner. O.:sc.al conduct fie tested rider '_a. star. 768.25 (4; (a: 119891. i :eref—_re, the C^_st finds that Plaintiffs have alleced a cause of action for ___at_cn c. 52 c• 1563 against th; BIRON DEFENDANTS and TOWN, with the !xcert_on that pun..ive damages are not permitted against a municipality. Vie y r fa::e to find,a cause of action Ear a Section, 1963 claim against 4rVRZBUR:; ..:cr. _rants :eave to amend. E 81ROv DCFEND;%:, S `lotion to Strike the claim for p::nitive damages vn the basis Fla. Stac. '62.72 _1569i, requiring that there be a s:^.owing by the record of s'.:ppsrt a claim. for punitive damages before a claim can be a'a. s ce^fed r1� :, p,EFEY�DA2 "S removed the case to federal cc;._.. �onfl_c_ x:ets itt =e_. Prc 9 'gJ as :c tt.s pr- ed-_.a_ aspect of c:ai�e fc_ rec_al~dr.-.a-_es, and t:-:erefcre, Fla. Slat. 75e.12 is ,.rcespted .'J the federal -,;le. Citron v. Armstrong world industries. Inc., 721 F. Sapp. 1259, 1262 {S.D. 19691. =E-7S 9 9 - 720 FAGS 24 !^,?2 U.S. ciat. %::S 3152, :-ly?2-1 Trade Cad. (CCH) P69,@16; 6 Fla. Law W. Fed. D 51 Defandar.ts' M::.1ena to Award Attcr:ey Fees are de -:led in that the -motions are M. ct, Since ;la_...._ff hat Ietn y: er, .@a'.•e tc ame :v. } Cesp-dan,_ X_ __c-s ._. mcro C.. e£1_te S:atemc:_ are denied in th at r. e _..r.s are �..ct :a:..__F£ `:ae been c_ven .cave ec arrest _t i + Azcc.c_.: s:._ L_r `.e .easo: s _tatcd in tt:_A cyder it is 1 ,t i Cr,:EnE- ..::at the M.ticns to D,sr,,.ss cf the AiRCN DEFE-hrF.N':S, k-.i A =4•. v��`c\, and :�:'. a_e v^rtr�' u4 .. FAQ' .^. .`EA:�L 1% PART in acccrdance the ?:aint:f!e shall file an amende-- cc -.,plaint wj--h.,, f.ftee..Yi:S ~da e from t`,c da_.eof this Crde.. If no ate;ded cc-. a ;s ed ^'^ ``a: .`e C:.er-c cf the District Cotrt shall enter a final 'ud.^,ment of d_s-,iesal on those claims whit: have failed to -fate a cauee of a7ticn for t`.e reasc:e c_ve-. :r.e MetionG for Mcre Definite =Late -meat are DFtiiED as noct the mot:ona for Awards of Attorneys' Fees are :£N:ED as mcot, and the N,cticn to 5tri'te is DENIED. r CONE anj OP-DERED in Cham-ers, in Tampa, Florida, this 17th day of March, { i 4 .nited States District :,Edge } 1 _ t 12 _SSE of Level 1 printed in FULL format. PINE RIDGE RECYCLING, INC., et al., v. BL.TS COUNTY, GA, et a:.., Defendante. C.A. 93-4:6-2-MAC (WOO) J:iITED STATES DISTRi:.T COURT FCR THE MIDDLE D:STFi:C-- CF GECRGIA. MACON CiV:SION s64 F. supp. 1338; 1994 U S. Diet. LEX:S :3210 SepteMber 15, 1994, Decided September 15, 1994, Filed, Entered PAGE 2 :ORE TERMS: landfill, eclid waste, waste• ...sroaa: iniuncti.cn, per ton, site, customers, subtitle, municipal, aeegraphic, transfer station, region, vertical, ordinances, dispoae, diepoeed, monopolization, seller, preliminary injunction, monopo'_y, antitrust, sanita� . injunctive relief, substantial likelihood, regulatisns, transpertaticn, delayed, monopoly power, enDoined :0UNSELt i**1' Fci- PINE ..:CUT; RECYCLING, INC., plaintiff: Mr. Stephen. E. )'Day, Mr. Clark G. Sullivan, Atlanta, GA. Mr. George E. Bvtler, IZ. Atlanta, SA. =or BUTTS COUNTY, GA, THE BUNS CGL-NTY BOARD OF COMMISSIONERS, THE SOLID WASTE, KANAG£MENT AUTHORITY OF BUT^.S COtZTY, GEORGIA, ROSS CRUMBLEY, individua:,ly and ►s a Member of the Butts County Board of Commissioners, Jlt--.Ty Y.A.RDY, Individually and as a ?emx er of t"-e Butte County Board of Commissionerc, RE�ERICK READ, Individually and as a Member of the Butts County Board of _ommieaionrrs, EDDIE L. TRAVIS, Individually and as a Member of the Butts County Board of Com-nissio hers, R. WESLEY F:AI -EY, Individually and as member of the Butte :aunty Board cf Com.missiorera and Tho Solid kaete Management Authority of Butts :ounty, Georgia, B:LL JONzS. Individually and as Mertibera of The Solid waste !anaaement Authority of Butte County, Georgia, kARVEY NORRIS, Individually and is Members of The Solid waste Kanagemer,t Aut::crity of Buttc County, Georgia, SAM C' MAN. Individually and as Members of The Solid waete Management Authority of 3, s County, Georgia, ROXILU K, BOY.RER, Individually and an Membere of The To1id waste Management Authority of Butts County, ,**2) Georgia, JERRY ;0ODSON, Individually and ae Mer%�era of The Solid waste management Authority of Butts County, Georgia, LIZ CARMICHAEL JONES, Individually and as Members of The >olid waste Management Authority of Butts County, Georgia, GA.RY G;Z ZZELu, :ndividual y and as Manager of The Solid waste Management Authority of HutCa :ounty, Georgia, defendants: M--. Joseph R. Cullens, Mr. Jack N. Sibley, Mr. H. ,anc Young, 1:. Atlanta GA. For ALL DBFENCA.4 St Mr. Nickolas P. Ch111vis, ►tlanta. GA. 'UDGES: OWENS, JR. ;PIN.ONSYt WILBUR OWENS, JR. )PIyION. i*1340) ORZER This act --on eeeke to prevent Butts County, Georgia, its Board of .ommiczioncrs (,'Board"), the Butts County Solid waste Management Authority "Authority"), and their individual members from opposing or otherwise PAGE 3 854 F. 1318. . 1994 U.S. Diet. LEXIS 13210, •• interfering wire the establishment of Fine Ridge's munici;:al solid waste landfill rsSwLr . Fiaintlffs Pine Ridge Recycling, :nc. ("Pine Ridge') and Sterhen ::;.le `,aoe ,m.cved for preliR.inary in-ur,ctive relief --aced cn violations of t She:�.a Ant -trust. Act ('Sherman Act"', 1 S.C. 33 et seq., tY.e L :tree: ;:.fists:^_3 ar.d Corrupt croan izat.^ns Act i R:-C ; -6 U.S.C. 33 1961 er. seq., and t:-.e Commerce Clause of the ignited _tate6 Ccnst_tut:on, J.S. Conr A. 1, z 6, 3. ;he court herd a hearing nr. the -notion cn January 27, 1994, and -:e'{-esced r[1^_ briefing after limiter discc,.•ery. Defendants strenuously cppcee the motion. After careful consideration of the arguments of ccur.eel, _e zele::,ant caee law, aad the record as a whole, the court makes tr:e follCwinc findings cf fact and conclusions of law. i. F:tiDING� cF FA-:- T'ne Hutto County Board of Cosmissicners is a governing authority in the state of Ccorgie, governing pursuant tc authority granted by the Georgia Constitution and state statute. 2. The Butte County Solid Waste Management Authority was created pursuant to O.C.G A. 2 12-8-53(a) and operates a MSWIF in Butts County, Georgia ("the Butts landfill"). 3. A MS14LF is a sanitary landfill which accepts any non -hazardous solid waste. 4. Effective in the early 199Ce, federal regulations, known as "Subtitle D," tightened the reggirenents on MSw1,Fs. nl The Authority's current MSkLF does not comply with "Subtitle D", but the county intends to build and operate a conforming MSWLF before the expiration of the expansion. permit. - - - - - - - - - - - - - - - - - -Footnotes- - - _ . _ . - - - - nl Subtitle D refers to a subtitle of the Federal Resource Coneervation and Recovery Act ("RCR.A") 42 U.S.C. 22 6941, et seq, and its implementing re- latione. 40 C.F.R. Part 258, - - - - - - - - - - - - - - - - -End Footnotee- - - - - - - - •• - - - - - - - - (•'41 S. :n 1993, the Authority applied for and received a vertical expansion permit from the Georgia Environmental Protection Division ("EPA") to continue recQiving waste at its existing landfill until .duly 1, 1998. The vertical expansion permit allows tha Authority to dispose of an unlimited amount of solid waste until July 1998. 6. Landfills in several neighboring counties have closed recently because of the Subtitle D regulations, (Kamerschen Supp. Aff, App. B.) 7. Due to these closures, the Butts 'landfill has been, able to increase its intake of -daste by 14et since obtaining its vertical expansion permit. (Wiltzee Off. Exh. A.) S. Since Nevecber -991, revenues at the Butte landfill have risen from $ 0,00 to 5 eao,coo per year. Dur�.ng that same period, defendants' share of the solid ••aste disposal market in Butts county has risen from 12.39 to 964. Defendants 1 99- '"12U t PAGE 4 864 F. S;. 1338, •; 1994 U.S. Diet. LEX:S 1.$210, •• f share of the Spalding and Henry County markets have increaaad fron of to 95t and ! from 0% tc e.8%. reepecti✓ely. n2 (Wiltzee Aff. Exh. A.) t - - - - - - - - - - • - - - - - Footnote!! - - - - - - - - - - - - - - - - - - i n: The figure• for Scalding County exclude waste disposed of at the southern j State& transfer station, as diecuesed in parag_a;.hs 20-24 the conclusions of law, - - - - - - - - - - - - - - -End Footrsotes- - - - - - - - - - - - - - - - - I••5� E i 9. Defendants generally charge e S 18 00 g per ton tc dispose of residential i waste oricinatino outside Futts Cou tv and S 20.50 per ton for most commercial waste. (Grizell Depo., pp. 10-25.) Defendants earn a profit (•1341) of 121% } on disposal of commercial waste. (Kamerschen Cepo., p. 132.) 10. Defendants plan to uee the profits from, the current landf_11 to build a Subtitle D landfill b4fore the vertical expansion permit expires on July 1, 1998. t I 11. The a.:tta landfill is managed by defendant Gary Grizzell who in employed Dy the Authority. 12. Pine Ridge was incorporated for the purpose of developing and operating i NSWLF5 within Georgia. i 13. Pine Ridce has purchased a 201 acre site in southwest Butte County or. the i border of Spaldir.a Co.:nty for approximately 5 290,000 and plane to construct a 1 "Subtitle ^" MSWL, thereon ("the Pine Ridge site"). (Dale Deco. I1, p. 77; Exh { ?-881 P-89.) t i 14. In Addition to purchasing the land, Pine Ridge has invented over $ ',000,000 in planning and developing the Pine Ridge landfill. (Dale Aff. P 9.) E 15• Pine Ridge has the financial capability to complete the landfill_. (Dale D 10.) ) IS. Once permitted, Pine Ridge can be in operation is approximately 12 nonths. (••5) (Wiltzee Aff. Exh B.) The principals of Pine Ridge plan to `eCus on Butte, Henry, and Spalding Counties as principal crarket areas, but will fccept waste trcm a range of 30 miles or more. (Dale Depo. I, p. 10; Tvaracript 4 if 1/27/94 hrg., p. 124,) r 17. Fine Ridge hab agreed to accept Spalding County's waste for 5 20.00 per :on, and expects to operate profitably by charging $ 20.00 per ton to waste 1 iaulern. (Dale Depo. I, p. 13-14, 111.) i 18. Fine Ridge has not received a permit from Georgia. EPD and can not begin :onetructicn of its proposed facility until a permit is issued. i 15. Georgia EPD harp completed its review of Fine Ridge'u permit application ird will iss_:e a permit contingent upon the following: (1) a letter from Butte 'ounty to -2� t':&t the site in ccneistent with Butts County's solid waste ' lanagement plan; (2) a letter from Butts County to EPD that the site complies pith local land use and zoning ordinances; and (3) defendants must hold a t a 99- "W20 .....,........... PAGE 5 664 F gip. 1338, +; 1994 U.S. Dist. LEXIS 13210, ++ public hesring req-.:a_ed by O.C.G.A. 1Z-6-240R) . (Daly A!f., gX,y, A,) 70. Gecraia statute requires cities ana counties to develop solid waste i )esal plans assuring adequate dinpceai capac,.ty cver t o next ter. years. O—G.A. a _2-8 31.1. 1-71 21. S.;tts Ccurty `ae developed a waste diaposal plan, but denies that the Pine Ridge site is ccnaiatent with the plan. Thia issue was recently addressed ty the Superior Court of Butts County which granted summary judgment to Pine R.uge. Fine S:r7ge Recylinca. Inc. v Butte County, et al , Civ Action No. 92-659 (P�-tte Sur'. Ct i ("Butte i.i") 22 De=endante ague t:nat addition of the Pine ridge facility will increase the aneunt cf waste recieved at disposal facilities in contravention of O.C.G.A. Z IZ 6 Zl;t, and 12-8-39.1 w!ic:! require ccuntiee to have a program for reduction of t,`.e amo.:nt of municipal so: id waste received at ouch facilities by 25i. 23. The Gecrgia Court of Appeals affirmed the trial court's mandamus requiring Butts county to verify Co EPD that the Pine Ridge site is consistent with the Butts Waste Plan. 9atta County, et al. v. pine Ridge Recycling, Inc., 213 Ga. App. 510, 445 S-E-2d 294 (Ga. Ct. App. 1994). 24. On April 23. 1992, the Butte County Board of Zoning Appeals granted Pine Ridge'$ application for a Special Exception to the Butts County Zoning Ordinance allowing ccnetructzon of a MSWLF. (Dale Aff., P 8.) (-+81 25. The Special Exception is being challenged in two state suits, Pine Ridge Recycling, :no. v. Butte County, et al., Civ Action No. 92-285 (Butts Sup. Ct.) ("Butte I") and Crossland v. Butts County Zoning Board of Appeals, Civ Action No. 92-275 (Butts Sup. Ct,) ("Crossland"). 11, CONCLUSIONS CF LAW A 9batention I. This came presents issues of federal law, predominantly antitruet law and violations of the Commerce Clause. The legal issues presented do not mirror those presented ,1i342; in the various state court cases involving these parries. 2. The court has not been asked to overrule current etate court judgments. Rooker v. Fidelity Trust Co., 263 V.S. 413, 44 S. Ct. 149. 68 L. Ed. 362 (1923). 3. Abstention is not required because this court has not been asked to determine the constitutionality of a state etatute- Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941J 4. The court declines to abstain from exercising 3urisdiction in this matter. B. Preliminary Ir.jur.cticn 5. A preliminary injunction under (1191 Rule 65 is an extraordirary remedy which oho.:ld be granted only if the moving party clearly establishes: (1) a 99— kV I AGE 6 864 F. Supp. .1238, .994 J S. Diet. LEXIS 13210, •• substantial :ikelihocd that he will ultimately prevail on the merits; (:) a showing that he will suffer irreparable injury unless the injunction issues; (3) p- ' that the t`.ireatened innury to him cutwe_ohe whatever damage the proposed cticr, may cause the op;csing Farty; and (4; a ehz-wino that the :nlunct.en, i. .issued, wcu:d nct be adverse to t`.e public ..,serest Lucero v. Operation Rescue, 954 F.2d 9:4, 62" ,11t`.: Cir. 1992) r Tally-l-,,o, Inc. v. Ccact Comnar.ity Colle3e, 663 F.2d 101A. _C22 (_1t� C:r. 19991; 7ohnson v. ;7.S. Cep't of Agric.:lture. 7?4 F.2d 774, 781 1111:h Cir. 1984). 6. "The prel:.minar�, injunction is as extraordinary and drastic remedy not to be granted unless the movant 'clearly carries the burden of persuasion, as to the four prere.qu:sices." United Stater .:eff'Qrron County, 12D F.2d 1511, 1519 illth Cir. 19611 (quoting Canal Authority v. Callaway, 485 F.2d 567 (5th Car. 1974)) Plalntiffs have sufficiently (•-1c demonstrated the last three requirements for a preliminary injuncticn. S. First, Fine Ridge will suffer irreparable harm the longer it is delayed from obtaining a permit, in that they well be precluded from entering diapoeal contracts with surrounding counties. See GSW, Inc. v. Song County, 999 F.2d 1508, 1519 (lit`: Cir. 1993). 9. Because state law recruires counties to have a plan assuring adequate solid waste disposal over the next ten years, counties will be entering into long term disposal contracts with landtills. The longer Pine Ridge is delayed from becoming operational, the :eea chance :t will have to contract with counties which are committed to long term contracts with other landfills. 10. Moreover, Pine Ridce incurs enubetantial monetary lose with each day that it is delayed in obtaining an EPD permit. In light of the Local Government antit:vet immunity Act (°LGAiA"), 15 U.S.C. iQ 35(a), plaintifts can not recover lamagse from the county defendants. Hence, any money damages can no: be ro <ned. I. Second, the court finds that the harm to plaintiffs absent an injunction su,jecantially outweighs any potential (••11] harm to defendants from. imposition of the i;;uncticn. 12. Abeent an injunction, Pine Ridge can not obtain an EPD permit or begin :vnetruction of tY.e landfill. This Yelay, in turn, causes a substartia: monetary lose and preve;ta Pine Ridce from entering into contracts with waste generators ind ro;:nties for solid waste disposal. Any injunctive relief granted will be :ailored ao me to limit harm to Butts County and its current customers. 13. Third, an injunction, wi11 have no detrimental effect on the public. The public interest is aer-,eed by having safe and low-cost solid waste disposal facilities. An 1n)unction will allow for competition is the solid waste disposal narket and will likely lower prices in that market. 14. Cn the question of whether plaintiffs have adequately demonstrated' a substantial 'likelihood of success on the merits, plaintiffs reed only show a .ikelihood of Success or, one of their alternative theories of recovery in order :o obtain injunctive relief. 90- 72.0 f • PAGE 7 664 F. 1338, `: 1994 U S. Dist. GER:S L3210, *+ it. Plaintiffs' :Hain claime are based en the Sherman A-ntitruet Act and allege a mencpoly. an atte^:pted mcr,cpcly, a ccnepiracy to monopolize, and restraint of trade. Plaintiffs al5c allege that defendants have vi.olatez (" 12) the �\ fierce Clause. (Ccr,.p:.a:nt FF 123-146, 153-168 (`1.34-4 Antitrunt Claims { t 1. Product M.arket 16. A foremcst ieaue in an antitrust action is defining the relevant product and geographic markete. Cnly aEter the markets are defined, can the court assess defendants' power within tho relevant market. ':hompscn v. metropolitan Multi-Liet, Inc., 934 F.2d 1566, 1512 (11th Cir 19?1'r. s C 17. The product-,arket is defined as the business in which defendants are engaged unless a reaacnab:7 interchangeable substitute prcduct is ava:.:able to } the ccneum•ere United States v. E.:, du Pert de Nemoure a Co., 351 U.S. 377, 4C4. 76 S. Ct. 994, 101,5, ICO 1— Ed. :.264 (1956) 19. Defendants are engaged in t,,e service of disposal of municipal solid waste at a landfill. Their customers are generators and haulers of municipal solid waste. f 19. The parties dispute whetkicr disposal of municipal solid waste at a I transfer station is a part of the product market. Seemingly, customers would be indifferent whether their waste was diepoced at a landfill or processed through a transfer staticn. However, in this region, (" 13; the test charged by a transfer etaticn is prohibitive which places the transfer station outside the product market i t 20. The Southern States transfer station in Griffin, Georgia, charges a minimum of S 4 5o aid -up' to $ 10.00 more per ton to dispose of waste than do defendants. � 21. The contract between Southern States and the City of Griffin, Georgia, z U agreed to before the Butts landfill obtained its vertical expansion permit. 1 Tt,v Butts Authority could not bid on the contract and, thus, they were not in a competitive position with regard to this contract.. q 22. Dispceal at the Southern states transfer station can no: be seer as reasonably interchangeable with dispcsal at a MSWLF because of its increased G cost. 23. Therefoze, the waste disposed at the Southern States transfer station is 1 captive waste and is not a part of the product market. 24. The product market is municipal solid waste disposed of at a sanitary landfill. i Geographic Market 25. A geographic market is essentially an economic concept in which the courts should examine "sippli.er-customer relations." United States v. Philadelpn:a tCaticna: Hank, 374 U.S, 321, 357, 83 S. Ct. 1715, 1738, 10 L. Ed. 2d 915 (1963) . t "14J 4 ' PAGE 8 2e4 F. S 1338. •; 1994 U.S. L�iSL. LEXiS 1321C, ►� 26. The analysiu includec cons ideratior. cf where buyers seek supplies and sellers Beek purchasere and an examination of ,ra!%aportat_cn and ether traneacticn coota. 2d. at 35e, 63 S. Ct at 1736. ,he ceo.reph:c r.,a: ket has �7rer; der'cri: ed as "the mar:iet area in which the seller operates, and to whi.h t:.e !:-_chaser can practicably t•.;rn for espplies. ' :d. at 355, 63 S. Ct. at "39 (emp`;as_s .n.tted' (quotinc Tampa Elec. Co. v. NaehvilIQ C_al Co., 365 U.S. 32). 321, 61 S. Ct. 523, £2?, 5 L. Ed. 2d 590 i1961)l- 2a. Butte County's MSHLF d:speses of solid waste generated in a three -county area, that cf Butts, henry, and Spa ding :ounties ("the Setts Region"). 29. Becauee of the limited suppliers of disposal zervicee and the disparity of Prices, n3 defendants, customers have little alternative to using the Butte landfill . - - - - - - - - - - - - - - - - - -Fcotnctec- - - - - - - - - - - - - - - - - - n3 The nearby landfills charge the following rates: 1. The Southern States Transfer Station in Griffin, Georgia, receives waste under contract from Spalding County and chsrgea between $ 25.06 and S 30.50 per ton. Plaintiffs Findings of Fact, Pp 46, 61. 2. '.he BPI Hickory Ridge landfill in south Dekalb Cour.ty receives waste from northern Henry County and charger $ 28.00 per ton. Kanerecher. Supp. Aff. Doc 1. 3. The Waste Management Live Cak landfill in south Dekalb County receives waste from north Henry County at a rate of $ 23.0o to $ 31.5o per ton. Kamerschen Surp. Aff. Doc 2. 4. The Butte county landfill charges between $ 16.Co and 5 20.50 per ton aid accepts waste frorn Renry. Spalding, and Butts Counties. xamerschen Depo., P. 13"• - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - ('�15] 30. Competition is also chilled because the Butts facility is the closest landfill to (•1344) -much of the Butts region, and transportation costs for the waste are prohibitive. 31. Although defendants chergQ significantly less than their nearest competition, in Dekalb and Taylor counties, they re -main able to operate at a profit of 1214 and could raise their prices considerably without losing customers to competitors. Kamerachen Deoo., p. 132, 32. The relevant. geographic market. for analyzing whether the Butte landfill ie in a poe_tion of monopoly power is the three -county region of Henry, Spalding, and Butts counties ("the Butts Region'). The Butts landfill cervices that area and its customers have no practicable alternative to disposing their waste at the Butts landfill. 99 e 720 1 4 1 PAGE 9 864 F p. 1338, 1994 V S. D19t. LE%-S 13213, k• 33, Another indication that the Hutt% Reaicn ie the aF=ropr_ate geographic market is that "rel:e-rs within the area are making price cecis.ens protected from the reel to take account of sellers outside the area." New York Citizens C -ittee v. toanhattan Cable TV, 651 F. Supp. 802, 8a7 (S.D.N.Y- :996` 34 ,he relevant market is the disposal c: manicipd: solid waste generated in the Putts Reg:or. [—IF) at a sanitary landfill 3. Elements of Mencpclization Claim 35. Sect.cr. 7. of the Sherman Act, 15 J.S.C. Q 2, providee� Every person who eha:l monopolize, or attempt to monopolize, or combine or Cc -spire with ally other person or persons, to monopolize any part of the trade or commerce among the stiveral States, or with foreign nations, shall be guilty of a felony . . . 36. The operation of the Butts County Landfill has an effect on interstate commerce. Construction Aggregate Transport, Inc. v. Florida Rock Indus., Inc., 710 F.2d 752, 767 (llth Cir. 1983). 37. A monopolization claim requires proof of two elements: (1) defendants' possession of nonopoly power: and (2) def.endanta' willful acquisition and maintenance of that power. Eastman Kodak Co. v. :rr.a9e Technology Sertiicon, V.S. 112 S. Ct. 2072. 2089, 119 L. F.d. 2d 265 (1992). 39. Monopoly power can be shown by an ability to raise prices profitably or exclude ccr..petition. Vn_ted States v. E.I. du Pont de Nemoure & Co" 351 V.S. 377, 391, 76 S. Ct. 994, 1005, 100 L. Ed. 1264 (1956). (••17} Plaintiffs have proffered impressive evidence that defendants have the ability to raise prices b- 10% or more within the Butte Region without losing customers because the c omere in that region have no competitive alternative to doing business with the Sutte county landCiil. 39, The Butts landfill has the power to raise prices by 5-10% in the geographic market which strongly indicates monopoly power. DOJ/FTC Merger Guidelines, p S-3. 40. Due to significant transportation coete, neighboring landfills could not respond competitively to an increase in price by defendants. (Kamerschen Aff., P 26.) 41. Monopoly power is also demonstrated by the increased market share and the increasingly highly concentrated structure of the market. (Kamerschen Aff „ P 27.) TTI. CONCLUSION The tour: finds that plaintiffs have demonstrated a likelihood of prevailing on the monopolizat.Lon claim and, therefore, a preliminary in;unction shall issue. n4 9 9 - 74Q . - - . ,:•:1-^T,tt%ilJft�:r�R1��iiutk{'Yt,N<:: . a ` _ A 0 P GS 1 664 E. S 1339, •1 1994 U.S. Dist. LEXIS 13210, •• - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - n4 Having found a substantial likelihood that plaintiffs will prevail an the opolization claim, the court will not address the merits of the other antitrust claims or the Commerce Clause claims. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - (••1a) TV. INJUNCTION WHEREFORE, based upon the above findings of fact and conclusions of law, the following injunction is hereby issued: (1) Defendants are enjoined from caking any action to further interfere, delay or obstruct the EPD permitting proceoe for Pine Ridges landfill in Butte County; (2) Drfandant9 are enjoined from casting any further doubt, through verbal or written (01345) eornmunieatiors, on the viability or chances for success of Dine: Ridges application for an EPD permit; (3) Defendants are enjoined from entering any contract for disposal of solid waste which exceeds 6 months in length or which contemplates disposal of solid waste after 6 months from the date of its signing; (4) Defendants are required to canduct a public hearing in accordance with O.C.G.A. T 12-2-24(e)(2); (5) Defendants are further required to inform Georgia EPD by letter or other suitable means that (a) the Pine Ridge site is consistent with the Butts County Solid Waste Plan; 71 (b) that the Pine Ridge site complies with local zoning ordinances. The preliminary injunction heretofore ordered shall issue upon plaintiffs giving security in the amount of $ 50,000.00 to the clerk of this court for the payment (••193 of such costs and darnagae as may be incurred or suffered by any party. In order to afford defendants an opportunity to diecuva the specifics of the local land uses ordinances, defendants are directed to SHO4a GAUSS in writing filed within 10 dayc from and after this date why they should not also be required to certify to Georgia EPD that the Pine Ridge site is consistent with local land use ordinances. SO ORDERED, this 15 day of September, 1994. WILBUR D. OWENS, JR., UNITED STATES DISTRICT JUDGE aed defendant The Circt:it .,:al Circuit. St, J., found ,r client's con- ize obtained in representation •ty as too close to ,lis qualify. of certiorari. held that order :cements of law '.c finding that t uially related ,Tpresentation. _ran:ire motion ney for conflict based on repre- r teas not war - that matters representation relate(i to mat - presentation of and that attor- •ptidentiality of of the post - undertaken by . VIcidge he ob- ndant.;. West's area:. S Navar- Por. S•_ !,twie, I!ie plaintiff from an jv on mo- �'�crc�hiu. This City (if' Lander- xasing Co., bat A 1995); Arrar•a BROOKS t'. \N•ATCIiTM%.E,It BIBLE AND TR.- ('T V la. C'iic us 106 Sn Jd 9� M., Ape 41)Ist. 194X1 �IJ,ilijt .lf tIn)•rr)t. P A nil �o,2d S"n (Fla. •1th DCA 1991). None of the three defendants responded to this court's order to short• cause. We Lnrant tile petition and quat�h the order granting the motion to dis- qualify. Petitioner's counsel, Stephen Navaretta, represented Petitioner in post -judgment exe- cution proceedings against a corporation, M.L. Builders, Inc., and its guarantors. Na- varetta preciously had represented M.L. Builders and related principals in connection with the incorporation, real estate develop- ment activities, and some estate planning for the princip:ds, but this representation ceased in 1991, After Navaretta had already ap- peared as counsel for a number of plaintiffs in collection actions against the former clients, new counsel for the defendants moved for the first time in July 1997 to disqualify Nayaretts and his firm based on an alleged conflict of interest under rule 4- 1.9 of the Rules of Professional Conduct of The Florida Bari After an evidentiary hearing. the trial cour, found that Navaretta had not breached any confidentiality of the former clients, and that none of the post -judgment actions which Navaretta had undertaken were related to kno-wledge he had obtained in representing any of the defendants. Nevertheless, it con- cluded that the instant representation gave the appearance of impropriety, Finding sim- ply that it was too close in time to the prior representation which had ceased three years earlier. We find this order departs from the essential requirements of law, as it does not make a specin-c finding that the matters in- co!ved in Navaretta', representation of plain- tiff were suhstantially related to the matters co`.'ered by his prior representation of defen- (1a11t, M.L. Builders. Ser (ampbcll v, Amer- ican Pioneer Spring. Rnrik, 565 So.2d •117 'Fla. -1th 1)t':1 199u1; Scvr.<, Rorburk .l Co. Rule 4-1 v pr(,lides o., f„flo!„ Role 4-1.9. Confllci of interest; furtner client A law%er lshu has fornielll repre,enied a dwtil in a In.aitei ,hall not Ihere:Iflcr (.!) represent another person in the san)c or a substannalh• related matirr in which that person's interests are maienalh adverse to the r, �'Irrrts!nn^I, :i7I So.2d 1051 IFla. nth DCA 1979). The petition for writ of certiorari is grant- t'!l, and the ,t,Ier ).*1•an'ing the lrfenrlu": motion to disqualify is quashed. POLEN, KLEIN and SIIANOOD, .JJ., concur. f n Mr -7 Vivian BROOKS and Patricia high, .appellants, V. WATCHTOWER BIBLE AND TRACT SO- CIETY OF FLORIDA. INC., a Florida corporation, Edith Bush, Lorraine Spi- vey, Laurie Jaworski, and the City of West Palm Beach, Florida, a municipal corporation, Appellees. No. 97-1167. District Court of Appeal of Florida, Fourth District. Feb, 18, 1998. Prospective purchaser of city land filed action to permanently enjoin city from hold- ing special election for purpore of voting on referendum regarding sale. The Fifteenth Judicial Circuit Court, Palm lieac•h Countt•• Kenneth A. Marra, J., enjoined hol,liny: of referendum. City residents appe:tier!. The District Court of Appeal, ii5'arner, J., 1!c•id that: (1) ordinance authorizing sale of Iand was the proper subject of referendum, and 12) referendum did not unconstitutionally im- oorrc,t, of the lornm client ;;r.lr„ the forn)cr chim . on,cnt, .,Ilrr i nn,nll.runn. or th1 ux• nlrornlauon Iel.uulg to the reprc,in. tolloll to the' dI•..tdt alll.l'�',i got dw fololel it:�'tlI e"ccpt as I-u)c 4-I 0 "otIId Ile r:oII 1:IIIt Ic,pc,I to a client or Khoo the information iia, hr come• generally krimm. R. Regulating Fla. Bar 4-1.9. 9J' L Via. 706 SOUTHERN 111sP0ii4ltl2, 2d SERIES i Fair contractbetween city and prospective ylieigh E. Dunstan, Jack .1. Aiello and Pa- �, purc•h;L-er, trricia A. Leonard of Gunstor, Yoakley, —' Reversed. Nraldes:-Fauli & Stewart, P.A., and Gregory ILI_ Olds, West Palm Beach, for• Appellee Watch- towor Bible and Tract Society of Flnrida. 1. Municipai Corporations 0=10S.S, '225i,i) Ordinance authorizing sale of cil.v audi- torium and surrounding land was the proper subject of referendum; city charter gwcificai- Iy reser-;rd p,r.%er of roforendt;m to %"-tree, City curie specifically Provided that selling or s leasing of city's real property had to be accomplished by ordinance, and sale of 7._' acres of city property \%'as a legislative act rather than an administrative act. «Vest's a F.S.A. Const. Art. 1, 1; West's F.S.A. § 166.WltDa). 2. Municipal Corporations C'-- 1.1, 57 Municipal corporation derives not only its existence but its power from legislature. West's F.S.A. Const. Art. S, § 2(a). 3. Municipal Corporations �10S.6 Ordinance authorizing sale of major city asset can be the subject of a referendum. West's F.S.A. Const. Art. 1, § L 4. Municipal Corporations C-111(21) AJthuugli municipal ordinances are infe- viur in status to state statutes, '•where there is rio dlreCL conflict between the two, butte shculcl st:tncl. 5. Constitutional Lase C7-121(2) Municipal Corporations C=225(5) Holding of referendum on city's sale of auditorium and surrounding land, after cit} commission had authorized sale and Prospec- tive purchaser had complied with its duties under contract, did not unconstitutionally im- pair prospective Purchaser's contract rights: prospective purchaser would still luov its rights for !,reach of contract, and P"ssibihlV existed that Prospective purchaser %mild he er:titled to damages rather than to specific perfurmanc•e. U.S.C.A. ('unit. Art. 1, lu. c•l. 1. John M. Jorgensen and Kevin M. Wagner' of Scott. Royce. Ilarris, Bryan, Barra & Jor- gensen. Paler Beach Gardens, for Appellants. D. Culver �nmith. III and Elizabeth D. Stolle if Il'illaml S Knivwh I.LP, West Palm Beach, for Appellee, Edith Bush, Lorraine Spivey, and Laurie Jaworski. P;i'r. .. ":. l;r..cr :(;,-I t'i,t.(dia M. M,:Ven- na, West Palm Beach, fur Appellee City of Wv,4 Palm Beach. WARNER, Judge. The appellants, residents of the City of Nest Palm Beach i"City"), challenge an or- der of the trial court Much erjoinecl the holding of a city referendum to repeal an ordinance passed by the City Cornrnission authorizing the sale of the West Palm Beach Auditorium t"Auditorium") and surrounding property to the Watc•htu•,cer Bible Society ("Watchtower"). Because we hold that the Charter of the City of West Palm Beach ("Charter") and the Wcct Pahn Beach Code ("Code") authorize the referendum, we re- verse the order of the trial court. In November of 1996, Watchtower and the City began discussions regarding the sale ;u;d purchase of a 72-ac•re tract of municipal I;uul 'XIII01 includc(1 the auditorium. ()It July 1-L 1997, the City Commission held a duly noticed public hewing on the first read- ing of an ordinance which would authorize the execution of a purchase and sale agree- ment \yith Watchtower. After the second hearing, the Commission approved the ordi- rlance h% a vote of four to one on July 23, 1997. Pur•SuanL to section 166.041(4), Florida S aLutes (1997), a municipal ordinance takes effect ten daNs after it: passage. On August 7, I9a7. Late Mlayor and (_'it.v Clerk A med the ;ass ;tgrcrnterit uit1; Watclttilv.er. In conformance with the Charter p•ovi- si.gns. om :\u)m; t 27. 1907, ccr•tain NLf .here(l voters of the City, including the appellants, filed a petition to repeal the ordinance aulhu- rizing the sale by referendum, The Oty Clerk certified the petition for a referendum as sufficient on St,ptember• 22, 1997, subse- (Itrertt to the effective (late of the ordinance 99- "'�`'U t�' and Pa- r. 1 nakley, and Gregory 'ellee Watch - of Florida. Elizabeth D. West Palm tsh, Lorraine :t M. McKen- ellce City of I he City of 'crge an or- r`njoine,i the :n repeal an Commission Palm Peach 'ending i. . bciety old that the P:tlm Beach Beach Code ;um, we re- ,wer and the inti the sale of municipal :utitim. On :ssion held a he fist read - lid authorize I sale agree - the second . ed 'he ordi- on .'uly 2S, ;11 a h. Florida :mince %lilies 1-ln :1•a:Rtst •k sinvd the arter prod_ n registered appellants, .•-�utho- City referendum 1997, subse- :le ordinance BROOKS w. WATCHTOWF.K BIBLE, AND TRACT Fla. q7 Cur ,u 7t,b 5„]d BS i l 1A.,h pp. J 1)1a1. h44rt1 and after W;iichtower had soh t:ultially c•om- ation of nl,hnicip:liltu` Sr" Ch. ]lift, Fla. I'hed .kltl its duties under the Contract ll Sim, ilt4971. A Till Iric:pa) corlpw;lti„n detiwr's depositing two of three required payment in not only its existence but it_. power from tutu- escro`.v. A_�Z it result of receiving the petition, Legislature. Scc Article VIll, § °(a), Fla. ,i:e t'it:: r.-Lifled WaTcht., err That it could Con;t.: Towle( "i P(I! a Ilrach r. Ci",:l yr lt'c't not perform under the contract until the Palut Beach, 55 So.2d :6G. 5712 Commission had acted on the petition and The Legi.;lature adopted the Charter of West the election was held. The City failed to Palrn I,y special law in 19d:,. Sre Ch.;;. G.)- take any steps to comply` with the terms of 2.351, 6-2$S2, at 4151-1267, Laws of Fla. the contract. On October 6, 1997, the City Pursuant to the home rule pourers !;ranted in set a special election for the referendum. chapter 166, Florida Statutes (1997), the City Watchtcnwer filed suit on October 21. 1997, seeking to permanently enjoin the City from holding a special election for the purpose of voting on the referendum. It alleged that the referendum was improper, since it sought to repeal an ordinance which was administra- tive, rather than ietrislative, and that t]he City', actions unconstitutionally impaired its contract rights. In granting surnmary judg- ment in favor of Watchtower, the trial court determined that the Charter referendum provision was applicable only to legislative ordinances, and since the sale of property was an administrative act, the ordinance all proving the sale was not the proper subject of a referendum. Further, the court deter- mined that the repeal of the ordinance would unconstitutionally impair Watchtowers con- tract rights. Therefore, the trial court granted the injunction. I. Electorate's Right to a Referendum [11 Article I, Section 1 of the Florida Constitution declares that "[all] political pow- er is inherent in the people. The enunciation, herein of certain rights shall not be con- st•ued to deny or impair others retained by the people." As the Supreme Court has noted, Itlhe citizens of the Stale „f Florida in drafting and adopting the 190h5 Constitu- tion reserved certain powers to themselves, choosing to deal directly with some govern- mental measures. The refetendurn, then, is the essence of it reserved power." Svc Flori- ,trt Lund Co. I• City nil lt'irrlcr Spp-big.s, .127 Su°d 170, 1,2tFIa.19Si1. 121 Under the Florida Constitution, the people elect the Legislature, and it is the Legislature which enact., the general laws under which the citizens of Florida live. The general laws of Florida encompass the cre- Charter was amended by a referendum vote of the people to its present form in See Charter, Part I editor's note. The Char- ter now provides that "[alll powers of the City shall be vested in the City Commission except tho; e powers specifically �:v er, to the Mayor and crcclit those potlrr:rally reserved in this Chnoler to the rleclors of the City." Set, Charter § 2.03 (emphasis added). One of the pourers specifically re- served to the electors is the pourer of initia- tive and referendum. Sec Charter § 6.02. The Charter of West Palm Reach provides: Except as otherMse provided by law for issuance of City bonds. the electors maw approve or reject any ordinance at the polls in the manner provided in this arti- cle.... Charter § 6.02. The Charter does not define ..ordinance_," but the Code describes when an ordinance must be passed. In section 1- :3, the Code states: Except as may he otherwise specifically required by law or prodded hereby, enact- ment of an ordinance shall he the sole method of action by the city commission in seIIilrg, rxcl,rntgirrq, Ir`asixg .tor u ti ru+ cxcec,lm", tirr r:ir ttrnr<. ,`urrurllicr. illq, or l,lrrlgnry lval propel4't welicri ba the city: adoption of s resolituon or enact- ment of a resolution :hall he the sole meth- od of action by tile city commission in levying taxes by adoption of the budget, and in providing t'11, an expenditure of fund, in excess of five hundred dollar. (a)(10.00h; and in :111 other instance:: the city commission nlay act by rosolution o1, by motion; pror,drd, it, cucir Inst(lirrr r,, which a method t, spccrfucullrj prescribed herchy for the taking ni action tilt till- c•Itrr 99- r-illd C)o l_ lti Yl:t 7U6 SOt"f IEWN RETr.1K'I'I,It, 2ki 6ERIES rmrcniissinn, thr ixthod sir prescrdwd shall be tit(lowcd Coale § 1,3 (IP97) (volpha�,es addeti). The Code also pn)%ides for the Inethotl ,d selling or leasilw nrtu:icipal In yuvt}: F,ach s;Oo or oxchaitce of real propt•r•ty e',tned by the cur :-hall require ;tl>- luuved by one of the fuilutting Inethu(ls: I. A four -fifths t-i 3) vote of the liltnlher:_hip of thu city colnlnis.�ittn at either lust readim nr seci,nd reading;, or both, of all ordinance approving such sale, lease t,r• exchang;e; or 2. Approval by vote of the city electors in a referendum election called and held as provided thereby. Code § 2-14r2711(c)(19t.+7)(etltph:L,;is added). The adoption of an ordinance requires more notice and public hearings than a resolution requires. Sce § 166.O41(3)(a). Thus, it is apparent that, pursuant to the Code, the sale of property by the City is treated �%ith a greater level of scrutiny than other transac- tions, such as the hiring :uui firing of enlplo}•- ees. In granting; the injunction, the trial court considered the charter provision providing for a referendum but detertnined that under case law it did not apply to administrative ordinances, rel%frig oil State r. City ctf St. Pctcrsbury, 61 So.2d -116 (Fla.1952). 1rr St. Petersburg, the supreme court quoted McQuillirl's The Lou. of .11ttrlic•ipr.l Corpura- tion.�, to thu effect that the putter of referen- dum is generally restricted to leg6sla0ve or- dinances and is not extended to executive ur acitninistrative actions. Speciiical;:, M. Pe- lersbury noted from McQuillin: A construction of a provision that 'any proposed ordinance' may be submitted to the commission by a petition signed by a specified number of qu�lified electors has been construed to mean that any legisla- tive measure of permanent operation can be so submitted... :".rl ordinance ',vhic•h show., an intent to thin a permanent rule of government is one of permanent opera- tion «itliin requirement that measure must be of permanent operation in order to he submitted to electors under initiative and referendum statute. Obviously, details which are essentially of a fluctuating sort• due to economic or other ct-nditions, cannot he set up in and by ;Ill nr•tiinance to he submitted to vote of the people under ini- tiative and refc•r•endurn statute, tthic•h re- :rict: . ,il a i:. i n ;•, }, c {,!i' , ii—xa.,urr of perm:u:c•nt ��puratinn. N at 11:1-2(1 lqu,)Imi: X. i(-Quillin. Thr• Lars f ,il,rn'tvpal C(Irpor•otic,ns 16.35 Of ed.)). St- f'rtcrsbary imnlved the approval III' <eaet „nn rt :cr.ue ('Pl••iGc,Itt•s, and the referendum i <ue aru:e in crdnt,ection with the right of the city cummissiun to enact an ordinance imposing; charges fur sewer ser- vices \ehich would be pledged for the pay- ment of the certificates. These are the very tNTe of fluctuating charges referenced by McQuillin %khich should not Le subject to a referendum. The mu•ruw holding of SL Pe- tersburg therefure is that "initiative and ref- erendum du not apply to executive or admin- istrative matters of the kind covercd by this Ordinance," 61 So:_ti at 419 centphasis add - ell). Banrc.. v. City of JliamL .17 So.2d 3 (Fla. 1950), decided shortly before St. Petersburg, also relied on McQuillin in stating that: [tlhe power of the initiative may be con- ferred by the state upon a municipal corpo- ration in respect to an;: matter, legislative ur adrninistruticr, within the realm of mu- nicipal affairs. Witem (ice pu•,ver of initia- tive is given by the legislature it \till be generally held to extend to all matters of local concern, unless surne matters are eX: pressly or unpliedly excluded from its op- eration by exceptions contained in the charter, the gerwral statutus of the state, or curlstiUlliunai pre isiuta. Id. at 4 (citing McQuillin, srprn, § 16.54). In the section quoted in Barnes, McQuillin does not limit itself to initiative but includes the putter .,f referendum. Titus, Banos stated the r•ale that ' J:sItatutes Oving the power of initiative to the electors of a munici- patlit, are to he liher•ally construed by the court: t" the eels of permitting rather than restricting the power and to attsining rather than preventing; its object." 47 So.2d at .1. 131 Huth because of the reseti•ation of political power to the people in the Florida Constitution and the specific reservation of lI; ta: pc fr� w!. Pc la• lit err III. of in: dt alas clt. Ce I e:. i act all ort Sul be'. ltr. all; (rr'' pp sio. cyst sa! tilt :it:('tttating snt't, ntliti�ns, (:"pool (Tdinarce to be O,i;b_• under ini- .ttute. "w!:ich re- e to measures of McQuillin, The -nn,c § 16.55 (3d eel the approval •;(ica;.,:, and the. connection %vith lion to enact an for sewer ser- ri for the pay - _se are the very t•eferenced by he subject to a .dir, of St_ Pe- • itiative and ref- ,nutive or admin- e Y by this :casts add- J, So?d :3 (Fla. St. Petersburg, .ting that: e may be con- 'nunicipal corpo- .itter, legislative .,c realm of mu - power of initia- ature it 41 be all matters of matters are ex- ed from its op- •:tained in the the state, "l § 16.54). 'lips. \icQuillin •r but .nc!udes Thus, Barnes :es giving the a•s of a munici- .antoa by the • g rather than rather reservation of in the Florida reservation of BROOKS v. 11',1TCHTt) VEAZ 131111.E AND TRACT F1:1. (Cite","Oh So ?d P5 Ola.%1,1, JInbt 194Fl ttcuer , f refer•endu:n to the ttt r< in till, Charter, we must interpret the lode and Charter pro%isioms in a light most favorable to '�u=tainir.p the r\ercise of that lw wor. N. With that in mind, St. Petersburg',:• narrow holding does not compel us to agree with the trial court that an ordinance authorizing the sale of a major city asset cannot be the subject of a referendum See also City of Lake Worth r. Stutc, III So.2d 433 (Fla. I:15P). [11 Appellees also argrie that section 166.0410)(a), Florida Statutes, when read in tandem vith section 6.02 of the Charter, permits a referendum only when the action taken is legislative in nature, as distinguished from executive or administrative. Section 166.041(1)(a) defines "ordinance" as "an offi- cial legislative action of a governing body, which action is a regulation of a general and permanent nature and enforceable as a local law•" Section 166.0•I1(l)(1)) defines a "resolu- tion" as "an expression of a governing body concerning matters of administration, an ex- pression of a lemporar character, or a pro- vision for the disposition of a particular item of the administrative business of the govern- ing body." 1�`hile reference to the statuton• definition is instructive, it does not answer the question of what specific subjects are characterized as regulations of a general and permanent nature. In the present case, the Code specifically proAdes that selling or leasing real property of the city must he accomplished by ordinance. Sec Code § 2- 18(27). Thus, the City itself has determined that the sale of municipal real estate is a matter of a permanent nature and is not of an administrative type. Although municipal ordinances are inferior in status to ;rate statutes, %%•here there is no direct conflict between the two, both should stand. Sce Boren o. City of St. Pctcr.sburg, 7:3 So 2d 2.32, '?3-1 (Fla.1951). We perceive no conflict Mth any Florida statute in West Pahn Beach's provision for the disposition of municipal property by ordinance. Moreover, even %%ithout the express provi- sion in the Code requiring the sale of real estate by ordinance, we would consider the sale of 72 acres of city property, including the City's public auditorium, a legislative act_ 1n act,,+ t'rt�/ of Orlando. 17:3 So." d 501 (Fla. 2d UCA 110;5), the court held that the siting of a municipal theater was the proper -tuhjl,ct for an initiative petition, requiring an election. If the siting of a public building can he the subject of a referendum, then we see no reason why the sale of a public build- ing cannot be the subject of a referendum also. We distinguish People v. City of Cen• trnlia, I IIi.App?d =8, 117 N.E 2d 410 (1953), cited by' the trial court, in which lhl, court found that the sale of municipal airport property was not subject to a referendum. 1n that case, a state statute not only limited the power of referendum to legislative mat- ters but another statute prodded for the method and manner of selling municipal real estate. As the municipal authorities would merely be exercising an administrative func- tion in following the statutory duties as agents of the state government, their act would not be considered legislative. In Flor- ida, under home rule provisions, the same result does not follow. See Ch. 166, Fla. Stat. We therefore determine that the ordi- nance authorizing the sale of the Auditorium and surrounding land is the proper subject of a referendum under the Florida Constitution, state statutes, and the Charter and Code of the City of West Palm Beach. 11. Constitutionality of the Referendum as Impairing the Contract between the City and Watchtower [51 Ewen if the electors are generally en- titled to a referendum, Watchtower argues that the ordinance of repeal would effect an unconstitutional impairment of it, contract right:. Therefore, the holding of a referen- dum would he futile. In Dade County 1'. Dude County League of.lfanicipalitics, 104 5o.2d 512 (F1a.19M), the :supreme court de- termined that in order to enjoin the submis- sion of a proposal to the electorate, a court must find that the proposal is unconstitution- al in its entirety. We think that it is prema- turt, to detennine that repealing the ordi- nance, which authorized the execution of the contract for sale, %Sill impair the contract betwween the City and Watchtower in the constitutional sense. 99 720 L )(I Fla 706 SOUTI1ER`r REPORTER, 2d S. B8 In Horted.-.11at.thciv,, Inc. v. Cr.tp of Chi• matter of law to specific performance if the cargo, 78 F.3d 1248 (7th Cir.19!060, the court ordinance of repeal is passed at a referen- considered whether a city ordinance repeeal- dum. trig a cortract with a develop(,• was an un- Reversc•d. constitutional irnpairrnent of the contract. The court suGgcsted, "ti)t wrnrld he absurd to turn evc•ry breach of contract I'y a state or FA-11MER and GROSS, J,)., concur. nnuricipality into a vital;itiun r,f the federal Constitution." I(L at 12:)R A breach of C-i tNUOMMTIM contract., the court said, triggers a duty to pay damages for the reasonably foreseeable consequences of the breach. S.r id. at 1051. "If the duty is unimpaired, the obligation of the contract cannot be said to have been impaired." I(L Thus, the court found that the repealing ordinance may have constituted Abraham R. BRAND, Appellant, a breach of contract, but so lung as there was a remedy for the breach, there was no uncon- stitutional impairment of contract. In the Margarethe BR.V D, Appellee. instant case, assuming the validity of the No. 96-2827. contract, the ordinance of repeal would not necessarily invalidate the contract since District Court of Appeal of Florida, Watchtower would have its rights for breach Fourth District. of the contract. 11'atchtcw•er argues, nevertheless, that be - Feb. 18, 1998. cause the contract provides for the remedy of specific performance, the referendum would Former husband appealed from order of he a futile act. However, unleas it is demon- the Circuit Court, Broward County, Julie strated that the ordinance is -unconstitutional Koenig, J., denying his motion to vacate final in its entirety, there is no ground, including judgment of dizsolution of marriage. For - futility, to prevent the holding of the election, mer husband appealed. The District Court Sec 1Jcdc County L(agac of ,1luOcipalitics' of Appeal, karlan. Sandy.A_�sociate .Judge, 1(M So.2d at 514-161, 11•cst Palm Beach Ass'rr held that former husband was given proper of f'irrfrQlrtCr.,, Local L'rrio>r ; '; c. Huard of notice of the proceedings. City Cani nr'r•s of City Q1 Wcst Palm Beoch, 4.45 So.2d 1212. 121-1 (Fla. 4th DCA 19SI); Affirmed. City ref Coral Gables r•. Carmichael, 256 So.2d 40.4, 40,S49 (Fla. 3d DCA 1972)(refer- endum procedure provided in city charter Divorce 0-172 constitutes integral step in legislative process Dissolution judgment was not void for and "in the absence of demonstrated illegah- lack of proper notice to former- husband, ty the legislative processes of the state ... although order setting trial did not indicate which are provided for by law may not be that copy of order was sent to him, where impeded or prevented by the courts"). former husband had actual knowledge of pro - Moreover, specific performance is an equity- ceedings, and trial court found that he had He remedy. Whether a court will grant such been given proper notice of proceedings. a remedy will depend upon the facts present- West's F.S.A. RCP Rule 1.5-10. ed to it on the issue. There n-av he fact_and circumstances which may lead a court in equity to determine that a damage remedy A. Matthew Miller of ]Miller, Schwartz S would adequately cornpensate 1l•at.chtower. Miller, PA, Hollywood, and Jack B. Packar We are not prepared to determine on these of Packar B. Packar, P.A., Hofly wood, for pleadinf�s that Watchtower is entitled as a appellant. I lah;t. AIIflC.,r Ii:... der Jud? argu. attar ' i�cas' Afar! Coln•• the ; J:ulu. affirl V aind Coul the ntcr. .July ' with furff band sel. Or st.ru, sane* •; enti tuuti� w•as appt Utt t ot•dr• Vvin: w hc; nut. slum 1 �1•} [lie Furl. was that nrerr attac Flor: } PAGE 25 42NO —.SE of LQyQ1 1 printQd in FULL format. AL'9REY DAVIS and AL SEIFFERT, Appellants, v. DtASH:NGTON COUNTY, a political Subdivision of the State or Florida, and WEST TRACO. INC.. Appellees. CASE No. 95-1849 i COURT CF AP?EA:, CF FLORIDA. FIRST DISTRICT i { 670 So. 2d 136; 1996 Fla. App. LEXIS 2654; 1996-1 Trade Cam. (CCH) P71,3'%0; 21 Fla. Law W. D 693 March 20. 1996, Filed 4 ::BSECUENT HISTORY: 1.11) Released for Publication April 8, 1996. q:OR HISTORY• An appeal from the circuit court for Washington County. Don T. irmon;, ;,udgQ. :SPOSITION: Affirmed. :RE TERMS: ordinance, Qxempt, collection, state policy, solid waste. diepoeal. ;mamary judgment, federal antitrust law, affirmatively, articulated, .zitrust law, antitrust 0L'NSEL: D. Michael Chesser of Chesser, wingard, Barr, Whitney, Flowers Fleet, A., of Shalimar. Attorneys for Appellants. 4 :ecory T. StQwart and -Maureen *McCarthy Daughton of Nabors. Giblin & Nickerson, A., Tallahassee, Attorneys for Appelleea. =3S. BOOTH, J., WOLF and VAN NORTWICK. JJ.. CONCUR. INTONBY: BOOTH i '1371 BOOTH, J. } Thim caure ie before us on appeal from an order of tho trial court denying =pellante' .notion for aummary judgment, granting Appellee;, motion for aumfia:,f i :dgnent, and granting final judgment in favor of Appellees. we affirm.. In 19a6, Appellee waahington County adopted an ordinance creating a special inicipal service district for solid waste collection and disposal. The :dinance providad authority to impose a special assessment againat all {i :sidences and businesses :n the district to be used to fund the collection and sposa7 o_ the waste within the district. waehingtcn County subsequently 1 .11cited bida for haulera to provide the services contemplated (*421 by the :dinance; west. Taco waa the lowest rcaperaible bidder, On January 19, 1989, Lsh-ngtor. County and west ;Taco Qntared into a contract giving weal Traco the •:elusive night and franchise to collect and dispose cf all residential solid .atQ within the un:ncorperated areas of Washington Co%;nty. ::1 - - . - - • - - - - - - - - - - ---cotnotea- - - - - - - - - - - - - - - - - - 1 9� "120 PAGE 29 1 670 So. 2d . 6. •; 1996 Fla. App. LF,X1S 2654, 1996-1 Trade Cas. (CCh) F71,370; 21 Fla. Law K. 0 693 nl The contract between Washington County and WQQt Traco was renewed and ^d on July 24, 1994. Addlticr.al crdinancee were paaeed to execute the x ct - - - - - - - - - - - - - - - -End F(-ctnotes- - - - - - - - - - - - Appellants :,led e :nstar.t act-cn againet Appellees seeking, inter miss, a �dgmen: declaring the contract bet-een Aa&hington County and West Traco null .d void as violative of Flo ida s ant lt.u5t law. Following motions for summary -dgment submitted by both parties, t3o trial taunt ruled in favor of Appellees, :nding the contract did not violate federal or Florida antitrust law, n2 - - - - - - - - - - - - - - - - -- CCt..-tce- - _ - - - - - - - - - - - - - - n2 Under 4 542.18. Fla. Scat., every contract, combination or conspiracy in tstraint of trade or commerce in Florida it unlawful. Howavor, any activity or onduct exempt from the provisions of federal antitrust law is also exempt from lorida &ztitrust law, 2 542.20, Fla Stet. - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - "3 ) The Uniced States Supreme Court bae held that a political subdivision may ngage in anticompetitive conduct and be exempt from federal antitrust law if to conduct is an act of the state government as a sovereign 'pursuant to state slicy to 4ieplace competition with re,ulation or nor.opvl' 7lic service." city -` Lafayette, La. v. „oui&--ana Power & Light Co 43S i;.S' 3,39. 41.3, 99 S. Ct. :23, 1137, SS L_ Ed. 2d 364 (1973)- n3 When private parties are involved in the =duct, antitrust :^rx nity exist& where the following test is met: ':,rsc, the zallQnged restraint -must be one clearly articulated and affirmatively xpressed as state policy'; second, the policy must be 'actively supervised' by ze State itself." Califorrsia Retail Liquor Dealers Assn v. Midcal Alumuminum, -c,. 445 U.S. 97, 105, 100 S. Ct. 937, 943, 63 L. Ed. 2d 233 (1980) (quoting t f Lafayette, supra). I- - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - , r.3 See also 15 C.S C. " 34-36 (1964) (prohibiting recovery of damages, 1 scs, or attorneys, fees under 15 U.S.C. W 13, 15a or 1Sc from any local r overnment. official or employees thereof acting in an official capacity) t - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - ..41 We hold the trial court properly found that the challenged restraint by :ehington County and West Traco mec both prongs of the Midcal teat. part IV of orida statutes Chapter 403 titled Resource Recovery and Management, when read s a whole, provides a clearly articulated and affirmatively expressed state :icy allowing counties to provide solid waste collection and disposal through -,tracts with private entit ea. See 'own of Halle v. City of Feu Claire, 471 S. 34, 1;15 S. Ct. 1713, 65 L. Ed. 2d 24 (1985); Auton v. Dade City. via. 783 2d 1C09 illth C:r. 1966). SeCticn 403.706(16), Florida Statutes, as relied on Appellants, does nst negate that policy. n4 Further, the cor.tracte aad -dir.ances in :T-esti�,r: trevlde for active supervision of hest Traco's actions 99-- 6VA s PAGE 27 j 670 $0. 2d 136, •. 1996 Fla. App. LEXIS 2654, •�; 1996-1 Trade Cas. (CCH) P71,370; 21 Fla. Law W. D 693 1 Kashington County. See, e.9., Savage v. Waote Management, Inc., 623 F. Supp. , :C 'D.C.S.C. 1995). Finding no errcr, we affarm. i - - - - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - - - - - j n4 Appellant has not raised an argument that 0 403.706(16), Fla. Stat., has awn violated. i 1 - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - 1ST CASE of Level 1 printed in FULL format. CITY OF MOUNT DORA, FLORIDA, Appellant, v. JJ's ;MOBILE HOMES, INC., Appellee Case No. 90-733 Court of Appeal of Florida, Fifth District 579 So. 2d 219: 1991 Fla. App. LEXIS 3766: 91-5 FPSC 549; 16 Fla. Law W, D 1115 April 25, 1991, Filed SUBSEQUENT HISTORY: [**1] Released for Publication May 10, 1991. PRIOR HISTORY: Appeal from the Circuit Court for Lake County, Ernest C. Aulls, Jr., Judge. DISPOSITION: AFFIR4IED. COUNSEL: Sherri K. Dewitt and Houston E. Short of Graham, Clark, Pohl & Jones, Winter Park, for Appellant. ,Mary NI. ScDaniel of Minkoff & McDaniel, P.A., Tavares and Robert Q. Williams of Williams, Smith & Summers, P.A., Tavares, for .appellee. JUDGES: Cowart, J. Goshorn, J., concurs. Harris, J., dissents with opinion. OPINIONBY: COWART OPINION: [*221] This case involves a territorial dis- pute between a private utility company with certificates from the Florida Public Service Commission (PSC) au- thorizing it to provide utilities in a certain geographical territory and a municipality which, subsequent to the ac- quisition by the private company of its utility franchise, annexed a portion of the private utility company's ser- vice area and claims the right to provide similar utility services in the annexed portion of the private utility com- pany's service territory. In 1981, a private utility company, JJ's Mobile Homes, Inc. (appellee herein, plaintiff below) obtained from the Florida PSC certificates of necessity granting the private utility company the right (franchise) to op- erate a water and sewer utilities [**2] system within a specified geographical territory near, but outside of, the city limits of a municipality (the City of Mount Dora, appellant herein, defendant below). In 1988, the mu- nicipality voluntarily annexed into its city limits a tract of land most of which is within the private utility com- pany's certified service territory and by ordinance ap- proved a land developer's proposal that the municipality serve the developer by extending the municipality's wa- ter and sewer utilities into a portion of the newly annexed area of the private utility company's certified service ter- ritory. The private utility company, as plaintiff, filed this ac- tion against the municipality, as defendant, for a judicial determination that the private utility company had the legal right to provide water and sewer service within all the territory specified in its certificates from the Florida PSC and that the municipality did not have the legal right to provide the same utility service within the territory. The trial court granted summary judgment in favor of the private utility company and the municipality appeals. We adopt the trial court's finding of uncontroverted facts, conclusions of law and results. [**3] The trial court found the following facts to be uncontroverted: 1. The Plaintiff (private company) owns and holds Florida Public Service Commission Certificates Number 298-W and 248 S granting the Plaintiff the right to op- erate a water and sewer utility system within a specified territory. 2. On March 5, 1981, the Florida Public Service Commission entered an order approving the issuance of the foregoing water and sewer certificates to the Plaintiffs and in said order, found that notice as required by law had been given and that the issuance of the cer- tificates to the plaintiff was "in the public interest." 3. Pursuant to that authority, the Plaintiff owns, oper- ates and maintains an approved water and sewer utility system within the certified territory, which utilities have been in operation since the mid-1970's. 4. The Plaintiff's certificated territory encornfpasses 99— �iA v 1 579 So. 2d 219, *221; 1991 Fla. App. LEXiS 3766, **3; 91-5 FPSC 549; 16 Fla. Law W. D 1115 Dora Pines mobile home subdivision, together with a large parcel of currently undeveloped property. The Plaintiff's utilities currently serve the Dora Pines mo- bile homes subdivision, which consists of approximately one hundred [*2221 thirty-eight (138) water and sever customers. 5. At the time the Plaintiff's water and [**41 sewer sys- tems were constructed, rhea were designed and built for the purpose of providing water and se�tcr utility service to the entire certificated territory. The Plaintiff's utili- ties haze the present ability to provide eater and sewer service to the certificated territory. 6. The Plaintiff's water and sewer utilities have current operating permits from the Department of Ens ironmental Regulation, which permits are valid through October 15, 1994. The sewer plant is currently permitted for ninety-five thousand (95.000) gallons per day, and current flows going into the plant are only about seventeen thousand i 17.000t ,gallons per day. The plant is designed so as to be expandable up to two hundred ninety-five thousand (295,000) gallons per day. 7. Sometime in 1987, the Plaintiff learned that the Defendant was considering the voluntary annexation of a large tract of property, a significant portion of which was within the Plaintiffs certificated territory. The Plaintiff objected at that time to the City's proposed extension of its municipal utilities into the Plaintiff's certificated territory. 8. In Ordinance 467 (adopted May 3, 1988) and Ordinances 488, 489 and 490 (adopted October [**5] 3, 1989), the City voluntarily annexed a tract of contiguous property, most of which lay within the Plaintiff's certify• cated territory. In Ordinance 529 (adopted October 3, 1989), the City authorized a planned unit development for the annexed property and as a part of that ordinance, adopted a developer's agreement calling for water and sewer utilities to be fumished by the City to the annexed property. 9. On March 31, 1989, the Plaintiff, through its attor- ney, forntally notified the City of its claimed right to provide water and sewer service to its certificated terri- torv. 10. The Plaintiff is currently actually operating its wa- ter and sewer utility within it certificated territory. The Plaintiff's existing water and sewer lines extend to a point that is inuttediately adjacent to the annexed prop- erts makin_ them much closer to the annexed property than the Defendant's water and sewer line. Page 4 The trial court made the following conclusions of law: 1. The Public Service Commission water and sever cer- tificates issued to the Plaintiff grant the Plaintiff the ex- clusive right to provide water and sewer utilities service to the certificated territory. "ibis right precludes any other entity [**6] from having the right to serve the certificated area with water and sewer utilities. 2. Although municipal utility systems are not subject to regulation by the Public Service Commission as a utility, neither are municipalities given dominion over decisions of the Public Service Commission. 3. The Plaintiff's actual operation of its water and sewer utility within its certificated territory is in ter- ritory which is immediately adjacent to the Defendant. Therefore, pursuant to Section 180.06, Florida Statutes (1989), the Defendant must obtain the Plaintiff's consent before construction of water and sewer utilities within the Plaintiff's certificated area. Without that consent, the Plaintiff has the exclusive right to provide service within its certificated territory. The trial court declared and adjudicated: . . that the water and sewer certificates issued to the Plaintiff by the Florida Public Service Commission grant the Plaintiff the right to furnish water and sewer utility service to the certificated territory as described in the certificates to the exclusion of all other utilities, including those owned by the Defendant. Accordingly, the Defendant may not extend its water [**7] and sewer utility lines into any pan of the Plaintiff's certificated territory. Section 180.06, Florida Statutes, after enumerating activities authorized by municipalities and private com- panies, provides: [*2231 However, a private company or municipality shall not construct any system, work, project or utility authorized to be constructed hereunder in the event that a system, work, project or utility of a similar character is being actually operated by a municipality or private company in the municipality or territory immediately ad- jacent thereto, unless such municipality or private com- pany consents to such construction. [Emphasis added]. The city argues that section 180.06, Florida Statutes, does not apply because the private company does not actually provide services to the disputed area. The restriction of the statute was designed to avoid the wastefulness of duplicate capital investments for com- peting utilities that could not likely be operated without L 579 So, 2d 219, *223; 1991 Fla. App. LEXIS 3766, **7; 91-5 FPSC 549; 16 Fla. Law W. D 1 115 Page 5 financially jeopardizing each other's operating revenues Chapter 367, the "Water and Wastewater System if erected in the sarne consumer territory. State v. Plant ['*101 Regulatory Law" provides the Florida Public Cirv, 127 Fta. 495, 173 So, 363 (Fla. 193:7 t_constru- Service Commission with exclusive jurisdiction over ing Ch 17 119, § 1. Laws of [**81 Fla., predecessor the authority, service and rates of utilities. Sc:ti0n statute to § 180.06, Fla. Stat ). 367.022(2) provides: In reeard to section 180.06, Florida Statutes, in Ortega Utility v. City of Jacksonville, 564 So.2d 1156 (Fla. 1st DCA 19R)), the court held: While the statute is not a monument to clarity and draftsmanship. . . . +%e interpret it only to prohibit direct encroachment by or;e utility provider into an op- erating area already served by another. Any other in- terpretation .vould not seem to comport with lo,ic or reason. Linder our interpretation, there would be no duplicate capital imesunem within the same consumer territor. In Ortega, the private company provided services within a specitic (certified) area. The city planned to provide service to an area outside but located near the private company's certified area. In addition the private company had neither the capacity nor plans to serve the new area. This case is distinguished from Ortega in that in Ortega the area sought to be served by the municipality was out- side the private company's certified area and the private utility company did not have the capacity to serve the area the municipality sought to service, while in this case, the area the municipality [**9] proposes to serve is within the territory which the private company has the prior legal right to sere and the private company is ready, willing and able to serve the utility needs of its service area. nl n 1 In Ciry of Winter lark v. Southern States Utilities, Inc., 540 So. 2d 178 (Fla. 5th DCA 1989), this court held that where a city did not have the present ability to serve the public the city had no legal right to prevent a private company certified to provide services to an area within the city's territo- rial limits, from serving the public where the private company had the present capability to provide ser- % ices. The municipality argues that it is not subject to regu- lation by the PSC and interprets this statement to mean that it niaG serve with utilities an area within the city's boundary hethrr or not the PSC may have theretofore issued a certiticate of necessity authorizing a private util- in corripany to provide similar utility services in the 5an1C :ICC:i. 367.02-1 Exemptions - The following are not subject to regulation by the commission as a utility nor are they subject to the provisions of this chapter except as ex- pressly provided: (2) Systems owned, or systems of which the rates and charges for utility service to the public are controlled, by governmental authorities. The certificates issued to the private company by the PSC are a granting of a privilege generally referred to as a franchise. A franchise is defined as "a special privilege conferred by the government on individuals or corporations that does not belong to the citizens of a country generally by common right (citations omit- ted.)" 12 McQuillin, Municipal Corporations, § 34.03 (3d Ed.). When granted, a franchise [*224] becomes a property right in the legal sense of the word. Leonard v Baylen Street Wharf Co., 59 Fla. 547, 52 So. 718 (1310); "iw Coast Disposal Service, Inc. v. Smith, 143 So.2d 352 (Fla. 2d DCA 1962), cert. denied, 148 So.2d 279 (Fla. 1962). [**11] But see, Alterman Transport Lines, Inc. v State, 405 So. 2d 456 (Fla. 1st DCA 1981) where the court rejected the argument of holders of certificates of public convenience that the deregulation of the trucking industry took away a valu- able property right of the holders (the certificates) and impaired existing contracts. In Pahokee Housing Authority v South Florida Sanitation Co., 478 So.2d 1107 (Fla. 4th DCA 1985), rev. denied, 491 So.2d 280 (Fla. 1986), a dispute arose between a housing authority and the holder of an exclusive garbage franchise from the county over garbage collection in the area controlled by the author- ity. The authority decided to collect and dispose of its own garbage, claiming it was exempt from the exclusive franchise granted by the city, The trial court found that the authority's intrusion violated the private company's exclusive franchise. The district court affirmed but re- versed the damages awarded to include the holder's costs of operation. Southern Gulf Utilities, Inc. v. hfason, 166 So.2d 133 (Fla. 1964) is cited by the city for the broad propo- sition that the PSC has no authority [**121 whatso- ever over utilities operated by governmental agencies. 72 579 So. 2d 219, *224, 1991 Fla. App. LEYIS 3766, **12: 91-5 FPSC 549: 16 Fla. Law W. D 1115 Mason must be read more narrowly. In Mason, a pri- vate company with an exclusive certiticate issued by the PSC sou_ht ttie PSC to issue a stop order for a munici- pal utilit} «hich imaded the private company's service area. The PSC dismissed the private company's com- plaint on the Grounds that the PSC had no authority to restrain a governmental agency from invading the ser- vice area of the private company. The supreme court agreed but specifically noted it did not rule on the rights of the panic, %khich rights were being litigated in an ac- tion for imunction in the circuit court which was not the subject of the appeal. this case presents no question as to the PSCs authority, as distinguished from the circuit court's subject racier jurisdiction, to restrain•, the city from invading the private company's area. Althou ,h governmental utilities are exempt from the authority of the PSC this does not mean that the gov- ernmental unit has the authority to interfere with rights granted a private utility company by the PSC. The PSC certificates issued to the private company represent a valuable property right and the city is not authorized [**131 to interfere with those preexisting rights by the mere subsequent annexation of a portion of the private company's territory. The municipality further argues that the trial court erred in finding as a matter of law that the certificates issued to the private utility company granted an exclusive right to provide utilities to the service territory because the certificates as issued do not use the word "exclusive." In this case the PSC issued the private utility company certificates of necessity authorizing the private utility company to provide the public with water and sewer in the questioned territory before the municipality, which has the general legal authority to provide similar ser- vices within its municipal limits, annexed the area. The private utility company not only had the prior legal right but, more importantly, it also had the ability to meet its duty to provide such services. The statutory scheme of Chapter 367, n2 as well as the concept of a public utility, envisions that the right granted by the PSC to a private utility company is exclusive to the extent that such com- pany has the ability to promptly provide service to the public within its franchised territory. n2 Section 367.01 1(2), Florida Statutes, provides: The Florida Public Service Commission shall have exclusive jurisdiction over each utility with respect to its authority, service and rates. [**141 Page F The essence of the concept of utilities serving the pub- lic is that it is in the best interests of the public that the entities, governmental or private, providing utility ser vices not be permitted to compete [*225] as to rates and service and that each entity be given an exclusive service area and monopolistic status. This unusual economic ad- vantage is given a utility in our free market economv in exchange for the utility relinquishing its usual right to determine the level of service it provides and to ;et its own competitive rates and submitting those two rnarers to a governmental authority which regulates the quality of service to be provided and sets rates to provide the utility a reasonable return on its investment. The term public utility implies a public use with a duty on the public utility to service the public and treat all persons alike. See, 73 C.J.S., Public Utilities § 2 (1983) and 78 Am.Jur., Waterworks and Water Companies. § 2 (1975). Territorial rights and duties relating to utility services as between prospective suppliers are more properly de- fined and delineated by administrative implementation of clear legislation than by judicial resolution of actual cases [**15] and controversies resulting from the lack of clear legislative direction. However, the problem is currently a controversial political matter in the State of Florida and in the absence of clear legislative intent, courts must resolve individual disputes by the applica- tion of principles which appear to best serve the public and to be fair and equitable to legitimate competing in- terests. Some such principles are: (1) In Florida the basis for the right of both govern- mental and private entities to provide utility services to the public is statutory and the franchise right of each is equal and neither entity is, per se, superior or inferior to the other. (2) A franchise granted to an entity, either govern- mental or private, authorized by law to provide utility service to the public, may be exclusive as to both type of service and territory. See, St. Joe Natural Co. v. City of board Ridge, 265 So. 2d 714 (Fla. 1st DC,9 1972), cert. denied, 272 So.2d 817 (Fla. 1973). (3) The right (franchise) to provide utility services to the public carries a concomitant duty to promptly and ef- ficiently provide those same services. See. 73B C.J.S., Public Utilities, [**16] § 2 (1983). (4) The right (franchise) to provide utility services to the public in a franchised territory is inherently sub- ject to, and conditional upon, the ability of the fran- chise holder to promptly and efficiently meet its duty to provide such services. Section 367.045(5) tat, Florida Statutes. (5) When a public service: entity, wheiher 'ZOVemnten- 99 "1��0 - t 1 Page 7 579 So. 2d 219, *225; 1991 Fla. App. LEXiS 3766, **16; 91-5 FPSC 549; 16 Fla. Law W. D 1115 tal or private, has a prior (earlier acquired) legal right Service Commission to grant an exclusive franchise area, to provide services in a particular territory but does not The certificate in this case does not purport to grant an have the present ability to promptly and efficiently meet exclusive franchise area, The commission grants ex- its duty to do so, the public is entitled to be served by clusivity by limiting the number of franchises in any some other public service entity which does have the given area. Therein, [**181 of course, lies the problem, present ability to provide the needed service although A governmental agency, such as appellant, is exempted the legal claim of right of the second entity to provide from the jurisdiction of the. Public Service Commission such services is secondary in time priority to the prior in supplying water and sewer services within its corpo- I legal right of the entity without the ability. n3 rate limits. The subject propert% has now been annexed { at the request of the property owner and is part of the n3 e in of t;7Titt'1 I'irk ti Southeast States C7ilitres, municipality. The municipality may now sen e the area 540 So._d 178 (Fla. DCA 1989). without a permit from the Public Service Commission. -th If it is to be prohibited from proceeding to provide ser- vice, it must be under the strictures of section 180,06. (6) When each of two public service utility entities. To preclude appellant under this section, appellee must whether eo�erntnental ['*li] or private, have a legal be actually operating within or adjacent to the annexed basis for the t hint of a right to provide similar services area. Such has not been shown in this record. Ability in the same territory and each has the present ability to pramptiy and efficiently do so, that entity with the ear, or capacity to operate in or adjacent to the annexed area Best acquired (prior) legal right has the exclusive legal is not sufficient, under this statute, to deny the munici- 1 right to provide service in that territory without interfer Paltty the right to extend its water and sewer lines. ence from the entity with the later acquired (subsequent) The majority believes, as I do, that one who makes an claim of right. investment in reliance on a certificate deserves economic AFF[R.MED, protection. nl To provide this protection the majority f recognizes an exclusive franchise area. This, however, s DISSENTBY: HARRIS permits the Public Service Commission, by granting a service area to a private company, even within the mu - DISSENT: nicipality, [**19] n2 to exclude future municipal de- HARRIS, J., dissenting. velopment. This indirectly permits the Public Service Commission to regulate the service and service area of I would like to concur in the majority opinion because the municipality contrary to the express exemption con- i believe that the regulatory scheme devised by the trial tained in the statute. court and approved by the majority is fairer than the one enacted by the legislature. Under the majority's wa- ter and wastewater system plan, the franchisee is given an exclusive area which cannot be encroached upon by anyone so long as it services or is capable [*226] of servicing the area. Unfortunately the legislative plan is different and 1 believe controls. n1 I urge that this protection should come from the legislature. n2 § 367.021(10), Fla. Stat. (1989). Under chapter 367 there is no authority for the Public I would REVERSE. i 2ND CASE of Level 1 printed in FULL format. Leonard COHSE and Glenn Cohee, on behalf of themselves and all other persons similarly situated, Appellants, v. CRESTRIDGE UTILITIES CORP., Appellee No. 75-212 Court of Appeals of Florida, Second District 324 So. 2d 155; 1975 Fla, App. LEXIS 19035 December 23, 1975 COUNSEL: [**I] D. Russell Stahl, Tampa, for Appellants. H. James Parker, Delzer, Edwards & Martin, Port Richey, for Appellee. Ravmond E. 4'esterby, Tallahassee, for Florida Public Service Commission, Amicus Curiae. JUDGES: Grimes, Judge. Boardman, Acting C.J., and Scheb, J., concur. OPINIONBY: GRIMES OPINION: [*156] This case involves the question of whether jurisdiction to pass upon the subject matter of the suit rests in the circuit court or in the Public Service Commission. In 1965, Dixie Gardens, Incorporated, as the devel- oper, entered into a contract with Crestridge Utilities Corporation whereby Crestridge was granted the exclu- sive right to provide water service to the property in Crestridge Gardens Subdivision for a period of thirty years. The two corporations were related at least to the extent that the same persons signed the contract as corporate officers of both parries. After specifying that Crestridge should lay and maintain water lines within the described propcny. the contract stated in part: 11 . . . The Contractor shall have the exclusive right to supply the water to all lots and it shall be entitled to receive a rninirnurn of Five and No/100 ($5.00) Dollars per month for [**2] such service, which will entitle each lot owner the right to a reasonable use of water, it being understood that if any lot owner or an occupant shall consistently insist on using an excess amount of water and cause waste that the Contractor shall have the right to shut-off the water until definite agreement is obtained l that the use of said water %vial be limited to reasonable use. This provision is in the interest of the public health Page 8 and safety. Said monthly charge of Five and No/100 ($5.00) Dollars shall remain in effect on all lots which once is occupied by a home. If any lot owner or occu- pant wastes or uses water in excess the Contractor shall have the right to install a meter on said lot and charge on a metered basis with charges commensurate with other charges in the same general vicinity." The provision quoted above was restated as a part of the Crestridge Gardens restrictions which were recorded as covenants running with the land. In early 1970, Crestridge installed meters on all of the houses of home- owners in Crestridge Gardens Subdivision and began imposing charges for water service on a metered basis in excess of $5.00 per month. The plaintiffs/appellants [**3] brought a class ac- tion seeking damages for breach of contract on behalf of themselves and all other homeowners in Crestridge Gardens Subdivision alleging that since none of the homeowners were wasting water, Crestridge was in vio- lation of its contract by making monthly charges for wa- ter which averaged $12.00 per homeowner. As one of its defenses, Crestridge asserted that jurisdiction of this matter rested solely with die Public Service Commission, because on March 8, 1973, it had received a water certificate from that body after the Board of County Commissioners of Pasco County had adopted a resolu- tion which made the provisions of the Water and Sewer Regulatory Law effective in Pasco County. The court entered a summary judgment for Crestridge on the basis that the Public Service Commission had exclusive ju- risdiction of the issues raised in the pending litigation. ni ni Since it was not raised below, this court ex- presses no opinion at this time on whether the case should have been transferred to the county court pur- suant to RCP 1.060 on the premise that no claim r 99- 0V Page 9 Q24 So, 2d 155, *156; 1975 Fla. App. LGXIS 19035, **3 of any single homeowner exceeded the minimum amount necessary for circuit court jurisdiction. See Curtis Publishing Conrpan�� r. Bader, FIa.App.3d, n2 All statutory citations in this opinion shall re- fer to the latest edition of Florida Statutes since the 1972, 266 So.2d 78. relevant portions of the statutes in question have re- mained unchanged at all times pertinent to the deci- [**a] Sion. At the outset it should be noted that this is not the first dispute Crestridge has had with a property owner over rates for utility services. In Sloane v Nixie Gardens, Inc., Fla.App.2d. 1973, 274 So. 2d 309. this court con- sidered the eft'ect of the action of Crestridge in charging 52.25 per month for garbage collection when the con- tract between (* 157] Crestridge and Dixie Gardens, Inc. provided for it fee of S 1.75 per month. This court di- rected the trial judge to determine upon what authority Crestridge sought to make a charge in excess of the con- tract price. While the posture of that case ",as somewhat different, the following portion of this court's opinion may bear on the instant case: "The basic question is whether developers of prop- erty can provide for the furnishing of essential services and bind the owners of lots to pay for them. We think they can. We find no contravention of public policy in the agreement. Sloane's argument that it constitutes a monopoly void as against public policy is without merit. Garbage collection is essential to a well -run community, and may be treated as an exclusive franchise just as the furnishing of telephone service and electric [**5] power are. "1Ve point out that the present litigation involves re- lationships between private persons and a local utility corporation associated with the developer of the land. 11e are not called upon to determine the right of public authority to regulate or supersede the service . . As a result of the Pasco County Commission reso- lution and the Public Service Commission order grant- ing the water certificate, the operation of Crestridge's water service is now clearly under the jurisdiction of the Public Service Commission. Fla.Stat. § 367,171 (1973). n'_ Thus, Crestridge argues that the issuance of the water certificate was tantamount to the approval of the water rates which were being charged when the certificate was issued. On the other hand, the plaintiffs contend that the courts rather than the Public Service Commission havejurisdiction since the plaintiffs' claims are for breach of contract. in support of their position they point to Fla.Stat. 5 367.011(4)(1973) which pro - that Chapter 367 (the Water and Sewer Regulatory Lary I "shall not impair or take away vested rights other than procedural rights or benefits." [**6l The Supreme Court in Miami Bridge Co. v. Railroad Commission, 1944, 155 Fla. 366, 20 So. 2d 356, stated: "The State as an attribute of sovereignty is endowed with inherent power to regulate the rates to be charged by a public utility for its products or service. Contracts by public service corporations for their services or prod- ucts, because of the interest of the public therein, are not to be classed with personal and private contracts, the impairment of which is forbidden by constitutional provisions. 16 C.I.S. Constitutional Law, pp. 766-773, § 327." Therefore, despite the fact that Crestridge had a pre-existing contract concerning its rates, now that Crestridge is under the jurisdiction of the Public Service Commission, these rates may be ordered changed by that body. The Public Service Commission has authority to raise as well as lower rates established by a pre-existing contract when deemed necessary in the public interest. State v. Burr, 1920, 79 Fla. 290, 84 So. 61. As the criterion for setting the rates, Fla.Stat. § 367.081(2) (1973) provides: "(2) The commission shall, after notice and hearing, either upon request or upon its own motion, [**7] fix rates which are just, reasonable, compensatory, and not unjustly discriminatory. In all such proceedings, the commission shall consider the value and quality of the service and the cost of providing the service, which shall include, but not be limited to, debt interest, the utility's requirements for [*158] working capital, maintenance, depreciation, tax and operating expenses incurred in the operation of all property used and useful in the pub- lic service, and a fair return on the utility's investment in property used and useful in the public service. The commission shall also consider the utility's investment in property required by duly authorized governmental authority to be constructed in the public interest within a reasonable time in the future, not to exceed twenty-four months. " Therefore, it would appear that the Commission would 9 9 M L L i Page; 324 So. 2d 155, ' 158: 1975 Fla. App. LEXIS 19035, ••7 not even be authorized to take into consideration the by Fla.Stat. § 367.081 (1973). pre-existing contract in its determination of reasonable rates. However, the question we must decide is whether In its brief, the Commission also states that it do the trial coon had jurisdiction to detcnnine whether not have jurisdiction to detctTrtine the legality of an Crestridge breached its contract when it raised the rates. crease which took place prior to its jurisdictional d:: but concludes with this statement: Because of this Court's concern that our opinion [•'8] might affect the jurisdiction of the Florida Public "If, [••9) however, a court of competent jurisdicu< Service Commission, w order was entered affording the were to find that the rates being charged and collecte Corrunission an opportunity to express its views through on the jurisdictional date were unlawful because the the tiling of an amicus curiae brief. The Commission were in violation of a presidential freeze, contract, dee chose to file such a brief in which it stated that its is- restriction, municipal ordinance, or county regulator suance of the water certificate to Crestridge did not con- law, we do not believe such rate can lawfully be grant stitute the setting of rates. The Corrunission asserts that fathered in. it merely approved what it believed to be the rates which were bcing charged and collected on the jurisdictional The plaintiffs are entitled to an adjudication of whethe date. F1a.Stat. § 367.171 (1973) lends support to this Crestridge breached its contract by going to the highe view because it indicates that once a county commission rates. This can only be accomplished in a court of lark has resolved to come within the provisions of the chap- Cf. Stare ex rel. McKemie v Willis, Fla.1975, .3A ter, any utility then engaged in the operation of a water So.?d 1. Accordingly, the surimiary judgment is re system can receive a certificate by filing an application versed, and the case is remanded for further procceding: together with a map of its existing system, a description consistent with this opinion. of the area served and the appropriate fee. Thus, it ap- pears that there has been no rate hearing as contemplated BOARDMAN, Acting C.l., and SCHEB, L, concur. { Page 29 475 U.S. 260 printed in FULL format. FISHER ET AL. v. CITY OF BERKELEY. CALIFORNIA, ET AL. No. 84-1538 SUPREME COURT OF THE UNITED STATES 475 U.S. 260. 106 S. Ct. 1045, 1986 U.S. LEXIS 12: 89 L. Ed. 2d 206: 54 U.S.L.W. 4222; 1986•1 Trade Cas. (CCH) P66,965 November 12, 1985, Argued February 26, 1986, Decided PRIOR HISTORY: [***I] CORE TERMS: ordinance, rent, antitrust, landlord, APPEAL FROM THE SUPREME COURT OF Sherman Act, charter, concerted, ceiling, conspiracy, CALIFORNIA. pre-empted, rental, anticompetitive, wine, residential, municipality, exemption, unilaterally, pre-emption, fix - DISPOSITION: 37 Cal. 3d 644, 693 P. 2d 261, af- ing, obey, municipal, housing, unilateral, initiative, ex- frrmed. empt, fix. tenants, retailer, price-fixing, producer < =2> View References < =3> Turn Off Lawyers' Edition Display } DECISION: City ordinance imposing rent ceilings on residential real property held not unconstitutional as being pre-empted by Sherman .Act. SUMMARY: The City of Berkeley, California, adopted an ordinance imposing rent ceilings on residential real property. Landlords owning rental property brought suit in the Superior Court of Alameda County, California, and sought declaratory and injunctive relief on the grounds of alleged violations of their federal constitutional rights, under the due process and equal protection clauses of the Fourteenth Amendment. The Superior Court held the ordinance not unconstitutional on its face. The California Supreme Court affirmed, holding not only that the ordinance did not violate the Fourteenth Amendment, but also that the ordinance was not pre-empted by the federal antitrust laws (37 Cal 3d 644, 209 Cal Rprr 682, 693 P2d 26P). On appeal, the United States Supreme Court affirmed. In art opinion by Marshall, J., joined by Burger, Ch. J., and White, Blackmun, Rehnquist, Stevens, and O'Connor, JJ., it was held that because the rent controls were unilaterally imposed by government upon landlords to the exclusion of private control and lacked concerted action, they could not be characterized as a per se violation of 1 of the Sherman Act (15 USCS 1). and the: ordinance could not be held facially inconsistent with the federal antitrust laws. Powell, J., concurred in the judgment on the grounds that because the stale legislature had express[%, authorized Berkeley to control rents, the rent control ordinance fell tcithin the "state action" exemption from the federal antitrust laws. Brennan, J., dissented on the grounds (1) that the rent control ordinance facially conflicted with the Sherman Act because the ordinance mandated price fixing, a per se violation of the Sherman Act, and involved a combination between the City of Berkeley and its officials on the one hand, and the landlords on the other hand. and t2t that the ordinance did not fall within the "state action" exemption from the antitrust laws. LEXIS HEADNOTES - Classified to U.S. Digest Lawyers' Edition: =6> MUNICIPAL CORPORATIONS §36 9 9 - 720 475 U.S. 260, *; 106 S. Ct. 1045. **; 1986 U.S. LEXIS 12, ***1; 89 L. Ed. 2d 206 <=7> RESTRAINTS OF TRADE, MONOPOLIES, AND UNFAIR TRADE PRACTICES § 10 ordinance imposing rent ceilings -- lack of concerted action or conspiracy -- Page 30 LEXSEE Headnote: <=3> JIA1 <=9> 1113) <=10> 11C1 <=11> (IDJ <=12> JIE) <=13> [IF] <=14> JIGi A city ordinance imposing rent ceilings on residential real property is not unconstitutional as pre-empted by 1 of the Sherman Act (15 USCS 11, where such rent controls are unilaterally imposed by government upon landlords to the exclusion of private control and lack concerted action, and where the ordinance, adopted by popular initiative, cannot be viewed as a cloak for ;ins 1)rice-11- Inc conspiracy anurtte landlords or bctaeen landlords and the cite: the mere fact that all competing property owners must comply with the same provisions of the ordinance does not establish a conspiracy among landlords. (Brenn.ui, J., dissented from this holding.) < =16 > RESTRAINTS OF TRADE, 'MONOPOLIES, AND UNFAIR TRADE PRACTICES § 10 concerted action. -- conspiracy -- Headnote: < =17 > 121 A restraint imposed unilaterally by government does not become concerted action, within the meaning of i of the Sherman Act (15 USCS 1), simply because it has a coercive effect upon parties who must obey the law; the ordinary relationship bctween the government and those who must obey its regulatory commands whether they wish to or not is not enough to establish a conspiracy. (Brennan, J.. dissented from this holding.) <=19> RESTRAINTS OF TRADE, MONOPOLiES, AND UNFAIR TRADE PRACTICES §10 unilateral action -- Headnote: <=20> 131 Not all restraints imposed upon private actors by government units necessarily constitute unilateral action outside the purview of I of the Sherman Act (15 USCS 1), where private actors are granted a degree of private regulatory power, the regulatory scheme is subject to attack under 1. SYLLABUS: A Berkeley, California, ordinance, en- acted pursuant to popular initiative, imposes rent ceil- ings on residential real property in the city. The rent ceilings are under the control of a Rent Stabilization Board. Appellant landlords brought suit in California Superior Court challenging the constitutionality of the ordinance on Fourteenth Amendment grounds and seek- ing declaratory and injunctive relief. The Superior Court upheld the ordinance but %vas reversed by the California Court of Appeal. In the meantime, based on the inter- vening decision in Community Communications Co. v. Boulder, 455 U.S. 40, the question arose as to whether the ordinance was unconstitutional because it was pre- empted by the Sherman Act. The California Supreme Court held that there was no conflict between the ordi- nance and the Sherman ,Act. Held: The ordinance is not unconstitutional as being pre-empted by the Sherman Act. Pp. 264.270, (a) The rent ceilings established by the ordinance and maintained by the Rent Stabilization Board were uni- laterally imposed by the city [**#2] upon landlords to the exclusion of private control. Thus, the rent ceilings lack the element of concerted action needed before they can be characterized as a per se violation of § 1 of the Sherman Act. A restraint imposed unilaterally by gov- ernment does not become concerted action within the meaning of § i simply because it has a coercive effect upon parties who must obey the law. And the mere fact that all competing landlords must comply with the or- dinance is not enough to establish a conspiracy among landlords. Pp. 265-267. (b) While the ordinance gives tenams some power to trieeer its enforcement. it places complete con- trol over maximum rent le%els e\clusively in the Rent Stabilization Board's hands. Schweentann Bros, v. Culvert Distillers Corp., 341 U.S. 384, and California Retail Li(luor Deaiers Assn. v. ,11hlcu1.41tnttituu», Inc., 445 U.S. 97, distinguished. I'll. 267-270. COUNSEL: Jon D. Smock arpud the cause for appel- lants. On the briefs were James R. Parrinello, John E. Mueller, and Peter J. Donnici. Laurence H. Tribe argued the cause for appellees. With hint on the brief were Kathleen .M. Sullivan, Myron i Page 31 j 475 U.S. 260. *; 106 S. Ct. 1045, " LEXSEE 1986 U.S. LEXiS 12, ***2; 89 L. Ed. 2d 206 Moskovitz, and Manuela Albuquerque. {***31 * 1"10471 "The purposes of this Ordinance are to reg- * Briefs of amici curiae urging reversal \+ere filed elate residential rent increases in the City of Berkeley for the California Housing Council, Inc., by Carla and to protect tenants from umvarranted rent increases A. Hills and �4'illiarn C'. Kelly, Jr ; for the Mid- and arbitran, discriminaton. or retaliatory evictions, in America Legal Foundation by John M. Cannon' order, to help maintain the di\ ersu\ of the Berkeley com- Susan W. Wanat, and Ann I'lunketr Shcldcn; for nnann\' and to ensure cumpli:uue +k ith legal obligations the Pacific Legal Foundation ei al. by Ronald relating to the rental ofhousing. This legislation 1***51 A. 7_urnbrun and Robert K. i3cst; and for the is designed to address the City of Qerkcley's housing 1�ashington Legal Foundanun b\ Uaniel J. Popco crisis, pre\cne the public peace. hr:ilth and safety, and and Paul D. Kamenar. advance the housing policies of the City with regard to low and fixed income persons. minorities, students, Briefs of amici curiae urging affirmance were handicapped, and the aged." App. to Juris. Statement filed for the State of New Jersey Department of the A-111. Public Advocate by Richard E. Shapiro; and for the United States Conference of Mayors et a{. by Benno n 1 In 1982, while this case was pending in Ruth Solomon, Joyce Holmes Benjamin, Stephen the California Court of Appeal, the Berkeley elec- Chapple, and Cynthia M. Pols. torate enacted the "Tenants' Rights Amendments Briefs of amici curiae were filed for the City and Act of 1982," revising certain sections of the 1980 County of San Francisco by George P. Agnost and Ordinance. Like the California Supreme Court, we Burk E. Delventhal: for the City of Santa Monica review the Ordinance as amended, see 37 Col. 3d et al. by Robert M. Myers, Stephen S. Stark, Karl 644, 654. it. 2. 693 P. 2d 261, 270, n. 2 (1954), all M. Manheim, Raymond E. Ott, and K. D. Lyders; reference herein will therefore be to the 1982 version for the Berkeley Property Owners' Association by of the Ordinance. Thomas A. Seaton; for the California Apartment Association by Jon D. Smock, Wilbur H. Haines III, To accomplish these goals, the Ordinance places strict and Jeffrey J. Gale; for the Coalition for Competition rent controls on all real property that "is being rented in Apartment Rentals by E. Barrett Prettyman, Jr., or is available for rent for residential use in whole or in and Elwood S. Kendrick; and for the National part," § 5, id., at A-113. Excepted are government - Apartment Association et al. by Jon D. Smock. owned units, transient units, cooperatives, hospitals, certain small 1***61 owner -occupied buildings, and all JUDGES: MARSHALL, J., delivered the opinion newly constructed buildings. For the remaining units, of the Court, in which BURGER, C. J., and numbering approximately 23,000, 37 Cal. 3d 644, 678, WHITE, BLACKMUN, REHNQUiST, STEVENS, and 693 P. Zd 261. ZSS (1984), the Ordinance establishes a O'CONNOR,IJ., joined. POW ELL,1., filed an opinion base rent ceiling reflecting the rents in effect at the end concurring in the judgment, post. p. 270. BRENNAN, of May 1980. A landlord may raise his rents from these J., tiled a dissenting opinion, post, D. 274. levels only pursuant to an annual general adjustment of rent ceilings by a Rent Stabilization Board of appointed OPINIONBY: t\1ARSHALL commissioners or after he is successful in petitioning the Board for an individual adjustment. A landlord who fails OPINION: [*261 J [** 10461 JUSTICE MARSHALL de to register \with the Board units cu+ered by the Ordinance livered the opinion of the Court. The question presented or who fails to adhere 1 �3631 to the maximum allowable here is \vhether a rent control ordinance enacted by a rent set under the Ordinance ma\ be tined by the Board, municipality pursuant to popular initiative is unconsti- shed by his tenants, or have rent legally withheld from tutional because pre-empted by the Sherman Act. him. !f hi; violations are wilitul, he may face criminal penalties. I Shortly after the passage of' the initiative, appellants, In June 1980, the electorate of the city of Berkeley, a group of landlords owning rental property in Berkeley, 7 California, enacted an initiative entitled "Ordinance brought this suit in California Superior Court, claiming, 5261-N. S., Rent Stabilization and Eviction for Good inter alia. than the Ordinance violates their rights under Cause Ordinance" 1*2621(hereafter Ordinance). Section the Due Process and Equal Protection Clauses of the 3 of the Ordinance stated the measure's purposes: nl Fourteenth Amendment, :nut seeking declaratory 1-71 and injunctive relief. The Superior Court upheld the L 1 Page 32 46 U.S. 260. *263, 106 S. Ct. 1045. ** 1047: LEXSEE 1986 U.S. LEXiS 12, ***7: 89 L. Ed. 2d 206 Ordinance on its face, but was reversed by the Court of I Appeal. While that appeal was pending, however, this s Court's decision in Community Communications Co. v. Boulder, 455 U.S. 40 f19S2)• led cenain antici to raise the question whether the Ordinance was unconstitutional because pre-empted by the federal antitrust laws. When j the California Supreme Coun heard the appeal from the Coun of Appears decision, it therefore chose to consider plaintiffs' pre-emption claim along with their Fourteenth Amendment challenge. Although fully briefed on the question whether the Berkeley Ordinance constitutes state action exempt from antitrust scrutiny under the standard established in Boulder, supra, the California Supreme Coun noted that consideration of this issue would become neces- sary only were there to be "'truip• a conflict between the Sherman. Act and the challenged regulatory scheme,'" 37 Cal. 3d, at 660, 693 P 2 d, at 275 (quoting First American Title Co. v. South Dakota Land Title Assn., 714 F.2d 1439. 1452 (CAS 1983), cert. denied, [***8] 464 US. 1042 (1954)). Such a conflict would exist, the Supreme Coun concluded, only if the Ordinance on its face mandated conduct prohibited by either § 1 or § 2 of the Sherman Act. See Rice v. Nonnan Williams Co., 458 U.S. 654, 661 (1982). After reviewing the two "traditional standards" that have consistently been used to determine whether conduct violates § 1 of the Sherman Act -- the per se rules and the rule of reason, see [*264] National Society of Professional Engineers v. United States, 435 US. 679, 692 (1978) -- the court concluded that both standards, with their exclusive fo- cus on competition and concern for the selfish motives of private actors, failed to give due deference to a munici- pality's legitimate [**10481 interest in promoting public health, safety, and welfare. 37 Cal. 3d, at 667-673, 693 P. 2d, at 280-285. The Supreme Court therefore found both standards inappropriate and proceeded to apply a standard of its own devising, based upon this Court's Commerce Clause cases. Applying this test, the court found no conflict between the Ordinance and either [***91 § I or § 2 of the Sherman Act. We noted probable jurisdiction limited to the antitrust pre-emption question, .171 US. 112.1 (1985), and now affirm, alihougl-i on grounds different from those relied on by the California Supreme Court. While that court was correct in noting that consideration of state action is not necessary unless an actual conflict with the antitrust laws is established, we find traditional antitrust analysis adequate to resolve the issue presented here. 11 We begin by noting that appellants make no claim under either § 4 or § 16 of the Clayton Act, 15 U. S. C. §§ 15 and 26, that the process by which the Rent Stabilization Ordinance a ns passed renders the Ordinance the product of an illegal "contract, combina- tion . . . , or conspiracy." Appellants instead claim that, regardless of the manner of its enactment, the regulatory scheme established by the Ordinance, on its face, con- flicts with the Sherman Act and therefore is preempted. Recoenizing that the function of government may of- ten be to i.miper with free markets. correctin-o their fail- ures and aiding their victims, this Court noted in Rice i•. Norman Williams Co., supra, that 1-101 a "state statute is not pre-empted by the federal antitrust laws simply because the state scheme may have an anticom- petitive effect," id., at 659. See Exxon [*2651 Corp. v. Governor of Man•land, 437 U.S. 117, 133 (1978). 'We have therefore held that a state statute should be struck down on pre-emption grounds "only if it mandates or au- thorizes conduct that necessarily constitutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to violate the antitrust laws in order to comply with the statute." 458 U.S., at 661. While Rice involved a state statute rather than a mu- nicipal ordinance, the rule it established does not distin- guish between the two. As in other pre-emption cases, the analysis is the same for the acts of both levels of gov- ernment. See, e. g., White y. Massachusetts Council of Constrtiction Employers, Inc.. 460 U.S. 204 (1983). Only where legislation is found to conflict "irreconcil- ably" with the antitrust laws. Rice• supra, at 659, does the level of government responsible for its enactment become important. 1***1 11 Legislation that would oth- erwise be pre-empted under Rice may nonetheless sur- vive if it is found to be state action immune from an- titrust scrutiny under Parker v. Brown, 317 U.S. 341 (1943). The ultimate source of that immunity can be only the State, not its subdivisions. See Community Communications Co. v. Boulder, supra, at 50-51; Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 412-413 (1978) (opinion of BRENNAN, J.). A Appellants argue that Berkeley's Ordinance is pre- empted under Rice because it imposes rent ceilings across the entire rental market for residential units. Such a regime, they contend, clearly falls .within the per se rule against price fixing, a rule that has been one of the settled points of antitrust enforcement since the earli- est days of the Sherman Act, see Arizona v. Maricopa Counr%, Medical Society, 457 U.S. 332, 344-348 (1982); United States r. Soconv-litciutm Oil Co.. 310 U.S. 150. 218 (1940). 1**10491 That the prices set here are ceil- ings rather than floors and that the public interest has been invoked 1*** 121 to.lusiify this stabilization should 99-- "r2A 475 U.S. 260, *265; 100 S. Ct. 1045. **1049: 1986 U.S. LEXiS 12, *"* 12: 89 L. Ed. 2d 206 i not, appellants [*2661 argue, save Berkeley's regula-tory scheme from condemnation under the per se rule. Certainly there is this much truth to appellants' argu- ment: Had the owners of residential rental properly in Berkeley voluntarily banded together to stabilize rents in the city, their activities ,vould not be saved from an- titrust attack by claims that they had set reasonable prices out of solicitude for the welfare of their tenants. See Vational Sociery cf 1'ro('sstonal Est;inccr v C%nirc,l States, supra, at 695; Untied States i. Trans -,Missouri Freight Assn., 166 U.S.: 90 (1897). Moreover, it can- not be denied that Berkeley's Ordinance \till affect the residential housing rental market in much the same \vay as would the philanthropic activities of this hypothetical trade association. What distinguishes the operation of Berkeley's Ordinance from the activities of a benevolent landlords' cartel is not that the Ordinance will neces- sarily have a different economic effect, but that the rent ceilings imposed by the Ordinance and maintained by the Rent Stabilization Board have been unilaterally imposed [***13] by government upon landlords to the exclusion of private control. The distinction between unilateral and concerted action is critical here. Adhering to the j language of § 1, this Court has always limited the reach of that provision to "unreasonable restraints of trade ef- fected by a 'contract, combination . . . , or conspir- acy' between separate entities." Copperweid Corp. v. Independence Tube Corp., 467 US. 752, 768 (1984) (emphasis in original). VVc have therefore deemed it "of considerable importance" that independent activity by a single entity be distinguished from a concerted effort by more than one entity to fix prices or otherwise restrain trade, Monsanto Co. v. Spray -Rite Sen-ice Corp., 465 U.S. 752, 763 (1984). Even where a single ftrm's re- straints directly affect prices and have the same economic effect as concerted action might have, there can be no liability under § i in the absence of agreement. Id., at 760-761; United States v. lbrke, Danis 1*2671 & Co., 362 U.S. 29, 44 (1960). Thus, if the Berkeley Ordinance stabilizes rents without this element of concerted action, [***14] the program it establishes cannot run afoul of § 1. Recognizing this concerted -action requirement, ap- pellants argue that the Ordinance "forms a combination between [the city of Berkeley and its officials], on the one hand, and the property owners on the other. It also creates a horizontal combination amone the landlords." Reply Brief for Appellants 10, n. 7 In so arguing, appellants misconstrue the concerted -action requirement of § 1. A restraint imposed unilaterally by government does not become concerted action within the meaning of the statute simply because it has a coercive effect % upon parties who must obey the law. The ordinary re- lationship between the goveniment and those who must obey its regulatory commands whether they wish to or Page 33 LEXSEE not is not enough to establish it conspiracy. Similarly, the mere fact that all competing property owners must comply kith the same provisions of the Ordinance is not enough to establish it conspiracy among landlords. Under Berkeley's Ordinance, control oycr the maximum rent levels of every affected residential unit has been unilaterally removed from the owners of those proper- ties and given to the Rent Stabilization Board. While 1-151 the Board may choo.c to respond to an indi- vidual landlord's petition for it special adjustment of a particular rent ceiling, it may decide not to. There is no meeting of the minds here. See American Tobacco Co. v. United States, 328 U.S. 781. 810 (1946), quoted in Monsanto, supra, at 764. The owners of residential property in Berkeley have no more freedom to resist [**10501 the city's rent controls than they do to vio- late any other local ordinance enforced by substantial sanctions. B Not all restraints imposed upon private actors by eovernment units necessarily constitute unilateral ac- tion outside the purview of 3 1. Certain restraints may be characterized as 1*2681 "hybrid," in that nonmar- ket mechanisms merely enforce private marketing deci- sions. Sec Rice t. Norman Williams Co., 458 U.S., at 665 (STEVENS, J.. concurring in judgment). Where private actors are thus granted "a degree of private reg- ulatory power," id., at 666, it. 1, the regulatory scheme may be attacked under § 1. Indeed, this Court has twice found such hybrid restraints to violate the Sherman Act. See Schwegmann Bros. v. Calrert Distillers Corp., 341 U.S. 384 (1951)° [***161 California Retail Liquor Dealers Assn. v. afidcal Aluminum, Inc., 445 U.S. 97 (1980). In Schwegmann, a Louisiana statute authorized a dis- tributor to enforce agreements fixing minimum retail prices not only against parties to such contracts, but also against retailers who sold the distributor's products without having agreed to the price restrictions. After finding that the statute went far beyond the now -repealed Miller-Tydings Act. which offered a limited antitrust ex- emption to certain "'contracts or agreements prescribing minimum prices for the resale— of specified commodi- ties, the Court held that mo liquor distributors had vi- olated a I when thev attempted to hold a retailer to the price-fixing terms of a contract it had refused to sign. In so holding, the Court noted that "when a state compels retailers to follow a parallel price policy, it demands private conduct which the Sherman Act forbids." 341 U.S, at 3S9. However, under the Louisiana statute, both the selection of minimum price levels and the exclusive power to enforce those levels were left to the discre- tion oi' distributors. While the pettoner-retailer in that 1***171 case may have been legally required to adhere to D9- 761A J 15 U.S. 260, *268; 106 S. Ct. 1045, **1050; 1980 U.S. LEXIS 12, ***17; 89 L. Ed. 2d 206 the levels so selected, the involvement of iris suppliers in setting those prices made ii impossible to characterize the regulation as unilateral action by the State of I-ouisiana. The trade restraint condemned in MKIVal entailed a similar degree of free participation by private economic actors. That case presented an arintnist challenge to California's requirement that all wine producers, whole- salers, and rectifiers 1*2691 file fair trade contracts or price schedules with the State. if a wine producer did not set prices, wholesalers had to post a resale price sched- uie for that producer's brands. No stare -licensed wine merchant could sell wine to a retailer at other than those prices. 445 US., at 99. The Court found: "California's system for wine pricing plainly constitutes resale price maintainance in violation of the Sherman .Act . . . . The wine producer holds the power to prevent price competition by dictating the prices charged by whole- salers.' Id., at 103. Here again, the mere existence of legal compulsion did not turn California's scheme into unilateral action by the State. The [*** 181 Court noted: "The State has no direct control over wine prices, and it does not review the reasonableness of the prices set by wine dealers." Id., at 100. The hybrid restraints condemned in Schwegmann and Midcal were thus quite different from the pure regulatory scheme imposed by Berkeley's Ordinance. While the Ordinance does give tenants -- certainly a group of interested private parties -- some power to trigger the enforcement of its provisions, it places complete control over maximum rent levels ex- clusively in the hands of the Rent Stabilization Board. Not just the controls themselves but also the rent ceil- ings they mandate have been unilaterally imposed on the landlords by the city. C There may be cases in which what appears to be a state- or municipality -administered f **10511 price sta- bilization scheme is really a private price-fixing con- spiracy, concealed under a "gauzy cloak of state in- volvement," Alidcal, supra, at 106. This might occur even where prices are ostensibly under the absolute con- trol of government officials. However, we have been given no indication that such corruption has tainted the rent controls imposed by [***191 Berkeley's Ordinance. Adopted by popular initiative, the Ordinance can hardly be viewed as a cloak for any conspiracy among land- lords or between the landlords and the municipality. Berkeley's landlords have f *2701 simply been deprived of the power freely to raise their rents. That is why they are here. And that is why their role in the stabilization program does not alter the restraint's unilateral nature. n2 n2 Though they have not pressed the point with any Page 34 LEXSEE vigor in this Court, appellants have suggested that Berkeley's rent controls constitute attempted rnonop- olization because the city "is clearly engaged in the provision at' housing in the public sector" and us- ing the controls to depress the prices of residential properties as a prelude to taking them over. Tr. of Oral Arg. 14-15. As to this claim, we note only that the inquiry demanded by appellants' allegations goes beyond the scope of the facial challenge pre- sented here. See Rice v. Norman Williams Co., 458 U.S., at 661. 1***201 Because under settled principles of an- titrust law, the rent controls established by Berkeley's Ordinance lack the element of concerted action needed before they can be characterized as a per se violation of § i of the Sherman Act, we cannot say that the Ordinance is facially inconsistent with the federal antitrust laws. See Rice %-. Norman Williams Co., supra, at 661. We therefore need not address whether, even if the controls were to mandate § I violations, they would be exempt under the state -action doctrine from antitrust scrutiny. See Hallie v. Eau Claire, 471 U.S. 34 (1985). The judgment of the California Supreme Court is Affirmed. CONCURBY: POWELL CONCUR: JUSTICE POWELL. concurring in the judg- ment. The Court today reaches out to decide a difficult preemption question when a straightforward and well - settled ground for decision is available. In my view, Berkeley's Ordinance plainly falls within the "state ac- tion" exemption of Porker v. Brown, 317 U.S. 341 (1943), and its progeny. 1 therefore concur in the judg- ment, but on grounds different from those discussed in the Court's opinion. 1*2711 When a municipal 1`211 government en- gages in anticompetitive activity pursuant to a clearly articulated state policy to displace competition with reg- ulation, the "state action" exemption removes the con- duct from the coverage of the antitrust laws. Hallie v. Eau Claire, 471 U.S. 34, 3S-39 (1985); Community Communications Co. v. Boulder, 455 U.S. 40, 54 (1982). In Hallie, we found such a policy embodied in a state statute that "delegated to [municipalities[ the express authority to take action that foreseeably will re- sult in anti -competitive effects." 471 U.S., at 43. See also Lafgvetre v. Louisiana River S Light Co., 435 U.S. 9- "12U 14/5 U.S. 260, *271; 106 S. Ct. 1045, **1051; 1986 U.S. LEXIS 12, ***21; 89 L. Ed. 2d 206 389, 415 (1978) (opinion of BRENNAN, J.) ("IAnJ ad- equate state mandate for anticompetitive activities . . . exists when it is found 'from the authority given a gov- ernmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of'") (citation omitted). Thus, the question in this case is whether California has expressly delegated to Berkeley regulatory power that foresceably would lead to the an- ticompetitive effects challenged by appellants. 1***221 The history of Berkeley's ordinance is illuminating. Prior to 1974, Article XI, § 3, i** 10521 of the California Constitution ill required the state legislature to approve all changes in municipal charters. In 1972, in a city- wide initiative, Berkeley's citizens approved a charter amendment authorizing rent [*2721 control. This char- ter amendment effectively froze rents at 1971 levels, subject to individual adjustments by a popularly elected rent control board. Birkenfeld r. Cite of Berkeley. 17 Cal. 3d 129, 138, 550 P. 2d 1001, 1008 (1976). The California Legislature ratified the charier amendment on August 2, 1972, and the rent control plant went into ef- fect. 1972 Cal. Stat. 3370. A group of landlords challenged the rent control plan on a number of con- stitutional and statutory grounds. In tine ensuing litiga- tion, the California Supreme Court invalidated the plan on the ground that it lacked procedural safeguards neces- sary to protect landlords from confiscatory rent ceilings. n2 Birkenfeld, supra, at 170-172, 550 P 2d, at 1030- 1032. in 1980, in another initiative, Berkeley's citizens adopted [***23] the ordinance at issue in this case. This Ordinance provided the procedural protections that the 1972 charier provision lacked, and it subsequently sur- vived constitutional challenge in state court. 37 Cal. 3d 644, 679-691, 693 P. 2d 261, 289-298 (1984). nl When Berkeley's charter amendment was passed in 1972, Article XI, § 3(a), of the California Constitution read: "For its own government, a county or city may adopt a charter by majority vote of its electors vot- ing on the question. The charier is effective when filed with the Secretary of State. A charter may be amended, revised, or repealed in the same manner. A charter, amendment, revision, or repeal thereof shall be published in the official state statutes. . . . The provisions of a charier are the law of the State and have the force and effect of legislative enactments." This provision was construed to require that charier amendments be approved by concurrent resolution of both houses of the state legislature. Birk -en {feld v. City of Berkeley, 17 Cal. 3d 129, 137, it. 2, 550 P. 2d 100/. 1007. n. 2 (1976). 1***241 Page 35 LEXSEE n2 The 1972 charter provision permitted individ- ual adjustments of the across-the-board rent ceiling only on a unit -by -unit basis, and only after a hearing on (lie particular unit whose rent was to be raised. The California Supreme Court found that this limi- tation "put the Irent control board] in a procedural strait jacket," tnld "unnecessarily (precluded] reason- ably prompt action" on meritorious petitions by land- lords. Birk -enfold, supra, at /71, 172, .550 P. zd, of 1031, 1032. The challenged Ordinance thus replaces a rent control plan that was expressly authorized by the state legis- lature. Under Hallie, a general grant of authority to regulate rents would have sufficed to exempt Berkeley's Ordinance from the antitrust laws. 471 U.S., at 42. It foilows that the legislature's ratification of a partic- ular rent control plan must also trigger the state -action exemption. See ibid.; Boulder, supra, at 55-56. The remaining issue is whether the authority granted in 1972 remains intact. Appellants contend that it does not. First, [***25] ap- pellants argue that the California Supreme Court's deci- sion in Birkenfeld, 1*2731 invalidating the 1972 charter provision, effectively canceled the legislature's ratifi- cation of that provision. Birkenfeld did not, however, decide that rent control was bad policy, or that it was inconsistent with state law. See Birkenfeld, supra, at 159-164. 550 P. 2d, at 1023-1026 (finding that enact- ing a rent control plan was a permissible exercise of the city's police power); Note, 65 Calif. L. Rev. 304, 305 (1977) ("Birkenfeld offers California cities . . . the judicial equivalent of a rent control enabling act"). Rather, the decision stands only for the proposition that cities must couple rent control with procedures for ad- justing rent ceilings to avoid fixing rents at confiscatory levels, 17 Cal. 3d, at 167-173, 550 P. 2d, at 1028- 1033. Birkenfeld thus left Berkeley's basic power to impose rent controls unaffected. Second, appellants contend that since 1972 the state legislature has declared its neutrality respecting a city's decision to control rents. See Boulder, supra, at 55 [***261 1-10531 (clear articulation requirement is not satisfied "when the State's position is one of mere neu- trality respecting the municipal actions challenged as an- ticompetitive"). This argument rests on the passage in 1980 of a comprehensive planning and zoning law, one provision of'which states: � 99 - �% 1 Page 36 475 U.S. 260, *273; 106 S. Cf. 1045. ** 1053; LEXSEE 1986 U.S. LEXIS 12, `26; 89 L. Ed. 2d 206 "Nothing in this article shall be construed to he a grant of authority or a repeal of any authority which may exist of a local government to impose rent controls or restric- tions on the sale of real property." Cal. Goat. Code Ann. § 65589(b) (West 1983) (emphasis added). By its express terms this statute ICayes intact cities' preexisting authority to adopt rent control provisions. For purposes of the clear articulation requirement, Berkeley's preexisting authority is defined by the leg- islature's ratification of the city's 1972 charter amend- ment. For these reasons, I would find that Berkeley's Ordinance is exempt from the antitrust laws under our decisions in HaMe and Boulder. By ratifying Berkeley's charter amendment, the state legislature expressly autho- rized Berkeley to [*2741 control rents. The State has not since rescinded that authorization. That is all [°**271 we need decide in this case. I therefore concur in the judgment, and express no view on the merits of the pre-emption issue decided by the Court. DISSENTBY: BRENNAN DISSENT: JUSTICE BRENNAN, dissenting. Since Parker v. Brown, 317 U.S. 341 (1943), the Cour: has wrestled with the question of the degree to which federal antitrust laws prohibit state and local gov- ernments from imposing anticompetitive restraints on trade. Laws which impose such restraints have been held to be exempt from antitrust scrutiny if they consti- tute action of the State itseif in its sovereign capacity, or state -authorized municipal action in furtherance or im- plementation of clearly articulated and affirmatively ex- pressed state policy. See Community Communications Co. Y. Boulder, 455 U.S. 40, 52 (1982). "today, the Court holds that a municipality's price-fixing scheme is not pre-empicd by the federal antitrust laws whether or not the scheme is state -authorized, or funhers or imple- ments a clearly aniculated and affirmatively expressed state policy. Because today's decision discards over 40 years of carefully considered precedent, I respectfully dissent. I A Berkeley's Rent Stabilization 1`281 Ordinance (hereafter Ordinance) effectively fixes prices for rental units in the city of Berkeley. In Rice v. Norman Williams Co., 458 U.S. 654, 661 (1982), we held that a state statute may be condemned under the antitrust laws only if it mandates or authorizes conduct that necessarily consti- tutes a violation of the antitrust laws in all cases, or if it places irresistible pressure on a private party to vio- late the antitrust laws in order to comply with the statute. Such condemnation will follow under § I of the Sherman Act when the conduct contemplated by the statute is in all cases a per se violation." I*2751 In this case, by declaring maximum prices land- lords may charge, Berkeley's Ordinance irresistibly pressures landlords to fix prices for their rental units. Thus, the Ordinance "facially [conflicts] with the Sherman Act because it Imandates( [price fixing], an activity that has lone been regarded as a per se viola- tion of the Sherman Act." Id., at 659-660 (emphasis in original). The Court recognizes that the Ordinance imposes an- ticompetitive restraints on trade, and that it has the same effect on the (***291 housing market as would a con- spiracy by landlords to fix rental prices. Ante, at 266. Despite this, the Court holds that the Ordinance is not pre-empted by the Sherman Act because prices are fixed "unilaterally" (** 10541 by the city, rather than by "con- tract, combination, or conspiracy." I do not read our decisions necessarily to require proof of such concerted action as a prerequisite to a finding of pre-emption. Certainly, nothing we said in Rice supports such a nar- row view of pre-emption. nl Our other decisions have found statutes in conflict with the Sherman Act because they eliminated price competition in the relevant market. n l Rice held that a "state statute is not pre-empted by the federal antitrust laws simply because the state scheme might have an anticompetitive effect." 458 U.S., at 659. Rice involved a challenge to a California statute 0ich effectively allowed liquor distillers to control distribution of their products in the State. The Court concluded that because such vertical nonprice restraints ,are not per se illegal un- der the Sherman Act, see Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36 (1977), the statute was not pre-empted. 458 U.S., at 661; see also Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978); Joseph E. Seagram & Sons, Inc. v. Hostetter. 384 U.S. 35 (1966). In contrast, Berkeley's Rent Stabilization Board fixes prices for rental units in the city. Unlike nonprice restraints, price fixing has traditionally been held to be per se it- eJ ei r pI F✓ iJ Page 37 475 U.S. 260, *275; 106 S. Cl. 1045, ** 1054. LEXSEE 1986 U.S. LEX1S 12. ***29; 89 L. Ed. 2d 206 legal under the Sherman Act. See Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911). [***301 In California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97 (1980), a wine whole- saler sought to enjoin enforcement of a California statute which effectively [*2761 required it to sell wines at prices set by producers. The Court focused on the fact that the statute eliminated price competition, and held that the wine -pricing system constituted resale price maintenance in violation of the Sherman Act. The Midcal decision squarely controls the result here. Just as the statute chal- Ienged in Midcal compelled wine wholesalers to charge prices set by wine producers, Berkelcy's Ordinance com- pels landlords to charge prices set by the city. The city "holds the power to prevent price competition by dic- tating the prices charged" by landlords. Id., at 103. "[Such] vertical control destroys horizontal competition as effectively as if [landlords] 'formed a combination and endeavored to establish the same restrictions . . by agreement with each other.'" Ibid. (quoting Dr. Miles Medical Co. v. John D. Park & Sons Co., 2220 U.S. 373, 408 (1911)). Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951), [***31] is also directly on point. In Schwegmann, a Louisiana statute authorized liquor dis- tributors to enforce agreements fixing minimum retail prices on their products against retailers who had not agreed to the price restrictions. The Court held that the statutory scheme amounted to resale price maintenance, in violation of the Sherman Act. To paraphrase the Court in Schwegmann, 'when [the city] compels [landlords] to follow a paraflel price pol icy, it demands private conduct which the Sherman Act forbids." Id., at 389. "[When] [landlords] are forced to abandon price competition, they are driven into a compact in violation of the spirit of the proviso which forbids 'horizontal' price fixing." Ibid. (emphasis in original). B Even if I accepted the Court's analysis of the antitrust pre-emption issue, I would find a functional "combina- tion" in this case between the city of Berkeley and its officials, on the one hand, and the landlords on the other -- a combination that operates to fix prices for rental units in Berkeley. To reach a contrary result, the Court simply states a conclusion -- that 1*2771 "[al restraint im- posed unilaterally by government [***321 does not be- come concerted action within the meaning of the statute simply because it has a coercive effect upon parties who must obey the law.' Ante, at 267. The Court doesn't ex- plain why this is so -- it simply baldly asserts that "[thel ordinary relationship between the government and those who must obey its regulaton• commands whether they wish to or not is not enough to establish a conspiracy.' Ibid. The best I can make of this is that the 1**10551 Court apparently would interpret the Sherman Act to for- bid only privately arranged price-fixing schemes. See ante, at 267-269. That interpretation would be plainly misguided. Section I of the Sherman Act declares illegal restraints of trade resulting from any "contract, combination . . . , or conspiracy." 15 U. S. C. § 1. Understandably, that wording has led the Court to draw a "basic distinc- tion" between concerted and independent action, and to hold that "[independent) action is not proscribed" by § 1. Monsanto Co. y. Spray -Rite Service Corp., 465 U.S. 752, 761 (1984). However, until today we have not held, or indeed even suggested. that government - imposed restraints on economic actions 1***331 cannot constitute concerted action. Rather, both Schwegmann and Midcal held that state statutes which "had a coercive effect upon panics who must obey the law" violated § 1, n2 n2 The Court would distinguish Schwegmann and Midcal based on the role of private parties in setting prices. Ante, at 268-269. The Court characterizes the statutory restraints imposed in those cases as "hy- brid, in that nonmarket mechanisms merely enforce private marketingdecisions." Ante, at 267. In this case, the Court argues. Berkeley's landlords have no control over the prices they charge. Ibid. True. in both cases private parties, rather than the State, were largely responsible for setting the prices that retailers had to adhere to. However, the lack of state supervision over price-fixing activities was only relevant to whether the challenged statutes were im- mune from antitrust liability under Parker v. Brown, 317 U.S. 341 (1943), see Midcal, 445 U.S., at 105; neither decision drew the distinction the Court to- day creates between "unilateral" and "hybrid" gov- ernmental restraints. In Both cases the challenged statute was found invalid simply because it com- pelled private parties to charge fixed prices for their products, conduct which the Sherman Act forbids. See Schwegmann, 341 U.S., at 389; Midcal, supra, at 103. The Court's "distinction" ignores the fact that price fixing has the same deleterious effect upon the competitive market whether prices are set by an administrative body or by private parties. Thus, re- gardless of whether Berkeley's landlords have some role in setting the prices the} must charge, the co- I 99- 720 475 U.S. 260, *277; 106 S. Cf. 1045. **1055: 1986 U.S. LEXIS 12, ***33: 89 L. Ed. 2d 206 ercive effect of the city's Ordinance results in con- certed action violative of the Sherman Act. [***341 [*278) If the Ordinance allowed the individual land- lords ultimately to set their own rental prices, 1 might un- derstand the Court's conclusion that any resulting price restraints did not necessarily result from collective ac- tion. Cf. Monsanto Co. v. Spray -Rite Service Corp.. supra, at 761. However, because the Ordinance has the force of law, the city can compel landlords to do what the Sherman Act plainly forbids -- to fix prices for rental units in Berkeley. Regardless of whet}tcr the landlords "agree" to the prices charged, the circumstances here clearly "exclude the possibility that the [city and the landlords) were acting independently." 465 U.S., at 764. The Ordinance eliminates price competition more effec- tively than any private "agreement" ever could, and is therefore pre-empted by the Sherman Act. The Coun's contrary conclusion does not further, as it argues, but rather distorts "traditional antitrust analysis." Ante, at 264. 1I Ultimately, the Court is holding that a municipality's authority to protect the public welfare should not be con- strained by the Sherman Act. That holding excludes a broad range of local government [***351 anticompeti- tive activities from the reach of the antitrust laws. This flies in the face of the fact that Congress has not enacted such a broad antitrust exemption for municipalities. See Community Communications Cc. v. Boulder, 455 U.S. 40 (1982); Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978); cf. 15 U. S. C. § 35(a) (1982 ed., Supp. II) (immunizing local governments [*279) only from liability for damages for violations of the antitrust laws). "In light of the serious economic dislocation which could result if cities %were free to place their own parochial interests above the Nation's economic goals reflected in the antitrust laws, . . . we [have been) es- pecially unwilling to presume that [**10561 Congress intended to exclude anticompetitive municipal action from their reach." Lafayette, supra, at 412-413 (plu- rality opinion). "The Parker state -action exemption re- flects Congress' intention to embody in the Sherman Act the federalism principle that the States possess a signifi- cant measure of sovereignty under our Constitution. But this principle contains its own limitation: Ours [***361 is a 'dual system of government,' Parker, 317 U.S., at 351 (emphasis added), which has no place for sovereign cities." Community Communications Co. v. Boulder, supra, at 53. Of course, our decisions do not foreclose municipalities from enacting anticompetitive measures Page 38 LEXSEE in the public interest, but only require that such actions be state-atlhorized and be implemented pursuant to a clearly articulated and affirman%ely expressed state pol- icy to disljlace competition with regulation or monopoly service. See 455 U.S., at 52. Berkeley's Ordinance plainly is not exempt from antitrust scrutiny under this standard. Appellees suggest that three considerations support their argument that the Ordinance implements a clearly articulated and affirmatively expressed state policy au- thorizing municipalities to enact rent control measures: (1) the state legislature's 1972 ratification of a city rent control charter amendment; (2) the California Supreme Court's decision in Birkenfeld v. City of Berkeley, 17 Cal. 3d 129. 550 P. 2d 1001 (1976), which ulti- mately invalidated that amendment; and (3) the [***371 city's state -law obligation to provide affordable hous- ing. None of these considerations support appellees' position. First, in 1972. Berkeley adopted a rent control char- ter amendment, which was approved by concurrent res- olution of 1*2901 both houses of the state legislature. n3 There are serious doubts that this purely pro forma approval would qualify the amendment for the Parker exemption. See Cantor v. Detroit Edison Co., 428 U.S. 579 (1976). In any event, that amendment was sub- sequently invalidated by the California Supreme Court, and the legislature's actions respecting its passage af- ford no support for the claimed exemption of the current Ordinance from antitrust scrutiny. n3 At that time, the State Constitution required the legislature to approve city charter amendments. See Birkenfeld v. City of Berkeley, 17 Cal. 3d, 129, 137, n. 2, 550 P. 2d, 1001, 1007, n. 2 (1976). In 1974, the State Constitution was amended to elimi- nate this requirement. 1***381 Second, the Birkenfeld decision, while invalidating Berkeley's rent control amendment, found state author- ity for such measures in constitutional provisions con- ferring upon cities the power to "make and enforce . . . all local, police, sanitary, and other ordinances and regulations not in conflict with general laws." 17 Cal. 3d, at 140, 550 P. 2d, at 1009-1010. But we have made clear that such eeneral grants of authority do not con- stitute the required mandate to engage in conduct that necessarity constitutes a violation of the antitrust laws. See Community Communications Co., -455 U.S., at 55. "Acceptance of such a proposition . . . would wholly eviscerate the concepts of 'clear articulation and affir- L Page 39 475 U.S. 260, *280; 106 S. Ct. 1045. **1056: LEXSEE 1986 U.S. LEXIS 12, •**38; 89 L. Ed. 2d 206 Mative expression' that our precedents require." Id., at petitive." Community Communications Co., supra, at 56. 55 (emphasis in original). Plainly, by that standard the Third, state law requires cities to "make adequate pro Ordinance does not qualify for the Parker exemption vision for the housing needs of all economic segments from antitrust Itahiltty. of the community.' Cal. Govt. Code Ann. § 65580(d) III (West 1983). But, although appellees argue that rent Finally, appellees suggest that a finding of pre-emption control measures arc a 'foreseeable result' of these stalu in this case will seyere{y restrict a municipality's au- tory obligations, see Iiallie v. Eau Claire, 471 U.S. 34 thority to enact a variety of measures in the public in- (1985), [***39] those laws are expressly neutral with terest. "But this areumcnt is simply an attack upon the respect to a city's authority to impose rent controls. wisdom of the longstanding congressional commitment California Govt. Code Ann. § 65589(b) tWest 1983) �.,.30� to the policy of free markets and open com expressly provides that *nothing in this article shall be petition cmbodted in the antitrust laws." Community construed to be a grant of authority or a repeal of any au Cornrnumcations Co„ supra, at 56. Congress may ulti- thority which may exist of a local goyenunent to impose mately agree with appcllecs' argument, and may choose rent contro's.' [*281] See also Cal. Iicalth �� Safety amend the antitrust laws to grant municipalities broad Code Ann. § 50202 Oklest Supp. 1986) ("!Nothinv)to discretion to enact anticompetitive measures in the pub - in this division shall authorize the imposition of rent `Ihe lie interest. Pending such amendment, however, only a regulations [**1057] or controls"). requirement of clearly articulated and affirmatively expressed state pol- "'clear articulation and affirmative expression' is not sat- isfiedexempt when the State's position is one of mere neutrality the Sherman Act. respecting the municipal actions challenged as andcom 16TH CASE of Level I printed in FULL format. PANAMA CITY, Florida, ct al., Appellants, v. SEVEN SEAS RESTAURANT, INC., Appellee No. G-451 Court of Appeals of Florida, First District ISO So. '_d 190; 1965 Fla. App. LE\IS 3833 November 18. 1965 CORE TERMS: auditorium, catering, lease, marina, civic center, exclusive franchise, empowered, furnish, proprietary, franchise, lessee, charier, construct, street, chancellor, proprietary function, airport, renting, bonds, special act, franchise granted, void, acquire, governmental entity, general law, acquisition, monopoly, decree appealed, desirability, invalid COUNSEL: [**1] Mercer P. Spear, and Barron & Hilton, Panama City, for Appellants. Davenport, Johnston, Harris & Urquhart, Panama City, for Appellee. JUDGES: Wigginton, Acting Chief Judge. Sturgis and Johnson, JJ., concur. OPINIONBY: WIGGINTON OPINION: [*1911 The defendants in this action have appealed a final declaratory decree rendered pursuant to F.S. Chapter 87, F.S.A., the effect of which is to hold in- valid a provision of a written lease contract by which the City of Panama City granted to the remainine defendants an exclusive franchise, right, concession, or permit to furnish catering services to a public auditorium owned by the City and located on property developed as a civic center and marina. Appellants contend that the chancel- lor erred in holding th,; mentioned provision of the lease to be void on the grounds of public policy. Appellant, City of Panama City, leased to appellant, J. Rowe Sudduth, who in turn subleased to appellant, The Four Winds of Panama City, Inc., the administration building located on the Panama City Civic Center and Marina for the purpose of operating therein a restaurant and cocktail lounge. The lease contract includes the fol- lowing additional provision, the construction [**2] of which gave rise to this litigation, to wit: "* * * As a further consideration for the covenants pro- vided herein, the LESSOR hereby grants to the LESSEE the exclusive catering rights to the auditorium on the said Marina, shown in Exhibit 'A', provided that the Page 6 LESSEE shall render able, efficient, courteous and rea- sonable service in connection therewith." The stipulated facts on which the chancellor relied in rendering the decree appealed are that the City audito- rium, in which defendant J. Rowe Sudduth was granted the catering rights here complained of, is not now nor has it ever been used or devoted to the carrying on of or- dinary city [* 1921 business of defendant City of Panama City, Florida, but is available for rental by members of the general public and associations or groups for hold- ing private meetings, convennons, musicals, plays, and similar activities: that the auditorium was constructed from the proceeds of the sale of municipal bonds of said City, and is under the exclusive control of the officers and agents o1 said Cite; that the auditorium is a sep- arate building with approximately seven hundred feet, includinu, a street, scp;traung it from the administration 1**31 building described on the first page of the lease agreement attached to the complaint. By their respective answers, the appellants lessor, lessee, and sublessee denied that the provision of the lease assaulted by the complaint ryas invalid, and inter- posed the affirmative defenses of estoppel and ]aches. As a basis for holding Veld that provision of the lease which ertnted to the lessee the exclusive catering rights to the auditorium located on the civic center and marina property, the chancellor found that such provision cre- ates a monopoly, strikes at free enterprise, stifles lawful competition. is in restraint of trade, is detrimental to the Public eoud and is adverse and harmful to other catering services of like kind. Appellee supports the correctness of the decree ap- pealed upon the basic theory of law that the right or 99- 7 4V 180 So. 2d 190, $192; 1965 Fla. App. LEX1S 3833. **3 Page 7 privilege granted by the Cite to appellant lessees is an exclusive franchise which the City is prohibited from granting in the ahscnce of special statutar authority em- powering ii to do so. r,l It is conceded that neither the charter of the Cite of Panama Cite, nor the special act authorizing the Cits to c011s(ruct ;t)d operate the cryic center and marina irnyolycd [**41 in this proceeding, specifically confers upon the. City the right to Grant ex- clusive franchises to prisate mdi%iduals for the perfor- mance of any of the functions vested in the City under its charier, the general law or the special act mentioned above. nl Colen v. Sunhavcn Homes, Inc. (Fla.1957) 98 So.2d 501; Capital Ciry Likiu & Fucl Co. 1'. Ciry of Tallahassee, 42 Fla. 462, 28 So. 810. Appellants contend, and we agree, that the City's act in granting to Sudduth the exclusive right, privilege, concession, or franchise to furnish catering services to the auditorium was done in the exercise of a proprietary as distinguished from a govemnental function. The au- thority of the City to issue and sell revenue bonds and use the proceeds thereof in the acquisition, construc- tion, and operation of the civic center and marina was conferred upon the Ciiy by Chapter 11678. Laws of Florida, Extraordinary Session of 1925, as amended (by the Citv charter) and Section 167.21. Florida Statutes 1955, F.S.A. The powers of the [**51 City in this regard are set forth in detail in the decision validating the bonds issued by the City for the acquisition and construction of the marina and civic center, rendered by the Supreme Court in the case of Panama City v. State of Florida. n2 Among other things, the City is empowered to acquire and use any real estate or personal properly of any kind including recreational facilities and auditoriums and, if found desirable or expedient, may lease, rent, or other- wise dispose of all or any part of such property for the benefit of the City. It is specifically empowered to erect all necessary public buildings and to control and dispose of them as the interest of the City may require, and to do and perform all such other act or acts as shall seem neces- sary and best adapted to the improvements and general interest of the city or town. The resolution authoriz- ing the issuance of the bonds to acquire, construct, and maintain the project are to be retired solely and exclu- sively from funds derived from the net revenues of the [*193] revenue producing facilities of the project, and from the proceeds of excise taxes theretofore authorized by sundry ordinances of the City on the sale [**61 of i cigarettes, utility services, and from license taxes and franchise taxes. From the foregoing it appears without serious dispute that the City is authorized to construct an auditorium and to operate it in such manner as will be to the best interest of the City of Panama City. Incidental to this poser is the right to furnish caterine services to those groups or organisations Tenting the building, and to derive From such rentals and From the net profits of the catrnn,o serytces rescnues sshich may be utilized in maintaining the property and retiring the bonds issued for its acquisition. Such a function is clearly proprietary in nature. and cannot be considered guyerntmental in the traditional sense. n2 Panama City v. State of Florida, (Fla.1957) 93 So.2d 608. Haying concluded that the action of the City in grant- ing an exclusive lease for the furnishing of catering ser- vices to those utilizing the auditorium located on the civic center and marina to have been performed in the exercise of a proprietary function 1**71 of the city gov- ernment, we next turn to a consideration of whether under these circumstances the exclusive franchise, per- mit, concession, or right is prohibited by the general law relating to this subject. in a case strikingly similar to the one sub judice the Supreme Court considered the validity of an exclusive right, pris ilege, or franchise granted by the Dade County Port Authority to a private corporation for the solic- itation and transportation of passengers from Miami international Airport to points about the city. The spe- cial act creating the Dade County Port Authority des- ienated the Board of County Commissioners of Dade County as the Authority, and granted to it the power to acquire, construct, mainain, and operate the airport and facilities in a manner consistent with the best inter- est of the county and the communities situated therein. These powers are generally similar in most respects to the powers granted the City of Panama City in the case sub judice. In defining the character of the functions performed by the Board of County Commissioners as members of the Pori Auttwrin, the Supreme Court said: "in the case at bar \ye are confronted with a function vested in 1' 81 the Dade County Port Authority that is essentially proprietary and in no respect governmental. 'When ,_iyen authority to do so a governmental entity is expected io perform a proprietary function under like rules and regulations as those pursued by private indi- viduals, NO one would contend that a private or a public service corporation would be barred from entering into an exclusive contract like that involved here it' the ne- cessities of its business required. When county conunis- 99- 72- AV 180 So. 2d 190, *193; 1965 Fla. App. LEXIS 3833, **8 1 sioners arc clothed with a proprietary function wherein they are responsible to the public for prompt and efficient service, it necessarily follows that they trust be clothed with power to enable than to meet such requirements and we think the act in question hoes this. *** `When a eoyernrnental entity is authorized to exercise a power purely proprietarn, the lark leans to the theory that it has full power to perform it in the same efficient manner as a private person would do. * * *" n3 r3 Miami Beach Airline Service, Inc. %,. Crandon (1947) 159 Fla. 504, 32 So. 2d 153, 155, 172 A.L.R 1425, **9 In distinguishing the rule of law applicable to an ex- clusive franchise granted by a governmental entity in the exercise of proprietary function from a like franchise granted in the exercise of a governmental [*1941 func- tion, the Supreme Court, in the Miami Beach Airline Service case, supra, said: We have examined Capital Cit}l Light & Fuel Co. v. City, of Tallahassee, 42 Fla. 462, 28 So. 810; State er rel. Landis v. Rosenthal, 109 Fla. 363, 148 So. 769; State [er rel. Biscavne Stevedoring Co.] v. Turner, 143 Fla. 424, 196 So. 816, and other cases relied on by appellant, but we do not think they rule the case at bar. These cases treat the use of city streets, the granting of licenses and the conduct of other func- tions by the municipality impressed with [some] phase of a governmental aspect. In such cases, the law is well settled that the granting power must avoid monopolies that hamper it in its governmental capacity as well as contracts that tend to create such monopolies." n4 n4 Ibid. [**10] In the case of Colen v. Sunhaven Homes, Inc., supra, the Supreme Court considered the validity of an exclusive franchise granted by the Board of County Commissioners of Pinellas County to a private individ- ual to use county streets, alleys, and public rights of way found necessary for the installation of a sanitary sewer- age disposal system and a water distribution system to serve a specified area of the county. The court held that no special or general law specifically empowered Page 8 the Board of County Commissioners of Pinellas County to grant an exclusive franchise to an individual for the use of the county roads, streets, and public places in the performance of an activity which would traditionally be considered a eoverntrtcntal function. In distinguish- ing the rule in that case front the rule applicable to the granting of an exclusive franchise in the exercise of a proprietary function the court, in commenting upon the franchise cr;uued by the Port Autilurtty ut the Nlianti Beach Airline Service case, supra, said: "* * * The Legislature empowered the Authority to 'Construct, operate and maintain airports, terminals and other transportation facilities' within the county and ex- pressly )** 1 i ) authorized the 'execution of agreements and contracts with common carriers to carry out the pur- poses of the act. * in this case the Legislature empowered the Port Authority to undertake the actual operation of one of the world's largest airports, and as such to un- dertake an affirmative nongovernmental function, pro- prietory in nature. in the name of the county. It is this distinguishing Mature of the nature of the Legislative delegation of authority that sets this case apart from the general rule. The Port Authority was authorized to del- egate by exclusive franchise that which it could have exclusively done itself on its own account. It was also pointed out in that opinion that the Legislature would hardly empower the Port Authority to operate such a gigantic facility and still clothe that Authority with less than sufficient power to carry out its purpose, in like manner as a private enterprise. * ' *" n5 n5 Colen v. Sunhaven Hontes. Inc., supra note 1, 98 So. 2d at 504. In the case sub}udice it cannot I-12) be disputed but that the City of Panama City is empowered under its charter and the general law of the state to furnish cater- ing services to those groups and organizations renting from it the use of the auditorium located on the civic center and marina, to the exclusion of all other private catering services in the cummumiv. in the furnishing of such services, the City would ntost certainly be function- ing in a proprietary capacity. It is only proper 1*1951 that the City should have some degree of control over the'quality of catering services furnished to those renting from it the City auditorium. because on the quality of such services will the desirability of the auditorium as a meeting place depend. II' the City is prohibited from controlling through the vehicle of an exclusive lease, concession, or franchise, the quality ofcatering services furnished to people using the auditorium, the desirabil- 99- IJ j Page 9 IRO So. 2d 190, *195; 1965 Fla. App. LE\IS 3833. "12 i of the auditorium as a meeting lace might well be t3' g p g prohibited from controlling the catering services to be impaired. Secondarily, but perhaps of even greater im- furnished the auditorium, through the means of an exclu- portanec, is the revenue which the City's agreement with sine franchise, then the revenues it might receive from appellant Sudduth will produce from the catering ser- this sourer would be lust or seriously diminished. vices he will fumish pursuant to the concession granted it is our \ 10V that under the km applicable to the him in ['° ] 31 the lease contract. The lease prop ides that the compensation payable to the Cite by Sudduth will (acts in this case the provision u( the lease contract here assaulted is valid and binding in all respects, and the be on the basis of a stipulated sum plus a percentage of ! the gross revenues derived b% him in his operations un chancellor erred in holdine it to he void and of no of der the lease. It is the City's obligation to utilize to the feet. The decree appealed is accordingly reversed and fullest extent all the facilities located within the bonded the cause remanded for the entry of an appropriate decree project to the end that the maximum amount of revenue consistent with the views expressed herein. may be realized for the maintenance of the property and STURGIS and JOHNSON, J1., concur. retirement of the bonded indebtedness. If the City is I i 1 i Page 10 18TH CASE of Levcl 1 printed in FULL format. BROWARD COUNTY RUBBISH CONTRACTORS ASSOCIATION ct al.. Appellants, v. BROWARD COUNTY, a political subdivision of the State of Florida, J. Herbert Burke, as Chairman and member of the Board of County Commissioners, et al.. Affiliated Services, inc.. et al., Appellees. No. 1025. 3 District Court of Appeal of Florida, Second District. i 112 So. 2d 898: 1959 Fla. App. LEXIS 2975 April 1, 1959; Rehearing Denied June 19, 1959. CORE TERMS: garbage, franchise, collection, trash, disposal. waste, temporary injunction, dispose, injunction, incinerator, rubbish, site, municipal, users, discretionary, exclusive franchise. chancellor, belonging, franchise agreement, rent, dump, bid, interfere, holder, sanitary, public officers, gift, household, exclusive contract, tax free COUNSEL: (**I Walden & Ryan, Dania, Joseph A. Fitzsimmons, Ft. Lauderdale, for appellants. John U. Lloyd, Joseph Easthope, J. T. Chancey, McCune, Hiaasen, Kelley & Crum, Carl A. Hiaasen, Ft. Lauderdale, Raymond E. Barnes, Barnes & Inman, Orlando, for appellees. OPINIONBY: ALLEN OPINION: (*899) ALLEN, Acting Chief Judge. Five separate appeals have been taken in this case from interlocutory orders entered in the court below. Four of the appeals have been dismissed and this case is now before this court on an interlocutory, appeal in case No. 1025, which brings to us for review five orders entered below. This court has had to check the records, briefs, and appendices in five cases, the original testimony plus ex- hibits, of thousands of pages in order to secure the in- formation necessary to determine the questions involved in this appeal. Were it not for the public nature of the subject matter of this suit, we would have dismissed the appeal for failure to comply with the rules of appellate practice of this State. The subject matter of this appeal was initiated by an action filed in Broward County by Affiliated Services, Inc. against Broward County seeking a declaratory de- cree as to the validity 1**21 of a contract that had been entered into between the plaintiff and Broward County. Subsequently, a suit was brought by Broward County Rubbish Contractors Association, a non-profit corpora - Lion, joined by several of its members holding garbage collection and disposal franchises and also joined by five citizens and residents of the unincorporated area of Broward County, Florida, against Broward County, the Board of County Commissioners of said County, Affiliated Services, inc. and Continental Enterprises, Inc., a Delaware corporation, for a declaratory decree cancelling the exclusive garbage, waste and trash col- lection franchise granted Affiliated Services, Inc. by the County Commissioners of Broward County and for a temporary and permanent injunction against the defen- dants with reference to the garbage contract involved. "rhe lover court heard a large number of witnesses, which resulted in approximately 700 pages of testi- mony on two principal issues, to -wit: whether tempo- rary injunction should issue against Affiliated Services, Inc. to prevent them from proceeding under a fran- chise to collect garbage, which franchise became effec- tive October 1, 1958; and whether a temporary injunc- tion 1**31 should be issued against the Broward County Rubbish Contractors Association and the members in- dividually to prevent them from making garbage col- lections after October 1. 1958. The trial judge refused to issue :ut injunction against Affiliated Services, Inc., hereinafter called "Affiliated." and subsequently issued a temporary injunction against the Froward County Rubbish Contractors Association, hereinafter called "the Association," and its members. which latter injunction was superseded by the posting ol' a bond. Motions for summary decree on tite part of the appel- lants, as well as other motions. appear in the tile, but there is nothing in the records, as iar as we have been able to find in any of the riles, to show that there has 99— 12o 112 So. 2d 898, *899; 1959 Fla. App. LMS 2975. **3 ever been a hearing or ruling on these motions. The appellants, in their brief, state the following five points involved: 1. Did the chancellor err in interlocutory orders dated September 20 I*9tX)j and ?+t, 1958 by faillm,, to consider that the Board of County Commissioners of Broward County grossly abused their discretion and showed favoritism toward Continental Enterprises Inc., and Affiliated Services, Inc., and dealt unfairly with appel- lants )**41 by rejecting the bid or proposal of Broward County Rubbish Contractors Association which was the lowest and best bid submitted by in experienced bid- der, and would furnish sanitary land fill disposal for next five years without increase in rate to citizens of Broward County as users of county garbage collection and disposal service; and said board ignored appellants' long satisfactory collection service and large investment required by board in packer type sanitation tracks? 2. Did the Board of County Corninissioners exceed their authority under Chanter 27434, Special Acts of 1951, and Chapter 30617, Special Acts of 1955, by en- tering into an exclusive garbage, waste and trash fran- chise agreement for 25 years; delegating rate -making powers to arbiters; agreeing to make gift of public lands rent and tax free for 25 years for the exclusive use and benefit of a private corporation for profit for dump and incinerator sites; and agreeing to purchase incinerator in event of financial difficulties of said private corporation'? 3. Did chancellor err and grossly abuse his discre- tion in orders of September 26 and 30, 1958, by pre- judging the cause oil preliminary hearing, by denying stay and (**51 to set supersedeas bond, and by termi- nating temporary injunction, and thereby approving 5 to 25 year garbage franchise agreement which increased the cost to users of collection and disposal service by $2,000,000.00 to $20,000,000.00 for certain, and with proviso for further annual rate increases but no provi- sion for any decrease in rates to be charged for garbage service? 4. Did the chancellor err in the order of Coiober 9, 1958. by directing the tax collector to restrict appel- lants' state and county licenses to collect and dispose of garbage to within the corporate limits of the municipal- ities contracting for appellants' services? 5. Did chancellor err in orders dated November 19 and 21, 1958, by defining household trash and refuse as garbage and enjoining appellants holding trash and refuse occupational licenses from collecting, hauling, and disposing of household trash and refuse and thereby preventing appellants from competing with Affiliated Services, Inc., which does not hold an exclusive fran- Page I f chise to collect and dispose of waste and trash; and was the amount of supersedcas bond excessive? From a Study of the record and briefs, we are under the impression that the I''6I points involved as to set out by the appeal;utis in their brief', and is hereinaboye stated in this opinion, do not correctly reflect the questions involved on this interlocutory appeal. We think the questions inyok ed, succinctly stated, are as follows: Whether the court erred, after the taking of testi- mony, in refusing to issue a temporary injunction against Affiliated Services, Inc. to prevent them from proceed- ing under a franchise to collect garbage and whether a temporary injunction should ha\e been issued against the Broward County Rubbish Contractors Association, and the members thereof, to prevent them from mak- ing garbage collections after October 1, 1958. The trial judge refused to issue a temporary injunction against Affiliated and issued a temporary injunction against the Association which latter injunction has been superseded by the posting of a bond. Whether the lower court was correct in defining "garbage" to include household 1*9011 trash and refuse as stated in appellants' point 5. -Fite record discloses that Broward County, due to its tremendous growth in recent years in non -urban ar- eas, was afflicted with a tremendous garbage disposal problem. A special 1**71 act of the legislature was en- acted in 1951 (Chapter 27434, Laws of Florida, 1951) which empowered the Board of County Commissioners of Broward County to establish and operate, directly or indirectly, garbage collection and disposal services within Broward County in areas which were not in- cluded in the corporate limits of any city, and empower- ing the board to charge and collect fees to defray costs and expenses of such service. Acting under this Act, the commissioners licensed quite a number of individual operators for garbage collection and disposal services in connection therewith. in 1955. Chapter 27434. supra, was amended by Chapter 30617, Special Acts of 1955, authorizing the Board of County Commissioners, within its discretion, to establish, maintain and operate garbage collection and disposal services, either directly or indirectly, and within its discretion, to delegate its authority to collect and dis- pose of garbage, including the authority to collect fees from the users of garbage collect ion and disposal services from any individual or corporation. it further provided that the Board could erant franchises, either exclusive Of tton-exclusive, upon such terms and conditions (**81 as the Board should determine. 9 e7"" 7�t1 Page 12 112 So.."d 898, *901; 1959 Fla. App. LCXiS 2975, **8 Subsequent to the enactment of Chapier 30617, Lays of Florida, t 955, the Board of County Coniinissinners entered into an exclusivc contracf uiih Affiliated Serires, Inc., to collect garhage �yitlun the arc's of Broward County, excluding mcori?oratcd areas. The contract was rather long and, ioughl'\• provided as fol- lows: An exclusive franchise was gramcd to Affiliated for the collection and disposal of carhafe and "waste; Affiliated was required to pro%idc a fleet Of modern, packer type, sanitary equipment; sartitarv% fill, dump sites were required to be operated by AffiIi;tied: the fran- chise was to extend for five years; fees were provided for trash and garbage collections, and rate increases were authorized under certain conditions; and an annual fran- chise fee of S 18,000.00 was required to be paid by Affiliated during a five year period. One paragraph of the contract provided that Bro\%ard County would seek legislative authority to extend Elie power to grant a franchise for 25 years, and if such legislation became effective, the contract already entered into would be au- tomatically extended for such period of time. Affiliated would then have been required [**9] to construct an in- cinerator or incinerators on sits to be furnished by the County, and at the end of the 25 years, the County would have taken over the operation of the incinerators which were to be free and clear of any other claims. The appellants vigorously question the validity of the extension of the contract for 25 years. We do not con- sider this question as involved in the present appeal. In the first place, this franchise is for five years, and before it could be extended, the Legislaiure of Florida would have to authorize, by a specific act, such authority. So, we shall not further allude, in this opinion to this feature of appellants' argument. The contract between Affiliated and the County Commissioners of Broward County does not define garbage, waste or trash, and appellants attack the def- inition of the word "garbage," as given by the lower court, primarily becausq the individual appellants sought to continue to pick up trash on the premises of various parties as they had done in the past under the theory that garbage, in its narro%%cst sense, was all that was involved in the exclusive contract in this suit. The lower court held that Elie word "garbas:e" included [**10] garbage, waste, rubbish and trash. This was based on the defi- nitions of such words and the "custom of the trade," as the appellants were acting under the individual garbage franchise, [*902] which expired on September 30, 1958, defining "garbage' as including garbage, waste, rubbish and trash. [t was also noted that in the sworn complaint of the plaintiffs below, appellants here, they referred several times to their franchise, which was limited to "garbage," as authorizing them to collect and dispose of garbage, waste, rubbish and trash. Thejudge, in his order on the application for a tempo - ran• injunction, wrote a very able opinion on the various questions involved in this appeal, from which we shall quote liberally: "Turning to other positions of the plaintiffs, it was further argued by there that there was no authority in the ibo\e acts to grant a single cxclusive franchise for all of the unincorporated area of the county. The acts of the legislature do not require, but permit, the com- missioners to divide the county into districts; nor does an examination of the acts reveal that the commissioners are required to grant more than one franchise. "Also argued by the plaintiff's [ `* 1 I [ was the con- tention that the contract attempted to make a gift of dump sites to the exclusive franchise holder, Affiliated, con- trary to section 125.35. Florida Statutes [F.S.A.], which authorizes sale and conveyance of real property, belong- ine to the county, only after advertising for bids. The court, houeyer, is unable to ascertain from the agree- ment that the county has made such a gift; on the other hand, it provides that storage and maintenance facilities for equipment are to be maintained on land owned or leased by Affiliated; Affiliated is required at its own expense, to provide areas for disposal of garbage and waste; the cost and expense of operating said disposal areas shall be horse and paid for by Affiliated; and, if the term of the agreement with Affiliated is extended by the legislature. the county shall provide, without expense to Affiliated. an incinerator site and, while such site shall be furnished without expense or rent and tax free, it shall be continued to be owned by the county. It is fur- ther provided that incinerator plants shall be constructed without cost to the county and, at the end of a twenty- five year extended period, if the legislature grants such extension. [**121 the plants shall become the property of the county. A franchise fee of S 18,000 was required under the agreement, and has been paid. "It was next contended by the plaintiffs that the county, being authorized under the 1951 act to expend 510,000 annually for the purpose of paying a portion of the cost and expenses nccessan for the establishment, mainte- nance and operation of "trhaue collection and disposal services, such contract involving the collection and dis- posal of ,arbage comes %vithin section 125.08, Florida Statutes 1F.S.A.1. requiring certain contracts to be let only on competitive biddin. An inspection of the sec- tion shows it to apply only to contracts for I > the working of any road or street; 2) the construction or building of am, bridge; 3) the erecting or building of any house; and al the purchase of any .roods, supplies or materials for county purposes or use. It is difficult to perceive the ' 991 '!4U Page 3 422 U.S. 271 printed in FULL format. UNITED STATES v. AMERiCAN BUILDING MAINTENANCE INDUSTRIES No. -3-1689 SUPREME COURT OF THE UNITED STATES 422 U.S. 271: 95 S. Ct. 2150: 1975 U.S. LEXiS 153: 45 L. Ed. 2d 1 7 7: 1975.1 Tride Cis. iCCH) P60,365 Argued April 22, 1975 June 24, 1975 PRIOR HISTORY: quisition, ianitorial, Sherman Act, acquired, intrastate, APPEAL FROM THE UNITED STATES DISTRICT stock, distributor, monopoly, acquiring, supplier, ju- risdictional, Federal Trade Commission Act, unfair, COURT FOR THE CENTRAL DISTRICT OF merger. remedial, out-of-state, customers, partnership, CALIFORNIA encompass, largest, manufactured, supplying, acquire, CORE TERMS: commerce, interstate, Clayton Act, ac- joined, antitrust, anticompetitive, subsidiary < =1 > View References < =2 > Turn Off Lawyers' Edition Display SUMMARY: The Government commenced a civil antitrust action in the United States District Court for the Central District of California, contending that the defendant, one of the largest suppliers of janitorial services in the country and the single largest supplier of such sen•ices in Southern California, had violated 7 of the Clayton Act (15 USCS 18)--which under certain circumstances prohibits the acquisition by one corporation "engaged in commerce" of the stock or assets of another corporation 'engaged also in commerce" --by acquiring the stock of one company and by merging another company into one of the defendant's wholly owned subsidiaries. Both of the acquired corporations supplied janitorial services in Southern California, and although both sen•iced customers engaged in interstate operations, all of their contracts with those customers were performed entirely within California. The acquired corporations recruited their unskilled workers entirely from the local labor market in Southern California, and purchased their equipment and supplies from local distributors. it was unquestioned that the defendant was actively engaged in interstate commerce. The District Court, concluding that neither of the acquired corporations was "engaged in commerce" within the meaning of 7, and thus holding that there had been no violation of 7, granted the defendant's motion for summary judgment. On direct appeal, the United States Supreme Court affirmed. In an opinion by Stewart, J., it was held (1) expressing the view of six members of the court, that the phrase "engaged in commerce" as used in 7 meant engaged in the flow of interstate commerce, did not reach all corporations engaged in activities subject to Congress' commerce clause power, and unlike the coverage of the Sherman Act (15 USCS f ei seq.), did not encompass corporations engaged in intrastate activities that substantialiv affected interstate commerce, 7 applying only when both the acquiring and the acquired companies were enraged directly in interstate commerce, and ('_) expressing the view of five members of the court. that the acquired companies in the instant case were not "engaged in commerce" within (tic meaning of 7, since their services were performed entirely within the state, and since their supplies and equipment. even though manufactured in large part outside the state, were purchased from local distributors, except for an insignifiatni amount of interstate purchases. White, J., concurring in the judgment and joining in the court's opinion as to holding "t1)" above, expressed doubt that the interposition of a California distributor between the acquired companies and out-of-state manufacturers of 4 janitorial supplies necessarily required that the acquired companies be found not to be "in commerce" merely because they bought directly from out-of-state suppliers only a negligible amount of their supplies, particularly since the local distributor from which supplies were purchased was a wholly owned subsidiary of the defendant, but that because the 99 - 720 422 U.S. 271, *; 95 S. Ct. 2150, **: 1975 U.S. LEXIS 153, `**; 45 L. Ed. 2d 177 government had not raised such issue, it was not appropriate to determine it Page 4 LEXSEE Douglas, J., joined by Brennan, J., dissented, stating that the "in commerce" language of 7 of the Clayton Act was not intended to give that statute a narrower jurisdictional reach than the "affecting commerce" standard under the Sherman Act, and that the record in the instant case established that the acquired companies' ;activities had a substantial effect on interstate commerce Blackmun, J., dissented, expressing the view that the scope of the Clayton Act, enacted to supplement the Sherman Act, should be held to extend to acquisitions and sales haying a substantial effect on interstate commerce. LEXIS HEADNOTE.S - Classified to U.S. Digest Lawyers' Edition: <=5> RESTRAINTS OF TRADE AND (MONOPOLIES §21 Clayton Act -- construction of "engaged in commerce" -- Headnote: <=6> [lA) <=7> JIB] The phrase "engaged in commerce" as used in 7 of the Clayton Act (15 USCS 18)--which under certain circumstances prohibits the acquisition by one corporation "engaged in commerce" of the stock or assets of another corporation "engaged also in commerce -means engaged in the flow of interstate commerce, does not reach all corporations engaged in activitics subject to Congress' power under the commerce clause, and does not encompass corporations engaged in intrastate activities that substantially affect interstate commerce; 7 applies only where both the acquired and the acquiring companies are engaged directly in interstate commerce, since neither the legislative history nor the remedial purpose of 7 supports an expansion of its scope beyond that defined by its express language. <. = 9 > RESTRAINTS OF TRADE AND MONOPOLIES §22 Clayton Act -- suppliers of janitorial services -- relation to interstate commerce -- Headnote: < = I0 > [2A1 < = I I > [213) Two companies which supply janitorial services within a state, recruit their workers from the local labor market, and do not participate directly in the sale, purchase, or, distribution of goods or services in interstate commerce, are not "engaged in commerce" within the meaning of 7 of the Clayton Act (15 USCS 18)--which under certain circumstances prohibits the acquisition by one corporation "engaged in commerce" of the stock or assets of another corporation "engaged also in commerce" --and the acquisition of the two companies by a third janitorial -service company, itself engaged in interstate commerce, is thus outside the coverage of 7, where (1) although the acquired companies perform a substantial portion of their services for enterprises which are themselves engaged in interstate commerce, the acquired companies' activities are limited to providing services within the state to corporations that make wholly independent pricing decisions concerning their own products, and (2) although the acquired companies use janitorial equipment and supplies manufactured in large part outside California, they purchase them from local distributors in intrastate transactions, except for an insignificant amount of interstate purchases, it being immaterial that because of such purchases, the acquired companies may have had a substantial effect on interstate commerce. < = 13> CO3N1N1ERCE §7 :Weaning of `in commerce" -- Feadnote: < =14 > 131 The phrase "in commerce" does not necessarily have a uniform meaning whenever used by Congress. < =15 > RESTRAINTS OF TRADE AND MONOPOLIES §21 Sherman Act -- Clayton Act -- relation to interstate commerce -- Headnote: < = 16 > [4) While the Sherman Act (15 USCS 1 et seq.), which prohibits contracts, combinations, or conspiracies "in restraint �i Z 99— V 0 L 422 U.S. 271, *; 95 S. C1. 2150, **; 1975 U.S. LEXIS 153, ***; 45 L. Ed. 2d 177 Page 5 LEXSEE --�� of trade or commerce," is applicable to local activities which, although not themselves within the flow of interstate commerce, substantially affect interstate commerce, nevertheless 7 of the Clayton Act (15 USCS 18), which prohibits the acquisition by a corporation "engaged in commerce" of the stock or assets of another corporation 'engaged also in commerce," is not applicable to corporations engaged in intrastate activities which substantially affect interstate commerce. <=19> RESTRAINTS OF TRADE AND MONOPOLIES §11 Sherman Act -- Clayton Act -- applicability -- Headnote: < =20> [5] Although the Sherman .Act (15 USCS 1 et seq.) proscribes every contract, combination, or conspiracy in restraint of trade or commerce, whether entered into by a natural person, partnership, corporation, or other form of business organization, nevertheless 7 of the Clayton Act (15 USCS 18)--which under certain circumstances prohibits the acquisition by one "corporation" of the stock or assets of another 'corporation %-does not apply to an allegedly anticompetitive acquisition of partnership assets, 7 being explicitly limited to corporate acquisitions. <=23> TRADEMARKS, TRADENAMES, AND UNFAIR TRADE PRACTICES §44 power of Federal Trade Commission -- Headnote: <=24> 16A1 <=25> [6131 The Federal Trade Commission has broad power to apply 5 of the Federal Trade Commission Act (15 USCS 45)--which outlaws unfair methods of competition and unfair or deceptive acts or practices in commerce --to reach transactions which violate the standards of the Clayton Act (15 USCS 12 et seq.), although technically not subject to the Act's prohibitions. < =28> RESTRAINTS OF TRADE AND MONOPOLIES §22 Clayton Act -- what constitutes "in commerce" -- Headnote: < =29> [71 . Simply supplying localized set -vices to a corporation engaged in interstate commerce does not satisfy the "in commerce" requirement of 7 of the Clayton Act (15 USCS 18), which under certain circumstances prohibits the acquisition by one corporation "engaged in commerce" of the stock or assets of another corporation "engaged also in commerce;" to be engaged "in commerce" within the meaning of 7, a corporation must itself be directly engaged in the production, distribution, or acquisition of goods or services in interstate commerce. SYLLABUS: [***I] The Govemment brought this civil antitrust action against appellee, one of the largest suppliers of jani- torial services in the country, with 56 branches serving more than 500 communities in the United States and Canada, and providing about 10 % of such service sales in Southern California, contending that appellee's ac- quisition of two Southern California janitorial service firms (the Benton companies), which supplied about 750 of such services in Southern California, violated § 7 of the Clayton Act. That section provides that '[n10 cor- poration engaged in commerce shall acquire . . . the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall acquire . . . the assets of another corporation engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly." The Benton companies, some of whose customers engaged in interstate operations, per- formed all their services within California, locally re- cruited labor (which accounted for their major expenses) and locally purchased incidental equipment and supplies. 1. 21 The District Court granted appellee's motion for summary judgment, holding that there had been no § 7 violation. The Government contends that "engaged in commerce" as used in § 7 encompasses corporations like the Benton companies engaged in intrastate activities that substantially affect interstate commerce, and that in any event the Benton companies' activities were sufficiently interstate to come within § 7. Held: ' 99" '12U 422 U.S. 271, *; 95 S. Cl. 2150, **; 1975 U.S. LEXIS 153, ***2; 45 L. Ed. 2d 177 1. The phrase "engaged in commerce" as used in § 7 of the Clayton Act means engaged in the flow of in- terstate commerce, and %vas not intended to reach all corporations engaged in acli' hies suhjW to the federal commerce p o%k er: hence, the phrase does not encompass corporations enzaeed in intrastate acw, itics uhstantiall� affecting interstate commerce. and § 7 can be applicable only when both the acquiring corporation and the ac- quired corporation are elleaced in interstate commerce. Pp. 275-283. (a) The jurisdictional requirements of § 7 cannot be satisfied merely by showing that allegedly anticompet- itive acquisitions and activities affect commerce. Gulf Oil Corp. t. Copp Ft7ving Co., 419 U.S. I86; F.T.C. v. Bunte Bros., 312 US. 349. Pp. 276-277 (b) The precise "in [***31 commerce" language of § 7 is not co-extensi`•e with the reach of power under the Commerce Clause and is thus not to be equated with § I of the Sherman. Act which reaches the impact of in- trastate conduct on interstate commerce. Pp. 277-279. (c) When Congress re-enacted § 7 in 1950 with the same "engaged in commerce." limitation, the phrase had long since become a term of an, indicating a limited assertion of federal jurisdiction, and prior to that time Congress had frequently distinguished between activities "in commerce" and broader activities "affecting com- merce." Pp. 279-281. (d) Limiting § 7 to its plain meaning comports with the enforcement policies that the FTC and the Justice Department have consistently pursued. Pp. 281-282. 2. Since the Benton companies did not participate directly in the sale, purchase, or distribution of goods or services in interstate commerce, they were not "en- gaged in commerce" within the meaning of § 7. And neither supplying local services to corporations engaged in interstate commerce nor using locally bought supplies manufactured outside California sufficed to satisfy § 7's "in commerce" requirement. Pp. 283-286. 401 F.Supp. 1005, affirmed. STEWART, [***41 J., delivered the opinion of the Court, in which BURGER, C.J., and MARSHALL, POWELL, and REHNQUIST, JJ., joined, and in all but Part III of which WHITE, J., joined. WHITE, J., filed a concurring opinion, post. p. 286. DOUGLAS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 286. BLACKMUN, J., filed a dissenting opin- ion, post, p. 287. COUNSEL: Deputy Assistant Attorney General Wilson argued the cause for the United States. With him on the briefs were Solicitor General Bork, Assistant Attorney Page 6 LEXSEE General Kauper, William L. Patton, Carl D. Lawson, and Lee 1. Weintraub. Marcus Mattson argued the cause for appellee. With him on the brief %%-as Anihonic M. Wooed. JUDGES: Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist OPINIONBY: STE�kART OPINION: 1*2731 [**2i521 MR. JUSTICE STEWART delivered the opinion of the Court. The Government commenced this civil antitrust action in the United States District Court for the Central District of California, contending that the appellee, American Building Maintenance industries, had violated § 7 of the Clavion Act, 38 Slat. 731, as amended, 15 U.S.C. 1**21531 § 18, by [***51 acquiring the stock of J. E. Benton Management Corp., and by merging Benton Maintenance Co. into one of the appellee's wholly owned subsidiaries. Following discovery proceedings and the submission of memoranda and affidavits by both parties, the District Court granted the appellee's motion for summary judgment, holding that there had been no violation of § 7 of the Clayton Act. The Government brought an appeal to this Court, and we noted probable jurisdiction. 419 U.S. 1104. nl n I The Government appealed directly to this Court pursuant to § 2 of the Expediting Act, 32 Slat. 823, as amended, 15 U.S.C. § 29. The Government's notice of appeal was filed on February 7, 1974, be- fore the effective date of the recent amendments to the Act. See Antitrust Procedures and Penalties Act, Pub. L. 93-528, § 7, 88 Slat. 1710. i The appellee. American Building Maintenance Industries, is one of the largest suppliers of janitorial services in the country, with 56 branches serving more than 500 communities in the United States 1***61 and Canada. It is also the sitivie targest supplier of janito- rial services in southern California (the area compris- ing Los Angeles, Orange, San Bernardino, Riverside, Santa Barbara, and b'eniura Counties), providing ap- proximately 10% of the sales of such services in that area. 1*27.11 Both of the acquired companies, J. E. Benton lslanagentent Corp. and Benton Maintenance Co., also supplied janitorial services in Southern California. n2 Together their sales constituted approximately 7 % of the L .4<2 U.S. 271, *274; 95 S. Ct. 2150, **2153; 1975 U.S. LEXIS 153, ***6: 45 L. Ed. 2d 177 ym�4y� 1 total janitorial sales in that area. Although both Benton companies serviced customers engaged in interstate op- erations, all of their janitorial and maintenance contracts with those customers acre performed cnnrely within California. Neither of the Benton companies advertised nationally. and their usr of interstate con, imuntcaions facilities to conduct business 1.vas negligible. n3 n2 At the urne of the acquisition and merger, Jess E. Benton, Jr., owned all the stock of J. E. Beaton Management Corp., and 85c of the stock of Benton Maintenance Co. In addition to supplying janito- rial services, Benton Management conducted some real estate business and provided building manage- ment services entirely -ithin the Southern California area. Benton ;Maintenance was engaged exclusively in providing janitorial se -vices. The Government has made no claim that the nonjanitonai activities of Benton Management Corp. have any bearing on the issues presented by this case. n3 The District Court found that the Benton com- panies made only 10 out-of-state telephone calls re- lated to business activities during the 18-month pe- riod prior to the challenged acquisition and merger. The charges for those calls were S 19.78. During the same period the Benton companies sent or received only some 200 interstate letters, a number of which were either directed to or received from governmen- tal agencies such as the Internal Revenue Service. [***7] The major expense of providing janitorial services is the cost of the labor necessary to perform the work. The Benton companies recruited the unskilled workers needed to supply janitorial services entirely from the local labor market in Southern California. The inciden- tal equipment and supplies utilized in providing those janitorial services, except in concededly insignificant amounts, were purchased from local distributors. n4 n4 Although many of the janitorial supplies were manufactured outside of California. the District Court found that Benton's direct interstate purchases for the 16-month period prior to the challenged ac- quisition and merger amounted to a total of less than S 140. (*275) It is unquestioned that the appellee, American Building Maintenance Industries, was and is actively en- gaged in interstate commerce. But on the basis of the Page 7 LEXSEE above facts the District Court concluded that at the time of the challenged acquisition and merger neither Benton Management Corp. nor Benton Nimntenance Co. was "engaged 1"*81 to commerce- within the meaning of § 7 of the Clacton 1 ` 215.E 1 Act. Accordingly, the District Court held th;u there had been no �iolanon of that law. The Government's appeal raises two questions: First, does the phrase "engaged in commerce" as used in § 7 of the Clayton Act encompass corporations engaged in intrastate activities that substantially affect interstate commerce 7 Second, if the language of § 7 requires proof of actual engagement in the now of interstate commerce, were the Benton companies' activities sufficient to sat- isfy that standard? II Section 7 of the Clayton Act, 15 U.S.C. § 18, provides in pertinent part: S "No corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital and no corporation subject to the jurisdiction of the Federal Trade Commission shall ac- quire the whole or any part of the assets of another cor- poration engaged also in commerce, where in any line of commerce in any section of the country, the effect of such acquisition may be substantially to lessen competi- tion, or to tend to create a monopoly."[ Under the explicit reach of § 7, therefore, not only must the acquiring corporation 1***91 be "engaged in commerce," but 1*2761 the corporation or corporations whose stock or assets are acquired must be "engaged also in commerce." n5 n5 "Commerce." as defined by § 1 of the Clayton Act, 15 U.S.C. § 12, means "trade or commerce among the several States and with foreign na- tions...." The phrase "engaged in commerce" is not defined by the Act. The distinct "in commerce" language of § 7, the Court observed earlier this Term. "appears to denote only per- sons or activities within the flow of interstate commerce -- the practical, economic continuity in the generation of goods and services for interstate markets and their trans- port and distribution to the consumer. If this is so, the jurisdictional requirements of 1§ 71 cannot be satisfied merely by showing that allegedly anticompetitive acqui- sitions and activities affect commerce." CruljOil Corp. v. Copp Riving Co., 419 U.S. 186, 195. But even more unambiguous support for this construction of the nar- row "in commerce" language enacted by Congress in § J9- 720 W "422 U.S. 271, *276:95 S. Cf. 2150. *02154; 1975 U.S. LEXIS 153, `9; 45 L. Ed. 2d 177 7 of (***101 the Clayton Act is to be found in an earlier decision of this Court, FTC i. Bunte Bros_ 312 U.S. 349. In Bunte Bros., the Court \was required to determine the scope of § 5 of the Federal Trade Commission Act, 38 Star. 719, as amended, I i U.S.C. § 45, which au- thorized the Commission to proceed only against "un- fair methods of competition in commerce." The Court squarely held that the COminiSsiOn'S § 5 Ju1-isdiction was limited to unfair methods of competition occurring in the flow of interstate commerce. The contention that "in commerce" should be read as if it meant "affecting interstate commerce' was emphatically rejected: "The constnrction of § 5 urged by the Commission would thus 4ive a federal agency pervasive control over myriads of local businesses in matters heretofore traditionally left to Local custom or local law.... An inroad upon local 1*2771 conditions and local standards of such far-reaching im- port as is involved here, ought to await a clearer mandate from Congress." 312 U.S.. at 354-355. n6 n6 Congress recently acted to provide such a "clearer mandate," amending the Federal Trade Commission Act by replacing the phrase "in com- merce" with "in or affecting commerce" in §§ 5, 6, and 12 of the Act. Magnuson -Moss Warranty -- Federal Trade Commission Improvement Act, § 201, 88 Stat. 2193, 15 U. S.C. § 45 (1970 ed. , Supp. IV), The amendments were specifically designed to ex- pand the Commission's jurisdiction beyond the lim- its defined by Bunte Bros. and to make it coextensive with the constitutional power of Congress under the Commerce Clause. See H.R. Rep. No. 93-1107, pp. 29-31 (1974). 1***111 The 1**21551 phrase "in commerce" does not, of course, necessarily have a uniform meaning when- ever used by Congress. See, e.g., Kirschbaum Co. v. thing, 316 US, 517, 520-521. But the Bunte Bros. construction of § 5 of the Federal Trade Commission Act is paniculariy relevant to a proper interpretation of the "in commerce" language in § 7 of the Clayton Act since both sections were enacted by the 63d Congress, and both were designed to deal with closely related as- pects of the same problem -- the protection of free and fair competition in the Nation's marketplaces. See FTC r: -Raladant Co., 283 U.S. 643, 647-648. The Government argues, however, that despite its ba- sic identity to § 5 of the Federal Trade Commission Act, the phrase "engaged in commerce" in § 7 of the Clayton .Act should be interpreted to mean engaged in any activity that is subject to the constitutional power Page 8 LEXSEE of Congress over interstate commerce. The legislative history of the Clayton Act, the Government contends, demonstrates that the "in commerce" language of § 7 was intended to be coextensive \with the reach of congres- sional power under the Commerce Clause. \loreoyer, the argument continues, § 7 \\;u Jc�it!ned to Supplement the 1***121 1*2781 Sherman Act and to arrest the cre- ation of trusts or monopolies in their incipiency, United States r. E 1. (lit Pint de Vrin<yrrrr &t Co . 3s3 i ' S. 5,56, 589, and it would be anomalous, in light of this history and purpose, to hold that the Clayton Act's jurisdic- tional scope is more restricted than that of the Sherman Act. It is certainly true that the Court has held that in the Sherman Act, "Congress wanted to go to the utmost extent of its Constitutional power in restrain- ing trust and monopoly agreements...." United States t. South -Eastern Undenariters Assn., 322 U.S. 533, 558. Accordingly, the Sherman Act has been applied to lo- cal activities which, although not themselves within the flow of interstate commerce, substantiallv affect inter- state commerce. See, e.g.. Mandeville Island Farms, Inc. \: American Cnstal Sugar Co., 334 U.S. 219; United States r. Ertrploring Plasterers Assn., 347 U.S. 186. But the Government's argument that § 7 should likewise be read to reach intrastate corporations affect- ing interstate commerce is not persuasive. Unlike § 7, with its precise "in commerce" language, § I of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. § 1, prohibits even contract, 1**"131 com- bination, or conspiracy "in restraint of trade or com- merce among the se\'eral States...." "The jurisdictional reach of § I thus is keyed directly to effects on inter- state markets and the interstate flow of goods." Gulf Oil Corp. w. Copp Poring Co., 419 U.S., at 194. No similar concern for the impact of intrastate conduct on interstate commerce is evident in § Ts "engaged in com- merce" reouirements. The Government's contention that it would be anomalous for Congress to have strength- ened the antitrust laws by curing perceived deficiencies in the Sherman Act and at the same time to have lim- ited the jurisdictional scope of those remedial provisions founders also on the express J*279J language of § 7. Thus, although the Sherman Act proscribes ever, con- tract, combination, or conspiracy in restraint of trade or commerce, whether entered into by a natural person, partnership, corporation, or other form of business or- ganization, § 7 of the Clayton Act is explicitly limited to corporate acquisitions. Yet it surely could not be seri- ously argued that this "anomaly" must be ignored, and § 7 extended to reach an allegedly anticompetitive acquisi- tion 1**21561 of partnership assets. n7 There is no more 1***141 justification for concluding that the equally ex- plicit "in commerce" lintitaion on a Ts reach should be 7 99— 40V Page 9 422 U.S. 271, *279:95 S. Ct. 2150. **2156; LEXSEE 1975 U.S. LEXiS 153, ***14; 45 L. Ed. 2d 177 disregarded. n7 The Federal Trade Commission has held that such acquisitions may tic challenged under § 5 of the Federal Trade Commission Act, which forbids unfair methods of compention on the part of persons and partnerships, as well as corporations. Beatrice Foods Co., 67 F.T.C. 473, 724-17?7. it is, of course, well established that the Coninnission has broad poNker to apply § 5 to reach minsactions which violate the standards of the Clayton Act, although technically not subject to the Act's prohibitions. See, e.g., F7'C v. Broxr. Shoe Co., 384 U.S. 316, 320-321; cf. F71r v. Sperry & Hutchinson Co., 405 U.S. 233. We have no occasion in the case now be- fore us to decide whether application of § 5 to as- sets acquisitions by or from noncorporate business entities constitutes an appropriate exercise of that power; nor need we consider whether the acquisi- tion of the stock or assets of an intrastate corporation that affected interstate commerce could be challenged by the Commission under the recent jurisdictional amendments to § 5. See n. 6, supra. See gen- erally Oppenheim, Guides to Harmonizing Section 5 of the Federal Trade Commission Act with the Sherman and Clayton Acts, 59 Mich. L. Rev. 821; Reeves, Toward a Coherent Antitrust Policy: The Rote of Section 5 of the Federal Trade Commission Act in Price Discrimination Regulation, 16 B.C. Ind. & Com. L. Rev. 151, 167-171. [***l51 More importantly, whether or not Congress in enact- ing the Clayton Act in 1914 intended to exercise fully its power to regulate commerce, and whatever the un- derstanding of the 63d Congress may have been as to the extent of its Commerce Clause power, the fact is that [*280] when § 7 was re-enacted in 1950, the phrase 'engaged in commerce" had long since become a tern of art, indicating a !united assertion of federal juris- diction. In Schechter Cap. v. United States, 295 US. 495, for example, the Court had drawn a sharp distinction between activities in the flow of interstate commerce and intrastate activities that affect interstate commerce. Id., at 542-544. Similarly, the Court's opin- ion in NLRB v. Jones & Laughlin Steel Corp., 30) U.S. 1, two years later, had emphasized that congressional authority to regulate commerce was not limited to ac- tivities actually "in commerce," but extended as well to conduct that substantially affected interstate commerce. And the Bunte Bros. decision in 1941 had stressed the distinction between unfair methods of competition "in commerce" and those that "affected commerce," in lim- iting the scope of the Commission's authority under the "in commerce" 1***161 language of § 5 of the Federal Trade Commission Act. Congress, as cell, in the years prior to 1950 had re- peatedly acknowledged its reco, ninon of the distinction bemeen legislation limited to acni,uies "in commerce," and an assertion of its full Commerce Clause power so as to corer all activity substantially affecting inter- state commerce. Section lU uri of the National Labor Relations .Act, 49 Stat. 453, as amended, 29 U.S.C. § 160 (a), for example, empowered the National Labor Relations Board to prevent any person from engaging in an unfair labor practice "affecting commerce." Section 2 (7) of the Act, 49 Stat. 450, as amended, 29 U.S.C. § 152 (7), in turn, defined "affecting commerce" to mean "in commerce, or burdening or obstructing commerce or the free flow of commerce...." Similarly, the Bituminous Coal Act of 1937, c. 127, 50 Stat. 72, providing for the fixing of prices for bituminous coal, the proscrip- tion of unfair trade practices, and the establishment of marketing procedures, [*'_81J applied to sales and trans- actions "in or directly affecting interstate commerce in bituminous coal." 50 Stat. 76. In marked contrast to the broad "affecting commerce" jurisdictional language 1*** 171 utilized in those statutes, however, Congress retained the narrower "in commerce" formulation when it amended and re-enacted § 7 of the Clacton .Act in 1950. The 1950 amendments [**21571 were desi_ned in large part to "plug the loophole" that existed in § 7 as initially enacted in 1914, by expanding its coverage to include acquisitions of assets, as well as acquisitions of stock. In addition, other language in § 7 was amended to make plain the full reach of the section's prohibitions. See Brown Shoe Co. r. United States, 370 U.S. 294, 311-323. Yet. despite the sweeping changes made to effectuate those purposes, and despite decisions of this Court, such as Bunte Bros., that had limited the reach of the phrase "in commerce" in similar reg- ulatory legislation, Congress preserved the requirement that both the acquiring and the acquired companies be "engaged in commerce." This congressional action cannot be disregarded, as the Government would have it, as simply a result of congressional inattention, for Congress was fully aware in enacting the 1950 amendments that both the original and the newly amended versions of § 7 were limited to corporations "engaged in commerce." See, e.g., H.R, Rep. No. [***18] 1191, 81st Cone., Ist Sess., 5-6. Rather, the decision to re-enact § 7 with the same "in commerce" limitation call be rationally explained only in terms of a legislative intent, at least in 1950, not to apply the rather drastic prohibitions of § 7 of the Clayton 9-- 720 422 U.S. 271, *281:95 S. Ct. 2150. **2157; 1975 U.S. LEXIS 153, •**18; 45 L. Ed, 2d 177 Act to the full range of con,orations potentially subject to the commerce power. Finally, the Government's contention that a limim- tion of the scope of § 7 to its plain meaning would undermine 1*2S21 the section's remedial purpose is be- lied by the past cnforcemlcnt pulic} of the I-ederal Trade Commission and the Department of Justice - the two governmenta', agencies charted with enforcing the sec- tion's prohibitions. Clayton Act § 11, 15, 15 L'.S.C. §§ 21 (a), 25. The Federal Trade Commission has re- peatedly held chat § 7 applies only to an acquisition in which both the acquired and the acquiring companies are engaged directly in interstate commerce. E.g., Foremost Dairies, Inc., 60F.T.C. 944, 1068-1069: Beatrice Foods Co., 67 FTC. 473, 730-731: Mississippi Rirer Fuel Corp., 75 FTC. 813, 91 S. And while the Government explains that it has never taken a formal position, that § 7 does not apply to intrastate firms affecting 1*'* 191 inter- state commerce, it does concede that previous § 7 cases brought by the Department of Justice have invariably involved firms clearly engaged in the flow of interstate commerce. n8 In light of this consistent enforcement practice, it is difficult to credit the argument that § Ts remedial purpose would be frustrated by construing lit- erally § 7's twice -enacted "in commerce" requirement. n8 Despite this concession, the Government some- what inconsistently argues that the present case does not in fact involve a substantial departure from the previous § 7 enforcement pattern. In the past, the Government asserts, the United States has challenged acquisitions of 'essentially local businesses that af- fected interstate commerce." United States v. �bn's Grocer), Co., 384 U.S. 270, is cited as an example of such a challenge. But the District Court in that case expressly found that both of the merging grocery chains directly participated in the flow of interstate commerce because each purchased more than 51 % of its supplies from outside of California. See 233 F. Supp. 976, 978. And in United States v. Courty National Bank, 339 F. Supp. 85, the only other case cited by the Government to support its contention that the case now before us does not involve a de- parture from previous enforcement policy, the sole question was quite different front, that here in issue -- whether the "Bennington area" was a "section of the country" within the meaning of § 7 of the Clayton Act. 1`**201 1*2831 In sum, neither the legislative history nor the remedial purpose of § 7 of the Clayton Act, as amended Page 10 LEXSEE and reenacted in 1950, supports an expansion of the scope of § 7 beyond that defined by its express lan- guage. Accordincly, we hold that the phrase 'engaged in commerce- as used in § 7 of the Clayton Act means engaged in the flow of interstate commerce. 1"" 1581 dnd %%;IS "I"t Intended to reach .I,i .orpomllons e,nvaLed in activities subject to the federal commerce power. III The Government alternati\ely artues that even if 7 applies onl) to corporations CIV,1ged in the flow of interstate commerce, the Benton companies' activities at the time of the acquisition and merger placed diem in that flow. To support this contention the Government relies primarily on the fact that the Benton companies per- formed a substantial portion of their janitorial services for enterprises which were themselves clearly engaged in selling products in interstate and international markets and in providing interstate communication facilities. n9 But simply supplying localized services to a corporation engaged in interstate commerce does not satisfy the "in commerce" requirement of § 7. n9 The Benton companies derived 80% to 90% of their revenues from performance of janitorial ser- vice contracts for the Los Angeles facilities of in- terstate and international corporations such as Mobil Oil Corp., Rockwell International Corp., Teledyne, Inc., and Pacific Telephone & Telegraph Co. 1* 211 To be engaged "in'commerce" within the meaning of § 7, a corporation must itself be directly engaged in the production, distribution, or acquisition of goods or ser- vices in interstate commerce. See Gulf Oil Corp. v. Copp Paring Co., 419 U.S., at 195. At the time of the acquisition and merger, however, the Benton com- panies were completely insulated from any direct par- ticipation 1*2841 in interstate markets or the interstate flow of goods or services. The firms' activities were limited to providing janitorial services within Southern California to corporations that made wholly indepen- dent pricing decisions concerning their own products. Consequently, whether or not their effect on interstate commerce was sufficiently substantial to come within the ambit of the constitutional power of Congress under the Commerce Clause, in providing janitorial services the Benton companies were not themselves "engaged in commerce" within the meaning of § 7. Cf. Mandeville Island Farms. Inc. v..4merican Cr.•stal Sugar Co., 334 U.S., at 227-235. n10 n 10 The Government notes that this Court has held that maintenance workers servicing buildings "1 99- 40 422 U.S. 271, *284; 95 S. Ct. 2150, *02158; 1975 U.S. LL-)i1S 153, ***21; 45 L. Ed. 2d 177 in which goods are produced for interstate markets are covered by Fair Labor Standards Act provisions applicable to employees engaged in the production of goods for commerce. See, e.g.. Kirsclrhaanr Co. v. tiirlling, = 16 U.S. s/ Martino v. Michigan Windok% ClcamnE Co , �?7 L'.S. 173. In Kirschbaum the Court reasoned: "Without light and heat and power the tenants could not engage, as they do, in the production cf roods for interstate com- merce. The mainterimice of a safe, habitable building is indispensable to that activity." 316 US., at 524. Similarly, the Government argues, in the present case the Benton janitorial seti,ices were so essential to the interstate operations of their customers that they, too, should be considered part of the flow of commerce. The Fair Labor Standards Act, however, is not confined, as is § 7 of the Clayton Act, to activities that are actually "in commerce." At the time of the decisions relied upon by the Government, the Act provided that "an employee shall be deemed to have been engaged in the production of goods [for inter- state commerce] if such employee was employed in producing, manufacturing, mining, handling, trans- porting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof...." Fair Labor Standards Act of 1938, § 3 0), 52 Star. 1061, as amended, 29 U.S.C. § 203 0) (1946 ed.) (emphasis added). Congress thus expressly intended to reach not only those employees who directly participated in the pro- duction of goods for interstate markets, but also those employees outside the now of commerce but nonetheless necessary to it. Although Congress in 1950 could constitutionally have extended § 7 of the Clayton Act to reach comparable activity, it chose not to do so. See supra, at 279-281. ***22 [*2851 Similarly, although the Benton companies used janitorial equipment and supplies manufactured in large pan outside of California, they did not purchase them directly from suppliers located in [**21591 other Stares. Cf. Foremost Dairies, Inc.. 60 F.T.C., at 1068-1069. Rather, those products were purchased in intrastate trans- actions from local distributors. Once again, therefore, the Benton companies were separated from direct panic- ipation in interstate commerce by the pricing and other marketing decisions of independent intermediaries. By the time the Benton companies purchased their janito- rial supplies, the flow of commerce had ceased. See Schechter Corp. v.. United States, 295 U.S., at 542- 543. n I 1 Page i I LEXSEE n I I The Government does not suggest that the pur- chase of janitorial equipment and supplies from local distributors placed the Benton companies in the now of commerce, although it does argue that because of those purchases the firms had a substantial effect on interstate commerce -- an issue not relevant in light of our constiuciion of the reach of § 7 of the Clayton Act. .**231 In short, since the Benton companies did not partic- ipate directly in the sale, purchase, or distribution of goods or services in interstate commerce, they were not "engaged in commerce" within the meaning of § 7 of the Clayton Act. n12 The District Court, therefore, prop- erly 1°2861 concluded that the acquisition and merger in this case were not within the coverage of § 7 of the Clayton Act. n 12 The Government contends that the sale of jani- torial services "necessarily" involves interstate com- munications, solicitations, and negotiations, and that such 'interstate activity should be viewed as part of the flow of interstate commerce. The merits of that argument need not be considered, however, since the record before the District Court does not support a finding that any of the Benton janitorial service con- tracts were obtained through interstate solicitation or negotiation. The judgment of the District Court is affirmed. It is so ordered. CONCURBY: WHITE CONCUR: MR. JUSTICE WHITE, concurring I concur in the judgment and in Parts f ***241 I and 11 of the Court's opinion. I do not join Part III, for I doubt that the interposition of a California wholesaler or distributor between the Benton companies and out- of-state manufacturers of janitorial supplies necessarily requires that the Benton companies be found not to be "in commerce" merely because they buy directly from out-of-state suppliers only a negligible amount of their supplies. For the purposes of § 7 of the Clayton Act, a remedial statute, the regular movenient of goods from out-of-state manufacturer to local wholesaler and then to retailer or institutional consumer is at least arguably suf- ficient to place the latter in the stream of commerce, par- ticularly is here it appears that when the complaint was filed, cf. United States is Penn-01in Co., 378 U.S. 158, 99- 720 Page 12 422 U.S. 271, *286; 95 S. Ct. 2150, **2159; LEXSEE 1975 U.S. LEX1S 153, ***24; 45 L. Ed. 2d 177 0M) 168 (1964), the "local" distributor from which supplies I believe that the scope of the Clacton Act should be were being purchased was a wholly owned subsidiary held to emend to acquisitions and sales having a substan- of the acquiring company, a national concern admittedly tial effect on interstate commerce. I therefore dissent. in commerce. In this case, however, the United States For me, the reach of § 7 of the Clacton Act, 38 Stat. makes no such contention and appellee's motion for sum- 73I , as ;unended, 1 5 U S C. § 18. is as broad 1 * **'_61 mare judgment was not opposed by the Go%ernment on as chat of the Sherman Act, and should not be given the that theory. It is therefore inappropriate to address the narrow construction we properly have given, just this issue at this time; and on this 1***251 record, I concur Term, to the Robinson- Patman Act. Gulf Oil Corp. v, in the judgment that the Benton companies were not in Copp Pay utg Co . 4 19 U S I S6 1 1974). commerce. For more than a quarter of a century the Court has held that the Sherman Act should be construed broadly DISSENTBY: DOUGLAS, BLACKMUN to reach the full extent of the commerce power, and to DISSENT: MR. JUSTICE DOUGLAS, with whom proscribe those restraints that substantially affect inter - MR. JUSTICE BRENNAN joins, dissenting. state commerce. See, e.g., Mandeville Island Farms, Inc. v. American Crystal Smiar Co., 334 U.S. 219, 234 For the reasons set forth in my dissenting opinion in (1948); United States v. South -Eastern Underwriters Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, Assn., 322 U.S. 533, 558 (1944). The Clayton Act 204-207 %11974), 1*2871 decided earlier this Term, I can- was enacted to supplement the Sherman Act, and to "ar- not agree that the "in commerce' language of § 7 of the rest in its incipiency" any restraint or substantial less - Clayton Act, 38 Stat. 731, as amended, 15 U.S.C. § ening of competition. United States v. E.I. du Pont de 18, was intended to give that statute a narrower juris- Nentours & Co., 353 U.S. 586, 589 (1957). To ascribe dictiona) reach than the "affecting commerce" standard 1*2881 to Congress the intent to exercise less than its which we have read into the Sherman Act, 26 Stat. 209, full commerce power in the Clayton Act, which has as as amended, 15 U.S.C. § I et seq. On the 1**21601 its purpose the supplementation of the protections af- record in this case, it is beyond question that the activ- forded by the Sherman Act, is both highly anomalous 1 ities of the acquired firms have a substantial effect on and, it seems to me, unwarranted. Section 7 should not interstate commerce. I would therefore reverse the sum- be limited, as the Court limits it today, to corporations mary judgment granted below and remand for further engaged in interstate commerce, 1***271 but should be proceedings in the District Court. held to include those intrastate activities substantially affecting interstate commerce. MR. JUSTICE BLACKMUN, dissenting. 99- 720' L re were any industry "e definition of I e, action" and how s efined the term; and how the Coast Guard Dns has interpreted the , ent of construction'. 19-20. at the facts are such as ,ere is nothing in the ons that requires the .ke so wide-ranging in- 'etermine whether con. ?need. The concern un- procedure is to assure not unduly impeded by obstructions. See 33 �4). Even in the initial .is concern does not re- )n that a bridge project :blic authority is desir- 3ctical, wise, politically in any particular fash- .uoject if built will not e impact on navigation- _.F.R. § 155.50 (1984). as interpreted its self- stions regulation in a t ke a relatively ate ation whether mmenced. This inter - upheld if it is reason- gs v. Duke Power, 401 S.CL 849, 854-55, 29 We hold that it is. Guard's decision "is option of regularity." _.5. at 415, 91 S.Ct. at don does not "shield _horough, probing, in. but appellants' objec- to overcome the pre - t in the absence of a con• _ongressional act appcov• specific project. FALLS CHASE SPECIAL TAXING %-. , iTY OF TALLAHASSEE 711 Cltr as 7" F2d 711 (111h CIr. 191%) FALLS CHASE SPECIAL TAXING DIS- TRiC-T: F,lba, inc.; ;sunshine band De- velopment, Inc.; and E. Lamar Haile} Associates, Plaintiffs -Appellants. V. CITY OF TALI AHASSEE. Defendant -Appellee. No. 85-3575. United States Court of Appeals, Eleventh Circuit. May 6, 1986. County special taxing district brought suit against city alleging violation of feder- al and Florida antitrust laws in connection with the provision of water and sewage treatment services. The United States Dis- trict Court for the Northern District of Florida, William Stafford, Chief Judge, granted the city's motion for summary judgment_ District appealed. The Court of Appeals held that: (1) the Florida stat- utes governing municipal provision of wa- ter and sewage services expressed a clear state policy for purposes of the state action exemption from the federal antitrust laws, and (2) the city's slight departure from the procedural requisites of the statutes did not strip the city of its exemption. Affirmed, 1. Monopolies 1&.-12(15.5) Florida statutes regulating municipal provision of water and sewage services e�!- denced clearly expressed state policy favor- ing city's allegedly anticompetitive actions for purposes of state action exemption from federal antitrust laws. Sherman Anti -Trust Act, §§ 1-7, 15 U.S.C.A. §§ 1-7; Vest's F.S.A. §§ 542.15-542.36. Honorable J. Smith Healcy, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designa- tion. t• A "special district" is "a local unit of special government ... created pursuant to general or 2. Monopolies 0=12105.5) City's slight. departure from procedural requisites of Florida statutes governing municipal provision of water and sewage services did not strip city of its immunity under state action exemption from federal antitrust laws. Sherman Anti -Trust Act., §§ 1-7, 15 i.J.S.C.A. §§ 1-7; West's F.S.A. §§ 542.15-542.36. Geoffrey B. Schwartz, Tallahassee, Fla., for plaintiffs -appellants. Harry 0. Thomas, ,Julian D. Clarkson, Robert R. Feagin, III, Tallahassee, Fla., for defendant -appellee. Appeal from the United States District Court for the Northern District of Florida. Before FAY and KRAVITCH, Circuit Judges, and HENLEY,* Senior Circuit Judge. PER CURIAM: Seeking injunctive relief and treble dam- ages, the Falls Chase Special Taxing Dis- trict brought suit against the City of Talla- hassee under the federal and Florida anti- trust laws. The United States District Court for the Northern District of Florida, 580 F.Supp. 967, found that the City of Tallahassee's allegedly anticompetitive ac- tivities were protected by the state action exemption to the federal antitrust laws be- cause the actitizties were authorized by the State of Florida. Accordingly, the district court granted the City of Tallahassee's mo- tion for summary judgment. We affirm. The Falls Chase Special Taxing District (the District) is a special district' created by Leon County ordinance on February 11, 1975. The District is located adjacent to the City of Tallahassee (the City). in the special law for the purpose of performing pre- scribed specialized functions w!thin limited boundaries and includes municipal service tax- ing or benefit units." Fla.Stat. § 200.001(8)(c) (1985). JCS 7lt!!0 712 788 FE1)F:RAL RF PORTER, 2d SERIES unincorporated area of Leon County, Flor- ida. On February 26, 19S1 the District filed suit against the City, alleging that the City Violated the Sherman Act, 15 V.S.C. §§ 1-7 (1952), and the Florida Antitrust Act of 1980, F1a.Stat. §§ 542.1,:�-.36 (19851, in attempting to acquire a monopoly over the provision of water and sewage treat- ment services in Leon County, and by tying the provision of sewage set -vices to the provision of water set -vices. There are no material facts in dispute. Beginning in 1972, the District's develop- ers had attempted to secure a commitment from the City to provide the District with water and sewage treatment services. No agreement was reached. In 1978, the Dis- trict decided to construct and operate its own water and sewage treatment systems. In 1979, the District applied to the Florida Department of Environmental Regulation for a permit to construct the water and sewage treatment systems. The City ob- jected to the issuance of the permit. The District ultimately prevailed and brought this action in district court against the City for challenging the issuance of the con- struction, permit. Alleging that it is a potential competitor of the City in the collection and treatment of water and sewage, the District contend- ed that the City engaged in "vexatious litigation" in attempting to gain an unlaw- ful monopoly over the provsion of water and sewage treatment services. The dis- trict court granted the City's motion for summary judgment.' The court found that Florida's statutes regulating the municipal provision of water and sewage services ex- pressed a clear state policy to replace com- petition with regulation. See Town of Hal- 2. Elba, Inc., Sunshine Land Development, Inc. and E. Lamar Bailey Associates were also named as plaintiffs. These plaintiffs own sub- stantially all of the private propcny within the District and are developing the property for residential and commercial uses. 3. Originally, the district court denied the City's ? motion for summary judgment. After the Su- preme Court decided Town of Hallie v. City of Eau Claire, — U.S. —, 105 S.Q. 1713, 85 L.Ed.2d 24 (1985), however, the City filed a motion for reconsideration. On June 20, 1985 ,'te r. City of Eau Claire, — U.S. —, 105 S.Ct. 1713, 1716, 85 L.Ed.2d 24 (1985). The court therefore concluded that the State action exemption shielded the City from liability under the federal antitrust laws.' The District promptly appealed. I1. Much of our work has already been done. In Auton r. Dade City, 7S3 F.2d 1009, 1011 (llth Cir. Mar. 3, 1986), a panel of this court recently held that the Florida "legis. lature contemplated municipalities would engage in anticompetitive conduct in the course of providing their citizens with a water supply." Because we see no mean- ingful distinction between this case and our case, we rely on, and quote copiously from, Auton: The parties agree that this case is gov- erned by the standard of municipal anti- trust immunity expressed in Town of Hallie r. City of Eau Claire, — U.S. - 105 S.Ct. 1,13, 85 L.Ed.2d 24 (1985), which was decided approximately one month after the district court's deci- sion in this case. 'Municipalities are not automatically exempt from the antitrust laws under the state action doctrine; "to obtain exemption, municipalities must demonstrate that their anticompetitive activities were authorized by the State 'pursuant to state policy to displace com- petition with regulation or monopoly pub- lic service.'" Hallie, 105 S.CL at 1716 (quoting City of Lafayette u. Louisiana Power & Light Co., 435 U.S. 389, 413, 98 S.Ct. 1123, 1137, 55 L.Ed.2d 364 (1978) (Brennan, J., plurality). to order w show state authorization, a municipality "must demonstrate that it is engaging in the the district court granted the motion for recon- sideration and entered summary judgment in favor of the City. 4. The district court did not reach the pendent state antitrust claim. It was not necessary for the coup to do so, however, because conduct exempt under the federal antitrust laws is also exempt from the Florida Antitrust Act of 1980. Fla.Stat. § 542.20 (1985). See Auton v. Dade City, 783 F.2d 1009, 1010 n. 1 (llth Cir.1986). FALLS CHAS) challenged activity pur expressed stata polio S.Ct. at 1717. While a authority to govern loc. ficient to constitute a of state policy beaus, Lion is neutral with res conduct, Community c Co. v. City 1 54-56, 102 S.Ct, 835, 810 (1982). it is not legislature to state ex tends or expects the t duct to have an6co. The clear articulation isfied if the statutory show that the legisla anticompetitive condL from the authority Br pality. Hallie, 105 S.t The issue in this c: Florida statutes aut.l water systems satisfy tion" requirement ex'. Appellants contend th, er to the neutral gene City of Boulder, suF gue, and the district the statutory scheme articulated state polic Dade City to engage conduct. We hold Dade City thorized by clearly ar cy. Appellants argue ture was neutral tow, cause Fla.Stat. § if vague enabling statu to the Home Rule Arr Boulder than the W Hallie, We do not al Home Rule Amendm ized as neutral beeaus silent regarding the c of Boulder, 455 U.S. 842-43. Here, the has enacted several municipalities and a) age systems. F1a.S 5. Similarly. Fla.Stat. § r%Zcs municipalities "(tlo 1 ° F.d.2d 24 "e cvncluded that tion shielded tl}e tl e Cit}� the federal antitrust promptly appealed. H. has already been done : ty, 783 F. 2d 1009, loll ;986), a panel of this :hat the Florida "legis- municipalities would etitive conduct in the their citizens with a ause we see no mean- ween this case and our quote copiously from, e that this case is goy :ard of municipal anti. :pressed in 707,-4 of Fau Claire, — Lt.S. 713, 85 L.Ed.2d 24 iecided approximately e district court's deci- Municipalities are not Pt I the antitrust .n doctrine; "to municipalities must :heir anticompetitive iorized by the State Aicy to displace com- ion or monopoly Aub- e, 105 S.CL_ at 1716 'nyette v. Louisiana 435 U.S. 389, 413, 98 L.Ed.2d 364 (1978) y ). In order to show a municipality "must is engaging in the the motion for recon• summary judgment in not reach the pendent µas not necessary for ever, because conduct antitrust laN, is also Antitrust Art of 1980. See Auton v. Dade n. I (llth C_ir.1986). 'FALLS CHASE SI' challenged activity pursuant to a clearly expressed state policy." 11allic, 105 S.Ct. at 1717, While a general grant of authority to govern local affairs is insuf- ficient to constitute a clear articulation of state policy because the State's posi- tion is neutral with respect to the city's conduct, Conlrr,unifv C�onan114711cafiorls Co. r. City of Boulder, 455 U.S. 40, 54--56, 102 S.Ct. 835, 842-43, 70 L.Ed.2d 810 (1962), it is not nccessan• for the legislature to state explicitly that it in- tends or expect-9 the municipality's con- duct to have anticompetitive effects. The clear articulation requirement is sat- isfied if the statutory provisions plainly show that the legislature contemplated anticompetitive conduct would result from the authority granted the munici- pality. lfallie, 105 S.Ct. at 1718-19. The issue in this case is whether the Florida statutes authorizing municipal water systems satisfy the "clear articula- tion" requirement expressed in Nallie. Appellants contend the statutes are clos- er to the neutral general authorization in City of Boulder, supra, Appellees ar- gue, and the district court found, that the statutory scheme contains a clearly articulated state policy which authorizes Dade City to engage in anticompetitive conduct. ECIAL TAXING v. CITY Cite K* 788 F.7d 711 (11th Cir. 1986) We hold Dade City's conduct was au- thorized by clearly articulated state poli- cy. Appellants argue the Florida legisla- ture was neutral toward this conduct be- cause Fla.Stat. § 1S0.06 is merely a vague enabling statute more analogous to the Home Rule Amendment in City of Boulder than the Wisconsin statutes in Nallie. We do not agree. The Colorado Home Rule Amendment was character- ized as neutral because it was completely silent regarding the city's conduct -City of Boulder, 455 U.S. at 55, 102 S.CL at 842-43. Here, the Florida legislature has enacted several statutes concerning municipalities and their water and sew- age systems. Fla.Stat. § 180.06(3), (6) 5. Similarly, Fla.Stat. § 180.06(4) (1985) autho- rizes municipalities " (t)o provide for the collec• OF TALLAHASSEE ?13 (1985) authorizes municipalities "to pro- vide a water supply for domestic, munici- pal or industrial uses" W and "incidental to such purposes and to enable the sc- complishment of the same, to construct resern•oirs, sewerage systems, trunk sew- ers, intercepting sewers, pumping sta- tions, wells, siphons, intakes, pipelines, distribution systems, purification works, collection systems, treatment and dispos- al works." Section 180.06 also provides that a private company or municipality shall not construct any system ... autho- rized to be constructed hereunder in the event that a system ... of a si.-n- ilar character is being actually operat- ed by a municipality or private compa- ny in the municipality or territory im- mediately adjacent thereto, unless such municipality or private company con- sents to such construction. This indicates that the legislature recog- nized that municipal public works often require anticompetitive practices. To en- gage in one of the authorized public works, a municipality may exercise its corporate powers within its corporate limits and extend outside its corporate limits up to another municipality's bound- ary. Fla.Stat. § 180.02(1), (2) (1985). These sections are similar to the Wiscon- sin statutes found to satisfy the clear articulation requirement in Nallie. The Florida statutory scheme, however, con- tains additional provisions which strengthen the conclusion that the legis- lature contemplated municipalities would engage in anticompetitive conduct in the course of providing their citizens with a water supply. For example, Fla.Stat. § 180.22 (1985) grants municipalities the power of eminent domain in connection with the activities authorized by Chapter 180 while Fla.StaL § 166.411 (1985) au- thorizes the use of eminent domain for, among other municipal purposes, the use of water pipes, sewage and drainage pur- tion and disposal of sewage.- _Z s� M 714 788 FEDERAL REPORTER. 2d SERIES poses, and F1a.Suit. § 180.13 (1985) grants the power to fix water rates. The cumulative effect of these statutes is to grant Florida municipalities broad power to provide water to their inhabitants. The Florida legislature, concerned with ensuring "adequate and dependable sup- plies of water" to meet the needs of rapidly urbanizing areas, Fla.Stat. § 373.196(1) (1985), stated that "[i}t is further the intent that municipalities, counties, and regional water authorities are to have the primary responsibility for water supply...." Fla.Stat. § 373.- 196(2) (1985). "[11t is clear that anticom- petitive effects logically would result from this broad authority to regulate." Hallie, 105 S.Ct, at 1718. III. (11 We similarly hold that these statu- tory provisions evidence a clearly ex- pressed state policy favoring the City's ac- tions in our case. Our inquiry, however, is not yet completed. The District has raised an argument not discussed in Auton. It suggests that because the City acted out- side the state authorization, its actions can- not be shielded. This argument is based upon the City's failure to follow the proce- dures outlined in the Florida statutes. [21 In Scott v. City of Sioux City, 736 F.2d 1207, 1215--16 (8th Cir.1984), Bert, de- nied, --- U.S. --, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985), the Eighth Circuit re- cently decided that a city's slight departure from state mandated procedures did not abrogate the city's antitrust immunity. "The city's departure from state procedural requisites would have W be extreme to warrant the threat of antitrust liability. State authorization for antitrust purposes does not require administrative decisions 6, Fla.Stat. § 180.02(3) provides: In the event any municipality desires to avail itself of the provisions or benefits of this chapter, it is lawful for such municipality to create a zone or area by ordinance and to prescribe reasonable regulations requiring all persons or corporations living or doing busi- ness within said area to connect, when avail- able, with any sewerage system constructed, that are free from ordinary errors." I& Here, the District argues that the City did not abide by Fla -Suit. § 180.02(3) (1985) because the City did not enact an ordinance creating a "zone or area" within which it would provide utility services.' We agree with the dist-ict court that this slight error "is not sufficient to strip the city of immu- nity." The City's slight departure from the procedural requisites of the Florida Stat- utes does not in this case raise a genuine issue of material fact as to whether the City forfeited state authorization. See .Scott, 736 F.2d at 1215. IV. Based upon the above analysis and au- thorities, we conclude that the City's alleg- edly anticompetitive activities are shielded from antitrust liability. Accordingly, the summary judgment entered by the United States District Court for the Northern Dis- trict of Florida is AFFIRMED. w o Sm,uKutsnnw T UNITED STATES of America, Plaintiff -Appellee, V. Mary Nell TABOR, Defendant -Appellant. No. 85-5180, Un -".A States Court of Appeals, Eleventh Circuit. May 6, 1986. A notary public was convicted in the United States District Court for the South - erected and operated under the provisions of this chapter; provided, however, in the cre- ation of said zone the municipality shall not include any area within the limits of any other incorporated city or village, nor shall such area or zone extend for more than 5 miles from the corporate limits of said munic- ipality. rad i I 0 ern Distr, of willfu governrn, Court of held tha' plied, th• convictiot Reve Fraud 4-1 "Ex. thereby U.S.C.A. ment to United c signed d- ais who where t) police r statemer. self wit: her as a disclaim activity, suspicion nal law, of possil: Williar Collins David 0 Fla., for Micha, ant-appe Appea Court fc Befor, Circuit . Judge. Honora Judge f lion. 1. Whoc of any States 1, or cove Page 3 W 4TH CASE of Level I printed in FULL format. GREENSBORO LUMBER COMPANY, Plaintiff, v. GEORGIA POWER COMPANY, et al., Defendants Civil Action No. C84-2022A UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, ATLANTA DIVISION 643 F. Supp. 1345; 1986 U.S. Dist. L.EXIS 21031; 1986-2 Trade Cas. (CCH) P67,318 August 28, 1986, Decided August 29, 1986. Filed CORE TERMS: energy, electric, transmission, wholesale, cooperative, qualifying, generation, retail, sell, antitrust, administrator, regulation, rural, tariff, power supply, electricity, electric power, municipality, generating, federated, consumer, bulk, ownership, plant, anticompetitive, immunity, antitrust laws, buy, partial, supplier COUNSEL: [** 11 For Plaintiff: Jack H. Watson, Jr., Phillip A. Bradley, Long & Aldridge, Strickland Holloway, Jr. For Defendant: Robert H. Form, Robert Edwards, Troutman, Sanders, Lockerman & Ashmore, Dorothy Y. Kirklev, Mark L. Gerchick. James A. Orr, Paul, Hastings, Janofsky & Walker, Emmet J. Bondurant, Bondurant, Miller, Hishon & Stephenson, James C. Brim, Jr., L. Clifford Adams, Heard, Leverett & Adams, James V. Davis, Landau and Davis, Robert B. Langstaff, Langstaff, Campbell & Plowden, Carlton C. McCamy, McCamy, Phillips, Tuggle, Rollins & Fordham, John T. Miller, Jr., Richard G. Tisinger, Tisinger, Tisinger, Vance & Greer, C. Saxby Chambliss, Moore & Chambliss. Christopher Kerosky, United States of America, Amicus Curiae. JUDGES: Charles A. Moye, Jr., United States District Judge. OPINIONBY: MOYE, JR. OPINION: [*13501 ORDER OF COURT Background Facts This antitrust action is brought by the Greensboro Lumber Company ("Greensboro") against the Georgia Power Company ("Georgia Power"), the Municipal Electric Authority of Georgia ("MEAG"), the partic- ipants in MEAG comprised of 46 Georgia municipal- ities and one county ("Participants"), the Oglethorpe Power Corporation ("Oglethorpe"), [**21 the members of Oglethorpe comprised of 39 rural electric member- ship cooperatives ("EMCs"), and the City of Dalton ("Dalton"). The suit challenges various practices and arrangements among these defendants in the electric ser- vice industry in a service area which encompasses most of the State of Georgia. The only areas excluded are relatively small areas served by the Savannah Electric and Power Company (Chatham and Effingham Counties) and certain rural cooperatives in North Georgia (Fannin, Union, and 'Towns Counties) which purchase their full power requirements from the Tennessee Valley Authority. The provision of electric service involves several dif- ferent levels of activity. The supply of electricity to the end -users, agricultural, industrial and residential con- sumers, is called the "retail distribution" of electric- ity. Retail electric service in Georgia is supplied by the Savannah Electric & Power Company, the distribu- tors of the Tennessee Valley Authority, Georgia Power, the EMCs, the Participants, two political subdivisions that elected not to join MEAG, and Dalton. The entities supplying electricity at retail need, in turn, to buy electricity at "wholesale", except to the extent [**3] they generate their own power. Electric energy supplied to electric utilities or to public authori- ties for resale or distribution is referred to as "wholesale electric energy" or "sales for resale." The generation of electric power in Georgia takes 29~ r140 643 F:. St,,.,,. 1345, *1350; 1986 U.S. Dist. LEXIS 2103), *13, 1986-2 Trade Cas. (CCH) P67,318 place at a number of central electric generating stations located throughout the state. The output of such sta- tions, together with power supplied from federal hydro- electric facilities provided by the Southeastern Power Administration i-SFPA"), is transniined overa net«ork of transmission !:"IC and rthcr faCtlltlCs to "dcliscry point substations" at %which the suppliers of retail elec tric service receive the power. Such transmission facili- ties are interconnected ihrrin0i a number of interchange agreements to [he transmission systems of utilities out- side Georgia, including those in Florida, Alabama, Tennessee, ,North Carolina and South Carolina. Power sales and purchases made orer these transmission inter- connections provide additional sources of electric power supply to the wholesale power suppliers in Georgia. As will be discussed later In this opinion. MEAG, Oglethorpe, Georgia Power and Dalton hove agreed to operate the transmission lines [**41 owned individually by each of them as an "integrated" system. Electrical power is viewed as having two components, capacity and energy. "Capacin " refers to the capability of a generating unit to produce a specified amount of electrical energy at an instant in time. Capacity is mea- sured in multiples of watts (kilowatts or megawatts) and is analogous to the horsepower of an engine. "Energy" is the electricity actually delivered to customers. It is measured in tenets of volume (watts) and time (hours) and is often expressed in kilowatt-hours. While rate structures may vary, payments for "energy" generally depend upon the amount of electric energy ac- tually taken by the buyer, and are based on the variable costs of generating the energy (fuel and certain operating expenses). When, on the other hand, a buyer pays for "capacity", it makes a payment based on the fixed costs of the capacity committed and not otherwise included as a variable cost (typically including principal and interest payments on debt, certain operation and maintenance ex- penses and certain other costs). Inconsideration for this, a specified amount of capacity is reserved for, and ded- icated to, the buyer's use. Accordingly, [**51 [*13511 if capacity is to be paid for, it must be dependable and available for the generation of energy if, as, and when needed by the buyer. Georgia Power, a subsidiary of the Southern Company, is an investor -owned, vertically -integrated business cor- poration engaged in the generation, transmission, and re- tail and wholesale sale of electricity in Georgia. Georgia Power operates on an integrated and pooled basis with other corporate affiliate members of the Southern elec- tric system pursuant to the integration standards of the Public Utility Holding Company Act of 1935, 15 U.S.C. §§ 79k, 79b(a)(29)(A) (1980). Prior to 1976, Georgia Power owned the vast majority of Georgia's electrical bulk power generation and transmission facilities. in 1971. Georgia Power applied to the Atomic Energy Commission ( "AEC"), now the Nuclear Revulaton, Commission CNRC"), for a license to crmstrilct the Ed\%in 1. Hatch Nuclear Plant, Unit No. ( - Plant Hatch") and the Vogde Nuclear Plant, Units 1, 2, 3 and 4 ("Plant Vogtle"). Pursuant to Section 105(c) of the Atomic Encrgy Act, 42 L'.S.C. § 21 ??. the AEC was required to review Georgia Power's license applications to determine whether the issuance of [**6] the requested license to Georgia Power "would create or maintain a sit- uation inconsistent with the antitrust laws." This statu- tory provision also obligates the United States Attorney General to review each license application and to advise the AEC of the need for a hearing to consider potential antitrust objections to the proposed license. On August 2, 1972, the Antitrust Division of the Department of Justice notified the AEC that the licens- ing of Plants Hatch and Voctle raised potential antitrust problems. The Attorney General informed the AEC that the Justice Department's review suggested that Georgia Power had, among other things, exercised its monopoly power to prevent the establishment of alternative bulk power supply systems in Georgia. As a result of this advice, notice was given to the pub- lic and a hearing was scheduled regarding the antitrust implications of Georgia Power's application. The EMCs (through their tradi association, the Georgia Electric Membership Corporation), the Participants (through their trade association, the Power Section of the Georgia Municipal Association), and Dalton petitioned to inter- vene before the AEC in opposition to Georgia Power's application. [**71 The AEC set the Hatch application for hearing. At this juncture, a slight digression is ap- propriate in order to give some background information about these intervenors. The 39 EMCs are all rural electric membership cor- porations organized between 1936 and 1945 pursuant to the Georgia Electric ,titembership Corporation Act, O.C.G.A. §§ 46-3-170 through 46-3-541, and!or its predecessor, the Electric Membership Corporation Act of 1934, O.C.G.A. §§ 46-3-70 through 46-3-97, The EMCs engage exclusively in the retail distribution of electricity to consumers in relatively sparsely -populated rural areas. These consumers automatically become members of the respective corporation. Each cus- tomer/"member" of the corporation is entitled to one vote, regardless of the size of its purchase of electricity. Each corporation is governed by a board of directors elected by its members each year at the equivalent of a town meeting. Prior to the creation of Oglethorpe 9-- 720 643 F. S-t)p. 1345, *1351; 1986 U.S. Dist. LEX1S 21031, **7; 1986-2 Trade Cas. (CCM P67,318 in 1974, the ErlCs relied on Georgia Power and, to it limited degree. SERA for their power and energy. The Participants consist of 47 Georgia political subdi- visions (46 cities and one county. Crisp County). Each Participant engages in the retail (**Sl distribution of electricity to the consumers lip ing in the area assigned to it by the Georgia Public Service Commission ("PSC"). Prior to the formation of MEAG in 1u75. each of the Participants, except Crisp County, was dependent upon Georgia Power and, to a iiinited decree, SEP.A for its wholesale electric requirements. Crisp County owned and continues to own its own generation and transmis- sion facilities. The City of Dalton engages in the retail distri- bution of electricity to consumers living [*13521 in Dalton. Dalton declined to join MEAG when MEAG was formed. Prior to the hearing, Georgia Power, the EMCs, some of the Participants, Dalton, the AEC staff, and the Justice Department negotiated a proposed settle- ment ("Settlement") in which Georgia Power agreed to sell a portion of certain nuclear -fueled units and of cenain coal-fired generation facilities to the EMCs, the Participants, and Dalton. it is worth noting, however, that neither the EMCs nor the Participants have any direct ownership interests in any of these facilities; their interests are held bw Oglethorpe and MEAG, respectively. The Settlement also provided that Georgia Power would provide transmission ser- vices ['**91 with respect to the "project power" gen- erated at the jointly owned facilities and would file a "partial requirements tariff" in order to make "sup- plemental power" available to the other parties at a set rate. nl In 1975, this tariff was filed with, and approved by, the Federal Power Commission, now known as the Federal Energy Regulatory Commission ("FERC"). Additionally, Oglethorpe, MEAG, and Dalton appointed Georgia Power as their agent with sole authority for, among other things, the planning, licensing, design, construction, operation, maintenance and disposal of the generation facilities. These parties also require Georgia Power to comply with prudent util- it) practices while pursuing these activities on their be- half. n3 Specifically, the Settlement stated that Georgia Power's license application would be subject to con- ditions ("License Conditions") providing, among other things, for: (1) purchase by the E1ACs and the municipalities of partial ownership interests in Georgia Power's nuclear plants then under construction or planned for the future; (2) coordination and sharing of reserves by the parties; Page 5 (3) provision of transmission services over facilities owned by Georgia [**101 Power; and, (a) sales of partial requirements at volt axes appropriate for the load to be served. n1 See, P. 1377, infra. n1_ in addition to these Ownership Agreements, Oglethorpe and MEAG have parallel agreements granting Georgia Power the authority to manage, maintain, operate and control the jointly -owned gen- erating facilities. These agreements also provide for the use of power and energy from each plant and the sharing of the costs in accordance with the paries' respective ownership interests. Each is entitled to a percentage of the net power and energy output of each plant equal to its respective percentage owner- ship interest in such plant. These License Conditions require Georgia Power to provide these bulk power supply services to all utili- ties offering retail distribution of electricity to the pub- lic operating within Georgia Power's service area and to public bodies and cooperatives such as MEAL and Oglethorpe. To effectuate the Settlement, the EMCs, the intervening Participants, [**I1] and Dalton released any antitrust claims they might have had against Georgia Power. On August 8, 1974, in order to carry out the terms of the Settlement, to create economies of scale through integrated and unitary operations, and to enhance their own ability to viably compete with Georgia Power, the EMCs formed Oglethorpe. n3 Oglethorpe its a not -for - profit electric generation and transmission cooperative ("G & T") which was organized to supply the electric power needs of its 39 members through the generation, wholesale sale, wholesale purchase, and transmission of electricity. Oglethorpe is wholly -owned and run by its member -owners, which dictate its policies and activities, including the rates which the ENICs will be required to pay for wholesale 1*13531 power, the forecasting and projection of need for future power supplies, and all other major activities of Oglethorpe. n3 Participation by electric membership corpora- tions with investor -owned utilities in joint generation and transmission projects is not a new concept. For example, in the early 1960's, 30 Ohio corporations formed a generation and transmission cooperative in order to finance their share of a plant constructed and owned by the investor -owned Ohio Power Company, 9 9 — r( 2 U LON 643 F. Sut.t,. 1345. * 1353; 1986 U.S. Dist. LEXIS 21031, * • 1 1; 1986-2 Trade Cas. (CCH) P67,319 See REA Financing: Hearing Before the Subcomm. on Conservation and Credit. House Comm. on Agriculture, 88th Conc.. 2d Sess. S. 11 (1964) (Statement of Bars} G. Guthrnannt. i"121 The E%1Cs are obliged to supply the aggregate require- ments of their retail consumers through bulk purchases of power and enerp and to maintain a distribution sys- tem to deliver power and cnr-rgy primarily to their ru- ral consumers. in order to meet these obligations, the EMCs entered into a series of "wholesale power sales contracts' under which the EMCs purchase most of their energy needs from Oglethorpe. However, Oglethorpe, through its member -controlled board, sets its rates so that the revenue it rccci%es from the EMCs, with an) - revenues received from other sources, is only sufficient to pay Oglethorpe's expenses, including costs and inter- ests on all outstanding debts, and to provide for reason- able reserves. Any retained excess revenue is assigned to each EMC as "patronage capital," on the basis of each EMC's purchases. Similarly, to help effectuate the terms of the Settlement and to create economies of scale, Crisp County and all of the intervening municipalities except for Dalton, which chose to participate in the ownership arrangements on an individual basis, joined MEAG. ~MEAG was created by the Georgia General Assemble in 19?5. O.C.G.A. §§ 46-3- l 10 et seq. 1! was formed ( * * 131 to develop and provide, on a nonprofit basis, electric power in "bulk" to meet the needs of certain municipal and other govern- mental entities in Georgia (the Participants) that provide electric service at retail to ultimate consumers, n4 To this end, MEAG also entered into a series of "wholesale power sales contracts" with the Panicipants. O.C.G.A. § 46-3-112 provides that MEAG "shall be a public corpo- ration of the State of Georgia and shall have a perpetual existence, This authority, however, shall not be a state institution nor a department or agency of the state but shall be an instrumentality of the state . . . ." MEAG is governed by nine members, serving three year terms, elected by the Municipal Electric Authority of Georgia Membership Election Committee, which is composed of representatives from each participating political subdi- vision. O.C.G.A. §§ 46-3-113 through 46-3-116. n4 O.C.G.A. § 46-3.110 Declaration of necessity Whereas certain political subdivisions of this state now own and operate electric distribution systems to serve their citizens, inhabitants, and customers by providing them electricity for all purposes; and Page 6 whereas, if such political subdivisions arc to fur- nish, and if the members of the public in the areas they serve are to receive, adequate service, such po- litical subdivisions must have adequate, dependable, and economical sources and supplies of bulk electric power: it is declared that there exists in this crate a need for an authority to function without profit in developing and promoting for the public good in this state adequate, dependable, and economical sources and supplies of bulk electric power and energy for the purposes expressed in this Code section. 1**141 The Settlement itself was reviewed by the Department of Justice which opined that partial ownership of the Hatch and %bgtle Plants by MEAG, Oglethorpe and Dalron would not create or maintain a situation incon- sistent with the antitrust laws. Moreover, the Justice Department concluded that the partial ownership ar- rangement as well as the purchase and ownership by Oglethorpe, MEAG and Dalton of portions of the high voltage transmission grid previously owned by Georgia Power would have a pro -competitive effect in the elec- trical services market because they would provide actual and potential competitors of Georgia Power with viable alternative power supply sources which would, conse- quently, enable them to compete effectively with Georgia Power. The acquisition. by MEAG, Oglethorpe, and Dalton of ownership in generation facilities created a new need for long-term transmission arrangements. Accordingly, in compliance with the License Conditions, Georgia Power filed, at the same time that it fried its proposed partial re- quirements tariff, a proposed transmission ser- ice tariff with the Federal Power Commission, the predecessor to the FERC. The transmission tariff, which was also ap- proved, 1' • 151 provided for the creation of an Integrated Transmission System ("ITS"). The iTS resulted[* 13541 from a series of three separate, but substantially identi- cal, iTS agreements entered into by S1 EAG, Oglethorpe, and Dalton with Georgia Power, which, unlike other Georgia utilities, elected to participate in the ITS. n5 The Participants and the EMCs are not direct parries to the ITS agreements. However, because of agreements between Oglethorpe and the EMCs and between MEAG and the Participants, both the EMCs and the Participants indirectly receive the benefits of the ITS. n5 In addition, the I'TS is connected by means of high -voltage transmission lines to each of the other operating affiliates (Gulf Power Company, Mississippi Power Company and Alabama Power J- '`0V 643 F. Supp. 1345. *1354; 1986 U.S. Dist. LEXIS 21031, **15; 1986-2 Trade Cas. (CCH) P67,318 Company) of Georgia Power's parent, the Southern Company, and to other electric utilities. Oglethorpe also has interconnection and interchange agreements with Alabama Electric Cooperative, Inc. and South Mississippi Electric Power :AsSocmnoli Essentially, [**]6] Georgia Power, Oglethorpe, MEAG, and Dalton agreed to operaie as an "integrated" system the transmission lines o> \kiwi Individually by each of them. The agreements provide that each participant in the ITS may use all of the tr:uismission systern facilities included in the system in order to meet its transmis- sion needs without charge, regardless of ownership, in serving its own customers. The agreements further pro- vide that each party Tray, at its own discretion, use the transmission facilities for transactions with small power producers and cogenerator. n6 Participation in the iTS makes it possible to transmit power from central elec- tric generating stations and interconnection points to the retail distribution level. It is thmligh use of the ITS, for instance, that MEAG is able to provide power to the Participants and Oglethorpe is able to provide power to the E,MCs. Absent these agreements, the only way each entity would be able to obtain access to electricity gener- ated at a point beyond its own tT-Tsmission system would be to obtain the consent of, and pay for the Transmission or "wheeling* services of, the owner of the connecting system. Participation in the ITS enables the parties to [**171 coordinate the deyelopmeni of their transmission facilities, makes unnecessary the construction of dupli- cate facilities, and, in general, provides an opportunity for achieving economies of scale. n6 See, n.36, infra. The ITS is constructed and operated to serve the load of the public utilities operating in Georgia on an inte- grated basis. The ITS occupies public rights of way which have been acquired in part through powers of eminent domain and is dedicated to public utility ser- vice. The partial requirements tariff and the transmis- sion service tariff were approved in 1977 as reasonable by the FERC; they \\ere incorporated into the proposed Settlement. The Justice Department approved the Settlement, and the antitrust proceeding against Georgia Power was sub- sequently dismissed. Although the NRC never expressly approved the License Conditions, Dalton, MEAG, and Oglethorpe, nonetheless, entered the bulk power supply field by acquiring interconnected transmission lines and undivided interests in plants Hatch (**18( and Vogtle as well as two other coal-fired power generating plants, the Scherer Plant and the Wansley Plant. 0 Page 7 n7 Two•pany ownership agreements relating to Plants Hatch and %Vansley were executed between Oglethorpe and Georgia Power and MEAG and Georgia Power. The ownership agreements relating to Plants Vogde arid Scherer are four -party agree- ments among Oglethorpe, Georgia Power, MEAG and Dalton. These agreements all appoint Georgia Power as agent with sole authorit} for, among other things the planning, licensing, design, construction, operation, maintenance and disposal of the genera- tion facilities, and require Georgia Power to comply with prudent utility practices. Oglethorpe and M EAG also have parallel agreements providing Georgia Power authority to manage, main- tain, operate and control the operation of the jointly - owned generating facilities. These operating agree- ments also provide for the use of power and energy from each plant and the sharing of costs in accor- dance with the parties' respective ownership inter- ests. **19 Currently, Oglethorpe, MEAG, and Dalton each pur- chase electric energy and capacity from Georgia Power at the rate established by the partial requirements tar- iff. The partial requirements tariff is amended [* 1355] from time to time subject to the approval of the FERC. Oglethorpe, MEAG, and Dalton also each sell some elec- tric energy and capacity back to Georgia Power pursuant to the joint ownership agreements which exist between and among these parties. in distributing their retail electricity, Georgia Power, Dalton, the EMCs, and the Participants are all "electric suppliers" as this term is used in the Georgia Territorial Electric Service Act, O.C.G. A. §§ 46-3-1 et seq, which was enacted in 1973. As such, they are all governed by the Act. The purpose of this Act is (1) to assure the most efficient, economical, and orderly rendering of retail electric service within the state, (2) to inhibit duplication of the lines of electric suppliers, (3) to foster the extension and location of electric supplier lines in the manner most compatible with the preservation and enhancement of the state's physical environment, and (4) to protect and conserve lines lawfully constructed [**201 by electric suppliers . . . O.C.G.A. § 46-3-2. 99- 104WV 643 F. Supp. 1345, *1355; 1986 U.S. Dist. LEXIS 21031, **20; 1986-2 Trade Cas. (CCH) P67,318 The Georgia Territorial Electric Sen ice Act ernpow- ers the Georgia Public Service Commission to assign to individual retail electric power suppliers exclusive geo- graphic territories within Georgia, subject to certain nar- row exceptions which are not releN ant to this case, for the distrihunon hot retail ric�tricti\. The PSC also has the authority to declare a Geographic area unassigned if it so chooses. 0C.6.A.5 46-3 through 46-3-9. The Georgia Territorial Electric Seri ice Act also empowers the PSC to enforce its exclusive territorial assignments: At any time, upon its own or the complaint of any other electric supplier or any other interested parl, the com- mission shall have the authority and jurisdiction, after notice to all affected electric suppliers and other inter- ested parties, and after a hearing, to enforce the provi- sions of this pan by appropriate orders. O.C.G.A. § 46-3-13. This statute was held to be con- stitutional by the Georgia Supreme Court in Ciry of Calhourr 1'. Norm Georgia F_lecrric Membership Corp., 2.3.3 Ga. 759, 21.3 S. E.2d 596 (1975), Pursuant to this law, Georgia Power, the EMCs, the [**21] Participants. and Dalton are authorized to serve exclusively at retail a geographic area designated by the PSC. Neither Oglethorpe nor MEAG has a certified ter- ritory_ in which to serge, and neither serves any electrical load at the retail distribution level. The PSC assigned Rayle EMC the area encompassing the plaintiff's facility in Greensboro, Georgia. The plaintiff in this action is in the business of pro- ducing lumber and lumber by-products for commercial uses. Greensboro has lumber production facilities in Greensboro and Carlton, Georgia. Prior to 1979, the plaintiff purchased all the electric energy it needed to operate its facility in Greensboro, Georgia from Rayle EMC at retail. Greensboro has used and continues to use electric energy purchased from Georgia Power to provide the energy necessary to operate its facility in Carlton, Georgia. In early 1978, the plaintiff decided to buy and con- s,ruct a steam -turbine driven generator system to gen- erate electricity at its Greensboro facility. The plaintiff intended to use the waste and some by-products from its lumber production as fuel in order to operate the boiler and the venerator system. Greensboro claims that, prior to purchasing [**22) or constructing the genera- tor system, it tried to negotiate an arrangement with Rayle EMC whereby Greensboro would simultaneously sell electric energy and capacity to Rayle EMC and buy back-up energy from Rayle EMC; but that Rayle EMC refused. Greensboro also claims that it asked Rayle Page 8 EMC whether it would consider buying just the excess electric energy and capacity which Greensboro would generate. Greensboro states that Rayle EMC expressed some interest in this proposal. but informed Greensboro that all of its purchases would have io he made through Oglethorpe, pursuant to the wholesale power sales con- tract it had with Oglethorpe. [ * 13561 In the summer of 1978, Greensboro purchased a generator system with a rated capacity of '7500 kilo- watts. At its peak, Greensboro uses approximately 2200 kilowatts to operate its facility at Greensboro, Georgia. Because it could not secure a satisfactory price else- where, Greensboro constructed its own distribution sys- tem. All of this was completed by March 1979, at which time Greensboro disconnected from Rayle EMC and be- gan generating its own electric energy. Greensboro be- came energy self-sufficient at that plant with no intercon- nection with any [**23) outside source of electric energy and capacity. During the interim, the Federal Public Utility Regulaton• Policies Act of 1978, 16 U.S.C. § 824a-3, CPURPA"), which shall be discussed later in this opinion, was enacted by Congress. Several months after it began generating electricity, Greensboro actively began to seek purchasers for its excess electric energy and capacity. The plaintiff con- ducted negotiations with MEAG; however, Greensboro alleges that MEAG offered a price for Greensboro's electric energy which was less than half of what it cost Greensboro to generate it, was fax below MEAG's avoided energy cost —allegedly in violation of PURPA, and included no payment for capacity. Greensboro received a similar response from Georgia Power, which offered to pay Greensboro a "split -the - savings" energy cost rate for its output. n8 Additionally, Greensboro claims that Georgia Power offered to sell back-up energy at retail to Greensboro on the condition that Rayle EMC consent; but that, Rayle EMC refused. As well, the plaintiff alleges that Georgia Power re- fused to go along with Greensboro's alternative sugges- tion that, rather than haying Greensboro sell its electric enerey and capacity [**24) to Georgia Power, Georgia Power transmit Greensboro's excess electric energy on the ITS to Greensboro's facility in Carlton. Georgia Power claims, however, that it is physically impossible, from an engineering perspective, to direct energy gen- erated at the plaintiff's Greensboro premises across the ITS for delivery to the plaintiff's Carlton Plant. n8 This rate is set at a level somewhere between the incremental cost of the seller and that of the buyer, at a price lower than the cost the buyer would incur were the buyer to produce the electric energy itself "1 9- 41V L 643 P. Supp. 1345. •1356: 1986 U.S. Dist. LEXIS 21031, **24; 1986-2 Trade Cas. (CCH) P67.3IS but at a price which still provides a profit to the seller. Significantly, however, at this time the PSC had not yet issued a directive implementing PURPA which would have required Georgia Power to offer to pay its full a\ aided enerLv costs to Greensboro. The Geor_ia Public Scr-�tcc Commission did not issue a directive to this effect until April 5, 1983. That di- rective did not provide for any payment for avoided capacity costs: the PSC saved addressing this issue for an unspecified, future time. [**751 Greensboro asserts that, having no other buyer avail- able, it entered into a five-year contract on August 3, 1981, with Or for the sale of its electric en- ergy and capacity. However, the plaintiff alleges that Oglethorpe pays significantly less under this contract than Oglethorpe's avoided energy and capacity costs and less than Oglethorpe pays Georgia Power under the partial requirements tariff for its energy and capac- ity. Additionally. Greensboro asserts that since the con- summation of the contract with Oglethorpe, Oglethorpe has made numerous unilateral changes in the terms of the contract, including changes in certain rates and the method by which capacity payments are calculated. Among the terms of this contract was a require- ment that Greensboro be allowed to interconnect with the ITS. This was done in September, 1981: however, Greensboro claims that it was overcharged for the con- struction of the interconnection facilitv.�Although it is a generator and wholesale seller of electricity, Greensboro does not own any electric lines, other than those which connect its plant to the statewide transmission grid. The plaintiff is not engaged in the transmission business. Regarding [*1261 sales of retail power to Greensboro, Greensboro entered into a contract with Rayle EMC for the purchase of this service. Greensboro asserts, how- ever, that, during the period from 'starch 1979 through the end of 1983, with the exception (`13571 of a limited period of time, it was unable to obtain back-up, main- tenance or interruptible power from either Oglethorpe )r Ravle EMC. While conceding that Rayle EMC has offered to sell some back-up energy to it, the plain- tiff claims that these offers were at a Drice which was not just and reasonable. The plaintiff does admit that Rayle EMC began to provide it with scheduled mainte- nance power in 1984: however, Greensboro states that it was told that it could not receive scheduled maintenance power during the period from June I through September 30. Greensboro alleges that on September 10, 1984, it was forced to shut down its generating facility because of an emergency equipment failure. Greensboro claims Page 9 to have asked both Oglethorpe and Rayle EMC to pro- vide it with emergency interruptible back-up power; but that, they refused. As a result, the plaintiff states that tt was forced to shut down its generation and its lumber production facilities. 1**271 On July 13, 1984, to what the plaintiff characterizes as a desperate, good faith effort to sell its electric en- ergy and capacity at fair prices, Greensboro mailed a letter to Georgia Power, each of the EMCs, Dalton, MEAG, and each Participant soliciting from each an of- fer to purchase its electric energy and capacity. The letter also requested each utility to provide the plain- tiff with data pertaining to its system costs. Greensboro claims that (1) Georgia Power indicated a willingness to negotiate a contract which would pay Greensboro the amount of Georgia Power's avoided costs for energy but no amount for capacity; (2) four of the EMCs did not respond at all; (3) the remaining EMCs responded by refusing to purchase Greensboro's energy and capacity; (4) MEAG indicated a willingness to negotiate a contract which would pay Greensboro the amount of MEAG's avoided costs for energy but no amount for capacity; (5) each Participant, except Crisp County and Albany re- sponded to Greensboro through MEAG and declined to contract directly with Greensboro; (6) Albany responded by referring Greensboro to MEAG; (7) Crisp County provided the information requested but, while it did not make any offers 11*281 to purchase, it specifically in- formed Greensboro that no payment would be made for its capacity; and (8) Dalton did not respond. Not having received any answers to its liking, Greensboro filed this lawsuit. The Complaint Count 1 of the amended complaint challenges the fol- lowing conduct as violative of § I of the Sherman Act: (1) the wholesale power sales contracts between Oglethorpe and the EMCs; (2) the wholesale power sales contracts between MEAG and the Participants; and (3) the joint operation and ownership agreements be- tween and among Oglethorpe, Georgia Power, MEAG and Dalton. Greensboro claims that these actions elimi- nate competition and reduce trade in the electric energy and capacity transmission, wholesale sale, and whole- sale purchase markets. This, in turn, has the effect of precluding persons such as Greensboro from competing with Georgia Power, Oglethorpe, MEAG, and Dalton in these markets. Specifically, Greensboro alleges that it was injured because it could not transmit its electric energy and capacity to potential customers within and outside Georgia and it could not sell its electric energy and capacity to the EMCs and to the Participants. L 99^ P-l4V Page 10 643 F. Supp. 1345, *1357; 1996 U.S. Dist. LEXIS 2103), **28; 1986-2 Trade Cas. (CCH) P67,318 Count 11 of the 1**291 amended complaint alleges that the defendants monopolized or attempted to rnonope.- lize the transmission, wholesale purchase and wholesale sale of clectr icity in the State of Georgia to violation of 2 of the Sher"Trail ;Vet. Greensboro alleges that the defendants have Ink`nopoh,ed. or attempted 10 Inollop olize, the transmission of electric enemy and capacity through their joint ownership and operation of the ITS. Greenshoro claims that throe h this monopoly power and through the wholesale purchase and sale agreements which exist between and among the parties, the defen- dants have monopolized, or attempted to monopolize, the wholesale purchase and sale markets. The plaintiff maintains that, ;Ls a result of these actions, it has been prevented from transmitting its 1*13581 electric energy and capacity to potential customers within and outside of Georgia and has been prevented from selling electric energy and capacity to the EMCs and to the Participants. Count III of the amended complaint alleges that the power supple contracts of' Oglethorpe, the EtiICs. MEAG, and the Participants violate § 3 of the Clayton Act. These exclusive deahng agreements tend to create a monopoly in the wholesale 1**30] sale, and a monopoly in the wholesale purchase, of electric energy and capac- ity in the State of Georgia. Greensboro claims that it has suffered harm because it has been prevented from selling electric energy and capacity to the EMCs and to the Participants. Count IV of the amended complaint alleges viola- tions of PURPA by Oglethorpe, the EMCs, MEAG, and all of the Participants with the exception of the City of Albany. Under PURPA, these defendants were required to submit to the FERC their plan for imple- mentation of each of their obligations under PURPA. (These implementation plans are hereinafter referred to as "Interconnection Policies"). The Interconnection Policy of Oglethorpe and the EMCs provide that only Oglethorpe will purchase energy and capacity from qual- ifying cogeneration facilities and qualifying small power production facilities ("qualifying facilities") and that only the EMCs will sell supplemental, interruptible, hack -up and maintenance power to qualifying facih- aes. The Interconnection Policv of MEAG and the Panicipants (except Albany) provides that, with re- spect to qualifying facilities with design capacity greater than 100 M. such as Greensboro, only MEAG will 1**31] purchase energy and capacity. Furthermore, only the Panicipants, with the exception of the City of Albany, will provide retail sen-ice to a qualifying fa- cility. Greensboro contends that these Interconnection Policies violate PURPA on their faces and as applied to Greensboro. Count V of the amended complaint alleges violations of PURPA by Oglethorpe and Rayle EMC. Greensboro alleges that from August 1981 until February 1984. with the exception of a limited period of time, Greensboro was unable to obtain back-up or maintenance power at a nondiscriminatory, just and reasonable rate from ei- ther Oglethorpe or Rayle EMC. Greensboro claims that Rayle Eh1C and Oglethorpe refused to sell it schedule maintenance power from June I through September 30 of each year. Furthermore, according to Greensboro, both Rayle EMC and Oglethorpe still refuse to make inter- ruptible power available to Greensboro. These actions, Greensboro contends, violate PURPA. Count VI of the amended complaint is a state breach of contract claim against Oglethorpe based on alleged vio- lations of the energy and capacity contract which exists between Greensboro and Oglethorpe. Oglethorpe and the EMCs Oglethorpe and 1**321 the EMCs (hereinafter "the Oglethorpe Group") characterize the case at bar rather poetically as "a case crafted of whole cloth -- spun out of misapplied antitrust theory, grandiose rhetoric, and counsel -generated controversy." The Oglethorpe Group expresses the view that Greensboro, a for -profit co - generator of electricity, is complaining about the joint ownership of Georgia Power's generation and transmis- sion facilities by the defendants, private municipal and rural cooperative utilities, because it does not desire to become, and accept the responsibilities and restrictions of being, a public utility. The Oglethorpe Group has filed a motion for summary judgment on all counts. Oglethorpe owes its existence to the Rural Electrification Administration ("REA") in that it is principally financed by loans and loan guarantees of the United States, acting through the REA. The REA was established in 1935 by Executive Order to "initiate, formulate, administer and supervise a program of approved projects with respect to the generation, transmission and distribution of electric energy in rural areas." Executive Order No. 7037 (Mav I f . 1935). The REA became a permanent agency of the federal government J-33] pursuant to the Rural Electrification Act of 1936 ("REA Act"), 49 Slat. 1363, 7 U.S.C. §§ 901 (*1359] through 916. The objectives of the REA Act were to extend the benefits of economical central station service n9 to the numerous farms in sparsely - settled areas in which investor -owned utilities had not found it profitable to provide service. See 80 Cong. Rec. 2752 (daily ed. Feb. 25, 1936), Salt River Project Agricultural Improvement and Potter District v, Federal Fblter Commission, 129 US. App. D.C. 117, D9- Mi�9h L Page I l 043 F. Suly. 1345, *1359, 1986 U.S. Dist, LEXIS 21031. **33; 1986-2 Trade Cas. (CCH) P67,318 391 F.2d 470, 4731D.C. Cir.), Geri. denied, 393 U.S 857. 89 S. Ct. 104, 21 L. Ed. 2d 126 (1968). n9 The feral "central station service" is used in the REA .Act, see e.g.. % ('. S. C. § 902, to describe elec- tric service tiorn a central generation facility that serves numerous consumers. This is distinguished from, for example, electricity available only from small-scaic, sut_ole-farm gcncraMors. Although a few electric corporations predated the REA, in 1936, fe::er than 10q of the nation's farms [**34] had central station electric service. n 10 Rural electric corporations, the principal and preferred recipi- ents of REA loans, have since become important suppli- ers of energy to rural America. In Georgia, for exam- ple, the EMCs cumulatively serve about onc-quarter of the state's total population, almost entirely in Georgia's most sparsely -populated rural areas. n10 Rural Electrification: blearing, on S.3483 Before the House Committee on Interstate and Foreign Commerce, 74th Cong. 2d Sess. 8, 39 (1936) (statement of Morris L. Cooke, REA Administrator) thereinafter cited as "1936 Hearings"). By 19_23, thirty-one rural electrical cooperatives had been incorporated in nine states. Ellis, C., A Giant Step, 33 (1966). While Oglethorpe was not formed until 1974, simi- lar federated G & Ts began to form across the country soon after the passage of the REA Act nearly fifty years ago. These cooperatives were formed to meet the per- ceived need for greater efficiency in rural electric service through large-scale power [**351 generation and distri- bution. In essence, G & Ts were a direct response to a vital fact of the electric industry, known to Congress when the Rural Electrification Act was passed in 1936, and which has grown in importance with technologi- cal developments -- viz., that the cost of power from a Venerating plant constructed by a typically small REA- financed rural electric distribution system would, in gen- eral, be prohibitively high. nl I rill Response of Appellees Rural Electrification Administration, Norman M. Clapp, United States Department of Agriculture, and Orville L. Freeman, ,) to petition for Rehearing and Petition for rehearing en bane, filed May 24, 1968, pp. 5-6, Alabama Power Co. v. Alabama Electric Cooperative, Inc.. No. 23,016 (5th Cir.) ("REA Reply Brief"). See also 80 Cong. Rec. 2756 (daily ed. Feb. 25. 1936), in which Senator Norris, a drafter of the REA Act, said during a Senate debate: "It would not be good business to build a generating s:sicm for a sing!e farmer's organization. The expense in such a case would be too high, so that it would not be a self- liquidating proposition. But one generating system may supply half a dozen or a dozen farm organiza- tions . . . ." [**361 Under the plan of the REA Act, the REA is to lend money to federated cooperatives for the construction of a single generating plant and transmission line so that these federated cooperatives may, in turn, supply their mem- ber distribution systems with :wholesale power which they, in turn, distribute to their member consumers at retail. n12 This plan has, by and large, worked [*13601 quite well. As Senator McGovern stated during the 1971 oversight hearings: The G. & T. cooperatives have provided a yardstick of wholesale power cost and service for the entire program and for the country. All consumers of electric power, regardless of the utility providing the service, will be injured if the G. & T. cooperatives' ability to serve rural America is diminished. n13 n12 Former REA Administrator Claude Wickard testified before a Senate subcommittee on the shift within the agency toward federated cooperatives and away from individual utilities. See Hearings be- fore the Senate Subcommittee of the Committee on Agricultural Appropriations for 1951, 81st Cong., 2d Sess., p. 1341. Federated cooperatives have been of great benefit to the movement for rural elec- trification. The Fifth Circuit in Alabama Power Co. r. Alabama Electric Cooperative, 1rc., 394 F.2d 672, 677 (5th Cir. i, cert. denied, 393 U.S. 1000, 21 L. Ed. 2d 465, 89 S. Cl. 488 (1968) (quot- ing Federal Power Commission v. Dain•land Power Cooperative, 37 F. P. C. 12, 35 L. W. 2385) described federated cooperative as "something more than pub- lic utilities; they are instrumentalities of the United States. 'They were chosen by Congress for the pur- pose of bringing abundant, low cost electric energy to rural America.'" While the REA loans are made to the federated cooperatives, the individual distribution systems are �( 59— 2Q 643 F. Supp. 1345, ' 1360; 1986 U.S. Dist. LEXiS 21031, "136; 1986-2 Trade Cas. (CCH) P67318 -� the member -owners and exercise complete control over the management of the federated cooperatives. Hence, the REA loans are, in fact, made for the ben- efit of each of the member distribution and their consumers. REA Rcp1N Brief, supra at 6. [ n13 financial Nreds of Rural Electric Cooperatives: Hearing Before the Subcotnm. on Agricultural Credit and Rural Electrification, Senate Comm. on Agriculture and Forestry, 92nd Cong., 1st Sess. 2 (1971) (opening remarks of Chairman McGovern) (hereinafter cited as "1971 Senate Hearings"). Continued federal support for G & Ts has been recog- nized as essential to permit small rural distribution sys- tems and small municipal systems to be able to bargain effectively with investor -owned utilities for wholesale power supplies: Without the leverage of alternative power supply sources, a rural electric distribution cooperative (and, in the same way, a small municipal electric system) is at a real disadvantage in bargaining for wholesale power supply with a large investor -owned system. The lack of available G. & T. funds . . . has effectively taken away the strongest bargaining tool of the small distribution utilities. In summary, an adequate supply of reasonably priced electric power for rural America depends in great mea- sure on enough money in REA's electric loan program for generation 1**381 and transmission loans to give small systems a chance to strike the best deal for rea- sonably priced, adequate electric power supply, and . . . protect them froin complete dependence on the large companies with whom they frequently must compete for retail loads. n14 n14 1971 Senate Hearings, at 97 (Statement of .Alex Radin, General Manager, American Public Power Association). In the 1971 Senate Hearings, Senator McGovern specifically referred to the desirability of the G. & T. alternative in Georgia as a means of alleviating depen- dence upon large investor -owned utilities for supplies of wholesale power: _ ! [a] rural electric cooperative manager from Georgia wrote to me -- 'if adequate low-cost capital is not made Page 12 available soon for generation and transmission coopera- tives, it is just a matter of time before the power compa- nies will absorb distribution cooperatives through their wholesale power contracts.' n15 n 15 1971 Senate Hearings, at 3 1**391 REA Administrator Norman Clapp voiced similarsen- timents when he stated that, Participation of the small systems in the benefits of co- ordination and a continuous search for means of broad- ening this participation are fundamental if these systems are to continue to provide lo,v cost power to their con- sumers and make the most efficient use of our fuel and capital resources . .. . Very few individual cooperative and municipal systems are able independently to realize the economies of scale associated with large generating units .. .. Their individual system demands are insuf- ficient to warrant their sole ownership of such units. To some extent and in some places, the cooperatives have overcome this handicap by federating in power supply systems. Participation by Small Electrical Utilities in Nuclear Power: Hearings before the Joint Comm. on Atomic Energy, 901h Cong., 2d Sess. 111-112 (1968) (Statement of Norman M. Clapp, REA Administrator). The REA's longstanding policy has been to make G & T loans when borrowers are unable to purchase an adequate and dependable supply of power, or when net wholesale costs would be reduced, but not to finance duplicative or unnecessary [**401 facilities. n 16 To fur- ther this goal, the REA has [*1361] urged participation by federated cooperatives in agreements involving the joint ownership and operation of large-scale generation facilities: These considerations point up the urgent necessity for providing at this time assurance of participation by all electric utilities in a given region, including the elec- tric cooperatives, in nuclear power plants planned for construction. The smaller systems cannot survive if their only stance is that of 'trickle down' beneficiaries, barred from di- rect panicipation in the economies associated with large- scale nuclear generation and EHV delivery of low-cost federally produced power. They cannot survive if they are restricted to generat- 5 643 F. Stipp. 1345, *1362: 1986 U.S. Dist. LEX1S 21031, ••44; 1996-2 Trade Cas. (CCH) P67,318 qualifying facilities. Oglethorpe argues that, as a condition of, and security for, its loans and loan guarantees to it, the REA required Oglethorpe to enter into the wholesale power sales con- tracts with the L-MCs. This contention is supported by the United States acting on behalf of the REA, which has filed various amicus curiae papers before this Court in this case. Both the Oglethorpe Group and amicus curiae United States argue that the REA Act authorizes the REA Administrator to determine "adequate security" and the "terms and conditions relating to the (loans) and the secu- rity" for the REA loans to Oglethorpe. 7 US.C. § 904. Accordingly, they maintain that the "ail -requirements" contracts between Oglethorpe and the EMCs, which are challenged by Greensboro in Counts 1, 1I, and III, were executed pursuant to, and at the directive of, the REA. Amicus curiae United States argues that the REA has a long-standing policy of requiring wholesale power sales contracts, virtually identical to the one ("`451 executed between Oglethorpe and the ENICs, as the principal means of securing its loans. The all -requirements provi- sions of the wholesale power sales contracts ensure that Oglethorpe will have a steady and predictable market for its energy product; this, in turn, produces the revenue stream which secures repayment of the multi -billion dol- lar loans guaranteed by the REA. The Oglethorpe Group directs this Court's attention to the fact that similar con- siderations led the Supreme Court implicitly to recognize the necessity of long-term all- requirements contracts in the electric utility industry. in rejecting an antitrust chal- lenge to a utility's 20-year all -requirements contracts, the Court in Tampa Electric Co. v. Nashville Coal Co, 365 U.S. 320, 334. 5 L. Ed. 2d 580, 81 S. Cr. 623 (1961), reasoned as follows: At least in the case of public utilities the assurance of a steady and ample supply of fuel is necessary in the public interest. Otherwise consumers are left unpro- tected against service failures owing to shut downs; and increasingly unjustified costs might result in more bur- densome rate structures eventually to be reflected in the consumer's bill. The Court found (F•46) such "considerations" to have "compelling validity" in the utility field. Id. Additionally, the Oglethorpe Group and the United States argue that long, -term all -requirements wholesale power sales contracts, virtually identical to those ques- tioned by plaintiffs in this case, were expressly held valid and immune from antitrust scrutiny in Alabama Potter Co. v, Alabama Electric Cooperative, Inc., 394 F.2d 672 (5th Cir. ), cen. denied, 393 US. 1000, 21 Page 14 L. Ed. 2d 465. 89 S. Ct. 488 (1968). n18 1"13631 The complaint in Alabama Power sought antitrust dam- ages and an injunction. voiding 35-year all -requirements electric power sales contracts between an Alabama elec- tric generation and transmission cooperative and its 14 electric distribution cooperatne mcnpbcrs. The Fifth Circuit affirmed dismissal of the antitrust claims, specif- ically holding that the all -requirements contracts "were the result of valid governmental action and, hence, not violative of the antitrust laws." 394 F2d at 673. nl8 Quoting from an affidavit by the REA Administrator, the Fifth Circuit stated in Alabama Poxver Company v. Alabama Electric Cooperative, lac., 394 F.2d 672, 676 (5th Cir. 1968): [The cooperative] is owned and controlled by its members and is merely the means by which they generate and transmit electric power for themselves rather than purchasing power and transmission ser- vice from another source. Instead of having one or- ganization performing the generating, transmitting and distributing function, (the cooperative] engages in the first two operations on behalf of its mem- bers and the latter perform the distributing operation. Because of this separation of the operations required to serve consumers (,] the 35-year, all requirements contracts between [the cooperative] and the Members were necessary to meet the requirements of the [Rural Electrification] Act. This decision constitutes binding precedent in the Eleventh Circuit pursuant to Bonner v. City of Prichard, 661 F.2d 1206 (Ilih Cir. 1981). (**471 Greensboro advances several arguments to support its position that the Oglethorpe Group is not immune from antitrust liability. First, Greensboro argues that the REA Act, REA Bulletins, and the loan agree- ments themselves do not mandate the challenged all - requirements contracts. Second, Greensboro argues that Alabama Power is factually distinguishable from the in- stant case. Third, in the alternative, Greensboro argues that Alabama Power is no longer good law. This Court rejects each of Greensboro's contentions. As to Greensboro's first contention, while it may be true that the loan agreements do not specifically mention "all -requirements" contracts, they do contain, pertinent and applicable provisions which obligate Oglethorpe to enter into wholesale power contracts with each of the EMCs "in form and substance satisfactory_ to the Administrator." n19 As attested to by Harold V. Hunter, 9 le e� 1.1 1 1V L 643 F. Supp. 1345, *1363; 1986 U.S. Dist. LEXIS 21031, *047; 1986-2 Trade Cas. (CCH) P67,318 the REA Administrator, since its first loan to Oglethorpe in 1975, the REA has found such contracts "satisfac- tory" only if they contain provisions binding the EMCs to purchase all of their p n�kcr needs, fnun Oglethorpe for the life of the loan. The l imcd Statc> mutes acidt- tionally that this practice ("41,'j is it seems that even- REA Administrator since 1950, prior to approving any loans, has only been "satisfied" when wholesale poster sales contracts exist winch contain all - requirements provisions. n20 n19 The Consolidated Loan Agreement between the REA and Oglethorpe, dated June 1, 1984, re- stricts the release of loan finds for the purchase of Plants Hatch and Wansley upon evidence that: The borrower has duly authorized, executed and de- livered, in form and substance satisfactory to the Administrator, the following: (i) wholesale power contracts bcmecn the Borrower and each of its thirty-nine member distribution co- operatives, Article 1I, Section 9(A)(1)(c). This agreement also states that all funds for the purchase of Plant Scherer are conditioned upon evidence that: The borrower has submitted an executed agree- ment, satisfactory to the Administrator, with each of its member distribution cooperatives, extending the term of the present wholesale power agreement through calendar year 2022. Article 11, Section 9(B)(9). n20 Furthermore, Greensboro's allegation that none of the REA Bulletins, which set forth the agency's lending policies, include reference to the all -requirements contracts as necessary security for REA loans, is not entirely accurate. REA Bulletin 111-I, dated April 24, 1969, on the subject of "Wholesale Power Contracts for the Purchase and Sale of Electric Encrey", states that wholesale power sales contracts between federated cooperatives and their distribution members should "provide for the security requirements of REA loans." Additionally, a Memorandum to the Bulletin, dated March 18, 1970, states unequivocally that all wholesale power sales contracts entered into by the borrower are subject to the approval of the REA. In light of the long-standing practice by the REA of requiring federated cooper- atives to enter into all -requirements contracts with their members, the plaintiff's allegation is dubious. ..a91 Page 15 Greensboro also implies that if the Administrator does require all -requirements contracts, his actions would be in excess of his authority under the REA Act and, thus, ulna vires. This Court believes 1* 13641 that this implied argument has been laid to rest by the court in Alabama Power. Furthermore, the legislative histon• of the REA Act lends support to the view that Congress meant to be- stow broad discretion upon the Administrator in order to carry, out the purposes of the REA Act. n2 1 n21 For example, Rep. Rayburn. sponsor of the House bill, referred to the "great power that was given to the .Administrator." 80 Cong. Rec. 5281 (April 9, 1936). Sen. Norris, sponsor of the Senate bill, also stated that, "in this proposed legislation we are giving, and we necessarily must give, if we are going to make a success of the measure, in my opinion, almost unlimited discretion, something that under ordinary circumstances I do not like to do. But if the Administrator, whoever he may be, carrying out this proposed law is not at hear converted to the idea embodied in it, namely, to extend the blessings of electricity to the farmers of America, he could eas- ily wreck this whole program and still be technically in the right." 80 Cone, Rec. 3308 (March 5, 1936). As well, the United States Court of Appeals for the D.C. Circuit, in Salt River Project Agricultural Improvement and. Power District v. Federal tower Commission, 129 U.S. App. D.C. 117, 391 F.2d 470, 476 (D.C. Cir.), cert. denied 393 U.S. 857, 89 S. Cr. 104, 21 L. Ed. 2d 126 (1968), noted that, "if anything the emphasis in Congress was on the Administrator's need for 'almost unlimited discre- tion' and 'extraordinary power' if he were to oversee effectively the rural electrification program." *'°501 .Almost from the inception of the loan program, REA administrators have required that the contracts between the borrowing federated cooperatives and the individ- ual distribution systems contain all -requirements provi- sions covering at least the period of the loan. The all - requirements provisions of the wholesale power sales contracts not only ensure that the cooperatives will have an adequate market for their power among their local utility members during the period of the loan but also assure the REA that the utilities making up the federated cooperative seriously desire the loan to be made and in- tend to use its share of the power capacity which the loan would create. This customary and long-established J9 740 L 643 F. Supp. 1345, *1364: 1986 U.S. Dist. LEXiS 21031, *'50: 1986.2 Trade Cas. (CCH) P67,318 practice of the REA has been made known to, and ac- quiesced in, by Congress. During the 1951 hearings before a Senaue Sut)committcc of the Committee on Appropriations, the all -requirements agreements were characicrized 1,N the REA Administrator as the prin- cipal security for REA loans. The conIplete text of a typical all•requirem.nts contract was also placed into the record of these hearings. See Hearings be- fore the senate subcommittee of the Committee on Appropriations on Agricultural Appropriations [**511 for 1951, Slst Cong., 2d Sess., pp. 1342 et seq. Moreover, Congress has annually received reports of the agency's activities and has approved continued funding for the same, n22 Although it is a hazardous venture to draw any conclusions from congressional inenia, this Court feels that, if anything, Congress' inaction in the face of long-standing REA practices indicates an en- dorsement of these practices. See Salt River Project Agricultural Improvement and lbu er District v, Federal Pou er Comniisson, 129 U. S. App. D. C. 117. 391 F.2d 470, 477 (D.C. Cir.) ceri. denied, 393 U.S. 857, 89 S. Ct. 104, 21 L. Ed. 2d 126 (1968). n22 See also Salt River Project v. FPC, 391 F.2d 470, 476. n.15 (D. C. Cir.1968), in which the court observed that, "the repeated administrative practice of the Rural Electrification Administration . .. has never been criticized by the successive Congresses to which it is by statute directed to report annually of its progress and activities." As to Greensboro's second contention, [**52] this Court believes that the Alabama Power case disposes of the issue of the legality of the all -requirements wholesale power contracts. In Alabama Power, a pub- lic utility filed a complaint seeking antitrust damages and an injunction restraining the REA from lending S20,350,000.00 to an electric cooperative and avoid- ing 35-year all -requirements electric power contracts be- iweeri the borrowing federated cooperative and its four- teen electric distribution corporation nternbers. Despite a strong dissent by Judge Godbold, the Fifth Circuit af- firmed the lower court's dismissal of the antitrust claims, holding specifically that the all -requirements contracts 'were the result of valid governmental action and, hence, not violative of the antitrust laws." 394 F.2d at 673. The coun's decision was based on a determination that, by requiring 1*13651 the federated cooperative to ob- tain 35-year all -requirement contracts with its electric distribution corporations, the REA .Administrator "was doing nothing unusual, but was simply following cus- tomary and long-established REA practice, clearly not beyond the 'outer perimeter' of his statutory authority Page 16 to determine the security for the loan. 1'*53) Anything less might well mean the acceptance of inadequate se- curity.- 394 F.2d at 676 tfootnote omitted). Since the REA ,Administrator was immune from antitrust suit un- der Barr i. Matteo. 360 U.S. 564. 3 L. Ed. 2d 1434. 79 S. Ct. 1335 fl959), for go%ernnieni actions within the scope of his duties as delineated in § 4 of the REA Act, the court held that the federated cooperative, wholly - owned by its member distribution corporations, must also be implicitly exempt from liability under the an- titrust laws. Even though the court "fully appreciate[d] that immunity from the antitrust laws is not to be lightly implied," 394 F2d at 677 n.9, the court explained that antitrust liability could not be imposed on the REA bor- rower for complying with valid government require- ments: The making of loans by the Administrator necessar- ily includes the existence and ability of borrowers to whom such loans can be made. If the security which the Administrator requires can be undercut and the bor- rower mulcted in treble damages for complying with the condition imposed by the Administrator for making the loan, then the functioning of the Act will be crip- pled, if not defeated. To avoid frustrating [**541 the intent of Congress, it must follow that in cases where the Administrator is immune from suit under the antitrust laws, the borrower is likewise immune. 394 F.2d at 677 (footnote omitted). See also Medical Association of the State of Alabama v. Schiveiker, 554 F Supp. 955, 966 (M.D. Ala. 1983) aff'd. per curiam sub. nom Medical Association v. Heckler, 714 F.2d 107 Ulth Cir. 1983). ("The Sherman Antitrust Act's prohibitions on the making of agreements in restraint of trade is not applicable to the federal government and its officials acting in their official capacity.. .. Similarly, private parties to the extent they are acting at the di- rection or with the consent of federal agencies also fall outside the pale of the act's prohibition,"). Greensboro argues that there are significant factual differences between the case at bar and Alabama Power which render the latter inappropriate to any determina- tion of the former. Greensboro maintains that Alabama Power merely held that a government borrower is im- mune from antitrust liability to the extent that the gov- ernment's security interest is the subject matter of the antitrust action. Greensboro asserts that [**551 the gov- ernment only has a security interest in Oglethorpe's REA-financed bulk power generating facilities, not in the purchase of bulk power by Oglethorpe from Georgia Power for resale to the EMCs. n23 Greensboro argues that this position is supported by the fact that the all- 99- pr`,V 643 F. Suhp. 1345, *1365; 1986 U.S. Dist. LEXIS 21031. **55, 1986 Trade Cas. (CCH) P67,318 requirements contracts obligate the EMCs 'to purchase all of their electric requirements to the extent the borrow- ers shall have pov--er and energy available. " Greensboro interprets the term-availahic" to mean only that power which Oelcthori e generncd itself from its REA-linanced facilities, rather than from 021cthonpe's purchases from other sources. In ocher %vords, Greensboro argues that the challenged wholesale power sales contracts are not really all -requirements contracts. n23 For purposes of any detennination in the present case, this distinction, if in fact one exists, may be irrelevant. For the reasons set out in the FERC order, discussed later in the text of this opin- ion, this Court rejects the plaintiff's argument that it has suffered any economic injury cognizable un- der the antitrust laws because Oglethorpe is the sole purchasing agent for the EI\1CS. [**561 This Court, however, feels that this is too stringent an interpretation of the term. The wholesale power sales contracts expressly recognize that Oglethorpe "may pur- chase or otherwise obtain electric power and energy for the purpose" of supplying the EMCs. The all - requirements contracts 1*13661 in the present case, like those in Alabama Power, clearly contemplate that the federated cooperative %%:il generate, purchase, or other- wise obtain electric power and energy for its member corporations. Hence, it is more logical to interpret the term "available* to mean power available through gener- ation and purchase rather than through generation alone. A careful reading of Judge Godbold's dissent makes clear that this is how the Alabama Power court inter- preted the term "available." While it is true that the ma- jority, quoting from the REA Administrator's affidavit, stated that, "under their contracts, with [the federated cooperative], the Nlembers will be free to purchase from plaintiff and others their electric requirements in excess of the po%%er and energy available from [the federated cooperative]," 394 F2d at 676, it is also clear that the =ontrar-ts provided that, upon [*1571 the request of the federated cooperative with the approval of the REA, the members were to terminate all existing contracts with sources other than the cooperative. Additionally, the contracts provided that if, upon request, the member failed to terminate any contract with any power sup- plier other than the cooperative, either the cooperative or the REA could sue the member for specific perfor- mance. 394 F2d at 678. n24 See also United States i v. Coosa Valley Electric Cooperative. Inc., Case a 85- C-0515-5 (N.D. Ala. February 5, 1986) (court finds "immaterial" the fact that some of the power provided Page 17 in fulfillment of the challenged all -requirements contract was purchased, rather than produced, by the wholesale supplier). Furthermore, it is clear from the record be- fore this Court that the REA, Oglethorpe, and the EMCs ne\er interpreted the wholesale power sales contracts to be anything less than true: all -requirements contracts. n14 in fact, within two vears after the Alabama Power decision, the Alabama Electric Cooperative entered into contracts for the purchase of power with the Alabama Power Company in order to meet its members' demands that exceeded Alabama Electric Corporative's generating capacity. At that time, members were precluded from buying power from other sources without the consent of the Alabama Electric Cooperative. [**581 As to Greensboro's third contention, this Court is of the opinion that Alabama Power remains in full force and effect in this Circuit. Although a foreign circuit opinion, Hecht v. Pro -Football, Inc., 144 U.S. App. D.C. 56, 444 F2d 931, 934 n.6 (D.C. Cir. 1971), has questioned the current validity of the majority opinion in Alabama Power, no court has overturned, reversed, or even narrowed the Alabama Power decision. n25 At least one court has explicitly affirmed the continu- ing validity of Alabama Power. united States v. Coosa Valley Electric Cooperative, Inc., Case a85-C-0515-5 (N.D. Ala. Februarys, 1985) (40-year all -requirements power supply contracts between wholesale power co- operatives and their members are valid, enforceable, and immune from antitrust scrutiny in light of Alabama Power). Furthermore, it appears that Alabama Power has continuing validity in the Eleventh Circuit. See Medical Association, 714 F2d 107, See also Saenz u University Interscholastic League, 487 F2d 1026, 1028 (5th Cir. 1973); 1, sr v. "bring, 565 F. Supp. 674, 686 (*13671 (,V.D. Ga. 1983), both of which cite Alabama Power with approval. n'15 The plaintiff's reliance on Otter Tail Power CompanY v. United States, 410 U.S. 366, 35 L. Ed. 2d 359, 93 S. Ct. 1022 (1973), where the Supreme Court rejected claims of antitrust immu- nity, is misplaced. In Otter Tail, the Supreme Court held that an electric utility company could not claim immunity merely because it was subject to federal regulation. In this case, unlike Otter Tail, the claim of immunity is based on the fact that the challenged conduct was actually compelled by the REA. In fact, the Otter Tail court went out of its way to make clear N 643 F. Supp. 1345, *1367; 1986 U.S. Dist. LEX1S 21031, **58; 1986-2 Trade Cas. (CCH1 P67,318 that the Federal Power Commission had not com- pelled the private party to act and to stress the differ- ence between "business judgment" which is subject to regulation and "reg:uiawn coercion" when ana- lyzing questions of antitrust immunity. 410 L'.S. at 373-3 4, tkt*,ols Etp!,)r non & ProdiwmiZ Co. v. Aluminum Compare. of America, 438 F. 2d 1286 (5th Cir. 1971). cert. denied, 404 U.S. 1047, 30 L. Ed. 2d 736, 92 S. Ct. 701 (197:1) is similarly inappo- site: "While we cannot hold that actions taken pur- suant to Commission regulations violate the antitrust laws, we can hold that actions taken to subvert the Commission scheme for anti -competitive purposes are subject to antitrust strictures." 438 F.2d at 1303. **59 This Court is not unsympathetic to the plaintiff's posi- tion. The majority's opinion was not only criticized by Judge Godbold in dissent but has also been severely crit- icized in some well -considered scholarly commentary. Alabama Power Co. v. Alabama Electric Cooperative: Rural Electrification and the Antitnust- Irresistible Force Meets Immovable Object, 55 1h. 1.. Rev. 325 (1969). The Court, however, is not considering this issue as a matter of first impression. .Alabama Power is disposi- tive of the issue at hand. Alabama Power remains in full force and binding; effect in this circuit unless and until it is overruled by the Eleventh Circuit Court of Appeals sitting en bane. Regardless, to the extent that Greensboro alleges that Oglethorpe has conspired with the EMCs, through the use of the power sales contracts, in violation of § I of the Sherman Act, this Court holds that Oglethorpe and the EMCs constitute a single entity and, hence, are in- capable of conspiring under § 1. n26 Coppenreld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S. Ct. 2731, 81 L. Ed. 2d 628 (1984). The Copperweld court cited Sunkist Growers, Inc. t% Winckler d Smith Citrus Products, (**60] Co, 370 U.S. 19, 82 S. Ct. 1130, 8 L. Ed. 2d 305 (1962) as providing "strong support" for the "principle that substance, not form, should deter- mine whether a separately incorporated entity is capable of conspiring under § I." Coppenreld, 467 U.S. at 773, n.21. n26 Greensboro attempts characterize Oglethorpe as a joint venture. This Court believes that this is a mischaracterization. Oglethorpe is not a joint ven- ture among competitors for a single or limited pur- pose or transaction. Oglethorpe is a permanent on- going organizational structure created and controlled by its members to serve as a conduit in order to gener- Page 18 ate electricity for their own resale needs. Oglethorpe is integral to the EMCs' overall operations as the supplier and transmitter of their "product." in general, a business entity "should be free to struc- ture itself in ways that serve efficiency of control, econ- omy of operations, and other factors dictated by busi- ness judgment without increasing its exposure to an- titrust liability." Coppenweld [**61], 467 U.S. at 773. As discussed earlier in this opinion, this Court consid- ers Oglethorpe and the E4SCs to be, in economic sub- stance, an integrated unitary business enterprise. n27 Oglethorpe is, in essence, a wholly -owned subsidiary of its collective members which was created for the purpose of providing there with their potser supply needs. As such, Oglethorpe and its members are legally incapable of concerted action in violation of the antitrust laws. See City of Fulton, Missouri v. Associated Electric Cooperative, Case NN83-IC (E.D. Mo. March 8, 1985) (defendants, a "super" generation and transmission co- operative which acts as bargaining and purchasing agent for the benefit of its owners, six generation and trans- mission cooperatives, which, in turn, are owned by 43 distribution cooperatives which primarily sere as retail- ers to their owners, their consumer -members, constitute a single entity legally incapable of conspiring). See also Centun, Oil Tool, Inc. v. Production Specialties, inc., 737 F.2d 1316 (5th Cir, 19S4) (two corporations which were wholly owned by three persons who together man- aged all affairs of the two corporations were a single entity for purpose of suit asserting [**621 a violation of the Sherman Antitrust Act); Lake Communications, Inc. v. iCC Corporation, 738 F.2d 1473 (9th Cir. 1984) (two wholly -owned subsidiaries of common parent incapable of conspiring). n27 See notes 12 and 18, supra. The Oglethorpe Group further maintains that it is en- titled to summary judgment on Counts 1, 11, and III be- cause the plaintiff has suffered no injury from any al- leged antitrust violations and, therefore lacks standing to sue under the Clayton Act, 15 U.S.C. § 15. This Court agrees. Greensboro has not demonstrated "with a fair degree of certainty" in its complaint or in any subse- quent papers that it has suffered any injury in fact, much less any injury compensable under the antitrust [*13681 laws. Davis v Northside Realt'v Associates, inc., 95 F.R.D. 39, 45 (N.D. Ga. 1982). With regard to the alleged "prevention of sales" to the EMCs, on the record before this Court it is undisputed that in 1981 Oglethorpe offered Greensboro a one-year 9 9 - 719 Page 19 643 F. Supp. 1345, * 1368; 1986 U.S. Dist. LEXIS 21031, **62; 1986-2 Trade Cas. (CCH) P67318 ' contract under which Oglethome would (**631 purchase Greensboro's excess energy and capacity for the same amount that Oglethorpe would he paying Georgia Power in 1982 pursuant to the partial requirements tariff, 55.10 per month per kllo'aau-hotlr of eflecll\e capacity and an initial energy pavmcnt of =1.55 mills per kllowan. n28 It is similarly undisputed that Greensboro declined this offer preferring the security of a fik e-year contract which paid Greensboro the abo�c­mtcd rates for 1941 and 1982 with modest energy rate increases of G c annually and capacity rate increases of 2`.7c annually commencing on and after January 1, 1983. n29 Additionally, nowhere does Greensboro explain how it could have obtained any higher price from the EAiCs in the absence of the chal- lenged wholesale power sale, contracts. Moreover, it is highly unlikely that Greensboro would be able to do so since it is clear that, if the EMCs were not required to purchase all of their power from Oglethorpe, they would be free to purchase power from Georgia Power at the price specified by the partial requirements tariff. It flies in the face of reason to think that either Oglethorpe or the EMCs would be willing to pay Greensboro more for its energy and capacity than (**6-11 it could pay to Georgia Power for equivalent power. Nothing in the antitrust 1*13691 laws requires the Oglethorpe Group to pay Greensboro more for its power when the same power may be purchased from Georgia Power or others for less. As the Supreme t^ouri stated in First .National Bank of Arizona t. Cities Senice Co., 391 U.S. 253, 279, 20L. Ed. 2d 569, S8 S. Ci. 1575 (1968) (affirming a summary judgment for the defendant while rejecting an oil dealer's boycott claim based on the oil company's refusal to purchase plaintiff's oil at a specified price), "obviously it would not have been evidence of conspir- acy if ['defendant] refused to deal with [plaintiff] because the price at which he proposed to sell oil was in excess of that which oil could be obtained from others." See also American Telephone and Telegraph Co. v. Delta Communications Corp., 408 F. Supp. 1075 (S.D. ,Miss. 1976), aff'd per curiarn, 579 F.2d 972 (5ih Cir. 1978), aff'd on rehearing. 590 F.2d 100 (5ih Cir. 1979) (where an alleged anticompetitive conspiracy "is predicated on a failure to buy a service worth money for a moneys •.vorth price, the plaintiff has the burden of demonstrat- ing that his product (*1651 has some value above the price paid or offered." 408 F Stipp, at 1101. The court further refused to recognize any "inference of conspir- acy or anticompetitive activity" arising out of "a refusal to buy a product or service for more than it is worth." 408 F. Supp. at 1090 n.29. Any additional payment "would have been a gift," and the "Sherman Act does not command gratuitous compensation." 408 F. Supp. at 1092), n30 Having been offered a price which is above the market rate as a result of FERC's regulations, n3l Greensboro is in no position to demand a still higher price under any antitrust theory. n2S Greensboro's only reference to this issue is contained in the affidavit of its president. Thomas Guthrie, who states that he does not recall be- ing offered a one-year contract pursuant to which Oglethorpe would purchase Greensboro's excess en- ergy and capacity for the same amount Oglethorpe would be paying Georgia Power in 1982 for equiva- lent purchases under the partial requirements tariff. However, such an equivocal response is insufficient to create a genuine issue of material fact. See, e.g., Carter v-. Nenvsday, Inc., 528 F. Supp. 1187, 1191 (E.D..V.I' 1981) ("The nonmoyant may gencrate un- certainty as to the true state of any material fact by coming forth with affidavits or other discovery ma- terials, but may not rely 'upon the mere allegations or denials of his pleading.' Rule 56(e), F. R. Civ. P. Nor may the nonmovant rely upon deposition state- ments to the effect that the deponent 'does not re- member' a particular fact, as a means of putting that fact in issue."), Erickson v. Said, 42 FR.D. 170, 172 (S.D.N. Y. 1967) (opposing party "did not re- call" whether or not a material fact was as stated by moving party); See generally, 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice 56. 15131 at 56-484 n.39 (2d ed. 1985) (party opposing summary judgment may not simply plead ignorance in lieu of controverting affidavits of movant). Additionally, it is worth noting that, in all prob- ability, under "pure" market conditions Greensboro would have had to negotiate a price somewhat be- low the price Oglethorpe was paying Georgia Power. As the D.C, Circuit noted in American Electric Potter Sen•ice Corp. v. Federal Energy Regulaton' Commission, 219 U.S. App. D.C. 1, 675 F2d 1226, 1235 n.37 (D.C. Cir. 1982), rev'd sub nom. American lbper Institute, Inc. v. American Electric Fbwer Seri -ice Corp., 461 U.S. 402, 103 S. Ct. 1921, 76 L. Ed. 2d 22 (1983) (reversing D.C. Circuit's holdinia that the FERC's avoided costs and interconnect rules were arbitrary and capricious, but not disagreeing with the D.C. Circuit's economic analysis), unregulated, competitive sales of power in the electric utility industry are usually made on a "split -the -savings" basis which would benefit both parties to the transaction. Thus, for example, Utility A, with available electricity that cost $5 per kilowatt to generate, will sell to Utility B, whose costs are $7 per kilowatt, for a price somewhere between $5 and S7 per kilowatt. By contrast, as a result of FERC regulations, Greensboro obtained an offer equal to Page 20 643 F. Supp. 1345, *1369; 1986 U.S. Dist. LEXIS 21031, **65, 1986-2 Trade Cas. (CCH) P67,318 the price Oglethorpe was pa, ing Georgia Power, a price above that which would have been offered un- der pure market conditions in the abscncc of FERC regulations, eccn though this price would prevent Oglethorpe from, realiztnc an•, hciMlI froth ttic trans- action. In essence, FLRC has pic>crihed an ahove- market rate in order to encourage the development of qualifying facilities. This price was, by definition, the highest price aw,unaNe h:. Greensboro within the confines of a competitive market as constrained by the FERC regulations. [**661 n29 PURPA does not preclude qualifying facili- ties and electric utilities from negotiating a contract which sets a price that is lower than a full -avoided cost rate. Indeed, as the Supreme Court noted in American Paper Institute, Inc. v. .4nierican Electric fbwer Seri -ice Corp., 461 US. 402, 416, 76 L. Ed. 2d 22, 103 S. Ct. 1921 (1983): "Because the full -avoided -cost rule is subject to revision by the Commission as it obtains experience with the effects of the rule, it may often be in the interest of a qual- ifying facility to negotiate a long-term contract at a lower rate. The Commission's rule simply estab- lishes the rate that applies in the absence of a waiver or a specific contractual agreement." n30 Indeed, if Oglethorpe were to so subsidize Greensboro, this would directly contravene clearly - articulated congressional policy underlying PURPA. Congress expressly provided in PURPA that util- ities should not pay qualifying facilities such as Greensboro a price in excess of the utility's "incre- mental cost . . . of alternative electric energy." 16 U.S.C. § 824a-3(b). This provision was enacted because PURPA was "not intended to require the ratepayers of a utility to subsidize cogenerators or small power producers." H.R. Rep. No. 1750, 95th Cong., 2d. Sess. at 98, reprinted in 1978 U.S. Code Cong. & Ad. News at 7832. The con- gressional purpose in limiting the price to qualifying facilities %vas to ensure that PURPA did not become a utility -funded welfare program for qualifying facil- ities, since such "funding" would essentially come from the pockets of electric consumers. The "full avoided cost" (the term used in FERC's rules) or "incremental cost" (the term used in PURPA) ceil- ing ensures that payments to qualifying facilities will not increase a utility's overall costs. In fact, the rates charged to consumers will remain the same "for, by hypothesis, the utilities would have incurred the same costs had they generated the energy themselves or purchased it from other sources instead of pur- chasing from a qualifying facility." American Paper Institute, 461 U.S. at 415 n.9 (1983). 1**671 n31 See n.28, supra. In Counts 1-111, Greensboro also challenges the joint ownership and operation agreements which exist among the defendants. Greensboro alleges that it has suf- fered because it was prevented from using the defer•,- darits' jointly owned generation and transmission facil- ities. This Court feels that any such injury is, at best, wholly speculative. With respect to the joint owner- ship of generation facilities, the Court finds that there is no allegation or evidence that connects this activity to any anticompetitive harm supposedly suffered by the plaintiff. With respect to thejoint operation of the trans. - mission system facilities, this Court finds significant the fact that Greensboro does not allege anywhere, nor does it otherwise show, that, prior to the filing of this suit, it ever requested Oglethorpe to transmit Greensboro's energy o%er the ITS, much less that it ever sought to sell energy to any non -defendant "potential customer," either within or outside of Georgia, or that any such 'poten- tial customer" offered it a price higher than that which Oglethorpe pays to Greensboro. [**681 Before one can complain of being prevented from using something, one must have sought permission to use it and been refused. See Cleary v. National Distillers and Chemical Corp., 505 F. 2d 695, 697 (9th Cir. 1974) ("A demand and refusal is a prerequisite to a claim of concerted refusal 1* 1370] to deal.....A plaintiff can have no relief when his failure to obtain a desired product is attributable to his own failure to make a request."); Nishimura v. Dolan, 599 F. Supp. 484, 498 (E.D.N. Y. 1984); Cinerna-Ter Enterprises, Inc. v. Santidos Theatres, Inc., 414 F. Supp. 640. 643 (1VD. Ter. 1975), aff'd, 535 F.2d 932 (5th Cir. 1976). in general, the ITS is an integrated transmission sys- tem which operates in interstate commerce. The FERC regulates, under the Federal Power Act, 16 US.C. § 824, both the sale of energy for resale in interstate com- merce and the transmission of energy in interstate com- merce. Georgia Power is a public utility within the meaning of the Federal Power Act, and is regulated as such by the FERC, because Georgia Power sells energy at wholesale to, and provides transmission of service for, the members of the ITS. Georgia Power has on file with [**69] the FERC a tariff applicable to the transmission service it provides which was approved by the Federal Power Commission, the predecessor to the FERC, as pan of the Settlement. This transmission service tariff expressly limits ITS participation to public utilities, as well as public bodies and cooperatives. n32 As estab- 99- rt 040 ~ Page 21 643 F. Sulpp. 1345, •1370; 1986 U.S. Dist. LEXiS 21031, "69; 1986-2 Trade Cas. (CCH) P67,318 `1 lished by the transmission service tariff and the Federal Power Act, ownership participation in the ITS is open to any electric company in the service area which elects to become a public utility under the laws of either Georgia or the United States, to pro%idc retail electric ,cr%ice in Georgia, and to subject itself to PSC rcculauon. Greensboro is not a public utility and has disclaimed any interest in becoming a puhiic utility or entering the retail distribution business. As such, it is ineligible to become a "member" of the ITS, unless it receives autho- rization, in the form of a waiver trorn this requirement, from the FERC. See 16 U.S.C. § 824j. n32 Unless and until the FERC were to adopt and approve rescission or modification of the trans- mission service tariff, Georgia Power and its cus- tomers that are subject to the tariff are legally ob- ligated to comply with it. 16 US.C. § 824d; 18 C.F.R. § 35.1(e); Northwestern Public Senice Co. v. Montana -Dakota Utilities Co., 181 F2d 19 (8th Cir, 1950), aff'd 341 US. 246, 71 S. Ct. 692, 95 L. Ed. 912 (1951), The reeulatory system of filed, approved, and effective tariffs could not work if the parties governed by those tariffs could not obey them without fear of suffering antitrust damages or if regulatory decisions could be side- stepped by Sherman Act actions. See Gordon v. New York Stock Exchange, 422 U.S. 659, 45 L. Ed. 2d 463, 95 S. Ct. 2598 (1975); Keogh v. Chicago & Northxvestern Railxvm, Co., 260 US. 156, 67L. Ed. 183, 43 S. Ct. 47 (1921). .Any challenge to the transmission service tariff should be directed to the FERC, the federal regulatory agency with exclusive jurisdiction over the tariff. 16 US.C. § 824(b), See Federal Power Commission v. Florida Power & Light Co., 404 L, S. 453, 30 L. Ed. 2d 600, 92 S. Ct. 637 (1972). See also Nantahala Power & Light Co. v Thornburg, 476 U.S. 953, 106 S. Ct. 2349, 90L. Ed. 2d 943 (1986). *70 In reality, as noted above, Greensboro has not ex- pressed any interest in becoming a "member" or joint owner of the ITS. Greensboro's only claimed interest in the ITS is to use it on the same terms and conditions as the defendant as a transportation vehicle to sell its excess en- ergy and capacity to the EMCs, the Participants, Dalton, and other potential wholesale purchasers. Greensboro has, in fact, been interconnected w-ith, and, although it must pay an interconnection fee to Oglethorpe, has had access to, the ITS since September 1981. Although the plaintiff has failed to specify what extra burdens it must endure in order to have access to the ITS, it appears to the Court that Greensboro's real complaint is with its inability to sell its power to the aforementioned utili- nes The genesis of this complaint lies in the wholesale power sales contracts between Oglethorpe and the EhICs and between MEAG and the Participants and not in the existence or operation of the ITS Moreover, if anything, the ITS facilitates, rather than impedes, Greensboro's ability to buy and sell power. n33 While it is 1' 13 7 11 true that Greensboro cannot freely transmit its power, the transmission service [**711 tariff and the ITS agreement clearly offer Greensboro a greater opportunity than it would otherwise have to transmit its power to other purchasers, Because it is inter -connected with the ITS, Greensboro is able to gen- erate its excess power into the utility control area. As a result, since September, 1981, Greensboro has been able to sell its surplus power to an increased number of potential purchasers, namely those utilities whose trans- mission lines are not directly connected to Greensboro's generation facilities but whose transmission lines are connected to the integrated s� stem, without having to negotiate any separate transmission or wheeling arrange- ments and charges. It remains undisputed that, absent integration, no entity could obtain access to electricity generated among its own transmission lines without the consent of, and payment to, intervening owners of trans- mission facilities. As well, as a result of the ITS agree- ments, each parry to the ITS may use all of the transmis- sion system facilities included in the system, regardless of ownership, to serve its customers. Greensboro has put forth no evidence to support its claim that it has been prevented from dealing with other ["'721 potential wholesale purchasers or from transmitting power to its other facility at Carlton by some unreasonable restriction on the use of the ITS. n34 n33 It is difficult, in fact, to theorize how Greensboro has been harmed by the defendants' joint ownership and operation agreements. One theory, however, is that, absent the formation of Oglethorpe and its participation in generation and transmission, Greensboro would have less competition from sup- pliers of wholesale power and, therefore, would be able to sell its surplus power at higher prices. It is well -established, however, that the antitrust laws were enacted to protect and enhance compe- tition, not competitors. E.g., Brunsivick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 50 L. Ed. 2d 701, 97 S. Ct. 690 (1977). There is little doubt that the efficiencies gained as a re- sult of the defendants' joint ownership and opera- tion agreements facilitate, rather than hinder, com- petition in the electric power and supply industry 99- 7011 643 F, Supp. 1345. $1371. 1986 U.S. Dist. LEXiS 21031, **72; 1986-2 Trade Cas. (CCH) P67,318 in Georgia. As the REA Administrator testified in 1968�regarding joint participation in large-scale power plants, "the very existence of these consumer - owned systems assures preservation of the pluralis- tic character of the Mdustn and lends a competi- tive force %%high sears as a hul%%arK against mono- lithic monopoly." Participation by Small Electrical Utilities in Nuclear Power: Hearings Before the Joint Comm. on Atomic Enerw, 90th Cone., 2d Sess. 110 (1968). [**73] n34 The Oglethorpe Group also maintains that it is entitled to .summary judgment on Counts I-11I be- cause (1) Greensboro has failed to join the REA and the United States, which Oglethorpe contends are indispensable parties under F. R. Civ. P. 19 and (2) Greensboro's claims are barred by the four-year statute of limitations contained in § 4b of the Clayton Act. Additionally, the Oglethorpe Group contends that it is entitled to suntman• judgment on Count 11 because, as a matter of law, it lacks sufficient mar- ket power in any relevant market to permit a finding of monopoly power, or of a dangerous probability of acquiring monopoly power. This Court does not express any opinion as to the merits of these con- tentions at this time. The Oglethorpe Group maintains that it is entitled to summary judgment on Counts IV and V, Greensboro's PURPA claims. Before getting to the merits of the Oglethorpe Group's position, a brief background dis- cussion of PURPA is in order. PURPA was enacted on November 9, 1978, as part of the National Energy Act, a comprehensive legislative package designed to deal with the nationwide [**74] en- ergy crisis. n35 The legislation was designed "to con- trol consumer costs" and ensure sustained long-term eco- nomic growth by shifting the nation's reliance on oil and gas to more abundant domestically produced fuels. See Federal Energy Regulator•: Commission v. Mississippi, 456 US. 742, 745, 72 L. Ed. 2d 5.32, 102 S. Ct. 2126 ,1982). n35 In addition to PURPA, the package included the Energy Tax Act of 1978, Pub. L. No. 95-618, 92 Slat. 3174; the National Energy Conservation Policy Act, Pub. L. No. 95-619, 92 Slat. 3206; the Powerplant and Industrial Fuel Use Act of 1978, Pub. L. No. 95-620, 92 Slat. 3289; and, the Natural Gas Policy Act of 1978, Pub. L. No. 95- 621, 92 Stat. 3351. L Page 22 Section 210 of PURPA specifically seeks to encourage the development of cogeneration and small power pro- duction facilities, referred to throughout this opinion as qualifying facilities, such as Greensboro. n36 See 1"13721 American Riper Institute, lnc. v American Electric Pb}t er Seri tce Corp., 401 L-: S. 402, 76 L.. Ed. 2d /**751 22, 103 S. Ct. 1921 (198.3). Prior to PURPA, Congress felt that two problems impeded the development of nontraditional gencratine facilities: (1) traditional electricity utilities were reluctant to purchase power from, and to sell power to, the nontraditional facilities, and (2) the regulation of these alternative en- ergy resources by state and federal utility authorities im- posed financial burdens upon the nontraditional facili- ties and thus discouraged their development. 456 U.S. at 750-751. To overcome these problems, Congress di- rected the FERC to develop a comprehensive regulatory regime governing purchases and sales between utilities and qualifying facilities. See 16 U.S.C. § 824a-3(a)-(c). Congress also provided for enforcement of these obliga- tions pursuant to a set of comprehensive and complicated statutory provisions that substantially limit federal juris- diction. See Id. at § 824a-3(f),(1-), and (h). n36 A "cogeneration facility" is one that produces both electric energy and steam or some other form of useful thermal energy, such as heat. 16 U.S.C. § 796(18)(A). A "small power production facility" is one that has a production capacity of no more than 80 megawatts and uses primarily biomass, waste, or renewable resourdes (such as wind, water, or solar energy) to produce electric power. § 796(17)(A). "Qualifying facilities" are cogeneration and small power production facilities meeting the requirements of 18 C.F.R. §§ 292.201 through 292.207. **76 The FERC issued regulations implementing PURPA on February 19, 1980. 45 Fed. Reg. 12,214. The reg- ulations require electric utilities (a) to sell electric energy and capacity to qualifying facilities upon request n37, (b) to purchase electric energy and capacity from qualifying facilities and (c) to make all necessary interconnections with any qualifying facility in order to accomplish the aforementioned purchases and sales provided that each qualifying facility pay its share of the interconnection costs. n38 These regulations mandate that an electric utility offer a qualifying facility built after the enactment of PURPA a purchase rate equal to, but no more than, the utility's "full avoided costs." n39 See 18 C.F.R. § 292.303(a) and (b), and § 292.304(b). However, the regulations also expressly provide that the parties may negotiate to purchase and sell at another lower rate. 18 Page 23 643 F. Sut.t,. 1345, *1372, 1986 U.S. Dist. LEXIS 2103). **76; 1986-2 Trade Cas. tCCH) P67,318 C.F.R. § 292.301(b)(1). American 1'dperinstitute, 461 U.S. at 416. The FERC regulations thcrebv provide for a negotiable purchase rate or, at the qualifying facil- ity's option, the electric unhty's full avoided costs, the maximum level required 1)% Congress. n37 The types of electric services to be provided to the qualifying facility are supplementan power, back-up poser, maintenance power, and interrupt- ible power. See I8 C.F R. § 292.305(b). These are all retail scn•iccs. [**771 n38 "Sections 210 and 212 of the Federa] Power Act (FPA), 16 U.S'.C. §§ 824i and 824k (1976 ed., Supp. V), describe the procedure to be followed by the FERC when an electric utility, federal power marketing agency, cogencrator, or small power pro- ducer applies for an order requiring another such fa- cility to make an interconnection. . . . Section 212 of the FP.A, 16 CS.C. § 524k ( 1976 ed., Supp. V), provides that an order approving an interconnection under § 210 may be issued only if the Commission determines that the interconnection is not likely to re- sult in a reasonably ascertainable uncompensated loss for any electric utility, cogenerwor, or small power producer, impose an undue burden on any such facil- ity, unreasonably impair the reliability of any electric utility, or impair the ability of any electric utility to supply adequate service to its customers." American Paper lnstirure, 461 U.S. at 408-409. n39 A utility's full avoided cost is defined as the electric utility's "incremental cost . . , of al- ternative electric energy." 16 U.S.C. § 824a-3(b). Congress defined this as "the cost to the electric util- ity of the electric energy which, but for the pur- chase from such cocenerator or small power pro- ducer, such utility would generate or purchase from another source." Id. at § 824a-3(d). The terms "full avoided costs," which appears in the FERC's rules, and "the incremental cost of alternative electric en- ergy," which appears in § 210(d) of PURPA, are syn- onymous. Through this statutory scheme. Congress sought both to provide incentives for the develop- ment of qualifying facilities and to ensure that a utility and, ultimately, its consumers would not be forced to subsidize a qualifying facility by paying a qualifying facility, more for its energy than the price at which the utility could obtain the same amount of energy on the open market, or could generate the same energy itself. See P..30, supra. As the Joint Conference Committee Report explained, "the pro- visions of this section are not intended to require the rate payers of a utility to subsidize cogenerators or small power producers." H.R. Rep. No. 1750, 95th Cong., 2d Sess. at 98, reprinted in 1978 U.S. Code Cong. & Ad. News at 7832. See also American Puper Institute, 461 U S. 402. 76 L. Ed. 2d 22. 103 S. Cr. 1921 r19S= i. **78 [`13731 in establishing PURPA, however, Congress did not intend to place qualifying facilities in competi- tion with public utilities. To the contrary, Congress has sought to encourage the development of qualifying facil- ities by insulating them from competition. Qualifying facilities are not authorized under PURPA to sell at re- tail, see section 210(a)(4); and, in the wholesale market, PURPA establishes a guaranteed price which is equal to, or greater than, the price that would be received in a competitive market. In addition to providing a guaran- teed price to qualifying facilities, PURPA also provides a guaranteed market for the poser generated by quali- fying facilities by making it a requirement that utilities purchase available energy and capacity from qualifying facilities before buying power from anywhere else, no amount of price cutting or other competition can change this result. In general, qualifying facilities produce a component which is used by public utilities and con- sume utility ser ice; but, they are not competitors of public utilities. PURPA also requires all "nonregulated utilities", such as Oglethorpe, the ElliCs, MEAG, and the Participants, to submit to the [**791 FERC individual Interconnection Policies to assure the FERC that each such utility will implement its obligations under 18 C.F.R. § 300 et seq. (except the reporting requirement contained in 18 C.F.R. § 292.302). 16 CI S.C. § 824a-3(F); 18 C.F.R. § 292.401(b). Following public hearings, the Oglethorpe Group adopted an Interconnection Policy which provided that only Oglethorpe would purchase energy and capacity from qualifying facilities, and only the EMCs would sell energy and capacity to qualifying facilities. In the Report of Implementation, the Oglethorpe Group also specified that Oglethorpe would pay newly -established qualifying facilities a rate for their capacity and energy based on the full amount of payments that Oglethorpe would, as a result of its purchases froth qualifying facili- ties, avoid making to Georgia Power to purchase power under the partial requirements tariff approved by the FERC. Recognizing a potential inconsistency between. its Interconnection Policy and the FERC rules requiring each utility both to purchase from, and to sell to, qual- 99- on L 643 F. Supp. 1345, *1373; 1986 U.S. Dist. LEX1S 21031, *179. 1986-2 Trade Cas. (CCH) P67,318 1 ifying facilities, the Oglethorpe Group, on January 22. 1981, filed a request for waiver of FERC's regulations to the extent 1*'801 that the\• require the E NICs to purchase energy and capacrn- from, and C3cluillorpe w sell at retail to, qualttytne MCIlitICS. A11cr ncarl\ a three -\car delay, Greensboro ir,ter\encd in the %kimer proceeding. Or, July 23, 1985, the FERC issued its decision granting in pan and denying in pan the Oglethorpe Group's waiver petition. On April 21, lQS6, on pentrons for rehearing, the FERC reconsidered its July 23rd Order in pan and granted a portion of Oglethorpe's waiver petition which it had previously denied. On July 23, 1986, the FERC waived the EMC's pur- chase obligations. The Commission concluded that re- quiring the EMCs to purchase energy and capacity from qualifying facilities was not necessary to encourage qual- ifying facilities, the aim of PURPA. The Commission concluded that Oglethorpe's rates, based on its full avoided cost, were in compliance with FERC's regu- lations and, thus, sufficient to encourage qualified facil- ities. The FERC noted that, in passing PURPA, it was Congress's intent to ensure that qualifying facilities have a market for their power under reasonable terms; fur- thermore. Congress vested the FERC with broad power to construct a regulatory framework to achieve [**811 that end. The Commission determined that allowing Oglethorpe to act on behalf of the EMCs would not frustrate Congress's intent since no qualifying facility would be deprived of a market for its power and each would receive a rate established as sufficient to encour- age qualifying facilities. The FERC concluded that Greensboro's argument that the EMCs might calculate avoided costs a different way than Oglethorpe such that the EMCs might provide a higher rate to qualifying facilities was entitled to little weight. The FERC reasoned, f * 1374) quite correctly, that it would be utterly illogical to suppose that an EMC would voluntarily opt to pay Greensboro more for its power than it has to pay. On April 21, 1986, the FERC ntled that Oglethorpe was not required to make sales of back-up and mainte- nance power to qualifying facilities on an interruptible basis so long as the E.NiCs offer to make such sales, upon request, at cost -justified rates. The FERC deter- mined that requiring Oglethorpe to provide duplicative retail services was "unnecessary for the encouragement of qualifying facilities." The order stated that so long as the EMCs offer retail services to qualifying facilities at cast -justified 1**821 rates, the. Oglethorpe Group's Interconnection Policy, which expressly restricts each EMC's service area to that assigned to them by the PSC under the Georgia Territorial Act, was otherwise "con- sistent with the Commission's regulations." Page 24 Greensboro challenges the Oglethorpe Group's Interconnection Policy as applied. Specifically, the plaintiff claims. with respect to sales, that Ogiethorpe and Rayle EMC have failed to provide Greensboro with back-up and maintenance power at non-discriminatory, just and reasonable rates. This Coup lacks subject mat- ter jurisdiction over these "as applied" claims. See 16 U.S.C. § 824a-3(g), section 210(g) of PURPA. in gen- eral, section 210(h)(2)(B) of PURPA limits federal court jurisdiction to claims that nonregulated utilities such as Oglethorpe and the EMCs have failed to comply with their obligation under § 210(f)(2) of PURPA to devise an implementation plan, after notice and opportunity for public hearing, that is consistent on its face with FERC's regulations. Any subsequent claim that a nonregulated utility has failed to adhere to its own implementation plan in its dealings with a particular qualifying, facility must be bought in state court, [**831 which has exclusive jurisdiction "to enforce any requirement" of a nonregu- lated utility's implementation plan. 16 U.S.C. § 824a- 3(g)(2) (incorporating 16 U.S.C. § 2633 by reference). That this is the FERC's interpretation of PURPA's en- forcement mechanism is clear. See Snow Mountain Pine Co. v. CP National Corp., FERC Docket No. EL84- 25-000, issued March 19, 1985 ("As the commission has previously noted, complaints regarding an alleged refusal to purchase power from a qualifying facility and the rates for such purchases are matters properly brought in a State forum."): Roche Products, Inc., et al., 29 FERC para. 61-098'(1984) ("matters of application of la utility's] rules . .. are properly brought before state judicial forums'). See also Policy Statement Regarding the Commission's Enforcement Role Under Section 210 of the Public Utility Regulatory Policies Act of 1978, 48 Fed. Reg. para. 29475, 29476. 23 FERC para. 61,304, 61,645 (1983). As the Eleventh Circuit said regarding the FERC's interpretations of its own regulations, "this court has adopted the basic rule of administrative law that 'an agency's interpretation of its own regulations is enti- tled to great deference.' 1**841 South Georgia Natural Gas Co. ;,. Federal Energy Regulaton, Commission, 699 F2d 1088, 1090 (llth Cir. 1983); Pennzoil Co, it Federal Energy Regulaton- Commission, 645 F2d 360, 383 (5th Cir. 1981), cent. denied, 454 U.S. 1142, 71 L. Ed. 2d 293, 102 S. Ct. 1000 (additional citations omitted). Accordingly 'the agency's view must be up- held unless it is so plainly erroneous or so inconsistent with either the regulation or the statute authorizing the regulation that its decision is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.' 699 F2d at 1090. [additional citations omit- 99— to l�V 643 F. Supp. 1345, *1374; 1986 U.S. Dist. LEXIS 21031, **84; 1986-2 Trade Cas. (CCH) P67,318 zed]. 'As long as the agency's interpretation is reason- able, a reviewing court cannot overrule it even though other interpretations might strike the court as more rea- sonable.' 699 F 2d at 1090. [additional citations omit- ted].' Florida Gas Tran,nnosion Co, i. Federal Encrgv Regulaton C<mpassion. -41 F2J 1?07, 1309-10 (llrh Cir. 1984). Greensboro argues that this Court has jurisdiction over its PURP.A claims under i6 U.S.C. § 824a-3tht(2)(13). This section, however, applies only when the FERC [*13751 does not act within 60 days froth the date on which [**85] a petition is ;fled to enforce the require- ments of 16 U.S.C. § 8'4a-3(t). in this case, there: are no allegations that any of the defendants failed to meet the requirements established in that subsection.. Tills Court further notes that any allegations made under state law that Rayle EMC failed to provide adequate retail service at a just and reasonable rate proper)y he in either state court or with the PSC. See O.C.G.A. § 46-3-8(c)(1). The only claim left against the Oglethorpe Group which remains to be considered by this Court is Count VI, Greensboro's state law breach of contract claim. in light of the fact that this Court, in this order, has granted summary judgment to Oglethorpe and the EMCs on all of the federal claims asserted against them, this Court feels that it would be inappropriate to exercise pendent juris- diction over Greensboro's state law claim. See United Mine Iibrkers oj.4merica v. Gibbs, 383 US. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966) ('Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as MEAG and the Participants MEAG and ['186] the Participants (hereinafter "the MEAG Group") argue that their actions are immune from antitrust scrutiny pursuant to the state action immunity doctrine first expressed in Porker v. Brown, 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307 (1943). This Court agrees. The statutory purpose of MEAG, as set out in O.C.G.A. § 46-3-125, is, to acquire or construct, or to acquire and construct, and to operate and maintain, or to cause to be constructed, operated, and maintained, electric generation and trans- mission facilities. In addition, it shall be the purpose of the authority to take all other necessary or desirable ac- tion in order to provide or make available an adequate, dependable, and economical supply of electric power and energy and related services to those political subdi- visions [which, on March 18, 1975, owned and operated Page 25 an electric distribution system, § 46-3-1301 which may desire the same and, incidentally and so as to take advan- tage of economics of scale in the generation and trans- mission of electric power and energy, to other persons and entities. n40 n40 In order to accomplish these goals. MEAG was granted certain powers pursuant to O.C.G.A. § 46-3-126 which include, inter alia, the power: (5) To acquire, by purchase or otherwise, in whole or in part, as provided in paragraph (3) of this Code section, and to place into operation and operate or cause to be placed into operation and operated, ei- ther as owner of all or of an), pan in common with others or as agent, electric generation and transmis- sion lines, works, facilities, and projects; to provide, by sale or otherwise, an adequate, dependable, and economical electric power supply to political sub- divisions of this state contracting with the authority pursuant to authority of Code Section 46-3-130; and, through such political subdivisions, to supply such electric power to the members of the public in the areas served by them; and, as agent for such polit- ical subdivisions, to secure power supply contracts and arrangements with other persons. The authority shall also have the power, which may be exercised either as principal or as agent, to manufacture, gen- erate, store, and transmit electric current for light, heat, power, and 'energy; to manufacture, buy, sell, import, export, lease or otherwise acquire and gen- erally deal in electrical apparatuses of all kinds and machinery and devices and nuclear or fossil fuels for the manufacture, generation, storage, and transmis- sion of electric current for light, heat, power, and en- ergy, to purchase power at retail or wholesale from any other person; to purchase or construct part of the capacity of generation or transmission projects sponsored and owned by or in common with oth- ers, making any such purchase at wholesale or re- tail within or without this state; to contract for the purchase of power and energy from, or the sale of power and energy to, the United States government and electric utility systems either privately or pub- licly owned, within or without this state to execute long- or shoe -term power purchase or sale contracts on terms which may include agreements and respect to resale rates and the disposition of revenues; to interchange, exchange, and purchase power and en- ergy from any person to erect, buy, lease, or other- wise acquire, operate, and maintain electric lighting, heating, and power projects; to transmit power both 9 - riZU l_. Page 26 643 F. Supp. 1345, •1375, 1986 U.S. Dist. LEX1S 21031, 0'86. 1986-2 Trade Cas. (CCH) P67,318 `1 for itself and on behalf of others; to erect, buy, sell, agreement the authority may delegate its powers and lease, or otherwise acquire, maintain, and operate or duties with respect to the construction, operation, cause to be maintained and operated plants, under- and maintenance of Such facility to the parry acting ground subways, conduits, poles, and wires above, as agent: and all actions taken by such agent in ac- upon• and under the stree(s, alle,,s. lands, and ter- cordance with the provisions of such agreement may ritories of Political �uhdi\ 1SlonS, puhl:c or private be made hinding upon the authority without further corporations, or individuals and to continue to sell action or approval by the authority; electric power to political subdivisions of this state which are authorized to contract tk'iih the authority J-871 pursuant to Code Section 46-3-130 and to other per- [' 13761 In order to finance its activities, MEAG is sons and entities and, as agent for any or all of the authorized to issue revenue bonds "to be payable from same, to make power and energy otherwise available the revenues, receipts, and earnings of the projects of the to them through arrangements with other persons, all authority and other available funds thereof." O.C.G.A. § in the exercise of the powers of the authority and to 463-126(11). However, pursuant to section 46-3 131, effectuate the purposes of this article; the Superior Court of Fulton County must validate the (7) To exercise any one or more of the powers, rights, issuance of all MEAG revenue bonds. MEAG currently and privileges conferred by this Code section either has an outstanding debt in excess of $2,500,000.00. In alone alone or jointly or in common with one or more other order to obtain revenues, MEAG has the right to con - or utilities, «•nether public or private. In an P P y tract with each of the Participants pursuant to O.C.G.A. such exercise of such powers• rights. and privileges § 46-3-129(a) which provides as follows: jointly or in common with others with respect to the 'The authority may contract with any political subdivi- construction, operation, and maintenance of electric Sion of this state which is authorized by Code Section generation or transmission facilities, the authority 46-3-130 to make such contracts for the payment of such may own an undivided interest in such facilities with rates, tolls, fees, and charges as may be prescribed by any ocher parties, whether public or private. The the authority for the use by such subdivisions or the resi- authority may enter into agreements with respect to dents thereof of the services and facilities of the projects any such electric generation or transmission facility and facilities of the authority. Any such political sub - with the other parties participating therein, and any division shall have the right and power, by resolution such agreement may contain such terms, conditions, of its governing body, to make such a contract; and the and provisions consistent with this article as the par amounts contracted td be paid by such political subdivi- ties thereto shall deem to be in their best interests. Sion to the authority under such a contract [**88] shall Any such agreement may include, but need not be constitute general obligations of such political subdivi- limited to, provisions for the construction, opera sion for the payment of which the full faith and credit tion, and maintenance of such electric generation or of such political subdivision may be pledged to provide transmission facility by any one or more of the par- the funds required to fulfill all obligations arising under ties to such agreement, which party or panics shall any such contract. be designated in or pursuant to such agreement as agent or agents on behalf of itself and one or more ,additionally, O.C.G.A. § 46-3-129(d) provides that, of the other panics thereto, or by such other means any Political subdivision which contracts with [MEAG] as may be determined by the panics thereto. Such an under this article may obligate itself and its successors agreement may also include provisions for methods to use only those projects for which it has contracted and of determining and allocating among. or between the none other." The revenue from these contracts is pledged parties the costs of construction, operation, mainte- as security for the bonds as authorized. O.C.G.A. § 46- nance, renewals, replacements, improvements, and 3 135. disposals with respect to such facility. In carrying out its functions and activities as such agent with (*13771 Accordingly, MEAG and 47 political subdi- respect to the construction, operation, and mainte- visions, its Participants, entered into a series of four nance of such a facility, such agent shall be governed substantially identical wholesale power sales contracts by the laws and regulations applicable to such agent in which each Participant agreed to take from MEAG its as a separate legal entity and not by any laws or reg- "bulk power supply", pursuant to rates and charges es- ulations which may be applicable to any of the other tablished by MEAG, except that each Participant may panicipating panics. Notwithstanding any other law seek alternate sources as provided by the contracts. to the contrary, pursuant to the terms of any such "Bulk power supply" is defined as electric power and 643 F. Supp. 1345, * 1377; 1986 U.S. Dist. LEXIS 21031, **88; 1986.2 Trade Cas. (CCH) P67,318 energy needed by a Participant in excess of that amount (1) supplied by any generation and transmission re- sources owned by such Participant on the effective date [**89[ of the contract !this only applies to Crisp County which o�sns its w.�n -encranng facilities), (2) received by suet PartiCipant from SIiPA, and i ) pro- cured by such Panicipant from alternate bulk power supply sources permitted under the contract. The bulk power suppl,, covered in these %kholcsale po\wcr sales contracts consists of "project power' and "supplemental power." Project power is furnished by output and ser- vices from MEAG's ownership of generation and trans- mission facilities. Supplemental Power, the amount of power required in excess of project power, is supplied by MEAG through wholesale purchascs, or other pur- chases and exchanges, from other electric utilities. Most of MEAG's supplemental power requirements are cur- rently met by purchases from Georgia Power to accor- dance with Georgia Po"cr's partial requirements tar- iff on file with, and approved by, the FERC. n41 However, the %k holesale power sales contracts provide that the Participant may purchase supplemental power from sources other than M EAG subject to notice require- ments varying from two to nine years depending upon the amount of power involved. The notice provisions pur- port to reflect the need for long-term forecasting [**90] and planning for power supply. Each contract has a pro- vision for shortening the notice periods if cancellation of power by a Participant would not impose a burden or cost on MEAG. n41 See P. 1352, supra. The MEAG Group contends that these firm require- ment contracts for bulk power supply are needed in order that MEAG may sell revenue bonds to finance its partici- pation in the generation and other projects authorized by statute. These four wholesale power sales contracts were all approved by the Superior Court of Fulton County. Additionally, the Georgia Supreme Court affirmed the judgment of the Superior Court of Fulton County vis-a- vis the first wholesale power sales contract. The Georgia Supreme Court specifically held that the Participants are authorized not only by O.C.G.A. §§ 46-3-1 10 et seq. but also by the Constitution of the State of Georgia to enter into the wholesale power sales contracts with MEAG, to pledge their full faith and credit, and to levy taxes in or- der to meet their payment obligations [**91 ] under such contracts. Thompson v. Municipal Electric Authoriry of Georgia, 238 Go, 19, 231 S.E.2d 720 (1976). On March 27, 1985. the Supreme Court decided two cases which strengthen and give new breadth to the state Page 27 action antitrust immunity doctrine for municipalities and other state and local political entities, as well as to pii- vate persons acting pursuant to state law. In light of these decisions, this Court agrees with the MEAG Group's ar- gument that it is entitled to antitrust immunity. In 7biin of Hallie i% Cite of Eau Claire, 471 U.S. 34, 105 S. Ct. 1713. 85 L. Ed. 24 24 (1985), a unanimous Court held that a municipality alleged to have engaged In arincouipetitive activities -Aas protected by the state action exemption to the federal antitrust laws. The peti- tioners were four Wisconsin unincorporated townships located adjacent to the City of Eau Claire. The petition- ers alleged that the city had violated the Sherman Act by acquiring a monopoly over the provision of sewage treatment services in Eau Claire County, where three of the townships were located, and in Chippewa County, where the remaining township was located, and by ty- ing the provision of such services to the [**921 pro- vision of [*1378) sewage collection and transportation services. The city had obtained federal funds to build a sewage treatment facility, the only one available to the townships, within the Eau Claire Service Area. The city refused to supply sewage treatment service to individ- ual landowners in the areas of the petitioner -townships because a majority of the individuals in those areas had not voted by referendum election to have their homes annexed by the City of Eau Claire and to use its sewage collection and transportation services. The statute in question authorized the city to provide sewage services and also to determine the areas to be served. This statute was supplemented by'another statute of general applica- tion that allowed any city operating a public utility to fix the limits of service and provided that the municipal utility would have no obligation to serve beyond such area. Alleging that they were potential competitors in the collection and transportation of sewage, the townships argued that the City of Eau Claire used its monopoly over sewage treatment to gain an unlawful monopoly over the provision of sewage collection and transporta- tion services. The townships [**931 also contended that the city's actions constituted an illegal tying arrangement and an unlawful refusal to deal with the townships. It is well -established that the anticompetitive conduct of a State acting through its legislature is beyond the reach of the antitrust laws. Parker i. Brown, 317 U.S. 341, 87L. Ed. 315, 63 S. Ct. 307 (1943). However, municipalities are not beyond the reach of the antitrust laws solely by virtue of their status because they are not themselves sovereign. City of LaFayerre v. Louisiana Power & Light Co., 435 U.S. 389, 412, 55 L. Ed. 2d 364, 98 S. Ct. 1123 (1978). "Before a municipality 5J- ` 2U t- 643 F. Supp. 1345, *1378, 1986 U.S. Dist. LEXIS 21031. **93; 1986-2 Trade Cas. (CCH) P67,318 will be entitled to the protection of the state action ex- emption from the anti-trust laws, it must demonstrate that it is engaging in the challenged activity pursuant to a clearly expressed state police " T m n or l allie. 105 S. Ct. at 1717. The Court also stalcd th:u. the determination that a municipality's activities consti- tute state action is not a purely fonnalisuc inquiry; the State may not validate s municipality's rtticornpetitiye conduct simply by declaring it to be lawful. (Porker, 317 U.S. at 3511. On the other hand, in proving that a state [**941 policy to displace conspetition exists, the munic- ipality need not "be able to point to a specific, detailed legislative authorization" in order to assert a successful Parker defense to an antitrust suit. [Ciry oj'L.aFaYette, 435 U.S. at 4151. Town of Hallie, 105 S. Ct. at 1716-17 In answering the question "how clearly a state policy must be articulated for a municipality to be able to es- tablish that its anticompetitive activity constitutes state action," id. at 1717, the Court held that if the statutes it,, question "clearly contemplate that a city may engage in anticompetitive conduct" such that the anticompeti- tive conduct is a "foreseeable result" of the statutory authorization, it is sufficient. Id. at 1718. Moreover, where a state has "delegated to the cities the express au- thoritv to take action that foreseeably will result in anti- competitive effects," the basis for immunity has been established. n42 t j t 1 L n42 The townships had argued that in order to pass the "clear articulation" test, a legislature must expressly state in a statute or its legislative history that it intends for the delegated action to have anti- competitive effects. In rejecting this argument, the Court stated that, "this contention embodies an un- realistic view of how legislatures work and of how statutes are written. No legislature can be expected to catalog all of the anticipated effects of a statute of this kind." Torn of Hallie, 105 S. Ct. at 1719. The Court also rejected an argument by the town- ships that the "clear articulation" requirement man- dates that the State compel the municipality to act in an anticompetitive manner. The Court held that the activities of a municipality, an arm of the State, reed not be compelled by, but need merely be per- mitted or authorized by, statute because it may be presumed, "absent a showing to the contrary, that the municipality acts in the public interest." Id. at 1720. Page 28 1 "951 Additionally, the Court held that it is unnecessary for the State to provide "active 1*13791 supervision" of a municipality as to the matters involved. The Court noted that. "the requirement of active state supen ision serves essentially an evidentiary function: it is one way of en- suring that the actor is engaging in the challenged con- duct pursuant to state policy." id, at 1720. Where the actor is a municipality, "the only real danger is that it will seek to further purely parochial public interests at the expense of more overriding state goals. This dan- ger is minimal, however, because of the requirement that the municipality act pursuant to a clearly articulated state policy." The breadth of implied immunity that the Supreme Court held to be appropriate in interpreting state statutes in Hallie was given even greater breadth in Southern Motor Carriers Rate Conrerence, Inc. v. United States, 471 U.S. 48, 105 S. Ct. 1721, 85 L.. Fri. 2d 36 (1985). The case involved the actions of private parties, motor common carriers, in four states. in those states, the re- spective Public Service Commissions set the rates for the carriers for the intrastate transportation of general [**961 commodities. The common carriers were required by statute to submit proposed rates to the relevant com- mission for approval. If the state agency took no action within a specified time period, the proposed rate became effective. If a hearing was scheduled, the rate would be- come effective only after affirmative agency approval. In all four states, the common carriers were permit- ted by statute to agree on rate proposals prior to their joint submission to the regulatory agency. Collective rate making, however, was not compelled by any of the states; every common carrier remained free to submit its own rate proposal to the agency. The defendants in the case were two private associa- tions composed of motor carriers operating in the four states. Both organizations had committees that con- sidered possible rate changes and, if they felt it ap- propriate, submitted collective proposals to the Public Service Commission in each state. Disapproving mem- bers, however, were not bound by the joint proposal. The United States charged that the two rate bureaus had conspired with their members to fix rates for the intrastate transportation of general commodities in vio- lation of the federal antitrust laws. [**971 In holding for the carriers, the Court decided that it was not neces- sary that the activity in question be "compelled" by state law, so long as the state evidences its intent to permit the activity. n43 The Court reasoned that just because a State does not compel anticompetitive behavior does not J — r! 2 0 643 F. Supp. 1345, *1379; 1986 U.S. Dist. LEXIS 21031, **97; 1986-2 Trade Cas. (CCH) P67,318 mean it has no interest in whether or not its permissive policies work: Most common carriers probably will engage in collec- tive rate making, as that wtll allow them to share the cost of preparing rate proposals. if the joint rates are viewed as too high, however, carriers individually may submit lower proposal rates to the commission in order to obtain a larcer share of the market. Thu;, through the self -interested actions of private common carriers, the States may achieve the desired balance between the efficiency of collective rate making and the competition fostered by individual submissions. Id. at 1728. Indeed, 'insofar as it encourages states to require, rather than merely permit, anticompetitive con- duct, a compulsion requirement may result in greater restraints on trade.' Id. at 1729. The Court went on to find the anti -competitive conduct in question was [**98) taken pursuant to a 'clearly articulated state pol- icy." Interestingly, the legislature of one of the states had not expressly approved collective rate making; neverthe- less, the Court (*1380] held that the state's legislature had "articulated clearly its intent [by granting the State Public Service Commission general authority to regulate common carriers] to displace price competition among } common carriers with a regulatory structure." Id. at 1731. n44 Additionally, the Court stated that. if more detail than a clear intent to displace competition were required of the legislature, States would find it difficult to implement through regulatory agencies their anticompetitive policies. Agencies are created because they are able to deal with problems unforeseeable to, or outside the competence of, the legislature. Requiring ex- press authorization for even, action that an agency might find necessary to effectuate state policy would diminish, if not destroy, its usefulness. Id. The fact that the agency had acted discretionarily when it decided to encourage joint price -setting among private actors was deemed adequate to effect immunity. Id. at 1730. 1143 In so doing, the Court did "not suggest, how- ever, that compulsion is irrelevant. Tb the con- trary, compulsion often is the best evidence that the State has a clearly articulated and affirmatively ex- pressed policy to displace competition. (citations omitted]. Nevertheless, when other evidence con- clusively shows that a State intends to adopt a per- missive policy, the absence of compulsion should not prove fatal to a claim of Parker immunity." Southern Motor Carriers, 105 S. Ct. at 1729-30. J —991 Page 29 n44 In Town, of Hallie, the Court confirmed the two -pronged test first enunciated in California Retail Liquor Dealers Assn. v. .Vidcal Aluminum, Inc.. 445 U.S. 97, 63 L. Ed. 2d 233. 100 S. Ct. 937 (1950) for cases in which state action exemption was claimed by a private party. Town of Hallie, 105 S. Ct. at 1720. In Southern Motor Carriers, the Court held that the petitioners satisfied the first prong of the ,%lideal test, that anticompetitive conduct be taken pursuant to a clearly articulated state policy. The sec- ond prong, active state supervision, was not an issue before the Court because the government had stipu- lated that the relevant States, through their agencies, actively supervised the conduct of the private parties. Southern Afotor Carriers, 105 S. Ct. at 1731. In the case at bar, it is undisputed that MEAG itself is an "instrumentality of the state", O.C.G.A. § 46-3-112. The Georgia legislature specifically, "found, determined and declared that the creation of the authority and the car- rying out of its corporate purposes are in all respects for the benefit of the people [** 1001 of this state and that the authority is an institution of purely public charity per- forming an essential governmental function." O.C.G.A. § 46-3-128. MEAG is doubly vested in implementing what is in the public interest: it is a state instrumentality with defined purposes and accreditation, and it acts on behalf of the Participants, which are themselves polit- ical entities within the state. Indeed, the statute treats MEAG as being on an even plane with the Georgia Public Service Commission; it expressly removes MEAG's ac- tions from Commission review. O.C.G.A. § 46-3-152. Under the new, broader standard of the state action exemption articulated in Town of Hallie and Southem Motor Carriers, both the power supply arrangements between MEAG and the Participants and MEAG's par- ticipation in the ITS and its joint ownership agreements are clearly exempt from federal antitrust laws. The State of Georgia lormed MEAG for the purpose of supplying wholesale bulk electric po%%er to a group of state subdi- visions. It would be illogical to hold MEAG, by doing that for which it was organized, or the Participants, for participating in MEAG, subject to antitrust liability. As to the wholesale power f **101] sales contracts, MEAG was specifically created for the purpose of tak- ing all "necessa - or desirable action in order to provide or make available an adequate, dependable, and econom- ical supply of electric power and energy and related ser- vices" to political subdivisions in the State of Georgia. O.C.G.A. § 46-3-125. This is because "it is declared L eJ7 LI Page 30 (a3 F. Supp. 1345. *1380: 1986 U.S. Dist. LEX1S 21031, **101; 19£6-2 Trade Cas. (CCH) P67,318 that there exists in this state a need for an authority to function without profit in de\cloping and promoting for the public good in this state adequate, dependable, and economical sources and supplies of bulk electric power and energy . ." O.C.G.A. § 46-3-110. Accordingly, MEAG is authon.cd. as "accm for such political subdi- visions, to secure power supply contracts and arrange- ments with other persons . . .; to purchase power at retail or wholesale fmrn any other person; . . . to execute long -or short-term power purchase or sale con- tracts . . .; [and to act[ as agent for any or all of the same to make power and energy otherwise available to them through arrangements [* 13811 with other persons, all within the exercise of the powers of the Authority and to effectuate the purpose of this article." O.C.G.A. § 46-3-126(5). As in [**102] Southern Motor Carriers, none of the political subdivisions is obligated to become a Participant in MEAG or otherwise to contract with MEAG. However, with respect to those that do, ;MEAG is authorized to represent them as agent or to deal with them as principal and to sell ciectric poc%er to them. Id. The Court finds that it was not merely "foreseeable", rather it was anticipated that at least some, if not most, of the State's municipalities would become Participants of MEAG and that the Participants would enter into binding long-term commitments with MEAG. These contractual provisions arc inherent in MEAG's statutory mission and are barred from antitrust scrutiny under Town of Hallie. n45 n45 This Court notes that to the degree that the MEAG Group's power supply contracts permit the Participants to buy supplemental power from Greensboro, Greensboro cannot claim that it has suf- fered any harm. Indeed, there is no claim that MEAG or any of the Participants refused to buy power from (or sell power to) Greensboro on the basis of the Power supply contracts. The plaintiff would have this Court determine whether the contractual notice provisions, which vary from, two to nine years depending upon the amount of power involved, with respect to the sup- plemental power provisions by which a Participant can buy power from other services, are "reasonable" in view of MEAG's mandate to plan for and se- cure the power needs of its Participants. In light of Town of Hallie and Southern Motor Carriers, this is not a proper subject of inquiry for a federal court. Once the state has committed an area, in this case power supply contracting for Georgia political sub- divisions, to the discretion of a state -empowered au- thority, a court should not undertake to review spe- cific contractual terms. To require a state to legislate details such as the length of power supply obligations or notice provisions with greater specificity, would so stagnate and constrict the process that it would impose "detrimental side effects" upon the author- ity's ability to cam out its statuton mission. Timn of Hallie, 105 S. Ct., at 17.19. See also Southern Mowr Carriers, 105 S. Ct. at 1731 ('Requiring ex- press authorization for ecery action that an agency might find necessary to effectuate state policy would diminish, if not destroy, its usefulness."). Greensboro also argues that, even if MEAG has been granted sufficient authorization to enter into power supply contracts for the sale of bulk power, MEAD has extended beyond such authorization by entering into power supply contracts for the sale of supplemental bulk power. This Court rejects this argument. MEAG is empowered to make power and energy available to the Participants "through ar- rangements with other persons . . . ." O.C.G.A. § 46-3-126(5). Therefore, this Court feels that sup- plemental bulk power falls within the scope of the Georgia statute providing that the Participants can obligate themselves to use exclusively the "projects" of MEAG. O.C.G.A. § 46-3-129(d). * * 1031 As to participation in the ITS and the joint owner- ship of generation facilities, MEAG is empowered "to acquire and construct, and to operate and maintain, or to cause to be constructed, operated, and maintained elec- tric generation and transmission facilities." O.C.G.A. § 46-3-125. Collective participation in joint genera- tion and transmission facilities is expressly authorized by O.C.G.A. § 6-3-126(5), wherein MEAG is empow- ered "to acquire, by purchase or otherwise, in whole or in part, . . . and to place in operation and operate . . . either as owner of all or of any pan in common with others or as agent, electric generation and trans- mission lines . . . ." Further, O.C.G.A. § 46-3-126(7) empowers MEAG to engage in these activities "either alone or jointly or in common with one or more other parties or utilities, whether public or private." O.C.G.A. § 46-3-126(7) goes on to provide: In any such exercise of such powers, rights and privi- leges jointly or in common with others with respect to the construction, operation, and maintenance of elec- tric generation or transmission facilities, the authority may own an undivided interest in such facilities with any other parries, [**104] whether public or private. The authority may enter into agreements with respect to any such electric generation and transmission facil- I L 643 F. Supp. 1345, *1381; 1986 U.S. Dist. LEXIS 21031, "104; Page 31 1986.2 Trade Cas. (CCH) P67,318 ity with the other parties panicipating therein, and any such agreement may contain terms, conditions, and pro- visions consistent with this article as the panies thereto shall deem to he in their hest interests. 1"13821 The section goys on specifically to authorize provisions for the construction, operation and mainte- nance of transmission facilities; for the designation of one party to act as agent for one or n:orc parties to the agreement; and for the determination of methods of allocating arnong the parties the costs of construc- tion, operation, maintenance, and the delectation of cer- tain powers. Id. Any anticompetitive effects which MEAG's participation in the ITS and joint ownership agreements might cause n46 were a foreseeable result of the specific authorizations contained in Georgia law. Accordingly, MEAG's participation in the ITS and joint ownership agreements is immune under Town of Hallie and Southern Motor Carriers from antitrust attack. n46 As this Court has already noted, any alleged harm which Greensboro has suffered as a result of the ITS and the joint ownership agreements is, at best, speculative; and, therefore, Greensboro lacks standing to challenge the joint ownership and joint transmission agreements among the defendants. See p. 1369- l 371, supra. **1051 Greensboro argues that the MEAG Group's reliance on Town of Hallie and Southern Motor Carriers is mis- placed. Greensboro maintains (1) that the statutes pur- suant to which the MEAD Group has acted do not reflect a clearly aniculated state policy to replace competition with regulation or monopoly public service and (2) that, even if MEAG could demonstrate that its activities are pursuant to a clearly articulated state policy. MEAG is not cloaked with federal antitrust immunity under the state action doctrine because any such state policy is not actively supervised by the State of Georgia. This Court finds both of these arguments to be without merit. Greensboro suggests that the statutes pursuant to which the MEAG Group has acted do not reflect a clearly aniculated state policy because the statutory scheme is permissive in nature and because the state's position in these matters is one of mere neutrality. As previously discussed, Town of Halite and Southern Motor Carriers make clear that even though a statutory scheme is permis- sive, it may still represent a clearly articulated state pol- icy. Greensboro, however, attempts to liken the Georgia statutes implicated in this 1 * 1061 case to the Home Rule Amendment involved in Community Communications Co. v. City of Boulder, 455 L1.S, 40, 70 L. Ed. 2d 810. 102 S. Ct. 835 (1982). in the City of Boulder case, a municipality contended that its status as a "home rule" municipality under the Colorado Constitution en- utied it to state action antitrust Iminungv, and that it was thereby entitled to restrict in an anticompetitive way the business of its cable television franchisee. The Home Rule Statute was a very general law which purported to extend to municipalities even- power possessed by the state legislature; the Amendment did not in any way ad- dress the regulation of cable television. The Supreme Court rejected the City of Boulder's contention of state action immunity, Finding that "the requirement of 'clear articulation and affirmative expression' is not satisfied when the State's position is one of mere neutrality re- specting the municipal actions challenged as anticompet- itive." id. at 56. Greensboro's analogy to the Home Rule Amendment involved in City of Boulder is inapposite. In this case, Georgia has, with a great deal of specificity, authorized the MEAG Group to enter into the very types ("1071 of arrangements which Greensboro challenges. "No rea- sonable argument can be made that these statutes are neutral in the same way that Colorado's Home Rule Amendment was." Town of Hallie, 105 S. Cr, at 1719. Greensboro maintains that, in order for the MEAG Group to enjoy state action immunity, there must be active state supervision of the clearly articulated state policy. It is clear that MEAG is an "instrumentality of the state". O.C.G.A..§ 46-3-122. In Town of Hallie, the Supreme Court decided that the active state supervision requirement did not apply to a municipality. Greensboro argues that this holding should not be extended to cover instrumentalities of the state such as MEAG. 1*13831 This Court. however, disagrees. Although the issue is still open, the Supreme Court has stated that, "in cases in which the actor is a state agency, it is likely that ac- tive state supervision would also not be required . . . ." Town of Hallie, 105 S. Ct. at 1720 n.10. It seems illogical to this Court to cloak a single municipality with state action immunity without requiring active state su- pervision but not to do the same for MEAG which rep- resents an association of many municipalities (**1081 in the State of Georgia acting pursuant to clearly articulated state policy toward a broad common interest. n47 n47 MEAG also moves for summary judgment as to Counts 1, 11, and 111 on the basis of lack of stand- ing, the statute of limitations established in § 4b of the Clayton Act, 1S U.S.C. § 15b, and the doctrine of laches. Except for the view already expressed by the Court that the MEAG Group's participation JeJ"" �i�U Page 32 IN 643 F. Supp. 1345, *1383; 1986 U.S. Dist. LEXIS 21031. **108, 1986-2 Trade Cas. (CCH) P67,318 in the ITS causes no antitrust harm to Greensboro, this Court expresses no opinion at this time on these contentions. Greensboro has also challenged the MEAG Group's PURPA Implementation Policy. n4S The plaintiff ar- gues that the buy;scli divisions between MEAG and the Participants as set forth in their fnterconnection Policy violates PURPA on its face. Circenshore, also alleges that the MEAG Group declined to pad for Greensboro's capacity and refused to deal fairly .� ith it on energy pur- chases, even though their Interconnection Policy pro- vides for both kinds of purchases at avoided cost. Hence, the plaintiff [**1091 claims that the MEAG Group's ap- plication of its Interconnection Policy violates PURPA. n48 MEAG was designated by forty-five of the Participants as their agent for entering into power supply arrangements with cogencrators and small pourer production facilities in order to meet their obligations under Section 210 of PURPA. MEAG's PURPA Policy Statement sets forth MEAG's pur- chase policy in pan as follows: 1. The participating cites will buy either full output or excess energy (at the QF's [Qualified Facility] op- tion) from QF's with a design capacity of 100 kW or less. The rate paid will be based on an estimated average avoided energy cost, which will be provided to each participating city by MEAG staff. 2. MEAG will buy either full output or excess energy (at the QF's option) from QF's with a design capac- ity greater than 100 kW. The rate paid will include monthly average avoided costs, based upon a for- mula, which accounts for actual PartiaJ Requirement (PR) energy cost adjustments as billed to MEAG from [Georgia Power). MEAG's sales policy is as follows: i . Participating cities will sell supplemental, backup, maintenance, and interruptible power to QF's with a design capacity of 100 kW or less, at a rate (or rates) prepared by the individual cities. 2. Participating cities will sell supplemental, backup, interruptible, and maintenance power, to QF's with a design capacity above 100 kW, at a rate (or rates) prepared by the cities. [**1101 As to the provision of the MEAG Group's Interconnection Policy regarding sales, this Court notes that MEAG is a creature of Georgia Statute and is with- out authority to sell at retail to anyone. As well, both MEAG and the Participants are, in any event, barred by the Georgia Territorial Electric Service Act from selling Ietatl sen ice to Greensboro. The Georgia Territorial Electric Service Act exempts all of the defendants except Rayle EMC from any obliga- tions it might otherwise have under PURPA to sell power at retail to Greensboro. Under this Act, the PSC has as- signed to individual electric power suppliers exclusive rights to sell power within that assigned territory. The Act clearly prohibit-1 electric utilities from serving cus- tomers in a territory assigned to another utility without that utility's consent. This prohibition is subject to only certain limited exceptions which are not applicable here. it is undisputed that Greensboro lies within the territory that has been assigned to Rayle EMC. MEAG presently does not serve or seek to serve any retail loads and is not subject to PSC regulation. While, theoretically, it would be possible for MEAG or the Participants to provide re- tail [**III) services to Greensboro under the Act, if Rayle EMC were to give its consent and if the PSC were to approve of it, O.C.G.A. § 46-3-8(c)(1,2), the fact re- mains Rayle EMC has not consented to let MEAG, the Participants, or anyone else for that matter, sell at retail to Greensboro; nor, under the Act, is it required to do so. [*1384] Thus, even if MEAG were required by die FERC or this Court to revise its Interconnection Policy to authorize sales by it to unassigned qualifying facil- ities, state law, specTcally O.C.G.A. § 46-3-11(b)(4), would still preclude MEAG from selling to Greensboro. For this reason, Greensboro lacks standing before this Court to challenge the sales provisions of the MEAG Group's Interconnection Policy. See Steele v. National Firearms Act Branch, 755 F2d 1410. 1414 (11th Cir. 1985) (Article III standing requires that a plaintiff show that his alleged injury is 'likely to be redressed by the requested relief . . ."). See also Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 57 L. Ed, 2d 595, 98 S. Ct. 2620 (1978); Simon t: Eastern Kentuck-v 4Ieelfare Rights Organization, 426 U.S. 26, 41. 48 L. Ed. 2d 450, 96 S. Cr. 1917 (1976). ['*112) Greensboro's argument that PURPA pre-empts all state territorial service laws, including Georgia's is un- persuasive. While federal regulation may, in some cir- cumstances, pre-empt state law, that can only occur where the following conditions have been met: The [agency) must have (I) resolved to preempt the spe- cific area in question; the determination must (2 ) repre- sent a reasonable accommodation of conflicting policies; �9- `�20 Page 33 643 F. Supp. 1345, *1384; 1996 U.S. Dist. LEXiS 21031, **112; 1996-2 Trade Cas. (CCH) P67,318 and (3) the agency must have authority to preempt Co.r Cable New Orleans, Inc. t. Cin or,Vcw Orleans, 594 F. Supp. last, 1461 (1:.D. La. 1954) (quoting Capital Cities Cf.hlc, Mc. 1 Critip. 467 U'.S, 691, 104 S. Cr. 26Uj. 2.701, ,Sl L. EMI. 2d 5S'0 (1954)). Pre-emption may only be established 'bv the regulatory agency's clear expression of an intent to preempt state la\v." Car ('c1)lc, 504 1-: St,; ,p. at 1461 Nothing can be found in the FERC's PURPA regu- lations which demonstrates , "clear expression" to pre- empt state territorial service laws. To the contrary, the regulations' Preamble recognizes that, ". . . State law ordinarily sets out the obligation of an electric utility to provide set ice to customers located within its service area. Inmost (** 1 131 instances, therefore, this rule will not impose additional obligations on electric utilities.' FERC Order No. 69, 45 Fed. Reg. para. 12214, 12220 (1980). The Preamble further acknowledges that, "an electric utility is only required to construct lines or other facilities to the extent authorized or required by State or local law. As a result, a qualifying facility outside the set -vice area of a utility may be required to build its line into the service area of the utility." Id. Additionally, while Congress authorized the FERC in section 210(e) of PURPA to exempt qualifying facilities from state laws and regulations, it limited this authority specifically to laws "respecting the rates, or respecting the financial or organizational regulation, of electric utilities . . . ." 16 U.S.C. § 824a-3(e). Congress did not authorize the FERC to grant exemptions to qualifying facilities from other state laws or regulations, such as territorial service laws. See also Federal Energy Regulatory Commission v. Mississippi, 456 U.S. 742, 759, 765, n.29, 72 L. Ed. 2.d 532, 102 S. Ct. 2126 (1982) ("In PURPA, . .., the Federal Government attempts to use state regulatory ma- chinery to advance federal [** 1 141 goals." "It seems evi- dent that Congress intended to defer to state prerogatives -- and expertise -- in declining to pre-empt the utilities field entirely."); Consolidated Edison Co. of New lork-, Inc. t: Public Sen—ice Commission, 470 U.S. 1075, 105 S. Ct. 18.31, 85 L. Ed. 2d 132 (1985) (Supreme Court dismisses a PURPA preemption claim as not pre- senting a substantial federal question.). Moreover, in enacting section 210 of PURPA, Congress intended that each qualifying facility have "an opportunity to deal with a utility" in obtaining supplemental and back-up power at nondiscriminatory, just and reasonable rates. 32 FERC para. 61.103, 61,284 (emphasis added). The Georgia Territorial Electric Service Act is fully consis- tent with this objective since it permits Greensboro to t' obtain power at nondiscriminatory, just and reasonable rates from Rayle EMC. 1* 13951 The FERC's decision in the Oglethorpe case a foniori validates the MEAG Group's interconnection Policy regarding purchases. in that case, the FERC val- idated the Oglethorpe Group's Interconnection Policy as not being inconsistent with P(_'RPA's goal of en- couraging qualifying facilities escn though it stated that [**1151 Oglethorpe would make all purchases of en- ergy and capacity for the EMCs. With respect to the NIEAG Group's PURPA polio, MEAG is to make pur- chases on behalf of the Participants from qualifying fa- cilities with a design capacity above 100 kW; however, the Participants are permitted to make purchases from fa- cilities below that size. Because Oglethorpe's authority to make power purchases at all levels for the EMCs was affirmed by the FERC, it follows a fortiori that MEAG's more -limited authority to make power purchases only at higher capacity levels is consistent with PURPA. The Court notes further that, as with the Oglethorpe Group, MEAG claims that it purchases pourer from qual- ifying facilities at fully avoided cost, the amount man- dated by PURPA; the Panicipants, in turn, purchase this power from MEAG which sells it to them on a nonprofit basis. It seems incongruous to argue that the Panicipants would be willing to pay more to qualifying facilities such as Greensboro for the same power it could pur- chase from MEAG or Georgia Power for less. For the reasons stated earlier in this opinion, this Court believes that any "as applied" PURPA claims that the plaintiff has brought against [**116) the MEAG Group, such as its claim that MEAG has wrongfully refused to pay any- thing for Greensboro's capacity and has refused to pay a fair price for its energy, properly belong in the state court system. The MEAG Group has also filed a motion pursuant to F. R. Civ. P. I l against Greensboro. It appears to the Court that the facts surrounding the negotiations which took place between the plaintiff and the MEAG Group prior to the time this suit was filed are in dispute. Suffice it to say that, although the Court has resolved the legal questions in the MEAG Group's favor, this Court cannot find that the plaintiff's complaint was filed in bad faith. City of Dalton and Georgia Power Company The plaintiff asserts antitrust claims against Dalton and Georgia Power related to their participation in the ITS. Because this Court has held, for reasons stated earlier in this opinion, that no antitrust hum results from, par- ticipation in the ITS, the Court finds these claims to be without merit. The plaintiff also asserts a claim against Georgia Power challenging its alleged refusal to buy Greensboro's electricity output. The plaintiff concedes, however, that viable alternative purchases [**1171 for Page 34 643 F. Supp. 134.5. * 1385, 1986 U.S. Dist. LEXIS 21031, ** 117; 1986-2 Trade Cas. (CCH) P67,318 this output exist. Indeed the plaintiff currently sells its output to Oglethorpe at a rate that is, in all probabil- ity, above market rate. n49 Under such circumstances, Georgia Power's unilateral refusal to deal does not con- n49 Sec n.28, supra. stitute a violation of the federal antitrust laws. See United States v. Col{ate & Cn., 250 ('.S. 3 t0, t)3 L. In sum, the motions for summary judgment filed by all Ed. 992, 39 S. Ct. 465 (1919). But cf. Six Twenty• of the defendants in this action are hereby GRANTED. Nine Productions, Inc. r. Rollins Telecasting, Inc., The motion for sanctions filed by MEAG and the 365 F.2d 478 (5th Cir. 1966) !monopolist who manipu- Participants is hereby` DENIED, fates refu_cals to deal in order to preserve and extend its SO ORDERED, this 28 day of August, 1486. monopoly violated the Sherman Act). Page 48 IST CASE of Level 1 printed in FULL format. UNITED STATES of America, Plaintiff -Appellee, v. SOUTHERN MOTOR CARRIERS RATE CONFERENCE, INC. and North Carolina Motor Carriers Association, Inc., Defendants -Appellants, National Association of Regulatory Utility Commissioners, Intervenor -Appellant. No. 79-3741 UNITED STATES COURT OF APPEALS. FIFTH CIRCUIT. N* * FORMER FIFTH CIRCUIT CASE, SECTION 9(1) OF PUBLIC LAW 96452-OCTOBER 14, 1980. 672 F.2d 469, 1982 U.S. App. LEXIS 20426; 1982-1 Trade Cas. (CCH) P64,659 April 5, 1982 PRIOR HISTORY: (**1] Appeals from the United States District Court for the Northern District of Georgia. CORE TERMS: state action, carrier, compulsion, im- munity, antitrust laws, regulation, ratemaking, state policy, bureaus, antitrust, supervision, Sherman Act, private parties, state regulation, articulated, tariff, an- ticompetitive, affirmatively, price fixing, prong, in- trastate, private party, license, rule of reason, exempt, sovereign, immune, competitor, Interstate Commerce Act, blanket COUNSEL: Arnall, Golden & Gregory, Allen 1. Hirsch, Simon A. Miller, Jeffrey C. Baxter, Atlanta, Ga., for Southern Motor Carriers. Rea, Cross & Auchincloss, Bryce Rea, Jr., David Hyler Coburn, Washington, D.C., for North Carolina Motor and amicus flat. Motor Freight Traffic Assoc. Robert P. Gruber, Gen. Counsel, Wilson B. Partin, Jr., Deputy Gen. Counsel, David Gordon, Associate Atty. Gen., Raleigh, N.C., for amicus curiae. Barry Grossman, Atty., Nancy C. Garrison, Robert Lewis Thompson. Antitrust Div., Appellate Section, Dept. of Justice, Washington, D.C., for plaintiff - appellee. Paul Rodgers. Gen. Counsel, Charles D. Gray and Pamela R. Melion, Washington, D.C., for intervenor - appellant. JUDGES: Before HILL and FRANK M. JOHNSON, Jr., Circuit Judges and SCOTT n**, District Judge. ** Honorable Charles R. Scott, U. S. District Court Judge for the Middle District of Florida, sit- ting by designation, OPINIONBY: JOHNSON, Jr. OPINION: [*471 In 1976 the United States instituted this action un- der Section 4 of the Sherman Act, 15 U.S.C. § 4, to enjoin the continuing violation of Section I of the [**21 Sherman Act, 15 U.S.C. § 1, by three rate bu- reaus. These defendants, Southern Motor Carriers Rate Conference, Inc. (SMCRC), North Carolina Motor Carriers Association, Inc. (NCivICA), and Motor Carriers Traffic Association, Inc. (MCTA), represent common carriers before the regulatory commissions of the states of Alabama, Georgia, Mississippi, North Carolina, and Tennessee. 'These rate bureaus perform three basic functions: (1) they provide a forum for com- peting member carriers to discuss and agree on rates for intrastate transportation of general commodities to be proposed to state public service commissions for ap- proval; (2) they publish tariffs and supplements con- taining the rates on which the carriers agree; and (3) they provide counsel, staff experts, and facilities for the preparation of cost studies and other exhibits and tes- timony for use in support of proposed rates at hearings held by the regulatory commissions. n I The government challenged the First of these functions as price fixing in violation of Section l of the Sherman Act. n2 nl. For further elaboration of the facts regard- ing the role of the rate bureaus, their relationship with the state regulatory commissions, and the gen- eral pattern of regulatory procedures in the five sub- ject states, see the district court's carefully written opinion. United States v. Southern Motor Carriers Rate Conference, Inc., 467 F. Supp. 471, 476-78 Page 49 672 F.2d 469, *471; 1982 U.S. App. LEXIS 20426, **2; 1982-1 Trade Cas. (CCH) P64,659 (N.D.Ga.1979). 1**31 n2. In the district court, the state attorneys gen- eral of the states of Mabania. Georgia, Mississippi, North Carolina and Tennessee participated as arn- ici curiae. The National Association of Regulatory Utility Commissioners (NARUC) also was allowed to participate as an inicnenor. Deciding the case on cross -motions for sununaryjudg- ment, the district court held defendants in violation of Section I and 1*4721 granted the government's motion. In so doing, the judge rejected defendants' arguments that their activities were immune under the state action doctrine or under the Noerr-Pennington doctrine and that their activities did not constitute an antitrust violation. Two of the defendants, SNICRC and NCMCA, and the intervenor, The National Association of Regulatory Utility Commissioners, have filed this appeal. 'Ne af- firm. State Action Immunity Appellants vigorously argue that their collective ratemaking falls within the "state action" exception to the antitrust laws. The Supreme Court first clearly artic- ulated this exception in Parker v. Brown, 317 U.S. 341, 63 S. Cr. 307, 87 L. Ed. 315 [**41 (1943). At issue in Parker, a suit against state officials, was an agricul- tural proration system established by a state statute au- thorizing a commission to impose marketing programs for raisins after petition by raisin growers and imposing penalties for failure to follow the programs. Federal an- titrust law, the Court held, did not prohibit this system, for the Sherman Act was not intended to alter a state's action supplanting competition. The program at issue, established by "state command", was adopted and en- forced by the state acting as sovereign. See id. at 352, 63 S. Ct. at 314. The Court explicitly noted that a state's mere authoriTsution of parties to violate the Sherman Act or a state's participation -vith private parties in an agree- ment in restraint of trade would not insulate actions from the federal antitrust la«shi. at 351, 6j S. Ct. at 313. The particular issue regarding the state action excep- tion that is cruciA here is %0cther a private party may avail itself of the exception only if the state compels it to perform the disputed actions, Appellants assert that in California Retail Liquor Dealers Assn v. Midcal Aluminum, inc., 445 U.S. 97, 100 S. Ct. 937, 63 L. Ed. 1**512d 233 (1980), the Supreme Court eliminated t j any state compulsion prerequisite for private party invo- cation of the exception. We disagree with that assertion. Before we address the holding of Midcal itself, however, we believe that it would be worthwhile to elaborate on certain aspects of the exception that the Supreme Court has announced in cases since Parker that interpret what constitutes m act of the state as sovereign. First, \%e believe that in cases prior to Midcal the Supreme Court has made clear that private_ panics can invoke the state action exception only if the state com- pels their actions. n3 in Goldfarb v. Virginia State Bar ,Iss'a, 421 U.S. 773, 95 S. Ct. :004, 44 L. Ed. 2d 572 (1975), the Court struck down a minimum fee schedule the habitual violation of which would, accord- ing to the state bar association, raise a presumption of unethical conduct. Noting that the bar association was not a state agency for the purposes at issue, the Court asserted that "(t)he threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the state acting as sovereign." Id. [**61 at 790, 95 S. Ct. at 2014. Similarly, in Bates v. State Bar of Arizona, 433 U.S. 350, 359-60, 97 S. Ct. 2691, 2696-97, 5.3 L. Ed. 2d 810 (19777), the Court, though striking down a [*4731 ban on lawyer advertising on First Amendment grounds, distinguished Goldfarb by finding that the challenged restraint was the 'affirmative command" of the Arizona Supreme Court, the body wielding the state's power over the practice of law, and so was " "compelled by direction of the State as sovereign.' " id. at 360, 97 S. Ct. at 2697 (quoting Goldfarb, 421 U.S. at 791, 95 S. Ct. at 2015). See also Litton Sys., inc. v. Southwestern Bell Tel. Co., 539 F.2d 418, 423 (Sth Cir. 1976). n3. in asserting that there is a state compulsion requirement, we do not mean to suggest that private parties may have no role in proposing mandatory state action. in Parker and New Motor Vehicle Bd. v Orrin W For Co., 439 U.S. 96, 99 S. Ct. 403, 58 L. Ed. 2d 361 (1979), the Supreme Court has made clear that an action may still be compelled by the state even though private parties petitioned for the state to consider requiring such action. See also California Motor Transp. Co. v Trucking Unlimited, 404 U.S. 508, 92 S. Ct. 609. 30 L. Ed. 2d 642 (1972): United .cline W)rkers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965): Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961): but cf. Cantor v. Detroit Edison Co., 428 U.S. 579, 594 S n,31, 96 S. Ct. 3110, 49 L. Ed. 2d 1141 (1976) (action not required by state even though required by state commission tariff if action proposed by private party and tariff applies only to that party, not to parties statewide). Once a state has eJ 9`" r! 2, V L 672 F.2d 469, *473; 1982 U.S. App. LEXIS 20426, **6; 1982-1 Trade Cas. (CCH) P64,659 adopted some policy, however, whether or not af- ter a petition by a private party, private parties will be exempt from the antitrust laws only if the state. requires some action pursuant to that policy. [**71 Second, the Supreme Court has not required that the state compel action of public institutions. In Parker, the state did not «quire a state commission to issue a mandatory program. Rather, it gave the commission the option of establishing the program after the petition of raisin growers. in Bates the Court specifically noted that its analysis differs substantially depending on whether the defendant is a public or private official or institu- tion. See also Coiwnuniry Conttnuricatioits Co. v. City of Boulder, 455 US. 40, 102 S. Ct. 835, 840, 70 L. Ed. 2d 810 (1982) (suggesting mere state "sanction" of municipal action sufficient for invoking exception); Lafayette v. Louisiar:a R) er & Light Co., 435 U.S. 389. 410 n.40, 98 S. Ct. 1123, 1135 n.40, 55 L. Ed. 2d 364 (1978) (plurality opinion) (same). Third, an action purporting to be by the state as sovereign must further a clear state policy. The Supreme Court explored this requirement, which for private par- ties is in addition to the threshold state compulsion re- quirement, in Cantor t. Detroit Edison Co., 428 U.S. 579, 592-98, 96 S. Cr. 3110, 3118-21. 49 L. Ed. 2d 1141 (1976). At issue was a program of the Detroit Edison Co., a private ['81 defendant, approved by a state commission. Under the program, the company provided light bulbs without a charge separate from a customer's billings for electricity. The Court held that the program was not state action immune from the Sherman Act's purview. The Court found no necessary conflict between the state's regulation of the distribution of electricity and the federal interest in the competitive market for light bulbs. Moreover, noting that it would not find an exception unless required for the state regula- tory program to ,unction and then only to the minimum extent necessary, the Court found that Michigan's policy interest in regulating electricity would not be affected by the inapplicabilit* of the state action exception to the free light bulb program. n4 This consideration is equally applicable in suits against public_ defendants. In Bates, the Court, stating that for the purposes at issue the state bar was an agent of the state in enforcing a ban on ad- vertising, specifically held Cantor inapplicable because "the regulation of the activities of the bar is at the core of the State's po%%er to protect the public", 433 U.S. at 361. 97S. Ct. at 2697, and the state policy was [**91 "clearly and affirmatively expressed". lei. at 362, 97S. Ct. at 2698. See also New Motor tilucle Bd, t,. Orrin W. Fo.r Co., 439 U.S. 96, 109, 99 S. Ct. 403, 411, 58 Page 50 L. Ed. 2d 361 (1978): Cite of Lafayette, 435 U.S. at 410, 98 S. Ct, at 1133 (plurality opinion). n4. The Court noted that it might find liability against a private party required to perform some ac- tion even if there "as no clear state policy favoring the action if so finding would be unfair to the party, 428 U.S. at 594-95, 96 S. Ct. at 3119, and that it might not in all circumstances find that state pol- icy concerns preempted federal antitrust law. Id. at 595, 96 S. Ct. at 3119. These concerns, however, arise only if the threshold state compulsion require- ment is met. 1'fe find, in any event, no unfairness in this case in holding appellants to be in violation of the Sherman Act, see text at note 22, infra, and no state policy here strong enough to justify preempting federal antitrust law. See note 12, infra. Keeping in mind the three considerations [**10] present in the Supreme Court cases outlined above -the need for state compulsion of private defendants, for some lesser state directive for public defendants, and for a clear expression of state policy -we proceed to an analysis of Midcal itself. The statute at issue in Midcal required wine producers and wholesalers to file fair trade contracts or price schedules with the state. Wholesalers could not resell wine to retailers at prices below those on the contracts or schedules. The Supreme Court reviewed [*4741 prior cases on state action immunity and 'held that they established a two -pronged standard. "First, the challenged restraint must be "one clearly articulated and affirmatively expressed as state policy'; second, the policy must be "actively supervised' by the State itself." 445 U.S. at 105, 100 S. Ct. at 943 (quoting City of Lafayette. 435 U.S. at 410, 98 S. Ct. at 1135 (plural- ity opinion)). California's regulatory system, the Court ruled, met the first prong but not the second; it therefore did not grant immunity, from the antitrust laws. At issue in this case is the meaning of the first prong of the standard. n5 1Ve believe that this first prong of the %lidcal standard [**H] did announce a broad, general standard for applying the state action exception, but that it merely is a general restatement incorporating earlier holdings that considered the exception as applied both to public and private defendants and with regard both to the need for state compulsion and for a clear articula- tion of state policy. By providing this broad overview the Court did not intend to alter the applicability of the exception in the particular contexts that the earlier cases had considered. In particular, the Court did not eliminate the requirement that the state compel action by private parties. 99 ri4u L n� 672 F.2d 469, *474, 1982 U.S. App. LEX1S 20426, **11; 1982-1 Trade Cas, (CCN) P64,659 n5. Neither in its brief nor at oral argument did th.- government take the position that the state reg- ulatory commi ,lions do not actively supervise the proposed collectively formulated rates through hear- ings to reyieu the reasonableness of proposed tariffs. Moreover, the record evidence that the commissions routinely suspend the effeciiycness of proposed tar- iffs and conduct hearings satisfies us that the second prong of the Midcal test has been met. [**121 The correctness of our interpretation is evident on ex- amination of the Court's opinion. First, there is not the slightest hint in Midcal that the Court no longer agreed with its earlier holdings. To the contrary, the Court cited those holdings with approval, even quot- ing Goldfarb's statement that "it is not enough that ... anticompetitive conduct is "prompted' by state action; rather, anticompetitive activities must be compelled by direction of the State acting as sovereign." 445 U.S. at 104, 100 S. Ct. at 942 (quoting 421 U.S. at 791, 95 S. Ct. at 2015). Indeed, the Court explicitly stated that its earlier decisions established the standards an- nounced in Midcat. n6 445 U.S. at 105, 100 S. Ct. at 943. Second, the language the Court used to announce its standard, "clearly articulated and affirmatively ex- pressed state policy' does riot imply a departure from a compulsion requirement. Given the articulation of a general standard. there is no oddity in not mentioning in text the need for state compulsion in one particular application of the standard. n7 Moreover, in the context of private parties, 114751 we cannot see how there ever could be a clearly articulated and affirmatively [**131 expressed state police in any case in which the state al- lows an individual to choose at his whimsy the option of doing or not doing some act. Finally, the Court has in earlier cases used language similar or identical to that adopted in Midcal, See Nerr.11otor W?hicle Bd., 439 U.S. at 109, 99 S. Ct. at 41I; City of L.afayette, 435 U.S. at 410, 98 S. Ct. at 1135 (plurality opinion) (quoted in Midcal's articulation of its standard): Bates, 433 US. at 362, 97 S. Ct. at 2684. If the use of such language in earlier cases did riot alter the state compulsion re- quirement, there is no reason to interpret the language in Midcal as alierin-, the requirement. n8 n6. The Supreme Court, in a recent discussion of whether municipal action is state action ex- empt from antitrust oversight, has seemed to con- ' firm that it cicsys its decisions on state immunity as a continuum, rather than as establishing different Page 51 standards before and after Midcal. See Community Comnnrnications Co. v. City of Boulder, 455 U.S. 40, 102 S. Ct. 835. 848, 70 L. Ed. 1d 810 (1982). Similarly, the Ninth Circuit recently has used the state compulsion requirement of Goldfarb in the con- text of applying the Midcal standards. Ron«in v. State Bar of Arizona. 663 F.2d 914, 918 (1981). ('•141 n7. In a footnote immediately following the ar- ticulation of its two -pronged standard in Midcal, the Supreme Court cited Note, Parker v. Brown Revisited: The State Action Doctrine After Goldfarb, Cantor, and Bates, 77 Colum.L.Rev. 898, 916 (1977), apparently as an example of the appli- cation of its standard. 445 U.S. at 105 n.8, 100 S. Ct. at 943 n.8. That Note, at the cited page, states that "(i)he mere fact that anticompetitive conduct by a private party effectuates a clearly articulated state regulatory policy is not in itself sufficient to justify a state action defense.... The defense is only avail- able if the state has elected to effectuate its policy by requiring the private conduct under attack" (em- phasis in original). The Court's citation io the Note is a testament to the continued vitality of the state compulsion requirement. In footnote 8 the Court also cited Norman's on the 1i6terfront, Inc, v. Wheatley, 444 F,2d 1011, 1018 (3d Cir, 1971), and Asheville Tobacco Bd. v. FTC, 263 F.2d 502, 509-10 (4th Cir. 1959). Norman's found a mandatory filing program insufficient alone for there to be state action immunity. In Asheville, the Court noted both the absence of required state action and of state supervision. Neither case is in- consistent with, and both implicitly support, a state compulsion requirement in certain circumstances. 1—i5] n& The dissent reasons that Midcal eliminates the state compulsion requirement because the basis for state compulsion is the concern that the economic self-interest of the companies might affect the rate setting process. According to the dissent, the sec- ond prong of the Midcal analysis, the requirement of state supervision,, assuages that concern. We be- lieve that Midcal itself illustrates the invalidity of the presumption that state compulsion and state supervi- sion have the same rationale. If the dissent were correct, the Supreme Court would have upheld state action immunity on the facts of Midcal, for state supervision would have been unnecessary since the state requirement mandating the filing of contracts and schedules would serve the same purpose. The Court did not, however, so rule, and rightly, for the 4. .- Q 7 1 L! 672 F.2d 469, *475, 1982 U.S. App. LEXiS 20426, **15, 1982-1 Trade Cas. (CCH) P64,659 state does not deprive competitors of their ability to subvert competition merely by requiring them to collude. Rather, as noted earlier, the state compul- sion requirement fulfilis a purpose c1lt1rc1y different from that undcrIN ing state super- ision: it reaffirms the holding. of Parker that an action must in effect be by the state as sovereign. If private parties were able to choose %ahcther to folinv; some course of ac- tion, the dec:�lon cortccrninL ,%',ether to pursue that action hardly could be said to be by the state. [**161 Having determined that the state compulsion require- ment remains an clement essential to private party in- vocation of the state action exception, sse must resolve whether the state regulatory programs at issue compel joint rate formulation. North Carohna General Statute § 62-152.1(b) states that in order to realize and effectuate the policy of uniform rates among carriers, any party to an agreement with other carriers regarding uniform rates may apply to a state commission for approval of the agreement; Section 62-152.1(h) relieves parties to an agreement so approved from the operation of the an- titrust laws. The statute does no more than authorize or permit collective ratemaking. There is no compulsion. + Tennessee Public Service Commission Rule 1220-2-1.40 adopts Section 5a of the Interstate Commerce Act, 49 U.S.C.,4. § 1070nrbt, c+high permits carriers to fulejoint rates and exempts those who do file such rates from the antitrust laws. In addition, Tenn. Code Ann. § 65- 1506 permits the Public Service Commission to estab- lish joint ratemaking procedures. n9 Again, there is no state compulsion. 1*4761 Georgia Code Ann. § 68-613, which requires a state commission to "establish [**171 ratemaking procedures for all motor common carriers, which procedure shall include, but not be limited to, collective ratemaking procedures", explicitly indicates that Georgia intends to give carriers the option of filing rates jointly or individual)}. n10 A 1942 order of the Alabama Public Service Commission requires carriers to "prepare, publish and file with the Commission an individual tarift or ... participate in an agency issue." Record at 53. As %c ith Georgia, Alabama explicitly per- mits individual rate applications. Finally, Mississippi in Miss. Code Ann. §§ 77-7-1 to -341 merely contem- plates cooperation among carriers to the limited extent of establishing "joint rates." it I Phis falls short of com- pelling joint applications for proposed rates. Having found that no state, the laws or regulations of which are at issue here. compels private parties to make joint ratemaking applications, we find the state action excep- tion inapplicable. 1112 Page 52 n9. It is perhaps ironic that the government seeks to enjoin as a violation of federal antitrust laws ac- tivity by motor carriers operating in intrastate com- merce that is exempted from federal antitrust laws Nchen performed at the interstate level. Appellant SSICRC attempts to elevate this irony into an argu- ment for implied immunity from the antitrust laws. We reject this argument. Under 49 U.S. C. § 10706, the collective formula- tion of rates by motor carriers operating in interstate commerce is exempt from federal antitrust laws once these rates are approved by the Interstate Commerce Commission. According to SMCRC, this express exemption should be extended to collective rate for- mulation at the intrastate level. As authority for this position, SMCRC relies on Atchison, Topeka & Sante Fe Railwav Co. v. United States, 597 F.2d 593 (7th Cir. 1979), which held that this section should be construed to exempt intrastate railroad col- lective ratemaking that affects interstate commerce. The result in Atchison is explainable, and clearly distinguishable from this case, on the ground that the iCC has jurisdiction under the Shreveport rate doctrine over intrastate railroad rates that affect in- terstate commerce. See Houston East & West Texas Raihrav Co. v. United States, 234 U.S. 342, 34 S. Ct. 833, 58 L. Ed. 1341 (1942). The ICC has no similar jurisdiction over intrastate motor carrier rates. Indeed, 49 U.S.C. § 10521(b) expressly re- serves this area for state regulation. In the alternative, SMCRC contends that the per- vasive state regulation permitted by Section 10521(b) creates an irreconcilable conflict with federal an- titrust laws which warrants an implied repeal of the antitrust laws in this situation. As SMCRC con- cedes, the implied repeal doctrine normally applies only to conflicts between federal antitrust laws and federal regulation, not to conflicts with state regu- lation. Moreover, the Supreme Court has observed repeatedly that "repeals of the antitrust laws by im- plication from a regulatory statute are strongly disfa- vored, and have been found only in cases of plain re- pugnancy between the antitrust and regulatory provi- sions." United States v. Philadelphia National Bank, 374 U. S. 321, 350-51, 83 S. Ct. 1715, 1734, 10 L. Ed, 2d 915 (1963). This presumption against im- plied repeal is just as strong where the conflict is with state regulatory policy. Cantor, 428 U.S. at 596-97 & nn.36, 37. 96 S. Ct. at 3120-21 & nn.36, 37. Even where such repugnancy is found, the antitrust laws are abrogated only to the extent necessary for the effective functioning of the regulatory scheme. Silver v. New York Stack Exchange, 373 U.S. 341, 59" '720 L ") 672 F.2d 469, *476; 1982 U.S. App. LEXIS 20426, *•17; 1992-1 Trade Cas. (CCN) P64,659 357, 83 S. Cf. 1246, 1257, 10 L. Ed. 2d 389 (1963). We detect no irreconcilable conflict of the federal antitrust policy %kith either the Interstate Commerce Act, 49 U.S.C. � 10�21tbt, or with the c7,istence of state regulation. As ur noted above, the !CC leas no jurisdiction cl zer Intrastate motor carrier rates. The Interstate Commerce Act then poses no conflict with the application of the federal antitrust lacks to collec- tive intrastaie ratent,ii,ung :unone n�utoi carriers. As to state regulatory policy, if an implied exemption is necessary for the effCtive functioning of the state scheme, the states may act to immunize private ac- tion taken in response to state policy by compelling private conduct as part of a clearly established or affirmatively expressed state policy. [**18] n10. The State of Georgia, participating as amicus in the district court, presented a 1942 order issued by its public service commission stating that "all for hire motor common carriers operating under Class A certificates be, and they are hereby, directed and required to publish and file with this Commission ... a tariff containing all local and joint class and/or commodity rates applicable between points within Georgia." Record at 693. Pointing to the itali- cized language, the state argued that the commis- sion "clearly directed all Class "A' carriers to file a single joint tariff with the Commission," thus in- dicating its policy in favor of collective action. Id. We are not persuaded that the language of the 1942 order is susceptible of only this interpretation. At best it is ambiguous. Given the statute, only recently amended to insert the provisions outlined in text, it would not, in any event, be controlling. n11. A "joint rate" is a single rate applied jointly by two carriers to cover a shipment in which one car- rier operates over only pan of the route and the other carrier serves the remaining distance to the destina- tion. n12. We note that. even if state compulsion were not a requirement after Midcal, we would still find the state action exception inapplicable here because of the absence of a clearly articulated and affirma- tively expressed policy in favor of joint rate appli- cations in any state at issue. in none of these states do the statutes do more than, at most, authorize joint rate agreements. "(A) state does not give irnntunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful." Parker v Broun. 317 U.S. 341, 344, 351, 63 S. Ct. 307, 310. 313, 87 L. Ed. 315 (1943). Moreover, Cantor indicates that, for a state to have Page 53 a clear policy in favor of an action, that action must be essential to the functioning of the state regula- tory system. 428 U.S. at 597-98. No slate's statutes or regulations indicate, nor does the evidence show, that joint rate agreements are necessary for state rate - setting procedures to work. 1**19) Noerr-Pennington Doctrine Appellants next assert that, under the Noerr- Pennington doctrine, nl3 antitrust 1*4771 sanctions may not be applied against them because their collective ac- tivities consist solely of protected attempts to influence public officials. We agree with the district judge's re- jection of this argument and adopt in pan the rationale of that court. n13. In Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Cr. 523, 5 L. Ed. 2d 464 (1961), the Supreme Court legitimated the joint efforts of businessmen to in- fluence legislative or executive action, even though these efforts were designed to injure their competi- tors. in holding that this "combination" was not actionable under the Sherman Act, the Court stated: A construction of the Sherman Act that would dis- qualify people from taking a public position on mat- ters in which they are financially interested would thus deprive the government of a valuable source of information and, at the same time, deprive the peo- ple of their right to petition in the very instances in which that right may be of the most importance to them. Id. at 139, 81 S. Ct. at 530. Later in United ,cline Nbrkers v. Pennington, 381 U.S. 657, 85 S. Cr. 1585, 14 L. Ed. 2d 626 (1965), the Court followed Noerr in the context of efforts by large mining com- panies and labor unions to persuade the Secretary of Labor to set wage rates at such high levels that the mines' smaller competitors would be driven out of business. "(J)oint efforts to influence public of- ficials do not violate the antitrust laws even though intended to eliminate competition." 1d. at 670, 85 S. Ct. at 1593. In California Motor 'Transport Co. v. Trucking Unlimited, 404 U.S..508. 92 S. Ct. 609, 30 L. Ed. 2d 642 (1972), the Court approved the notion that Noerr's protection extends to activities aimed at influencing administrative agencies. 1**20l The government answers that the complaint charges L Page 54 672 F.2d 469, *477; 1982 U.S. App. LEXIS 20426, **20; 1982-1 Trade Cas. (CCH) P64,659 three distinct types of activity: (1) coordinating and fix- ing of rates; (2) presenting the collectively set rates to the state commissions; and (3) putting the rates into ef- fect, ostensibly pursuant to state sanction. implicitly conceding that the second activity is protected, the gov- ernment contends that the tirst may be treated separately, and must itself give rise to antitrust liability. This case is not technically one to %khich Noerr- Pennington has tradtucnally hcen applied. Noerr and its progeny have all involved concerted attempts to ob- tain governmental interference with a competitor. The parties have cited no cases in which courts have invoked Noerr-Pennington to immunize price fixing among competitors. 467 F. Supp. at 4S4-85 (citation omitted). Indeed the Court's discussion in the Noerr case itself lends support to the trial court's conclusion "that the defendants' activities of collective rate formulation con- stitute independently cognizable acts outside the scope of First Amendment protection or the Noerr-Pennington doctrine." Id. at 4S5. in Eastern R.R. Presidents Conference v. ,Voerr Motor Freight, 1**21J Inc., 365 U.S. 127, 81 S. Cv 523. 5 L. Ed. 2d 464 (1961), the Court pointed to the "essential dissimilarity between an agreement jointly to seek legislation or law enforcement and the agreements traditionally condemned by § 1 of the Act," such as combinations in which the participants "jointly give up their trade freedom, or help one another to take away the trade freedom of others through the use of such devices as price fixing agreements." Id. at 136, 81 S. Ct. at 528. n 14 'Moreover, the kind of collective action at issue here seems at odds with the thrust of the Noerr-Pennington doctrine. %khich assures public access to the channels of Lovernment policymaking. While the joint efforts of the bureaus to secure legislation or commission regulation permitting collective ratemaking procedures would clearly fall within the ambit of Noerr protection, inasmuch as it would seek to influence pol- icy, collective action to determine the rates which the bureaus desire the commission to approve is not of the same genre. n14. With respect to the right to petition aspect of the bureaus' claim. "it is well settled that First Amendment rights are not immunized from reg- ulation when they are used as an integral pan of conduct which violates a valid statute." California Motor Transport, 404 US. at 514, 92 S. Ct. at 613 i (citing Giboney v Empire .Storage & Ice Co., 336 ?' US. 490. 69 S. Ct. 684. 93 L. Ed. 834 (1949)). (**221 The Sherman Act Violation Having found appellants not to be beyond the ambit of the Sherman Act, we must address directly whether their actions are violations of Section 1 of that Act. Appellants present two arguments: (1) that the practice of collective rate formulation does not constitute price fixing because the states. rather than the carriers, ulti- mately determine the rates to be charged; and (2) that the bureaus' activities must be evaluated 1*4781 under a tole of reason analysis, which dictates a finding that the bureaus did not unreasonably restrain trade. As the district court observed, the power of the states, through their public service commissions, to review the reasonableness of proposed rates does not alter the es- sential anticompetitive nature and effect of a horizon- tal agreement among competitors regarding rates to be charged. In Georgia r: Penns,lvania Railroad Co., 324 US. 439, 65 S. Ct. 7i6, 89 L. Ed. 1051 (1945), the Supreme Court held that a combination among reg- ulated railroads to fix rates stated a claim for price fix- ing under Section 1 of the Sherman Act, even though the Interstate Commerce Commission reviewed and ap- proved proposed rates. The Court [**231 explicitly re- jected the argument urged here by the rate bureaus. The fact that the rates which have been fixed may or may not be held unlawful by the Commission is imma- terial to the issue before us.... (E)ven a combination to fix reasonable and non-discriminatory rates may be ille- gal.... The reason is that the Interstate Commerce Act does not provide remedies for the correction of all the abuses of rate -making which might constitute violations of the anti-trust laws. id. at 460. 65 S. Ct. at 727 (citation omitted). n15 Nforeover, both the Reed-Bullwinkle Act, 49 U.S.C. § 10706, at the interstate level and the state statutes extend- ing state antitrust immunity to collective ratemaking at the intrastate level are premised on the recognition that, absent such immunity, this activity would contravene antitrust prohibitions on price fixing. n16 n 15. Appellants attempt to undercut the force of the Supreme Court's rationale by pointing out that in states such as North Carolina the public service com- mission regulates not only the reasonableness of rates but also the collective agreement pursuant to which rate proposals are formulated. See N.C.Gen.Stat. § 62-152.1 (Cum.Supp.1981). In essence, appellants argue that the fact of state regulation not only ren- ders their activities immune as state action but also Ohl W 672 F.2d 469, *478; 1982 U.S. App. LEXiS 20426, **23; 1982-1 Trade Ca_s. (CCH) P64,659 precludes characterization of their activities as price fixing. Thcy press the point even further by argu- ing that the regulaton context of this case mandates application of a nile of reason analysts. For reasons we shall discuss infra. \ke decline to accord such ex- tensivc signit-cance to the Impact of state regulation. [**24] n16. The Interstate Cornmeree Commission has so viewed co;lccti\ t: rawmaking agreements as to in- terstate activity. (W)hcther an agreement will have anticompetitive effects is presurned. This presumption arises from the holdings of the Courts that the interests to be protected by the antitrust laws arc always harmed by collective rate -making agreements and that agree- ments such as these violate the antitrust laws per se without official exemption. Tidewater Coal Demurrage Agreement, 356 1.C.C. 66. 75 t19iS). See also H.Rep. No. 1100, 80th Cong. 2d Sess. t 1947), reprinted in (1948) U.S.Code Cong.Serv. 1844 (referring to the uncer- tainty as to the legality under the antitrust laws of such agreements). Thus we agree with the district court that "the prac- tice of collective rate publication easily fits the classic description of a "naked price restraint.' " 467 F. Supp. at 486. Collective formulation clearly tampers with the price structure for intrastate transportation of general commodities; the rate bureau arrangement substitutes concerted pricing decisions among competing carriers for the influence 1`251 of impersonal market forces on proposed rates. Such combinations traditionally have been condemned as illegal per se. United States v. Soconv_lbcuum oil Co., 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129 (1940). It is irrelevant that, as the bu- reaus argue, the state regulatory commissions' ultimate authority to determine %%high intrastate rates become ef- fective deprives the bureaus of any real power directly to fix prices at a particular level. It is sufficient for Sherman Act liability if the purpose or the effect of the combination is that of "raimig. depressing, fixing, peg- ging, or stabilizing the pace." /d. at 223. 60 S. Ct. at 844. Here the rate bureaus cannot disclaim any purpose to inhibit competition among their member carriers in the fixing of proposed rates for the same; service. Moreover, the effect of joint rtesening is to reduce the amount of independent rate tiling that otherwise would characterize the market process. [*4791 The appellants nevertheless argue that their conduct must be evaluated under a rule of reason anal - Page 55 ysis. We disagree. The bureaus' reliance on Broadcast Music, Inc. %• Columbia Broadcasting S},srem, Inc., 441 US. 1, 99 S. Ct. 1551, 60 1**261 L. Ed. 2d 1 (1979). n I7 in support of a rule of reason approach is misplaced. in Broadcast Music the Supreme Court refused to coridcmn the issuance of blanket licenses to copyrighted musical compositions by the American Society of Composcrs, Authors and Publishers (ASCAP) and Broadcast Musw, inc. tt;\tll at fees negotiated by ASCAP and BMI is a form of price fixing per se ille- gal under the Sherman Act. n18 Influencing the Court's adoption of a rule of reason approach was its determi- nation that the licensing scheme achieved purposes un- related to price formation, T'ne same cannot be said of the practice of collective rate fonnulation. n17. Broadcast Music was decided together with American Society ofComposers, Authors and Publishers v. Columbia Broadcasting System, Inc. n18. The licensing scheme employed by both ASCAP and BM I followed a similar pattern. Owners of copyrighted works, who under copyright law alone possess the exclusive right to perform the work publicly for profit, grant the organization of which they are a member (ASCAP or BMI) a nonexclusive right to license performances of their work. A blan- ket license from ASCAP or BMI gives the licensee, for a flat fee or percentage of total revenues, the right to perform any and all of the compositions owned by members of the organization as often as desired for a stated term. The organization distributes royalties generated by the licenses among its members in a manner that reflects the nature and amount of use of their music. [**27[ In Broadcast Music the Court reasoned: "The blan- ket license, as we see it, is not a "naked restraint of trade with no purpose except stifling of competition,' ... but rather accompanies the integration of sales, moni- toring, and enforcement against unauthorized copyright use." ld. at 20, 99 S. Cr. at 1562 (citations omit- ted). Because of the virtual impossibility of engaging in thousands of individual negotiations for the performing rights to copyrighted compositions, and the difficulty, from the user's perspective, of reporting uses and, from the copyright owner's perspective, of policing unautho- rized performances. the blanket license arose as a prac- tical necessity in the market for performing rights. It gave users unlimited access to BMI and ASCAP's reper- tory of copyrighted works and gave the owners reliable protection against infringement. id. at 20-21, 99 S. Ct. 99- r104Q L 672 F.2d 469, *479, 1982 U.S. App. LEXIS 20426, **27, 1982-1 Trade Cas. (CCH) P64,659 at 1562-63. Thus, the blanket licensing scherne created a forum for linking buyers and sellers-i.e., users and owners -and yielded improvements in the market for per- forming rights of copyrighted compositions which were unrelated to price. in contrast, the practice of joint for- mulation great<s no nr:rrkct for tnrcking scr%ices 1**281 that would not exist if tndi%ldual carriers formulated their own proposed tariffs. The effect of the practice, if it has any at all. can only be on price formation. See generally L. Sullivan, I'Lurdbook of the Law of Antitrust § 59, p. 154, § 74 pp. 2('n)-02 (1977). n 19 The eco- nomic advantages to the member carriers n2o cannot justify the inhibiting effect on price competition. See id. § 24, P. 203. Nor can the elimination of so-called destructive competitive practices justify it. Socony, 310 (IS. at 220-21, 60 S. Cr. tit 8u2-43. Arguments based on economic efficiencies essentially resolve themselves into the contention that concerted 1 *4801 decisionmaking rather than competition is preferable. See L. Sullivan, supra, § 74, p. 202 The policy of the Sherman Act is to the contrary. n21 n19. Broadcast Music and its rule of reason ap- proach are distinguishable on yet another ground. The Court noted that the blanket license offered by ASCAP and BSi 1 was a product different from the license which could be offered by individual copy- right owners since the former consisted of many in- dividua) compositions plus the aggregating services performed b} the organization. Hence, ASCAP and 13M1 were sellers, separate from the copyright own- ers, in a product market in which individual com- posers could not compete. 441 U.S. at 21-23, 99 S. Ct. at 1563-64The rate bureaus cannot be viewed analogously as purveyors of a product or ser- vice which could not be provided by their individual constituent member carriers. [**291 n20. Asserted advantages include cost -savings in the formulation and publication of rate tariffs, which in turn enable small carriers, which lack the means to prepare and justify their own rate proposals, to remain competitive %kith large carriers. n21, We are aware that our colleagues in the Ninth Circuit have declined it) apply a per se rule to the set- ting by majority 4ote of mammurn fees that physician members of foundations for medical care (FtiiC) may claim in full paytrtent fur health services they provide to policy holders of FSIC-approved insurance plans. 146;ona v. ,fMarrcopu County Medical Society, 643 FL 553 (91h Cr 19.50), cert. granted, 450 U.S. 979, 101 S. Ct. 1512. 67 L. Ed. 2d 813 (1981). Page 56 This result, we believe, is based on too broad a read- ing of the decision in Broadcast Music. Appellants also urge consideration of the regulatory context of this case as sufficient reason to invoke a rule of reason anal%sts. indeed, we have acknowledged that 'consideration of federal and state regulation is proper in certain instances even after the issue of an- titrust inununit) has been resolved." [**301 Mid -teens Communications Systents. Inc. t,. American Telephone and Telegraph Co., 615 F 2d 1372, 1385 (5th Cir. ), cert. denied, 449 U.S. 912. 101 S. Ct. 286, 66L. Ed. 2d 140 (1980) (citing United States v. Marine Bancorporation, Inc., 418 U.S. 602, 627, 94S. Cr. 2856. 2872, 41 L. Ed. 2d 978 (1975), and Silver v. New lbrk Stock Erchange, 373 U.S. 341, 360-61, 83 S. Ct. 1246, 1258-59, 10 L. Ed. 2d 389 (1963)) (emphasis added). We are con- vinced, however, that this is not one of those instances in which the fact of state regulation deter mines the stan- dard by which we measure the anticompetitive effect of the challenged conduct and thus the ultimate issue of liability. in declining to do so, we cannot be accused of being "so inflexible as to deny consideration of governmental regulation." 1d. At every turn appellants have urged us to consider the impact of state regulation on the trucking industry -its impact on the availability of immunity, on the characterization of their conduct, and on the stan- dard for measuring liability. We believe that on the facts of this case any deference to the impact of state reg- ulation is appropriate only in determining whether the challenged conduct is [**311 immune under the state action doctrine. We perceive appellants' arguments on the liability is- sue to have three possible, somewhat overlapping, con- notations: that the impact of state regulation deserves consideration (1) because regulation is just another fact of market life to which they have responded, (2) because a state interest is at stake in the challenged conduct, or (3) because it is unfair to penalize action which is merely a response to state regulatory interests. N,'ith respect to the first reason, treating state reg- ulation as a fact of market life may be quite proper if regulation precludes the existence of factual predi- cates upon which antitrust liability hinges. Such was our concern in Mid -Texas Communications, in which we directed assessment on remand of the effect of regu- lation on the defendant's power to exclude competition in the relevant market (i.e., on whether the defendant possessed monopoly power) and oil defendant's alleged willful misuse of its monopoly power. 615 F. 2d at 1386- 90. Both the possession of monopoly power and its DI-) rr�)V M1 672 F.2d 469, *480; 1982 U.S. App. LEXIS 20426, **31; 1982-1 Trade Cws. (CCH) P64,659 willful misuse are necessary to sustain a charge of il- legal monopolization under Section 2 of the Sherman Act. Id. at 138S-S6. In the 1**321 context of price fixing allegations. ho%%cN cr. the antitrust focus is not on market power, but on the purpose or effect of the con;- bination. Soco?;? . ,l(t UN 2'i. tit? S (',, rr S43. See L. Sullivan, supra. ; 70. p. 192. \loicovcr, in cases in which Courts h3%C regarded the impact of regu- lation on predicaies tr liahilit�. (tic couns dill not alter the standard for rncasunn�, liability, as apl)cll:tnts here urge us to do. See Mid -lulls Communications sYslerns, Inc. v. American Telephone and Telegraph Cornpar'v, 615 .F:2d 1372 (5th Cir.), cent. denied, 449 U.S. 912, 101 S. Ct. 286, 66 L. Ed. 2d 140 (1980),, International Telephone & Telegraph Corp. is General Telephone and Electronics Corp., 5ISF2d 913, 935-36 (9thCir. 1975) ("(T)he fact of regulation is significant, but not because it embodies a doctrinal scheme different from the an- titrust law; the sole leval perspective is that afforded by the antitrust law.'). 1*4811 As for the second reason -the presence of a state interest in the challenged conduct -the state action doctrine is designed to vindicate that interest. (rdeed, deference to the state interest and the sovereignty of the state is at the heart of that doctrine. Accordingly, 1**331 we have considered above the impact of state regulation and have found no immunity. Deference to the state's interest should not bz broadened to the extent that ev- ery antitrust concept, including the measure of liability, must accommodate the state's interests. Finally, with respect to the fairness argument, we rec- ognize that injustice may be done by allowing damage relief against a private defendant whose activity is a legit- imate response to state legislation or regulation. Because the government has sought only injunctive relief against the appellants, this concern need not detain us. In addi- tion, such fairness considerations apply more properly to the questions of immunity from liability n22 and the shaping of appropriate remedies and should not sway us to alter the standard of liability. n22. See note 4, supra; cf. Cantor. 428 U.S. at 592-95, 96 S. Ct. at 3118-19 (discussing an un- faimess theory as support for clothing private con- duct required by the state with state action immu- nity); Mid -Tees Cormuunications. 615 F 2d at 1380 ("Fairness to the regul:ttcd industry is an important factor ... in determining whether antitrust immunity exists."). 1**341 Accordingly, for the reasons stated the judgment of the district court is AFFIRMED. DiSSENT13Y: HiLL DISSENT: HILL, Circuit Judge, dissenting: Page 57 i respectfully dissent from the majority's resolution of the issue of state action immunity. in evaluating the ef- fect of California Retail Liquor Dealers Assn v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S. Ct. 937, 63 L. Fd. 2d 233 (1980). on this case, 1 am persuaded that it establishes a standard different from that applied by the district court nl and that the majority has misinter- preted the Midcal standard. I would therefore reverse and remand in part for further consideration. n 1. Midcal was decided after the district court had entered (final judgment in this case. Hence the dis- trict court did not have the benefit, as do we, of the Supreme Coun's pronouncement on this subject. The central issue in this case -whether the practice of collective rate formulation employed by the rate bureaus is immune from antitrust attack under the state action doctrine -is one beset (**351 with difficulties. Of state action immunity it is well said that "unlike many other phantasmagoria of the law, we know it is there, but it is hard to define precisely what it is, and, unlike obscenity, we do not always know it even when we see it." Kennedy, Of Lawyers, Lightbulbs, and Raisins: An Analysis of the State Action Doctrine Under the Antitrust Laws, 74 Nw U.L.Rev. 31, 31 (1979). Moreover, the Supreme Court's decision in Midcal has not removed all the un- certainties in this area, for the parties dispute both the meaning and the application of the standards set forth in Midcal. Finally, sensitive policy considerations influ- ence the choices to be made. On the one hand there is the strong policy in favor of competition that underlies the federal antitrust laws. On the other are the right of the states to engage in economic regulation and all the federalism implications which the potential conflict between state and federal regulation may generate. In Midcal, after reviewing the line of cases following Porker t: Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315 U943), the Supreme Court set forth two stan- dards for determining when the state's involvement is sufficient to justify 1**361 immunity of the challenged conduct. "First, the challenged restraint must be 'one clearly articulated and affirmatively expressed as state policy'; second, the policy must be "actively supervised' �� �fZV 672 F.2d 469, *481, 1982 U.S. App. LEXIS 2G426, **36; 1982-1 Trade Cas. (CCH) P64,659 by the State itself." 445 U.S. at 105, 100 S. C1. of 943 (quoting Cih- of Lenfayette� t. Louisiana 11)tter & Light Co., 435 U.S. 389. 410, 98 S. Ct. 1123: 1135. 55 L. Ed. 2d 364 (197S) (onuuon (it Brennan, J.)). Thus, %yhcthcr the defendant be a state or sate 1 *48-11 instrumentality or a private part\• n_' Midla1 directs that the focus for immunity purposes must be upon the extent of the state's involvement in slag challenged restraint -that is, upon the kind of imprint of state ;mthont the anti -competitive activity bears. n2. In announcing its two -pronged test in Midcal, the Court purported to derive it from the Parker line of cases, citing cases involving private defendants, Goldfarb v. Virginia State Bar, 421 US. 773, 95 S. Ct. 2004, 44 L. Ed. .7d 572 (1975), and Cantor v. Detroit Edison Co.. 428 U.S. 579, 96 S. Ct. 3110, 49 L. Ed. 2d 1141 (1976), as well as cases involv- ing governmental defendants, Bates v. State Bar of Arizona, 433 U. S. 350. 97 S. Ct. 2691, 53 L. Ed. 2d 810 (197' and Neit Motor 10iicle Bd. v. Orrin W. Fox Co., 439 US. 96. 99 S. Ct. 403. 58 L. Ed. 2d 361 (1978). [**37) Midcal examines the extent of the state's involvement at two levels -first, at the level of articulation of a state policy in favor of the challenged restraint and second, at the level of implementation of that policy through active supervision. Significant state involvement at both levels is necessary to justify exemption of the anticompetitive conduct under the state action doctrine. Hence the bal- ance that the Supreme Court has struck between the fed- eral policy of competition and the states' sovereignty is this: the state n;ay choose to displace competition with economic regulation by making clear its intention to do so; once it has made that choice, however, the state bears the burden of ensuring that this policy is furthered and that it remains the ultimate decisionmaker. n3 n3. There may be substantive limits on what con- duct the stag may immunize by making the chal- lenged restraint a stag policy. Indeed, there is some suggestion in Supreme Court precedent that federal antitrust la%ks do place substantive limits on the content of �,tatc economic regulation. See, e.g., Schwegnrann Bros. %. Calvert Distillers Corp., 341 U.S. 384, 71 S. Ct, 745, 95 L. Ed. 1035 (1951) (invalidating a Louist;tna fair trade statute contain- ing a "non -signer" provision under which a retailer could be enjoined from knowingly underselling an- other retailer whose prices were set under a resale Page 58 price maintenance contract, exempt from antitrust laws under the Miller-T),dings Act, with a supplier). But sec i P. Areeda & D. Turner, Antitrust Law 70 (1978) (interpreting, this decision as an inade- quate supervision case). See generally Posner, The Proper Relationship 13ctwccn State Regulation and the Federal Antitrust Laws, 49 N. Y. UL.Rev. 693 (1974). Those limits may be reached in areas, un- like the private utility regulation involved here, that have not traditionally been regulated by the states. Fortunately, we are not called upon here to de- lineatc those boundaries. At least one member of the Supreme Court and some commentators have urged an express preemption analysis, which in- volves the difficult weighing of the state interest at stake against the federal interest in a competitive economy. See Cantor v. Detroit Edison Co., 428 U.S. 579, 605, 96 S. Ct. 3110. 3124, 49 L. Ed. 2d 1141 (1976) (Blackmun, J., concurring); Posner, supra; Note, Parker v. Brown Revisited: The State Action Doctrine After Goldfarb, Cantor, and Bates, 77 Colum.L.Rei� 898, 929-30 (1977) (suggesting that a preemption analysis explains the Court's re- sult in some of the cases in the Parker line). But see Cantor, 428 U.S. at 627, 96 S. Cr. at 3134 (Stewart, J., dissenting) (warning that a preemption approach is a return to the discarded substantive due process doctrine). Cf. Community Communications Co. v. Ciry of Boulder, 455 U.S. 40, 102 S. Ct. 835, 845, 70 L. Ed. 2d 810 (1982) (Rehnquist, J., dissenting) (arguing that state action should be an- alyzed as a preemption problem). The Court, how- ever, has never forthrightly adopted this approach, and, for the present, it appears to have resolved the tension between federalism and antitrust concerns on the side of federalism, albeit with the requirement of active state supervision of the anticompetitive activ- ity. Midcal thus reiterates the federalism concerns at the heart of Parker. **38 In testing the actions of private parties under Midcal standards. I am convinced that state compulsion of the private activity, as set forth in Goldfarb, is not a sine qua non for clothing private conduct with state action immunity. It is on this point that the majority and 1 dif- fer. To state the point more plainly, state compulsion is not the only \%ay to satisfy the first prong of the Midcal test; such compulsion is merely the best evidence that the challenged restraint is a "clearly articulated and af- firmatively expressed" state policy. Support for this interpretation of Midcal may be found L 9 9 - 720 672 F.2d 469, *482; 1982 U.S. App. LEX1S 20426, **38; 1982-1 Trade Cas. (CCH) P64,659 in the language of that opinion. The resale price main- tenance scheme established by the California statute re- quired of wine %holesalers, on pain of fines or of h- cense suspension or reyncation, adherence to the pric- ing scheme. 44 � U.S. at / *-t5?/ 100. I i70 S. Cr. at 940. In concluding ih;it the first prong of the Midcal test had been satisfied, howcyCr, the Court did not track the Goldfarb language and reason that the first prong was met because the st;iie "conipel!ed" resale p; ice mainte- nance. It chose instead to sav: "The legislative policy is forthrightly stated and clear in its purpose J**391 to permit resale price maintenance." Id. at 105, 100 S. Ct. at 943 (emphasis added). Moreover, I believe that the function served by the Goldfarb compulsion requirement is screed as well by the Midcal formulation. Where priyaic panics are in- volved to any extent in the .state's scheme of economic regulation, there is properly a concern that the economic self-interest of those parties may infect the decisionmak- ing process and result in harmful anticompetitive activ- ity. Such private self-interest does not ssarrcuit the cloak of state action immunity. By requiring that a state ac- tively supervise the implementation of its economic pol- icy, the Midcal test ensures that the state has determined that the challenged activity is in furtherance of the slate's policy. Hence the second prong of Midcal addresses the concert in Goldfarb by ensuring that the state does not abdicate its responsibility to private panics. n4 When the state ceases to be the reel] party in interest by aban- doning control over a segment of its economy to private parties, the sovereignty of the state cannot be said to be impaired by wiihholdinu, state action immunity. n5 Thus the Midcal test preserves to the states the freedom [**40) to pursue state regulatory policies free of antitrust sanctions without at the same time permitting the purely economic self-interest of private parties to disrupt the forces of competition. n4. Professor Arccda has suggested that Midcal's active supervision requirement is inapplica- ble to governmental defendants. Arecda, Antitrust Immunity for "State action" After Lafayette, 95 Han,.L,Rev. 435. 445 n.50 (/981) ("A few courts erroneously appear to use the Midcal formula (clearly articulated state policy plus active super- vision of private parties) to require state supervi- sion of governmental defendants."). In Community Communications Co. v. City of Boulder, the Supreme Court expressly declined to decide whether the active supervision criterion must be met by a mu- nicipality with respect to the challenged ordinance. 455 U.S. 40. l02 S. Ct. 835. 841 rt.14, 70 L. Ed. 2d 810 (1982). If that criterion serves the fune- Page 59 tion identified above, Professor Areeda's suggestion would appear correct. n5. The existence of a state action immunity enables states, like the fcdcral government itself, to define areas inappropriate for market control. Moreover, the adequate super -vision criterion ensures that state-fcdcral conflict will be avoided in those ar- eas in which the state has demonstrated its commit- ment to a program through its exercise of regulatory oversight. At the same time, it guarantees that when the Sherman Act is set aside, private firms are not left to their own devices. Rather, immunity will be granted only when the state has substituted its own supervision for the economic constraints of the com- petitive market. l P. Areeda & D. Turner, Antitrust Law 73 (1978) (footnotes omitted). **41 Finally, Professor Areeda's views are in accord with the interpretation I have placed on Midcal's effect on the Goldfarb compulsion requirement. In discussing the Goldfarb and Cantor cases, Areeda has commented: Compulsion ... should not be read as an independent requirement for state action immunity; rather, its pres- ence or absence should serve only as strong evidence about state intent. Admittedly, however, some doctrinal confusion exists on this point. The Supreme Court and lower courts have not applied the compulsion language literally. In Midcal ...., the Court defined the criteria for immunity not in terms of compulsion but in terms of supervision and articulated state policy; the emphasis or supervision implies public scrutiny, deliberation, and review, but not command. Areeda, Antitrust Immunity for "State Action" After Lafayette, 95 Han:L.Rev. 435, 438 & n.19 (1981) (ci- tation ornitted) (emphasis added). He went on to ex- plain the result in Goldfarb and Cantor (no immunity) as hinging not on absence of compulsion but on absence of meaningful state participation in the challenged con- duct. Id. n.19. [*4841 In applying the Midcal (**421 test as I under- stand it to the facts of this case, I think it clear that at least the states of North Carolina, Tennessee, and Georgia have policies favoring collective rate formulation by the rate bureaus. n6 As to the remaining states, I would remand the case to the district court for further develop- ment of the factual record and for evaluation under the Page 60 672 F.2d 469, *484; 1982 U.S. App. LEXIS 20426, **42; 1982.1 Trade Cas. (CCH) P64,659 Midcal test. n6. As indicated by the majority, see note 5 supra in the majority opinion, the government did not con- tend on appeal that the active supervision require- ment has not been satisfied. By legislative enactment the state of North Carolina has clearly endorsed collective rate formulation as a means for achieving the goals of its public service com- mission. Section 02-152 l(b) of the North Carolina General Statutes provides: For the purpose of achieving a stable rate structure it shall be the police of this State to fix uniform rates for the same or similar scr ices by carriers of the same class. In order to realize and effectuate this policy [**431 and regulatory goal any carrier subject to regulation by this commission and party to an agreement between or among two or more carriers relating to rates, fares, clas- sifications, divisions, allow anccs or charges ... or rules and regulations pertainim.2 thereto, or procedures for the joint consideration, imuotion or establishment thereof, may under such rules and regulations as the commission may prescribe, apply to the commission for approval of the agreement ..., The effect of such commission approval is set out in section 62-152. IN. Panics to any agreement approved by the commis- sion under this section and other parties are ... hereby relieved from the operation of the antitrust laws with re- spect to the matting of such agreement, and with respect to the carrying out of such agreement in conformity with the terms and conditions prescribed by the commission. These North Carolina provisions parallel the provisions of the Interstate Commerce Act which exempt from federal antitrust lays agreements concerning collective ratemaking among motor carriers operating in interstate commerce. Nforeover, they unmistakably indicate that collective rate formulation is part [**441 of the regu- latory policy of the state of North Carolina. I would therefore hold the joint ratemaking activities of the rate bureaus in that state immune. Likewise, 1 would hold the activities of the appellants in Tennessee immune under the state action doctrine. By express commission regulation Tennessee has made clear its intention to permit and encourage collective rate formulation. Rule 1220-2-1-.40 of the Tennessee Public Service Commission states: The rules and regulations governing the agreements between or among two or more carriers relating to rates, fares, classifications, divisions, allowances, or charges (including charges between carriers and compensation paid or received for the use of facilities or equipment), or rules and regulations pertaining thereto, or procc- dures for the joint consideratiotl, initiation or establish- ment thereof as set forth by the Interstate Commerce Commission in § 5a of the interstate Commerce Act (now codified as 49 U S. C. § 10746(b) ), are hereby adopted by the Tennessee Public Service Commission; provided, however, that the final determination on any rates, fares, classifications, divisions, allowances, charges, rules and regulations [**45] or procedure shall be left in its final determination to the Tennessee Public Service Commission. In addition, Tennessee has reiterated its policy in favor of collective action by ttte carriers by a 1980 amend- ment to its Motor Carrier Act which vests the Tennessee Public Service Commission with power to establish col- lective ratemaking procedures. Tenn. Code Ann. § 65-1506 (Cum.Supp.1981). All carriers who are party to a collective ratemaking agreement must comply with these procedures. With respect to Georgia, that state has recently amended its Motor Common Carrier Act of 1931 to require its public service commission to "establish ratemaking procedures for all motor common carriers, which procedure shall include, but not be limited to, collective ratemaking procedures for the joint consid- eration, initiation and establishment of such rates and charges." Ga. Code Ann. § 68-613 (Cum.Supp.1981). All motor common carriers subject to the commission's authority are "required to comply with such ratemaking procedures." Id. This legislative pronouncement con- vinces me that state action immunity would be available to the appellants' activities in Georgia. The state of Alabama (**46} presents a more diffi- cult question. In the proceedings in the district court, Alabama referred to a 1*4851 1942 order of its pub- lic service commission as evidence that collective rate formulation is a clearly articulated and affirmatively ex- pressed state policy. Can April 20, 1942, the Alabama Public Service Commission ordered that certain motor carriers "prepare, publish and file with the Commission an individual tariff, or ... participate in an agency is- sue." Record at 53. it is unclear whether "agency issue" indicates that carriers may publish their tariff through an agent or that carriers may jointly formulate the rates to be proposed in their tariffs. The term is not defined in the record. 1 would therefore remand to the district court for further development of the record to determine whether the rules and regulations of, or the enabling legisla- L._ �9- �14.0 Page 61 672 r^-4 469, '485; 1982 U.S. App. LEXIS 20426 ',6; 1982-1 Trade Cas. (CCH) P64,659 tion governing, the Alabama Public Service Commission ing joint rates. This falls short, however, of a clear pol- "� clearly articulate a policy in favor of collective formu- icy in favor of joint formulation of any proposed rates. lation by carriers. Nor did Mississippi present any rules or regulations of its public sen•ice commission which might reveal such Finally, as with Alal)ama, Miether the policy of the a policy. I would therefore remand for further devel- i state of Mississippi conf0in" to the "clearly articulated opment of the record ,1s to Mississippi and for decision and afftrmativcly expresu4l" standard in Midcal is un by the district court in light of what I deem to be the clear from the record developed prior J**47) to this ap appropriate construction of Midcal. peal. A review of the statutory scheme, Miss. Code Ann. §§ 77-7-1 to -34l (1972), contemplates coopers- For the above reasons, I dissent. tion among the carriers to the limited extent of establish- Page 62 8TH CASE of Level 1 printed in FULL format. Consolidated Gas Company of Florida, Inc., Plaintiff, v. City Gas Company of Florida, Inc., Defendant No. 83-1010-CIV UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA 665 F. Supp. 1493. 1987 U.S. Dist. LEXIS 6926; 1987-2 Trade Cas. (CCH) P67,741 July 24, 1987, Decided July 24, 1987, Filed CORE TER,LiS: natural gas, customer, territorial, monopoly power, Sherman Act, sell, pipeline, competitor, territory, antitrust laws, anticompetitive, therm, compete, service area, antitrust, regulated, distributor, Hholesaie, monopolist, monopoly, transport, geographic, regulation, retail, consumer, tying, resale, telephone, certificate, articulated COUNSEL: I-I j William J. Dunaj, Esq.. Philip A. Allen, III, Esq., Eric D. lsicoff, Esq., Attorneys for Plaintiff, Mershon, Sawyer, et al. Gary S. Brooks, Esq., Attorney for Defendant, Fine, Jacobson, et al. JUDGES: Marcus, District Judge. OPINIONBY: MARCUS OPINION: [*1500] [*15011 MARCUS, District Judge The central issue presented by this case is whether a monopolist involved in the distribution and sale of natural gas, a business regulated by the Florida Public Service Commission, is completely immunized from the sweep of the federal antitrust laws. On the facts of this case, where we can find no clearly articulated state policy or codification conferring any such immunity, we hold that the, conduct of Defendant City Gas of Florida, Inc. ("City Gas"), as to ttte creation of a territorial agree- ment not to cotitpcte in south Florida will: its only real competitor in this state, Violates the Sherman Act. We also hold that the Defendant's refusal to deal with the Plaintiff, Consolidated Gas Company of Florida, Inc. ("Consolidated"), a tiny potential competitor in south Dade County, as to the transportation or sale of natu- ral gas violates the Sherman Act, inter alia, under the essential facilities 1-21 doctrine, The particular reg- ulatory scheme adopted in Florida does not extend so far as to clothe with absolute immunity the Defendant's demonstrably anticompetitive conduct. For the reasons which we detail at great length below, it is hereby ORDERED AND ADJUDGED as follows: 1. Defendant City Gas has violated § 2 of the Sherman Act, 15 U.S.C. § 2. 2. Plaintiff Consolidated shall recover $ 1,587,065.15 from Defendant City Gas as compensatory damages, to be trebled pursuant to 15 U.S.C. § 15, for a total recov- ery of S 4,761,195.45 in antitrust damages from City Gas. 3. Consolidated's request for injunctive relief, pur- suant to 15 U.S.C. § 26, is granted. City Gas shall sell or transport natural gas to Consolidated at a reasonable price to be determined, upon Consolidated's request, by the Florida Public Service Commission. 4. Consolidated's claims for costs and attorneys' fees shall be determined upon subsequent motion. 5. Consolidated shall submit a proposed order of final judgment in this cause to this Court within ten (10) days of the date of this Order. 1. THE CLAIMS Plaintiff has brought suit against Defendant alleging that Defendant violated [* 15021 § 2 of the 1**31 Sherman Act by monopolizing and attempting to monopolize the natural gas market in south Florida. Plaintiff has sued under 15 U.S.C. §§ 2, 15 and 26 ((he Sherman Anti - Trust Act (§ 2) and the Clayton Anti -'Trust Act (§§ L y� 'age 63 665 E. Supp. 1493, *1502; 1987 U.S. Dist. LEX1S 6926, **3; 1987-2 Trade Cas. (CCH) P67,741 15, 26)), seeking injunctive relief, damages and treble damages, costs and attorneys' fees. Plaintiff has charged Defendant with possessing and illegally exercising monopoly power, and with having wrongfully deprived I'larnrrff of access to natural gas while Defendant allegcelk (ook aekay all of Plaintiff's commercial customers and some of its residential cus- tomers, thereby destro'vim, Plaintiff'sabilky to compete. Plaintiff specifically allc_-cs. a:norig other things, that Defendant acquired and maintained monopoly power from an unlawful territorial agreement not to compete with Peoples Gas System, Inc. ("Peoples"), the only other major natural gas distributor in south Dade; from a grant to Defendant by the Federal Energy Regulatory Commission ("FERC") of the right to purchase natural gas in sufficient bulk to .scr c many more customers than it serves; and from the fact that Defendant allegedly oc- cupied a "bottleneck" position and was in exclusive pos- session of essential 1*141 facilities regarding the trans- portation and sale of natural gas in portions of Dade County. The Defendant has filed an Amended Counterclaim alleging in three counts that Plaintiff violated § 1 of the Sherman Act US U.S.C. § 1) by engaging in contracts, combinations and conspiracies having as their purpose and effect the restraint of trade with respect to the pur- chase and resale of gas products; that Plaintiff violated § 2 of the Sherman Act (1S U.S.C. § 2) in that it un- lawfully possessed and exercised monopoly power in the Bel Air/Point Royale subdivision, thereby substan- tially prohibiting or foreclosing Defendant from selling its product therein; and finally that Plaintiff violated § 3 of the Clayton Act (15 U.S.C. § 14) by virtue of an illegal exclusivity agreement between Plaintiff and the subdivision developers and a restrictive covenant run- ning with the land, providing that no liquified or natural gas would be sold «ithin the subdivision unless sold and supplied by Plaintiff. At the core of Defendant's prayer for relief is the asser- tion that Plaintiff violated the antitrust lays by these ar- rangements. improperly binding subdivision customers to purchase gas to be used J —51 for power, heating or cooking exclusively From Plaintiff. Defendant contends that as a direct and proximate; result of these arrange- ments, it has been "precluded," "foreclosed," or "de- layed" from selling natural ,.is in the subdivision. Like Plaintiff, Defendant seeks declaratory and injunctive re- lief, damages and treble damages, costs and attorneys' fees. This protracted and complex cause came on for trial before the Court, and accordin-gly, we make cite follow- ing Findings of Fact anti Conclusions of Law. IL FINDINGS OF FACT A. The Parties Consolidated is a retail distributor of liquid petroleum cas CL.P eas"l to approximately 2,000 residential and 10 commercial consumers located in the south Dade County subdivision known as the Bel AiriPoint Royale Subdivision. Consolidated's gas is shipped by rail or truck to storage tanks owned by Consolidated, and then is transported from the storage tanks to the ultimate con- sumer by a series of underground pipes located in ease- ments. Consolidated has been in the LP business since before its current President, Mr. Arnold Rosen, pur- chased the company in the early 1960's. Defendant City Gas began business in 1949 as an LP gas company. [Tr. (**61 2-1131. It served district sub- divisions, throughout Florida and currently serves over 23 such communities. City Gas' principal competitor has been Peoples, which also operated numerous LP gas subdivisions throughout Florida. In 1960, natural gas, which can only be transported by pipeline, became avail- able for resale in southern Florida and both City Gas and Peoples applied for and received allocations to pur- chase and resell natural gas in Florida from the Federal Energy Regulatory Commission or its [* 15031 predeces- sor agency. City Gas soon became a major distributor of natural gas in Florida. Currently it purchases natural eas from Florida Gas Transmission ("FGT"), the sole wholesale pipeline supplier of natural gas for resale in Florida. City Gas serves approximately 100,000 resi- dential, commercial and industrial customers. City Gas' pipes and area of service totally surround Consolidated's system. Despite its dominance in the natural gas field, City Gas continued to operate LP subdivision systems until May 1984 through its wholly owned subsidiary, Dade Gas Co. [Tr. 3-104). B. Regulation of LP and Natural Gas in Florida The LP eas business is unregulated; no governmental 1**71 franchise or approval is required to purchase and resell LP gas. Moreover. LP gas is not subject to rate regulation by the Florida Public Service Commission ("FPSC"), although its resale rates were subject to a fed- eral price ceiling from 1973 wail 1981. (Exec. Order No. 12,287. 3 C.F.R. 124 (1982)1. In contrast, natural gas distributors are regulated public utilities. Each nat- ural gas distributor must obtain an "allocation" from the FERC in order to purchase natural gas from a pipeline company such as FGT. [Tr. 4-81. Additionally, the reg- ulatory process controls the resale prices of natural gas in three ways. First. FERC regulates natural gas "well- head" prices, which are the prices paid by pipeline com- L J 665 F. Supp. 1493, *1503-, 1987 U.S. Dist. LEXiS 6926, **7; 1987-2 Trade Cas. (CCH) P67,741 panics such as FGT to natural gas producers. Second, FERC regulates FGT's wholesale price of natural gas to natural gas distribution companies such as City Gas. Finally, the FPSC regulates natural gas distrihution com- panics' retail rates to residential and commercial con- sumers. The FPSC's regulation of natural gas distributors, however, is not ll inelu aye. For although rates are determined thicu h a co:;',plc\ and hca\'lN monitored process known as a "rate case," other critical [**8] as- pects of a natural gas distributor's business conduct are addressed either on a hit-or-miss basis or are simply not regulated at all by the FPSC. n 1 Particularly relc- vant to this case is the FPSC's regulation of territorial agreements between natural gas distributors. These im- portant agreements are not required to be approved by the FPSC; they are in fact only considered when a utility requests FPSC approval, and they are only subsequently reviewed if a complaint is filed with the FPSC. nl We also note in passing that Plaintiff presented evidence at trial that Florida's regulatory scheme was incomplete even as to the regulation of rates. Specifically, Plaintiff argued that such regulation is an imperfect constraint on a utility's ability to ex- ploit a monopolistic position, that competition be- tween regulated utilities yields lower prices, and that when rate regulation is the sole limiting factor on the exercise of monopoly power, utilities can earn above normal rates of return. [Tr. 6-253-257]. It is not essential to our holding that we address the crux of Plaintiff's argument, which amounts to a di- rect challenge to the regulatory process. We do note, however, that this argument was raised and was not controverted by Defendant. C. Gas Availability and Price Structure During the 1900's and up to the onset of the Arab Oil Embargo in 1973. the price of LP -as was slightly higher than the price of natural gas. but the prices of both were e.\trenlel4 lo%ti. Indeed, the nvo to three -cent - per -therm price differential that existed during this time period created little incentive for distribution companies or consumers to undertake the risk and expense of con- verting from LP gas to natural gas. [Tr. 6-541. In 1973, however, the Arab Oil Enahargo caused unprecedented increases in world oil prices. Despite some federal price controls, LP gas prices rose much more rapidly than nat- ural gas prices which were subject to regulation at the wellhead, at wholesale, and at retail. The resulting price Page 64 differential, which approached twenty cents per therm at the wholesale level, suddenly made conversion to nat- ural gas much more economically desirable. However, during the remainder of the 19 70's until 1981, there was a national shortage of natural gas. As a result, the fed- eral go%ernmenl established a rationing program which in turn curtailed pipeline distribution. [Tr. 6-54-55], During this era of unprecedented instability, [**10] nat- ural gas I*150a1 prices were kept artificially low by the three -tiered regulatory scheme. These low prices were such potent disincentives to production that they, in turn, were responsible for the natural gas "shortage" that con- tributed to the federal govemment's conservation policy and rationing program. In addition to the Arab Oil Embargo, in 1979 the sup- ply of crude oil, from which LP gas is refined, was re- duced because of the cessation of oil imports from Iran, and in January 1981, federal price controls were lifted to increase supply. Thus, in 1981 LP gas cost twice as much as natural gas. As a result, LP gas became the 1980's dinosaur of retail fuel products. Like whale oil, it had become obsolete. It could no longer compete with natural gas. It was not until the first quarter of 1981 that a small surplus of natural gas appeared. This surplus grew rapidly from approximately 3 % to 4 % in 1981, to 12.3 % by the end of 1982. [Tr. 6-289]. By October of 1983, the surplus had reached 30.2 %. [Id.]. This surplus is expected to last beyond the year 2000. As a result of the dramatic increase in the cost of LP gas, LP distributors began to consider the wisdom of converting [**III their systems to natural gas. Whereas natural gas must be transported by pipeline, LP gas is transported in containers and is then distributed to con- sumers through an underground pipe system. [Tr. 6- 52]. Because the same underground system used for LP gas distribution is suitable for natural gas distribution, an LP system located near a natural gas pipeline may be converted to natural gas on an economically feasible basis. Conversely, many LP systems are located at too great a distance from a natural gas pipeline to justify the capital expenditure necessary to extend a pipeline to a natural gas source. iTr. 6-521. Consolidated began its efforts to switch from LP gas to natural gas on March 9, 1982, On this date its controller, Richard Fleisher, wrote a letter to FGT requesting that FGT begin providing it with natural gas, and that FGT construct the necessary pipeline facilities. [Tr. 1-11; Plaintiff's Ex. A-00041. On April 2 1982, FGT re- sponded that in order to buy gas from FGT, Consolidated first had to obtain a FERC natural gas allocation. [Tr. 4- 12-13; 1-121. Additionally, FGT advised Consolidated L 665 F. Supp. 1493, *15'04; 1987 U.S. Dist. LEXiS 6926, **11; 1987-2 Trade Cas. (CCH) P67,741 1 that it would be required to reimburse FGT for the cost of connecting Consolidated'- 1** 12) system to the FGT pipeline. This cost %tins then estimated to be approxi- mately $ 250,0tY1. {Tr .1-131 FGT sugecstcd that, as a more economical :iltcrnatmvc. Consolidated mnwht arranPe for a con,rccurr, - ;th C1t G.Is' systcm, :yhich was located much closer to Consolidated's system than the FGT pipeline. )Tr. 4-131. In any event, for sound economic reasons Consolidated dcterntincd that it wanted to have a nawt,tl gas allocation and conse- quently applied for one from the F1RC on May 21, 1982. Consolidated's apphc:uion ryas the first appli- cation of its type to the FERC for a new natural gas allocation in 12 years. 11'r. 6-287). D. City Gas' Market Power In order to determine City Gas' market power, we must first define the rcleyan( market. It is clear based on an analysis of functional interchangeability and cross - elasticity between natural gas and LP gas that the rele- vant product market in this case is composed solely of natural gas. For althoueh natural gas and LP gas are functionally interchangeable as to use, there is no cross - elasticity between them. Where natural gas is available, LP gas simply cannot compete because of its overwhelm- ing price disadvantage. Like whale oil [**13) after the advent of kerosene, LP eas is obsolete in any geographic area where natural Pas is available. However, even if the relevant product market consists of both natural gas and LP gas, as City Gas asserts -- a proposition which we cannot accept, because of the enormous price differential between the two products and the lack of any evidence which suggests that this situation will change in the fore- seeable future -- we find that our result would remain unchanged. City Gas' market share even in the com- bined natural gas`LP gas market is so great that it has market power even in this market. 1*1505) We also find that the relevant geographic market in this case consists of City Gas' territory, Consolidated's service area. and the as yet unserved por- tions of south�ycst Dade County. The only alternative choice for a relevant geographic market, presented to us by Defendant, is th:u of Consolidated's service area. In an economic sense, ho�kc%cr. this geographic area is meaningless. Consolidated's service area has nothing to do with either the area in %which (lie sellers compete or the area in which prospectite purchasers will turn for sell- ers. Rather, it is char that City Gas serves 1**1.51 cus- tomers well beyond Consolidated's service area, which its pipes surround, and that Consolidated would like to compete beyond its service area as well. Additionally, it has been established that customers in Consolidated's service area look beyond these boundaries for sellers of Page 65 ga.s. indeed, many of these customers have already done so by turning to City Gas for service. Thus, we reject City Gas' theory of the relevant geographic market. Wi(h the rclevar;t market established, we now turn to the measurement of Defendant's market power. First of all, we observe that City Gas' market share is over- wheiming. The market shares of natural gas companies in the relevant market in 1981 were as follows: City Gas sold 123,734,000 therms of natural gas in 1981; Miller Gas sold 2,836,000 therms: Plaintiff did not sell any natural gas. This computes to a 97 o market share for City Gas and a 2.47,, share for Miller Gas. ITr. 7- 31. Moreover, City Gas had 100% of the market for "hookups" of new natural gas customers during 1981. [Tr. 7-4). in the second place, the record evidence has established that entry barriers in the natural gas business are high because the potential entrant must build or ac- quire [**151 a costly pipeline distribution network and a way to obtain natural gas, whether from the FERC or another distributor. Indeed Consolidated experienced enormous difficulty in attempting to enter the market, even though it had already made a substantial distribu- tion network. Third, we note that exit barriers in the industry are also high because a company withdrawing from the natural gas business could not easily withdraw its money from its pipelines by converting them to some other business line. [Tr. 7-61. A fair review of the evi- dence adduced at trial therefore establishes Defendant's overwhelming market share. in deciding to convert from LP gas to natural gas in 1982, Consolidated suddenly found itself in potential competition with City Gas, which had grown to be a giant in the south Florida area. Because only three com- panies in Florida had natural gas allocations, and because natural gas became substantially less expensive than LP ,,as, City Gas had expanded quickly. City Gas' power was further strengthened by a territo- rial agreement which it entered into in September 1960 with its only major competitor, Peoples. [Plaintiff's Ex. C-00181. This agreement delineated separate natural (** 161 gas service areas for each of the natural gas com- panies and eliminated any competition between them. lid.). Under the terms of the agreement, City Gas and Peoples essentially divided up south Florida into the ar- eas Peoples would serve and the areas City Gas would serve; each promised not to compete in the other's terri- tory. City Gas and Peoples requested the Florida Public Utilities Commission (now the "FPSC") to approve their territorial agreement, and it was subsequently approved by the Commission, which observed that such agree- ments were in the public interest and should be encour- aged. The territorial agreement remains in effect, and 665 F. Supp. 1493, *1505; 1987 U.S. Dist. L.EXIS 6926, **16, 1987-2 Trade Cas. (CCH) P67,741 City Gas and Peoples. the two largest natural gas com- panies in Florida, do not compete with each other. [Tr. 3-931. While City Gas and Peoples do not compete with each other, they are not precluded from competing with other smaller natural gas c:o .pastes within the service areas which each rescr-,ed to itself under their agree- ment. Consolidated's sn.all LP system is located deep within City Gas' territory. Consequently, Consolidated was forced to compete wtth Cite Gas in order to retain its customers or else see them ,o to City Gas for more economical [**171 gas service. The region of south\\est Dade County in which Consolidated is located is projected [*1506] to be one of the fastest growing portions of Dade County through the year 2005. iTr. 5-234-2371. The areas adjacent to Consolidated's system are expected to experience growth of approximately 144.3 which amounts to some 88,185 people over the next twenty years. [Tr. 5-234-2371. This growth should take place in the areas to the west, r.onh and south of Consolidated's present area of service. ITr. 5-2371. Between 1984 and 2005, this growth in population should generate a 130.1 % increase in tl.e ntnnber of housing units in these areas, which means that approximately 34,225 housing units will be constructed during these years. [Tr. 5-237- 239]. Related commercial building is expected to in- crease along with the population. [Tr. 5-2381. New fight commercial and service enterprises such as restau- rants, stores, cleaners and otl.er businesses likely to use gas can be expected to accompany the expansion. [id.]. Accordingly, Consolidated should be able to expand its system in response to this growth if it can procure a competitively priced source of natural gas. Indeed, [**181 since 1982 a dozen new businesses have been constructed in Consolidated's territory, but Consolidated has been unable to serve them because it does not have natural gas. [Tr. 1-25]. Moreover, dur- ing 1984, City Gas began providing service to seven commercial accounts in a shopping center adjacent to Consolidated's service area. [Tr. 6-731. Thus, it be- came crucial that Consolidated convert to natural gas for as low a cost as possible in order to be able to offer rates that were competitive •a ith these City Gas could offer. In order to con.pe(e effecmcly. Consolidated believed .t was imperative that FGT provide Consolidated with a first connection. to the nawral gas pipeline at FGT's cost. The amortization of the estimated S 250,000 cap- ital cost of this lateral pipeline would have increased Consolidated's cost of sCcuring natural gas by approx- imately five cents per therm. ITr. 6-91-921. City Gas had already received approximately ten such connections with FGT at no cost and thus it did not have similar ex- penses driving up its natural gas rates. ITr. 5.187-1881. Page 66 Faced with these problems, Consolidated was left with three potential courses of action if it was going to remain in 1 * * 191 business: (1) obtain a FERC allocation and hope that it could convince FGT to pay for the lateral pipeline connection; 12) connect a pipeline to City Gas' pipe and purchase pas directly from City Gas; or, finally (3) obtain a FERC allocation, connect a pilxline to City Gas' pipe, and pay City Gas the cost of transporting gas through City Gas' pipes. Two of these courses of action required Consolidated to deal directly with its fu- ture competitor, and the third alternative, as the facts re- veal, involved unreasonable delays and uneconomically high expenses. In response to Consolidated's dilemma, City Gas, the only natural gas distributor with pipelines near Consolidated's service area, responded by attempt- ing to eliminate its tiny competitor, as it had already succeeded in doing to two other small LP distributors, Nationwide Utilities ("Nationwide") and Miramar Gas Company ("Miramar"). The pattern established by City Gas' acquisition of Nationwide and Miramar is, we believe, particularly instructive in this case. At the time that it acquired Nationwide, in 1980, City Gas' pipelines surrounded the area served by this small LP distributor, located in south Broward County. City Gas had [**20] the only supply of natural gas to offer for sale in the area and Nationwide did not have a natural gas supply of its own. Consequently City Gas installed a line and began to pro- vide natural gas to a number of residential customers served by Nationwide, [Tr. 3-122). Nationwide could not compete with City Gas once it began soliciting and hooking up its customers, simply because LP gas could not compete with the price advantage of natural gas. [Tr. 3-123-124). On July 31, 1980, City Gas bought Nationwide for S 300 per active customer. [Plaintiff's Ex. C-00471. In early 1982, City Gas acquired Miramar, another small LP distributor in south Broward County. Here again, City Gas' pipeline surrounded the area served by Miramar, and City Gas had the only supply of natural gas to offer for sale in tine area. City Gas began converting some of Miramar's customers to natural gas [Tr. 2-202- 2031, 1*15071 and was then able to purchase Miramar for S 385 per active customer. [Tr. 3-117-120]. When Nationwide and Miramar sold their businesses to City Gas, there was no other distributor from whom they could have purchased natural gas or to whom they could have sold their systems. ITr. [**21] 3-124-125). In view of City Gas' FERC allocation, its market share in the geographic area and the absence of any other natural gas supply, Nationwide and Miramar had no other realis- tic choice but to sell to City Gas, in 1982 Consolidated :� �- 720 665 F. Supp. 1493, *1507; 1987 U.S. Dist. LEXIS 6926, **21, 1987-2 Trade Cas. (CCH) P67,741 faced a similar dilemma. We think City Gas' policy of acquiring tiny competitors vas pan of its underlying purpose to eliminate all competition within its region. E. City Gas' Efforts to Acqune C rnsolidatcd On Fcbruan __. Citt Gas Board of Directors ratified and approted Cite Gas' contract to purchase Miramar. At the same niceiing the Chairman of the Board, Sid ,ds iscd the Board that he had been "attempting to acquire the gas properties of Consolidated," and the Board passed a resolution au- thorizing Mr. Langer and its other officers to "work out the acquisition of the assets of Consolidated Gas Company and take whatever steps with respect thereto, as they deem appropriate." ITr. 5-223; Plaintiff's Ex. G-00891. liottever, no one from City Gas had ever contacted anyone at Consolidated prior to February 22, 1982 about buying the company, and no contact of any kind was made tt ith Consolidated until late March of 1982 when City 1" 2_1 Gas' president, Jack Langer, telephoned Consolidated's controller, Richard Fleisher, to advise him that City Gas had already begun to serve some of Consolidated's customers and intended to serve others. Subsequently, in May of 1982, Sid Langer and Jack Langer of City Gas met with Arnold Rosen of Consolidated to discuss the idea that City Gas pur- chase Consolidated. ITr. 2-171-172; 3-81. At the meeting, Sid Langer offered to buy Consolidated for the same price per customer that City Gas had paid for Nationwide, which Mr. Rosen understood to be S 300 per customer. [Tr. 3-9]. Mr. Rosen stated that he wanted S 900 per account. ITr. 2-1731. No agreement was reached and `tr. Rosen left. [Tr. 3-101. On February 23. 1982, one day after the Board res- olution authorized Sid Langer to attempt to acquire Consolidated and notably before City Gas had notified Consolidated of its interest in pursuing an acquisition, City Gas' sales manager, Ken Kessler, sent his sales staff out to make door-to-door solicitations of Consolidated's customers. Some: of these customers had signed a 1981 petition which the% sent to City Gas and which requested that natural teas service he offered to them, but most [**231 of them had not. .At least 60 of Consolidated's approximately 2,000 customers there solicited [Tr. 5- 2011, and nine signed up to receive natural gas from City Gas, City Gas then sent letters to residents offer- ing City Gas' natural gas service, and followed up with door-to-door solicitations. Furthertnore, City Gas' rep- resentatives left door knob hang -tag advertisements at the homes of Consolidated's customers if no one was home. [Tr. 2-11-13). City Gas also ran newspaper ads directed spccitically to ;'.ogle living near the Point Royale Shopping Center (wttlim Consolidated's service Page 67 area) who were receiving LP gas, inviting them to call for a free survey as to the feasibility of receiving nat- ural gas. [Tr. 2-17). It would be fair to characterize City Gas' sales efforts in Consolidated's service area as 'full scale." On .April 5, 1982, City Gas began ex- tending its pipelines [Plaintiff's Ex. E-O0081 to serve eighteen of Consolidated's residential customers which it had solicited in February. City Gas' solicitation behavior, after its Board de- cided to attempt to acquire Consolidated but before it notified Consolidated of its intentions, leads us to find that City Gas' solicitations [**241 and pipeline exten- sions were not simply ordinary business expansions, but rather, were basic components of City Gas' strategy to force Consolidated to sell out. This conclusion is fur- ther supported, we think, by the fact that City Gas had to duplicate a portion of Consolidated's pipeline in order to serve the eighteen Consolidated 1*15081 customers it had recently signed. Yet if City Gas had expected to reach a purchase agreement with Consolidated, it would have acquired Consolidated's pipelines and would not have had to incur this expense. City Gas' action of du- plicating these pipelines before notifying Consolidated of its interest in acquiring the company seems to have been designed to force Consolidated to sell at a low price or face the resultant certainty of losing its customers and their value as quickly as City Gas could serve them. F. Consolidated's Easement Agreements In expanding its system into the territory that was sup- plied by Consolidated, City Gas placed its own gas mains and lines in utility easements which had been granted to Consolidated by a recorded "Easement Agreement" dated December 13, 1963. As a public utility, under Florida law, City Gas possessed [**251 the power of eminent domain entitling it to conderrat and to pay just compensation for any real or personal property rights necessary for its provision of natural gas service to any customer. City Gas did not consider selling nat- ural eas to customers in Consolidated's territory un- til 1982. Prior to June 1, 1982, when a state lawsuit was filed by Consolidated against City Gas and served upon City Gas thereafter, City Gas had no knowledge of this recorded "Easement Agreement" or any of its provisions. City Gas also had not researched the public records to determine whether Consolidated had rights under any recorded documents. City Gas had observed other gas companies supplying gas in the subdivision, and believed that it was free to provide gas service to any home or business located in the subdivision. On or about June 1, 1982. Consolidated filed suit in Dade County Circuit Court against City Gas, seeking to enjoin City Gas from infringing upon the easements which had 720 a 9 - Page 68 66.5 F. Supp. 1493, * 1508; 1987 U.S. Dist. LEMS 6926, **25; 1987-2 Trade Cis. (CCH) P67,741 been granted to Consolidated by this recorded Easement Agreement. On June 16, 1982, the Circuit Court is- sued its order Granting Prchlii tar}' Inimicuon, ordering City Gas to cease and desist from extending any addi- tional [*'`26) gas lines into the suhdi\ ision until further order of the court and rcquirm,, Consolidated to post a S 5,000 injunction bond. Wide the injunction was in effect, City Gas cominued suppling natural gas to the former Consolidated cu%willers Much it had already hooked up to its systcin. The preliminary injunction was dissolved bN the Circuit Court in its Final Judgment dated November 0, 198 Immediately after the Circuit Court dissolved the preliminary injunction, City Gas again began extending its system to provide natural gas service to homes and businesses located within the sub- division. On march 6, 1984. the Third District Court of Appeal affirmed the Circuit Court's Final Judgment on the grounds that (1) the portion of the Easement Agreement which gave Consolidated "an exclusive franchise" did not create an exclusive propert% right enforceable by Consolidated against City Gas. and (2) that the Easement Agreement by its terms gave Consolidated a "perpet- ual right of way casement" but did not create an exclu- sive right of way casement. The Court held that City Gas, a public utility, was not precluded by the Easement Agreement from using the servieni land in any manner not inconsistent 1`271 with the limited non-exclusive rights vested in Consolidated as the casement owner. City Gas asserted as :in affirmative defense in the state court litigation that the recorded "Easement Agreement" was invalid as a restraint of trade. but at no time did City Gas file or attempt to file a counterclaim alleging the illegality, under the Florida Antitrust Act of 1980 or other provisions of state or federal law, of any exclusive rights claimed by Consolidated in the casements in the subdivision. On March 4, 1985, Consolidated and City Gas entered into a settlement in the form of a stipulation pursuant to which the state litigation was ended with a Stipulated Order Directing Disposition of Injunction Bond, which was entered in circuit court on Starch 6, 1985. The settlement stipulation. xsas signed by both Philip Schiff, the attornc*, tOr Cite Gas, and Sid Langer, President and Chairman of the Board of City Gas. it and the Stipulated Order were drafted by Phillip Schiff. [•15091 G. Consolidated's FERC Application On May 21, 1982, Consolidated applied to the FERC for a natural gas allocation so that it could resell natural gas to its customers. 17'r. 1-13; Plaintiff's Ex. B-0011 [**28) (1 of 122)1. Consolidated's applic:uiun was filed under Section 7(:) of the Natural Gas Act, which re - quires an applicant to demonstrate that it has the techni- cal and financial ability to distribute gas to customers; that the pipeline from which it seeks service (in this case FGi) has an adequate supply of gas; and that the cus- tomers who would be provided with gas service would derive some benefit from it. (Tr. 4-91. On June 21, 1982, City Gas filed a petition with the FERC requesting leave to intervene in Consolidated's application to oppose its rcqucst 'OF natural gas. (Tr. 1-14; Plaintiff's Ex. B-0012, B-0011 (9 of 122)). City Gas' Petition to intervene asserted that City Gas had existing transmission and distribution lines extending through the heart of the proposed set,-iice territory, as well as around it, and that City Gas anticipated that it would soon convert a majority of Consolidated's cus- tomers to natural gas. [Tr. 1-14-15; Plaintiff's Ex. B- 0011 (9 of 122)), City Gas also raised questions about the capacity of Consolidated's system to operate at the pressures necessary to deliver natural gas. City Gas fur- ther argued that Consolidated should have to pay the S 250,000 [*`Z91 cost of the FGT lateral connection. [Plaintiff's Ex. A-0001 at 14). Finally, City Gas chal- lenged Consolidated's application on the basis of the adequacy of the natural gas supply. On November 21, 1983, the presiding administrative law judge ("AU") granted Consolidated's application and rejected City Gas' arguments. [Plaintiff's Ex. B- 001 t (52 of I2'_)]. The FERC affirmed that decision on September 19, 1984, but it ruled that Consolidated should pay the cost of connection with FGT's pipeline. (Plaintiff's Ex. B-0011 (115 of 122), Tr. 3-21). The FERC opinion stated: There is no doubt that Consolidated's proposed project would be economically feasible, if City did not have its eye on capturing Consolidated's propane gas customers. We admit that it is difficult to predict whether Consolidated's project will be a success. But we need not make a "conclusive, definitive, formal finding" of economic feasibility, it is enough that there is a possi- bility of economic success. %Ve think there is enough of a reasonable likelihood that Consolidated will retain its present customers and, therefore, be successful as a nat- ural gas distributor for us to grant its request. The fact 1**30) that its market is threatened by competition from City does not lead us to deny that request, for we do not think it in the public interest to deny Consolidated the right to compete. [Plaintiff's Ex. B-0011 (115 of 122) at 3-4 (footnotes omitted)). 0 9 - r12, V 665 P. Supp. 1493, *1509, 1987 U.S. Dist. LEXiS 6926, **30; 1987-2 Trade Cas. (CCH) P67,741 The FERC also observed: And at bottom that is what we are concerned with -- the public interest. If we deny Consolidated's request, City will w•in the war by default. [id. at n.121. The opinion further held The record shows that standing alone both Consolidated and City could successfully serve Consolidated's cus- tomers. We do not believe it is appropriate for us to determine which is the rightful distributor. That should be done by Consolidated's customers. We should not deprive them of the right to choose between two com- petitors for their natural gas service, Accordingly, we grant Consolidated's application as modified below. [id. at 4-5 (footnote omiued)). There is no doubt that City Gas' intervention pro- foundly altered the course and nature of the FERC's consideration of Consolidated's application. If full lit- igation of factual disputes had not been necessary, it would (**311 have taken only six to nine months for the FERC to have reached a final decision. [Tr. 4-181, City Gas' intervention caused a delay in the proceed- ing of more than one year. 1Tr. 4-78]. Additionally, if City Gas had not inter%encd Consolidated could have received a temporary certificate 1-15101 entitling it to obtain natural pas within 90 days of the tiling of its ap- plication. [Tr. 4-201. Because City Gas intervened, this option became unavailable. It is also demonstrably clear that the delay in the FERC proceedings severely hurt Consolidated. During the course of the proceedings, City Gas began provid- ing service to seven of Consolidated's eight commercial customers and the bulk of its residential customers. [Tr. 5-131-133). Since Consolidated could not purchase nat- ural gas from FGT without final FERC approval, its first and third courses of action were effectively fore- closed. Consequently, CUnSUhdated was lelt with only its second alternatise if tt was to remain in business: the purchase of natural gas dtrrctly from City Gas. H. City Gas' Propa:ed Terms for the Sale or Transportation of Natural Gas As we have observed already, Consolidated had to Purchase [**321 natural gas from City Gas because the next nearest natural gas distributor, Miller Gas, a small company when compared to Cite Gas and Peoples, was located approximately fifteen mules away. The cost of Page 69 connecting a lateral to Miller's pipeline would have ex- ceeded S 5,000,000 [Tr. 3-191, more than the entire net worth of Consolidated. Thus, Consolidated had no alternative but to purchase gas from City Gas. During the course of the FERC proceedings, City Gas was asked by FERC personnel if it would consider wil- ing natural seas to Consolidated. City Gas indicated that it would sell natural gas to Consolidated at City Gas' cost plus tell cents per therm, wuh Consolidated pay- ing all costs of connection, metering and other costs. [Tr. 1-19-2-0: 3-13-14) In making this offer, City Gas knew that the FPSC would not approve sales on these terms because the rate was too high. [Tr. 3-226-2271. Indeed, City Gas' Vice President, Mr. Ball, testified that he made no attempt to ascertain a reasonable price for direct gas sales to Consolidated, and that he came up with the cost plus ten cents terms "out of the air." [Tr. 3-284]. At the time that City Gas made this offer, it had a contract to [**33) sell natural gas to Florida Gas for cost plus one cent per therm and it was buying gas from Peoples for resale under their non -competition agree- ment for one development in Peoples' territory at cost plus seven cents per therm. [Plaintiff's Ex. C-0051; Tr. 3-141-144, 5-182. 2-140). Consolidated also proposed that City Gas allow its system to be used to transport natural gas from FGT's pipeline to Consolidated if Consolidated received its own FERC allocation. City Gas rejected this suggestion. City Gas did not modify its purchase or resale offers in any way until March 25, 1983, when the FERC staff scheduled a conference in Washington. [Tr. 3-227-228; Plaintiff's Ex. A-00761. The FERC's purpose in call- ing this conference was to identify "settlement postures" and it directed the parties to "send a representative autho- rized to enter into binding negotiations on that party's behalf." [Plaintiff's Ex. A-00751. At the March 23, 1983 FERC settlement conference, Consolidated pro- posed that City Gas transport natural gas to Consolidated at cost plus two and one-half cents per therm, but City Gas responded that this offer was "out of the question." [Tr. 3.67: Plaintiff's Ex. A-0076). [**341 Later in the conference. Cit}' Gas for the first time lowered its resale offer from cost plus ten cents to cost plus seven cents per therm, with Consolidated paying all costs. (Tr. 3-16-17; 3-228). Consolidated had received advice that City Gas' seven -cents -per -therm offer was far beyond competitive levels and that a price between 3 mills and one cent per therm was a reasonable range. (Tr. 3-691. However, because the FERC staff was pushing for a settlement and City Gas' actions were threatening Consolidated's existence, Consolidated proposed that City Gas sell or transport at cost plus two and one-half cents and, later, 09- 720 tt 665 F. Supp. 1493, *1510; 1987 U.S. Dist. LEXIS 6926. **34; 1987-2 Trade Cas. (CCH) P67,741 at cost plus five cents, even though Consolidated be. sieved these prices to be unreasonable. [Tr. 3-(19-70; Tr, 5-41-42). At the close of the conference. City Gas handed Consolidated a written ' Fin.d 0!'1cr." (' 15111 in '.01ch City Gas (1) reiterated its oiicr of 5 385 per active cus- tomer to purchase ConsoGdated's system ort terms of ten percent down and ten percent interest over a ten- year term; and (2) stated that ;t %%ould sell or trans- port natural gas to Consolidated for resale at cost plus seven cents per thetan, with Consolidated paving all costs of connections [**351 and metering equipment. [Plaintiff's Ex. A-00411. On June 23, 1983, City Gas wrote to Consolidated attaching a "Settlement Offer" dated June 7, 1983. [Plaintiff's B. C-00601. in that offer, City Gas restared its purchase oflcr of S 385 per active customer, thereby e.\cluding Consolidated's former customers. The June 7th offer also retracted City Gas' short-lived offer to transport eas from FGT to Consolidated for a seen -cent markup, referring only to the sale of natural gas to Consolidated at cost plus seven cents per therm, Ild.). The accompanying letter stated that the June 7th offer would be withdrawn on June 27, 1983, unless either offer were accepted. (Id.l. Following the June 27th expiration of the June 7th offer, City Gas made no offer of any kind to sell or transport natural gas to Consolidated. 1Tr. 3-235). The expert testimony presented at trial by Consolidated convincingly established that neither price term was a reasonable or competitive price. First, City Gas' marginal cost in selling or transporting gas to Consolidated was at or near zero since, under both offers, Consolidated was to pay all costs of connection and metering. At most, City would incur [**36) the expense of opening and maintaining a new account on its books and reading the meter on a monthly basis. Second, City Gas had no opportunity costs, which arc the costs of providing this service to Consolidated instead of some other customer. Citv Gas had and still possesses a vast, unused natural gas entitlement of approximately 27 million therms per year in excess of its needs [Tr. 5-166-1671. and its sale or transportation of 600,000 therms or Ies> of ga, to Consolidated would cost City Gas no other sates. Third, the price City Gas demanded bears no reasonable relation to its costs of providing the service. FGT charges approximately thirty-two cents per therm %khich includes its cost of gas and the cost of transporting it frorn producing fields in Texas and Louisiana to somh Florida. 11'r. 6-611. City Gas demanded between 'S utd 33 of that just to transport gas a few thousand fret [Tr. 6.61.631. Thus, in selling or transporting �igas on the terms it quoted, City Gas would be earning far more per therm than the Page 70 three to four cents net profit it earns on an average for all the therms it sells to all other customers. (Tr. 6-60). City Gas argued that the cost -plus -seven -cents [**371 offer was reasonable because that is what it paid Peoples under the Limited Waiver agreement to serve one com- munity in Peoples' territory. Notably, no witness even ventured any opinion that the ten -cent offer was rea- sonable. But even the seven -cent offer cannot be jus- tified b\ the Peoples-Cit} Gas non -competition agree- ment seven -cent rate because this agreement was not reached in a competitive setting. Under the agreement, Peoples and City Gas do not compete in the area being served. Consequently, City Gas has been able to pass the seven -cent price increase along to its customers with- out fear of losing them to Peoples. The situation facing Consolidated was entirely different. If it was required to pay seven cents more for gas than City Gas, it would obviously be at a severe price disadvantage in selling natural gas in head -to -head competition with City Gas. City Gas also argued that the seven -cent markup must be reasonable because the FPSC approved those terms for Peoples' sales to City Gas. The evidence does not support that argument, because it was established that the FPSC does not pass on the reasonableness of the charge between two large industrial firms, such as City Gas and [**381 Peoples, based upon the obviously sound assumption that they can take care of themselves in the marketplace. Jr. 6-64). The expert and lay testimony indicated that because the costs to City Gas of providing the service are effec- tively zero, a fair and reasonable price for City Gas' sale (* 15121 or transportation of natural gas to Consolidated would probably be in the area of one cent per therm over other costs. [Tr. 7-151. This Court will not attempt, nor do we feel required to determine exactly what a fair price would be. The task is best left to regula- tory agencies, such as the FPSC, which would regulate Consolidated if it still seeks to sell natural gas to con- sumers, or to the marketplace. The FPSC is designed to make such complex and specialized rate determina- tions and to monitor cominuousiv the rates of natural 0-is companies. The federal courts, on the other hand, are not well equipped to set a "fair price," or to monitor the changing circumstances which might merit a review of such a determination. Accordingly, all that we find on this record, and we believe the facts as developed at trial compel this finding, is that the price terms for the sale or transportation [**391 of natural gas which City Gas proposed to Consolidated were wholly unrea- sonable. The terms bore no relationship whatsoever to any economic calculation which Defendant might have made. We believe, in short, that the price terms were 9 9 — rf 6 V l" 665 P. Supp. 1493, *1512; 1987 U.S. Dist. LEXIS 6926, **39; 1987.2 Trade Cas. (CCH) P67,741 the functional equivalent of a refusal to deal at all City Gas' true objectives were further tevealed by its demands for excessive sale or transport prices and its willingness to forego short-term prolits on reasonably priced natural Pas sales to CoMolidated. Since prior to 1980, City Gas has had an allocation entitling it to pur- chase and sell much more natural Pas each \-car than it is able to resell to its cus10111ers in 1081 . C its Gas' largest industrial cusionncr, Loncsi:ir l lorida. Inc., reduced its annual purchases of natural gas froin Cite Gas. This left City Gas with an excess supply of approximately 27 million therms of natural gas annually, in addition to tilt surplus it already had. (Tr. 5-1661. Consolidated's LP gas consumption equals approximately 491,000 therms of natural gas per year. (Tr. 5.167). Had City Gas sold a portion of its excc;s gas to Consolidated when Consolidated was asking to buy the gas, it could have supplied all of Consolidated's [-.401 needs with only 1.8 % of City Gas' excess gas supply. lid.]. in fact, trans- porting gas for sale to Consohdated's customers would have consumed none of City Gas' allocation at all. Additionally, there were no engineering or other im- pediments to City Gas' selling or transporting gas to Consolidated. Consolidated's pipe system is well suited for natural gas delivery and, in fact, is virtually identi- cal to City Gas' system. The cost of interconnecting the two systems would be approximately 5 21,752 and both systems would have functioned properly with such inter- connection. [Tr. 2-309-310: Plaintiff's Ex. A-00711. We have concluded that City Gas' offer was tanta- mount to a refusal to deal and we think City Gas' purpose in making it was to destroy a potential competitor, no matter how small and inconsequential it may have been. This conclusion is amply supported by the record in this case. The purpose behind City Gas' conduct was, we believe, candidly stated by its Chairman of the Board, Sid Langer. When Mr. Lan_er was asked whether the receipt by Consolidated of a natural gas allocation to serve its 2,000 customers would deplete the natural gas supply to the other natural 1-41) _as distributors, his answer was surprisingly (elling: A. Of course; plus, it N�ou)d -i%e e%er\ other propane dealer . a chance to request natural gas for their own development throughout the state or throughout the country. God only knows. Q. That is wrong with LP companies getting natural gas? A. Nothing wrong with it. Q. Ybu said -- A. Except you try to protect your own domain, and there is nothing wrong with that either Page 91 Q. Okay. Does it make any sense to argue that if Consolidated Gas received an allocation to serve those 2,000 customers, that it would reduce the supply of gas available' A. Maybe yes, maybe no. . . . 11-r. 3-161-162) (etnphasis added) h9r. Langer's testimony was echoed by City Gas' Vice -President, Ivan Ball, who indicated that City Gas' intervention in the 1*15131 FERC proceeding was "al- most automatic" as it was Defendant's policy to oppose the allocation of natural gas to any other company in what it believed to be its "natural gas territory." [Tr. 3-174). Ball also testified that if Plaintiff's FERC ap- plication were granted "it (would mean) that any propane company up and down the State could get an allocation.' [Tr. [**42) 3.264; see also testimony of Jack Langer, Tr. 8-641. The Defendant City Gas quite apparently believed that because it was involved in a regulated in- dustry, it had untrammeled authority to eliminate any potential competitor within its area of operation. I. The Feasibility of City Gas' Expansion to Serve Consolidated's Customers Still further indication of City Gas' underlying pur- pose may be gleaned from its uneconomical expansion into Consolidated's service area without requiring its new customers to pay "contributions in aid of construc- tion" which City Gas normally charges in such circum- stances. The FPSC requires all public utilities to ob- serve regulations pertaining to the allocation of costs of extension of utility facilities to serve new customers. The purpose of these regulations, commonly referred to as "feasibility rules," is to protect present customers of the utility from having to subsidize the utility's spec- ulative expansion into areas that are not economically and financially feasible. [Tr. 5-115). Prior to April _9, 1983, the feasibility of City Gas' extension of its service to ;t new customer or group of customers was to be determined by a formula comparing [**431 the costs of the extension to twice the gross annual revenues earned from the customer. If the cost of the extension exceeded two times annual gross revenues, then a con- tribution in aid of construction was to be charged to the utility customer, alleviating the cost burden to the utility and also protecting the other customers from the costs of subsidizing. that extension. [Tr. 5-116, Plaintiff's Ex. D-0001; Plaintiff's Ex. J-0004). In applying the feasibility rule, the proper method for determining the estimated annual revenue from a new L 665 F. Supp. 1493, *1513; 1987 U.S. Dist. LEXiS 6926, **43; 1987-2 Trade Cas. (CCIJ) P67,741 customer who has been receiyutg gas service from an- other company is to estimate consumption haled on past consumption as reflected in prior hills. If tltc new cus- tomer has no history of gas consumption. then altcr- native estimates ntaE' he cmplr%ed. ,.ugh as tsh)cs that indicate consumption lever for -mous vrh:1nCcs. But the latter method may not he properly employed «here the customer has a history of cats consumption. ITr. 5-116, 1471, The cost of a gisen rvtcnsion of' facili- ties may be determined throuch csttnlates of the costs of constructing the facilities by the contractor or by the engineering department of a utiluy company. ITr. 5- 116-1171, (**44) City Gas performed no true feasibility study of any kind prior to the expansion of its system to the bulk of Consolidated's customer,.. Cii Gas' eslllnates of annual revenues from those customers syere exagger- ated and any feasibility study based on those estimates would have provided a distorted view of the feasibility of the expansion. Although all of Consolidated's for- mer customers had gas appliances and a history of gas consumption, City Gas' salesmen made no effort to de- termine past consumption lc\,els. Instead, the salesmen used the appliances' maximum gas consumption ratings I rom plates located on the appliances and then projected annual revenues by multiplying those revenues by City Gas' prevailing rates. (Tr. 2-42: 2-85-87). As a re- sult, City Gas' estimates of annual revenues were far in excess of its new customers' historical and actual con- sumption. In fact, City Gas' estimates of annual therms and revenues for new residential accounts taken from Consolidated were overstated by some 71.1 %, and City Gas' estimates of annual therms and revenues for its new commercial accounts were overstated by approximately 35.6 %. (Tr. 5-117-1201. In yids' of the information available to 1` 451 City Gas. the variance between these estimates and reality appears to he more than a matter of negligence or accident. A feasibility study based on the actual consumption levels of City Gas' new customers both before and af- ter they were 1 ` 15141 taken from Consolidated shows that City Gas' extensions of its facilities to all but ten customers did not meet the company's feasibility cri- teria. Although documentation indicates that City Gas contemplated charging a contribution in aid of construc- tion, no such contributions %%ere collected. ITr. 5-122- 1261. City Gas' counsel a gecd at trial that City Gas had waived some S 19,00u in contributions that should have been collected from Cow ohdated's customers un- der City Gas' feasibility rule. I'fr. 8-16, 161, City Gas obtained the funds to expand into Consolidated's terri- tory from the proceeds of its natural gas sales to other customers. (Tr. 3-208-2091. Thus, City Gas' other Page 72 customers paid the costs of City Gas' expansion into Consolidated's service area because City Gas waived the n:cessary contributions. J. 1-he Stagy of This Lawsuit The present action was filed by Consolidated on April 22, 1983. seeking damages and an injunction 1**461 to prohibit City Gas from engaging in any further efforts to block or dclay Consolidatcd's access to natural gas. City Gas responded to the Complaint on May 16, 1983, by moving the Court to stay this lawsuit. Consolidated amended its Complaint on May 23, 1983, alleging that City Gas' motion to stay this suit was an additional act designed to delay Consolidated from obtaining judicial relief. On June 2. 1983, City Gas renewed its motion to stay in response to the Amended Complaint. This mo- tion to stay remained pending and delayed the progress of this suit for almost one year, from May 16, 1983 until May 3, 1984, when United States District Judge Hastings, to whom this cause had been assigned origi- nally, entered an order denying the motion. K. Consolidated's Damages The expert and lay testimony and documentary ev- idence presented at trial shows that City Gas' actions diminished Consolidated's value as a going concern by the amount of S 1,503,975. [Tr. 6-671. An industry and valuation expert, Mr. Ben Ball, whose testimony we have credited, derived this figure by determining Consolidated's net present value as a natural gas com- pany with a competitively priced source of natural [**47] gas selling natural gas at City Gas' rates and possessing the same number of residential customers (1,995) and commercial customers (8) that it averaged during the \,ears 1981 arid 1982. According to Mr. Ball's calcu- lations, Consolidated's net revenue above variable costs would Kaye been S 128 per residential customer per year and S 2.182 per commercial customer per year. [Tr. 6- 691. Using in interest rate of 10 percent and a term of 20 years, the net present value of the cash now stream gen- erated by each residential customer would have been S 1,092: and the net present value of the cash flow stream generated by each commercial customer would have been S 18,573. ITr. 6-691. These values per customer were then multiplied by the average number of customers in the 1981-1982 period. ITr. 6-69]. From this total, Mr. Ball substracted approximately S 100,000. representing the costs to Consolidated of the modifications necessary to its customers' appliances to accept natural gas (S 50 per customer). ITr. 6-691. Mr. Ball next subtracted the present value of Consolidated's starting costs (approximately S 500,000) and the cost 0 . - rt 4 v M �"Y r 665 F. Supp. 1493, *1514; 1987 U.S. Dist. LEXiS 6926, **47; 1987-2 Trade Cas. (CCH) P67,741 of interconnecting the City Gas and Consolidated sys- tems for [**481 resale or transportation of natural gas (S 21,000). [Tr. 6-70.1 On the hasis of these calculations, Mr. Ball calculated that Consolidated's yahic is a natu- ral gas compam selling natural s,as at Cite Gas' rates to the 1,995 residenrial and S comm-cicial customers it had on an average during 1981 and 1982 would be approxi- mately S 1,705,000. [Tr. 6-711. To this an1Ullitt. Nlr. Ball .tddcd S 130,01 1, Mbleb rep- resents the present value of seven commercial customers (S 18,573 per customer) iwt ichcd by City Gas during 1984 in the South Dade Shopping Center. [Tr. 6-731. This shopping center is contiguous to the Consolidated system and consists of customers for which Consolidated did not have an opportunity to compete because it lacked a competitiv el} priced suppl} of natural gas. fir. Ball also added the present value of one new residential ac- count [*15151 ;S 1,092) that City Gas added to its sys- tem in September of 1985. [Tr. 6-731, Accordingly, Consolidated's value including those seven commer- cial customers and one residential customer to which City Gas is providing service in its area and for which Consolidated could not compete is approximately S 1,836,000. [Tr. 6-731. Next I'Ar. [**491 Ball calculated the additional value Consolidated would have because of its potential to grow at the rate of 6 percent per year. [Tr. 5-238-239). Ball did not assume that Consolidated mould obtain all of the 6 percent annual growth projected by Mr. David Starke, Plaintiff's population growth Trend expert, for the areas adjacent to its system in the neat 20 years. Instead, in calculating the value of Consolidated's growth potential, Ball assumed only that Consolidated itself would ex- pand its existing system at the rate of 6 percent per year. [Tr. 6-75). Taking into account the additional costs of expanding its system to ne�f, customers. fir. Ball cal- culated the total added present Naiue of Consolidated's growth potential to be appro\tmately S 438.000, [Tr. 6-75-77). Based on these calculations, Mr. Ball con- cluded that Consolidated's value today as a natural gas firm, includinii the seven commercial accounts in the South Dade Shopping Center aiid the one residential ac- count for which Consolidated ne%vr had the opportunity to compete, plus the present yaiue of a 6 percent pro- jected growth over 20 years. %could be approximately S 2,275.000. [Tr. 6-771. ,10r. Ball then proceeded to determine [**501 Consolidated's actual value toda%. Applying the mar- ket approach, he determined Consolidated's maximum value today to he S 771,155. This value is the amount of the offer made by City Gas to Consolidated (S 385 per existing customer). Mr. Bali considered this to be Page 73 Consolidated's maximum value today. [Tr. 6-73-74). He applied the market approach because City Gas' ca- pacity io use its strategic location and resources to deny Consolidated natural gas .rid to take its customers had seyerciy threatened Consolidated's continued existence, and mould continue to do so. Accordingly, application of the income approach that Mr. Ball used to calculate Consolidated's value in the absence of City Gas' actions would not provide a meaningful or accurate measure of Consolidated's present going concern value, as that approach assumes a reasonable likelihood of continued cash income. Furthermore, in view of these same cir- cumstances, City Gas was the only potential buyer and could dictate its own price. Accordingly, someone pur- chasing Consolidated would succeed to Consolidated's present predicament and would ultimately be forced to sell to City Gas at a distress price. Thus, we agree that City Gas' S [**511 771,155 offer represents Consolidated's maximum value today. [Id.]. The diminution in Consolidated's value as a natural gas company as a result of City Gas' actions is the dif- ference between what its value would have been in the absence of City Gas' actions (S 2,275,130) and its value on the market today (S 771,155). That difference is $ 1,503,975. [Tr. 6-781. In addition to the diminution in Consolidated's going concern value, it has suffered lost profits in the form of revenues eamed by City Gas from Consolidated's former customers. These lost prof- its were determined by calculating the total amount of gross revenues collected from these customers and by subtracting the cost of gas. Because City Gas incurs vir- tually no variable costs in serving these accounts, none were deducted. The amount of Consolidated's lost prof- its is S 83,090.15 through September 30, 1985. [Tr. 5-130-133). Therefore, we find Consolidated's total compensatory damages to be S 1,587,065.15. 111. CONCLUSIONS OF LAW: CONSOLIDATED'S MONOPOLIZATION CLAIM Plaintitt Consolidated his alleged that Defendant City Gas violated 2 of the Sherman Act by monopoliz- ing and anempting to monopolize the natural [**521 gas market in south Florida. We think Consolidated has sustained its burden. Our discussion of Consolidated's claim will be broken down into these component pans: (A) the rcleyam product market: (B) the relevant geo- graphic [' 15161 market, (C) monopoly power; (D) mo- nopolistic intent: (E) the willful acquisition of monopoly power; tFt the %%illful maintenance of monopoly power; and (G) damages. The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisi- :) ` 7' 2 0 665 F. Supp. 1493, *1516, 1987 U.S. Dist. LEXIS 6926, **52; 1987.2 Trade Cas. (CCH) P67,741 tion or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or Historic accident. United States v. C rind( C(, ;)S. 56 3, 570-71. 16L. Ed. 2d 778, S6S. Cr ;(>�� �l�tbhr. Todctennine whether City Gas is liable for a § 2 violation, we must first define the relevant market. A. The Relevant Product NI:trket The relevant product market consists of those products which are reasonably interchangeable with each other and for which there is a high "cross -elasticity of de- mand.' Brown Shoe Co. r'. United States, 370 U.S. 294. 325, 1**531 8 L. Ef, 2d 510, 82 S. Cr. 1502 (1962). As the Supreme Court stated in United States v. E.I. DuPont de Nemours &: Co.: In considering what is the relevant market for determin- ing the control of price and competition, no more definite rule can be declared tlian that commodities reasonably in- terchangeable by consumers for the same purposes make up that "part of the trade or commerce," monopolization of which may be illegal. 351 U.S. 377, 395, 76 S. C'r. 994, 100 L. Ed 1264 (1956). The Supreme Court in DuPont made clear that the test is not one simply of "functional" interchangeabil- ity, but one of "reasonable" interchangeability, an anal- ysis which necessarily embraces a variety of additional factors. As the Court stated, "[the] market is composed of products that have reasonable interchangeability for the purposes for which they are produced • price, use and qualities considered." /d. at 404. A necessary and vital component of reasonable interchangeability analy- sis therefore is price. This factor calls for an appraisal of cross -elasticity of demandid. at 394. Numerous courts, relying on the DuPont test, have rejected the view that where products [**54) are merely functionally interchangeable. they automatically com- prise the same market. I -or example, the court in Borden, Inc. v. F.T.C. stated: Borden's contrnuon that fresh lemons and ReaLemon are reasonably micrchangcal-,le emphasizes the similarity of the end uses of the two products, and de-emphasizes other factors such as price differences, low cross- elas- ticity of demand. and quality differences between fresh lemons and ReaLemon. Ho%scser. under United States v. E.I. DuPont de Nemours s Co.. 35I U.S. 377. 76 S. Ct. 994, 100 L. Ed. 1264 (1956) (Cellophane), all of these factors are to be considered in assessing the reasonable interchangeability of products. It is now well estab- Page 74 lished that monopoly power is equated with the power to control prices or exclude competition. As a conse- quence, in examining whether competition from other products prevents the possession of monopoly power, 'price and competition arc so intimately entwined that any discussion of theon• must treat them as one." Id. at 392, 76 S. Ct. at 1005. In Cellophane the court discussed tile_ reasonable interchangeability of products in terms of cross -elasticity of demand, and in terms of comparative 1' 55] costs of the products to consumers. 674 F:2d 498. 507 (6th Or. 1982) (footnotes omit- ted). Since there are possible substitutes for almost ev- ery product, the test of reasonable interchangeability is used to determine two things: (1) the products' use or uses, and (2) their physical characteristics. In this man- ner, the total universe of possible substitutes may be ascertained for application of the cross -elasticity of de- mand test. The Supreme Court defined this process in Times -Picayune Publishing Co. v. United States: For es en product, substitutes exist. But a rele- vant market cannot meaningfully encompass that infinite range. The circle must be drawn narrowly to exclude [*1517] any other product to which, within reasonable variations in price, only a limited number of buyers will turn: in technical terms, products whose 'cross - elasticities of demand" are small. 345 U.S. 594, 612 n.31, 73 S. Ct. 872, 882 n.13, 97 L. Ed. 1277 (1953) (emphasis added). To determine whether there is a high "cross -elasticity of demand" between two products, it is necessary to ex- amine whether an increase in the price of one of the two products being considered for inclusion [**56] in the market would cause substantial substitution by its users of the other product under consideration. If substan- tial substitution takes place, then there is high "cross - elasticity of demand" and the products compete in the same market. If, however, a substantial price rise does not cause substantial substitution of the other product, there is low cross -elasticity of demand and the products do not compete in tine same market. Phorovest Corp. v. Fototnar Cori)_ 006 F2d 704, 713-14 (7th Cir. 1979), cert. dented, 445 L'.S. 917, 63 L. Ed. 2d 601, 100 S. Ct. 1 278 (1980). The United States Department of Justice, in establish- ing enforcement guidelines in merger cases, hw- set forth a good common sense explanation of the process: Taking the product of the merging firm as a begin- ning point, the Depanment will establish a provisional product market. Tile Department will include in the pro- visional market those products that the merging ftrm's L 665 r. Supp. 1493, *1517; 1987 U.S. Dist. LEXIS 6926, **56; 1987-2 Trade Cas. (CCH) P67.741 customers view as good substitutes at prevailing prices. The potential weakness of such a market based solely on existing patterns of supply and demand is that those patterns might change substantially if the prices of the products included j * *571 In the prkls isional market were to increase. For this reasoii. the Dcpartment will test further and, if necessary. c\,pand the provisional market. The Department sk ill add addition;tl products to the mar- ket if a significant percenrr�:c cat the buXcrs of products already included would he likely to shift to those other products in response to a small but significant and non - transitory increase in price. As a first approximation, the Department will hypothesize a price increase of five percent and ask how many buyers would be likely to shift to the other products within one year. The Department will continue expanding the provisional market until it satisfies the e.cncral profitahility standard stated above. United States Department of justice, Antitrust Division, Merger Guidelines, 47 Fed. Rey. 25.493, 28,494-95 (1982) (footnotes omitted). Application of these principles has led us to conclude that the relevant product market in this case is com- posed solely of natural gas. Although natural gas and LP gas may both be used to fuel gas appliances with relatively inexpensive modifications to the appliances, it is undisputed that where natural gas is available, LP gas simply cannot compete 1-581 because of its over- whelming price disadvanta_c. 1Tr. 6-295-2961. On the demand side, the evidence is dear that a five percent increase In the price of nanrral gas syould not cause con- sumers to substitute LP eas, as the price of the latter is already roughly 100 % higher than the price of nantra! gas. That the prices for these products are so far apart is alone substantial evidence that they no longer compete in the same product market, as prices within a product market tend towards uniformity. Accordingly, it is not surprising that there is little or no cross -elasticity of demand benyeen LP gas and natural gas. This finding is unaltered by the tact that consumers in areas where naturai gas becumcs availahle substitute natural gas for LP 23S. \\ bile this substitution is at- tributable to price in a broad ,cnsc. it is not the kind of price -sensitive substitution to Much economists refer in defining market boundaries. Instead, it is simply recog- nition that "here natural g:a is :n aiiable. LP gas is not a factor in the market beCUISe the price of natural gas simply renders Li gas obmflcte. Thus, we find that there is no cross -elasticity of de- mand between natural gas and LP gas. The relevant [**591 product market is comprised solely of natural gas. Even if 1*1 5181 we %sere to assume, 111mever, that Page 75 the relevant product market comprises both natural gay and LP gas, as City Gas has suggested, the result would remain wholly unchanged. B. The Relcyant Geographic Market Both parties agree that the appropriate test for the de- termination of relevant geographic market is stated in Tampa Electric Co. v. Nashville Coal Co.: The area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies. 365 U.S. 320. 327. 100 S. Ct. 1278, 5 L. Ed. 2d 580 (1961). In Brown Shoe Co. v. United States, the Supreme Court set forth the method by which the bound- aries of relevant geographic markets may be established: The criteria to be used in determining the appropriate geographic market are essentially similar to those used to determine the relevant product market. Moreover, just as a product submarket may have . . . significance as the proper "line of commerce" so may a geographic submarket be considered the appropriate [**601 "section of the country." Congress prescribed a pragmatic, fac- tual approach to the definition of the relevant market and not a formal, legalistic one. The geographic market selected must, therefore, both "correspond to the com- mercial realities" of the industry and be economically significant. 370 U.S. 294, 336-37. 82 S. Ct. 1502, 8 L. Ed. 2d 510 (1962) (citations omitted). The Tampa Electric and Brown Shoe tests clearly es- tablish the relevant geographic market for natural gas in this case to include all of the territory given to City Gas in its agreement not to compete with People's Gas. [Tr. 6-2991. Indeed, both parties agree that Peoples' service area is not properly considered as part of the relevant geographic market in this case. [Tr. 9-163]. Rather, City Gas _omtends that the relevant geographic market includes only Consolidated's service area. We can find no economie significance to this proposed geographic area. We observe that City Gas' pipes have run through much of Consolidated's service area for quite some time, that Cin Gas was able to take customers away from Consolidated within its area, and that Consolidated's customers are quite able to turn to [**611 City Gas to purchase natural gas. Thus, it is readily apparent that potential purchasers look beyond Consolidated's service area for suppliers of natural gas. Moreover, City Gas, a company located outside of Consolidated's service area, "r2U L 665 F. Supp. 1493, *1518; 1987 U.S. Dist. LEX1S 6926, **61; 1987-2 Trade Cas. (CCH) P67,741 supplies customers in Consolidated's service area with natural gas. Since the sellers within Consolidated's ser- vice area also operate outside of it and purchasers in Consolidated's service area turn to suppliers located out- side of it, it is clear that the effectiNe potential area of competition bemcen Cttc Glis and Consolidated is much broader than Consolidated's service area. Under Tampa Flectrlc, CIf\ Cos' market is the "market area in which the seller oprr,ites a;td to %%htch the pur- ehascr can practicably turn for supplies." This is true both at wholesale and at retail. Prior to obtaining a FERC allocation, Consolidated could turn to no one ex- cept City Gas to obtain wholesale natural gas, as no other supplier was physically close enough to Consolidated's system to make a connection economically feasible. [Tr. 3-19). And retail customers in City Gas' service area, and in the as yet unserved portions of southwest Dade County, could turn to no one [**621 but City Gas for natural gas since Consolidated had none to offer. [Tr. 1-251. Moreover, the relevant geographic market should en- compass all of the service area City Gas serves, a sub- stantial portion of Dade County and part of Broward County. The effects of demand and cost are spread throughout City Gas' service area through the rate reg- ulation process. [Tr. 6-2981. Thus, City Gas can cross - subsidize prices or costs in any one part of its terri- tory with revenues earned in the rest of its service area, Accordingly, we Find that the relevant geographic market is composed of the areas in :yhich Consolidated serves its [*15191 existing customers, the entire region served by City Gas, and the as yet unserved portions of southwest Dade County. C. Monopoly Power Monopoly power is the "power to control prices or exclude competition." United States v. Grinnell Corp., 384 U.S. 563, 571, 16 L. Ed. 2d 778, 86 S, C1. 1698 (1966) (quoting United States v. E. 1. DuPont de Nernours & Co.. 351 US. 377. 391. 76 S. Ct, 994, 100 L. Ed. 1264 (1956)). Cases dc311111 with non -regulated industries have deyeloped a number of analytic tools to aid in determining markcl po%%er. Frequently 1**631 coups have approached the problem by defining first the relevant product and geographic markets and then com- puting the defend.uusI market share from this statistical data. Where that data reveal a market share of more than 70 to 80 percent, the courts lm e inferred the existence of monopoly power. In this cue. the facts quite clearly Show that City Gas had a market share in retail natural gas of at least 97 ` ITr '-31. lAr ;tbove the thresh - hold for actual monopole po\%er. See, e.g..: merican Page 76 Tobacco Co. v. United States, 328 U.S. 781. 797-98, 90 L. Ed. 1575. 66 S. Ct. 1125 (1946). Miller Gas, its only natural gas competitor, had a market share of 2.4 [Tr. 7-3j. !Measured by new "hookups" to serve cus- tomers, City Gas had 1009, of the markct in its service area. [Tr. 7-41. In the Miolesale market, City Gas sold 100 % of the natural gas requested for resale in its service area. 'Moreover, even if we were to lump LP gas and nat- ural gas in the same relevant product market, the record indicates that Defendant possessed monopoly power in that market too. Indeed, even considering sales of LP gas separately, Defendant sold some 4,436,984 therms of LP in 1982 compared to Consolidated's [**64] sale of only 542,170 therms. [Plaintiff's Ex. B-0011 (53 of 122); C-00621. Finally, we observe that Defendant has failed to refute this definition of the relevant product market by any expert testimony. However, "reliance on statistical market share is a questionable approach in cases involving regulated in- dustries. . . . A predominant market share may merely be the result of regulation, and regulatory control may preclude the exercise of monopoly power." Southern Pacific Communications Co. v. American Telephone & Telegraph Co., 238 U.S. App. D. C. 309, 740 F.2d 980, 1000 (D.C. Cir. 1984), cert. denied, 470 U.S. 1005, 84 L. Ed. 2d 380, 105 S. Cr. 1359 (1985); see MCI Communications Corp. v. American Telephone & Telegraph Co., 708 F 2d 1081, 1106-07 (7th Cir.), cert. denied, 464 U.S. 891, 78 L. Ed. 2d 226, 104 S. Cf. 234 (1983); Mid -Texas Communications Systems v. American Telephone & Telegraph Co., 615 F.2d 1372, 1386-87 (Sth Cir.), cent. denied, 449 U.S. 912, 101 S. Ct. 286, 66 L. Ed. 2d 140 (1980); Watson & Brunner, Monopolization by Regulated "Monopolies": The Search for Substantive Standards, 22 Antitrust Bull. 559. 565-63 (1977). In many [**651 regulated industries, each purveyor of service, regardless of absolute size, is In a monopoly position %%ith regard to its customers. . . . For these reasons, the size of a regulated company's market share should constitute, at most, a point of departure in assess- ing, the existence of monopoly power. Ultimately, that analysis must focus directly on the ability of the regu- lated company to control prices or exclude competition -- an assessment which, in turn, requires close scrutiny of the regulatory scheme in question. MCiCOmmunicationsCorp., 708F.2dat1107(footnote omitted). See, e.g., Travelers insurance Co. v Blue Cross, 361 F Supp, 774. 780 (W. D. Po. 1972) (com- pany was not a monopolist since it lacked control over rate-makin-o mechanism), aff'd, 481 F.2d 80 (3d Cir.), cert. decried, 414 U.S. 1093, 38 L. Ed. 2d 5S0, 94 S. r 9�-r b-) U � 665 F. Supp. 1493. *1519; 1987 U.S. Dist. LEXiS 6926, °"65, 1987-2 Trade Cas. (CCH) P67,741 C1. 724 (1973): Redwing Carriers, lnc. r. Mctien. ie Tank Lines, Inc.. 443 F Supp. 639, 641 (N. D. Flo. 1977), aff'd, S94 F 2d 114 (Mi Cir. 1979) (where price for transportation of itern is set bs regulator' agency, fact that one shipper may ohmin a monopoly is irrele- vant since price will be timitfectedi: Yankm hospital rr. Michigan 1 *'66J hospital Seri'icc. 361 F. Supp. 1199, 1209-10 & n.33 (E.D. Vich. 1973) (company does not possess 1*15201 rnonopol\ pm%er since rates are con- trolled and actively reviewed by state insurance com- mission). The fact that a defendant may have had the largest share or the entire share of a market may not be sufficient alone to establish monopoly power if state or federal reg- ulation prevented the defendant from having the power to restrict entry or control prices. MCI Conunfill ications Corp., 708 F.2d at 1107. In spurt, we must also examine the realities of the regulatory scheme. Southern Pacific Commtcrrications Co., 740 F2d ar 1001. If pricing and interconnection decisions are left to the defendant rather than to the regulatorsaccnc� in the first instance, then it cannot fairly be said that a regulatory agency prevented a defendant from controlling price or excluding competi- tion. Id. Additionally, costs and delays imposed by the regulatory process must be considered barriers to entry. id. "The defendant's innocence or blameworthiness, however, has absolutely nothing to do with whether a condition constitutes a barrier to entry." Id. Applying this regulator\ analysis (**671 to the case at bar, we must consider in sutra whether the overwhelming statistical evidence as to Defendant's monopoly power was rebutted by any evidence that City Gas was unable to control prices or exclude competition. City Gas ad- duced little evidence regarding the effects of regulatory agencies, if any, on its ability to control price or exclude competition. A review of the evidence presented by both parties has led us to conclude that City Gas did indeed have monopoly power. First, although the FPSC approves City Gas' rates in the wholesale market for the resale of natural gas, City Gas, like AT & T. proposes the rates in the first instance, reaches an aetccrrnew with the hu,. er cumpan�. and then simply submits the agreement to the FPSC for its ap- proval. Moreover, because Fla. Siat. § 366.03 (1985) states that natural gas utilities shall not be required to resell gas, it is unclear whether the FPSC could compel City Gas to sell at any particular rate. Second, FERC, the federal regulator of wholesale natural gas, does not control intrastate sales of natural _cis. Thus, City Gas cannot rely on this regulator in asserting ,iny son of reg- ulatory defense. Rather. it .ippears that City 1- 68) Gas was able to resell gas at will. e,sentially without regula- Page 77 iory imern'ention. We find on this record that City Gas had the power to control prices and exclude competition in the wholesale natural gas market. As to the retail market, it is clear that the FPSC regu- lates City Gas' rates to customers and the entry of new suppliers into the retail natural gas market. However, because a potential entrant into this market must obtain a natural gas supply first, from either FGi' (after receiving a FERC allucatiun) or from City Gas, the fundamental realities of the situation arc that City Gas has signifi- cant control over price and entrants to the retail market. This is further evidenced by the fact that the FPSC has approved two resale gas agreements to which City Gas is a party -- one for one cent per therm over cost and one for seven cents per therm over cost -- without any apparent reason for this disparity. These additional costs are then passed on to the consumer, suggesting that the fee City Gas sets is actually reflected in retail rates. This indicates that the regulatory, scheme is structured in such a manner that at least some retail pricing decisions are made by City Gas in (**691 the first instance. We find that City Gas had substantial power to control prices in the retail natural gas market. 'Are also find, significantly, that City Gas had monopoly power due to the presence of high barriers to entry. Costs and delays imposed by the regulatory process are important barriers to entry. Southern Pacific Communications Co., 740 F.2d at 1001. This issue was addressed in United States v. American Telephone & Telegraph Co.: (A) persuasive showing has been made that {AT & T has) monopoly power (wholly apart from FCC orders with respect to interconnection) through various barri- ers to enir. such as the creation of bottlenecks, en- trenched customer preferences, the regulatory process, large capital requirements, access to technical informa- tion, 1* 152 11 and disparities in risk. These factors, in combination with the evidence of market shares, suffice at least to meet the government's initial burden, and the burden is then appropriately placed upon defendants to rebut the e-istence and s4mific:utce of barriers to entry. On that h;isis, the defendants' regulatory defense to the government's claim of monopoly power must and will be rejected. S24/**701 F. Supp. 1336, 1347-48 (D.D. C. 1981) (foot- notes omitted). The natural gas industry also presents any newcomer with the requirement of large initial cap- ital outlays. lengthy construction programs and regula- tory delays. such as those experienced by Consolidated in obtaining a natural gas allocation from the FERC. These entry barriers, combined with City Gas' over - pi 2 665 F. Supp. 1493, *1521, 1987 U.S. Dist. LEXiS 6926, **70; 1987-2 Trade Cas. (CCH) P67,741 whelming market share, compel a finding of monopoly power. Furthermore, although City Gas did not squarely assert a regulatory defense to monopole power, we find, on the basis of the rcgulawry scheme evidence which was presented, that am, such defense %%ould be rejected. In sum, Citv Gas had nuonopoh poa er in the relevant market. D. intent to Nlonopohm The existence of monopoly power in the relevant mar- ket, however, does not by itself prove the offense of actual monopolization. A monopolist's behavior is not unlawful unless the monopolist has engaged in the "will- ful acquisition or maintenance of that power as distin- guished from growth or deg clopt;ent as a consequence of a superior product, business acumen, or historic ac- cident." United States t. Grinnell Cori)_ 384 U.S. 563, 570-71, 16 L. Ed. 2d 778. S6 S. 1**711 Ct. 1698 (1966) (emphasis added). A general intent to monopo- lize is all that is ordinarily required in monopolization cases. United Staes r. Griffith, 334 U.S. 100, 107, 92 L. Ed. 1236. 68 S. Cr. 941 (1948), overruled on other grounds, Coppenreld Corp. v. independence Tube Corp., 467 U.S. 752, 81 L. Ed. 2d 628, 104 S. Ct. 2731 (1984). A specific intent to restrain competition or to achieve a monopoly is not required. Id. in un- regulated settings, the precise dimensions of the general intent standard have been the subject of considerable litigation and varying formulas. See United States 1: United Shoe Machlner Corp., 110 F Supp. 295, 342 Q. Mass. 1953), aff'd per curiam. 347 US. 521, 74 S. Ct. 699, 98 L. Ed. 910 (1954). Some courts, build- ing upon Judge 1-earned Hand's opinion in United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945), have concluded that monopolistic conduct can be presumed from the possession of monopoly power un- less the accused business demonstrates that its market power was "thrust upon it." Id. at 429. Under this ap- proach, if the ordinary business conduct of a dominant firm leads to the acquisition or maintenance of [**721 monopoly power, that conduct is presumed to reflect the requisite monopolistic intent. This approach, however. has been specifically re- jected when attempting to identify monopolistic con- duct by a regulated utility. See, e.g.. MCI Communications Corp.. 708 1721f at 1108: Watson & Brunner, Monopolization by Regulated "Monopolies": The Search for Substantive Stand;trds. 22 Antitrust dull. 559, 575-79 (1977). The r:itinnalc behind this finding is that in many regulated industries, anticipating and meeting all reasonable demands for service is a statutory obligation. MCI Cautntrurcatiatrs Corp.. 708 F.2d at 1108. Consequently. "to apply the Alcoa presumption Page 78 to such conduct would be tantamount to holding that ad- herence to a firm's regulatory obligation could, by itself', constitute improper willfulness in a section 2 monopo- lization case." Id. Thus, at least one court has suggested that in cases rnyok ing a regulated utility the plaintiff must pro%e that each of the allegedly anticompetitive acts was done with the intent to maintain a monopoly in the relevant market. Id. One commentator,, who also suggests that the Alcoa standard should be abandoned when dealing \%ith (**731 regulated utilities, suggests that in developing atn appropriate standard three concerns should he addressed: First, "conduct that implements a clearly articulated public policy against competition in a particular industry should not be the kind of exclusion- ary conduct that demonstrates willful monopolization." Watson & I3nrnner. (*15221 supra, at 577. Second, ac- tions or refusals to act (such as expanding facilities to meet anticipated growth in demand) required because of status as a public utility should not be deemed predatory conduct, id. at 578. Third, reasonable actions legiti- mately taken by a regulated utility to protect its ability to provide reliable service to its customers should not be deemed evidence of improper intent. id. at 579. It is in the context of these concerns that the Seventh Circuit found that "'something more than general intent should be required to establish a Sherman Act violation'" when dealing with a regulated utility. MCI Communications Corp., 703 F.2d at 1108 (quoting City of Mishawaka v. American Electric Power Co., 616 F.2d 976, 985 (7th Cir. 1980), cert. denied, 449 U..S. 1096, 66 L. Ed. 2d 824. 101 S. Ct. 892 (1981)). [ * *74] In the instant case, as we shall discuss at length, cer- tain aspects of the anticompetitive conduct at issue, we believe, are not regulated by any state or federal agency on a consistent basis. Consequently, it is unclear to us that we need go as far as the NlCI Communications Corp. court in declaring that to establish intent, each allegedly anticompetitive act must be proven to have been done with the intent to maintain a monopoly. Nevertheless, we conclude that in fact this is the case. Thus, whether we apply a general intent standard, something "more than general intent." or indeed even a specific intent standard, eye find that Consolidated has proven the req- uisite intent. As for the public utility concerns raised by Watson and Brunner, we address the first and third issues as defenses to the specific types of anticompetitive con- duct to tyhich they relate: the second issue is simply not anticompetitive conduct upon which our decision rests. City Gars has demonstrated an intent to monopolize the relevant market through a number of individual acts and admissions of its intent. Principally, we shall ad- dress the following acts: (i ) City Gas' 1960 territo- rial agreement whereby the 1**751 parties agreed not to J -- `2 0 .«i 665 F. Supp. 1493, *1522; 1987 U.S. Dist. LEXiS 6926, **75; Page 79 1987-2. Trade Cas. (CCH) P67,741 compete with each other in the sale of natural gas in Florida; (2) City Gas' refusal to sell or transport nat- ural gas to Consolidated at a reasonable price; and (3) City Gas' efforts to ;lcqutrC Crmwlidatcd in order to eliminate it as a potential conlpentor. PVC also diSCUSS the following acts which, \%c hchc%c. \%hen viewed to- gether with the pi incipal acts, are still further evidence of City Gas' intent to monopolize: i 1 t City Gas' use of its monopoly pov cr to acquire \'anor;U ule and %firarnar, two small potential corrlpcutors: t2 t City Gas' inter- vention in Consolidated's FERC proceeding to oppose Consolidated's application for a natural gas allocation; and finally (3) City Gas' use of price discrimination to take Consolidated's customers by not charging them City Gas' customary contribution in aid of construction to ex- tend service to them. E. The Willful Acquisition of Monopoly Power: The Territorial Agreement The division of markets by competitors is a restraint of trade and is prohibited hs § I of the Sherman Act. 2 Jon Kalinowski, Antitrust Laws and Trade Regulations § 6F.Oi (1986). The practice of allocating territories be- tween competitors at the same (**761 level of the market structure (horizontal market division) is seen as having no purpose other than the elimination of competition and is deemed illegal per se. See, e.g., United States v. Topco Associates, •105 U.S. 596, 607-08, 31 L. Ed. 2d 515, 92 S. Ct. 1126 (1972). For although courts generally utilize a "rule of reason" approach in evalu- ating the legality of restraints alleged to be violative of the Sherman Act, certain business relationships are con- sidered to be so uniformly anticompetitive that they are deemed to be per se violations of the Sherman Act with- out regard to am consideration of their reasonableness. Id. at 607. Justice Black e\plained the need for per se rules: There are certain agreements or practices which be- cause of their pernicious effect on corpetition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate in- quiry as to the precise harm they have caused or 1 * 15231 the business exAuse fur their use. Zhu principle of per se unreasonableness not on1% the type of restraints which are proscribed bs the Shernmil Act more certain to the benefit of eserone .oncenled. but it also 1**771 avoids the necessity for an incredibly complicated and prolonged economic intiesu atinn into the entire history of the industry involved. as well as related industries, in an effort to determine m lane whether a particular restraint has been unreasonable--. ,in inquiry so often wholly fruitless when undertaken. Id. (quoting Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5, 2 L. Ed. 2d 545, 78 S. Ct. 514 (1958)). "It is only after considerable experience with certain business relationships that courts classify them as per se violations of the .5herman Act.' Topco, 405 U.S. at 607-08. One of the classic examples of a per se iolation of § I of the Sherman Act is horizontal market division. 1d. of 608. Moreover, if as a result of hor- uonial market division a company acquires monopoly power, it also violates § 2 of the Sherman Act. Such are the allegations in this case. See United ,States v. Grinnell Corp., 384 U.S. 563, 5 76, 16 L. Ed. 2d 778, 86 S. Cf. 1698 (1966). As we have detailed already, in September 1960, Defendant City Gas entered into a territorial agreement with Peoples, which delineated distinct natural gas ser- vice areas for each of 1**781 these principal competi- tors; each company bound itself not to compete in the other's territory. In accordance with its terms, the agree- ment was submitted by the parties to the Florida Public Utilities Commission (now the "FPSC"), which gave its formal approval and observed that such agreements were in the public interest and should be encouraged. In 1962 Peoples filed a claim in circuit court alleging that City Gas had violated the 1960 agreement. City Gas responded by asserting, among other things, that the agreement was void as violative of Florida's an- titrust laws and the Sherman Act. The case proceeded through the Florida state court system, and, in 1965, the Florida Supreme Court upheld the agreement. City Gas Co. v. Peoples Gas Svstenr, 182 So.2d 429 (Fla. 1965). The court concluded that the FPSC had adequate implied authority under Chapter 366, Florida Statutes, to validate such an agreement. Id. at 436. The court also found that Florida's antitrust laws were designed to prohibit only unreasonable restraints on trade, and that the public did not need the state's antitrust 'laws to protect it against this type of agreement because the pub- lic interest was adequately protected (**791 by Chapter 366, Florida Statutes. The coup concluded that although the agreement could result in monopolistic control, the FPSC's statutory powers over the regulated companies t%ere more than sufficient to present monopolistic pric- ing, production and quality of service. Id. at 435. In upholding the agreement, the court did not specifically address the applicability of the Sherman Act. City Gas now claims that because the FPSC ap- proved the territorial agreement and because the Florida Supreme Court upheld this agreement against an attack based on the Florida aniitrust laws, the agreement is nec- essarily immune from attack under the federal antitrust laws. Defendant argues that its conduct here was rea- OR 1 665 F. Supp. 1493. *1523; 1987 U.S. Dist, LEXiS 6926, 0179; 1987-2 Trade Cas. (CCH) P67,741 sonable, and authorized by the Florida Supreme Court, and therefore lawful. [is analysis ends with that point. While horizontal market division is normally consid- ered a per se violation of the Sherman Act, the so-called "state action" exemption in fact %%ill inununi7c certain types of conduct Irotrt antitrust lioNlo. And syhile not squarely asserted by the Drfendara beyond the citation of the Florida Supreme Court case, this issue is indeed a serious one requirinL thorouch anal+sis. 1•"801 The state action doctrine exempts from antitrust lia- bility acts by the state or these that bear a close relation- ship to state power or authority. The doctrine originated with Ptzrker v Brown, 317 U.S. 341, 87 L. Ed. 315, 63 S. Ct. 307 (1943). In Parker, a state statute for mar•• keting raisins restricted cormpetition among growers and maintained prices to packers. 1i1. at 3i5. An action was commenced [* 15241 against state officials seeking to en- join them from enforcing the raisin marketing program. The Court held that the Sherman Act did not prohibit the state from impostne this restraint on competition since it was an act of goycrrrrmertt. The Parker decision was based on the principle of preemption. 0 Von Kalinowksi, Antitrust Laws and Trade Regulations 9 46.02 (1986). The critical issue was whether Congress, in enacting the Sherman Act, had intended to occupy the field of state - sanctioned anticompetitive activity. Id. The Supreme Court concluded that it had not. and thus that the leg- islative interests of the stairs had to be accommodated. 317 US. at 35 2. The Parker doctrine has evolved in recent years through a number of cases. Two requirements for state [**81] action immunity have emerged: first, the anti- competitive conduct must be undertaken pursuant to a clearly articulated and affirmatively expressed policy of the state to displace competition: and. second, the anti- competitive conduct must he actively supervised by the state. California Retail Liquor Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 63 L. Ed. 2d 233, 100 S. Ct. 937 09SO,i- n' This test applies to actions brought acainst pri\ ate parties as well as those brought against the state O ficials Mio implement the conduct. Soutltertt .tlovu Ccnnev\ Rate Conference, Inc. i�. United States, 4171 1'.S. 48. `6-57, S5L. Erl. 2d 36. 105 S. Ct. 1721 (19851- n n2 In California Retail Liquor Dealers Association v. Midcal Aluminum. Inc., a %vine distributor chal- lenged California's resale price maintenance and price posting statuses for the wholesale wine trade as violative of the 51jerrnuu : tc t. 445 U.S. 97, 99, 100 S. Ct. 937. h.i L. Ed. 2d 233 (1980). The Court stated that its dCCiiionS had established Page 80 iwo standards for antitrust immunity under Parker v. Brown. "First, the challenged restraint must be ,one clearly articulated and affirmatively expressed as state policy'; second, the policy must be 'actively supervised' by the State itself. Id. at 105 (citation omitted). The Court found that the legislative policy in Midcal Aluminum forthrightly stated its purpose to permit resale price maintenance; accordingly, the first standard had peen met. The program, how- ever, did riot meet the second requirement for Parker immunity because "the State simply authorizes price - setting and enforces the prices established by private parties. The State neither establishes prices nor re- views the reasonableness of the price schedules; nor does it regulate the terms of fair trade contracts. The State does not monitor market conditions or engage in any 'pointed reexamination' of the program." Id. at 105-06 (footnote omitted). Without such super- vision, the Court found that the plan was subject to the antitrust laws. J-821 n3 in Southern Motor Carriers Rate Conference, Inc. v. United States, the most recent Supreme Court case to address this issue, private carriers formed a rate bureau that submitted joint proposals on rates to state regulatory agencies. 471 U.S. 48, 105 S. Cf. 1721. 85 L. Ed. 2d 36 (1985). State laws permit- ted joint proposals but did not require them. 471 U.S, at 50. The Supreme Court held that the activ- ity was immune from antitrust attack. M. at 66. The Court reasoned that Parker did not require com- pulsion because Parker was an attempt to reconcile state displacement of competition with federal an- titrust goals, and requiring compulsion would force a higher degree of state anticompetitive conduct. Id. at 61. Southern Motor Carriers, however, presented the Court with one unusual twist. For al- though the North Carolina, Georgia and Tennessee statutes expressly permitted collective ratemaking, Mississippi's statutes did not specifically address collective ratemaking. Id. at 63. The Court noted that Mississippi did give its public service commis- sion the authority to reauhate common carriers and tite power to prescribe just and reasonable rates. From this the Court reasoned as follows: "Che legislature thus made clear its intent that in- trastate rates would be determined by a regulatory agency, rather than by the market. The details of the inherently anticompetitive rate -setting process, how- ever, are left to the agency's discretion. The State Commission has exercised its discretion by actively 0 5 - ".1 M 665 F. Supp. 1493, •1524; 1987 U.S. Dist. LEXIS 6926, '•82; 1987-2 Trade Cas. (CCH) P67,741 encouraging collective raternakine among common carriers. We do not helicve that the actions petition- ers took pursuant to this regulatory program should be deprived of Parker tmnunitV Id. at 63-64 tcttaiwn omittedt. Accordingly, since the proposals w re submitted pursuant to statutes which permitted collective raternaking or pursumit to a statute which cleark articul:ned the state's intent to displace price competition among carriers with a regulatory structure, the first prong of the Midcal Aluminum test was met. The second prong of the Midcal Aluminum test was conceded. Id. at 66. [•'83l The rules of state action may be sununarized as fol- lows. When a state acts [ • 15251 in its sovereign capacity, its actions are immune from federal antitrust scrutiny. Parker, 317 US. at 352 (act of state legislature is act of state). "When a state legislature adopts legislation, its actions constitute those: of the State. ." Hoover v. Ronwin, 466 U.S. 558, 567-68. SO L. Ed. 2d 590, 104 S. Ct. 1989 (1984). n4 Additionally. "a state supreme court, when acting in a legislative capacity, occupies the same position as that of a state legislature." Id. at 568. See .Bates v. State Bar, 433 US. 350, 359-63, 53 L. Ed. 2d 810, 97S. Ct. 2691 (1977) (state supreme court rule that restricted advertising b\ lawyers is act of state). n5 Contra Goldfarb t. tie itrkt State Bar, 421 U.S. 773, 775, 793, 44 L. Ed. 2c1 572, 95 S. Ct. 2004 (1975) (enforcement by state bar of courty bar's minimum fee schedule for lawyers is not act of state). n6 When a state acts in its sovereign capacity, it is unnecessary to apply the two -pronged Mideal Aluminum test; the act is simply immune from the antitrust laws. n4 In hoover v. Ronwin, an unsuccessful can- didate for the bar alleced that the Committee on Examinations and Admissions had set grading crite- ria to limit the entrance of new attorneys rather than to measure their competence. 466 U.S. 558, 204 S. Ct. 1989, 80 L. Ed. 2d 590 i MW). The Supreme Court held that the action of the Committee was im- mune because the action of the Ci)mmitice was that of the state itself. let. tit 570. The Court reasoned that "although the Arizona Supreme Court necessar- ily delegated the adtmmsimnon of the admissions process to the Conunutee. the court itself approved the particular ,radin,, Immula and retained the sole authority to determine %% ho :,houdd be admitted to the practice of law in Arizona." /d. (it 573. As a result, the Court found it unnecessary to address whether the policy was clearly articulated and affirmatively Page 81 expressed state action. [cf. of 569. The Court fur- ther stated that if the same activity had been carried out by private parties pursuant to state authorization, then the two-part Midcal Aluminum test would have been applied to ensure that the conduct was contr_m- plated by the state. Id. tit 568-69. [..84) n5 In Bates v. State Bar of Arizona, as a part of its regulation of the bar, the Arizona Supreme Court had promulgated a rule against advertising by lawyers. 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977). The Supreme Court upheld the rule because it was the "affirmative command" of the Arizona Supreme Court which had adopted, supervised and enforced the rule, thereby acting as sovereign. The Court deemed it significant that the "state, policy [was) so clearly and affirmatively ex- pressed and that the State's supervision [wall so ac- tive." Id. at 362. n6 1n Goldfarb v. Virginia State Bar, a case that involved the publication of a minimum fee schedule for lawyers of that state's bar, the Court found that mere enforcement by the state bar of a county bar association's minimum fee schedule was not the act of the state as sovereign even though the bar was a state agency for some purposes. 421 U.S. 773, 790-91, 95 S. Cr. 2004, 44 L. Ed. 2d 572 (1975). The Court stated that the anticompetitive activities were not "compelled by direction of the State acting as a sovereign." Id. at 791 (emphasis added). The Court looked to state statutes and state supreme court ethical opinions and found no evidence of compul- sion. Id. at 790-91. This compulsion requirement was only renounced recently by the Supreme Court in Southern Motor Carriers. Even without the com- pulsion requirement, however, it has been suggested that the result in Goldfarb would not differ. Southern Motor Carriers Rate Conference, Inc., 471 U.S. at 61. For although the State Bar was empowered to oversee the practice of' law, it is unlikely that the state intended price tiring to be one of its specific poe�ers. See Lopatka. State Action and Municipal Antitrust Immunity: An Economic Approach, 53 Fordhaat L.Rev, 23, 39-40 (1984). Thus, Goldfarb still would not meet the first prong of the Midcal Aluminum test for state action immunity. 4•g1 But Mien the anticompetitive activity is carried out by privme parties pursuant to state authorization, which includes authorization by n state agency, both parts of the hlidcal Aluminum test must be satisfied. Southern L W 665 F. Supp. 1493, *1525; 1987 U.S. Dist. L.EXiS 6926, **85; 1987-2 Trade Cas. (CCH) P67,741 Motor Carriers, 471 US. at 60-63. "This requirement insures that the anticompetitive conduct be actually in- tended by the state as part of its regulatory scheiric." 6 Von Kalinowski, Antitrust L m s and Trade Regulation § 46.04[31 (1986). See So;ohern ,tl(uor Carriers. 471 U.S. at 65-66 (collecti%e r.itcniakiiig %ia state public ser- vice commissions, permitted b\ statute in three states and permitted pursuant to cic;tily articulated state policy in fourth state, is ininninr faoni the ;wit Trust laud: New .Motor !'chicle Board %. Omn W hat% Co., 4.39 U.S. 96, 109, 58 L. Ed. 2d 361. v9 S. Cr 403 (1978) (state [*15261 agency's decisions \%ere outside reach of an- titrust laws because state statute's regulatory scheme was clearly articulated and designed to displace competition in the relevant area). n7 Contra Midcal Aluminum, 445 U.S. at 105-06 (although legislative policy clearly artic- ulated purpose to permit resale price maintenance, the program was [**861 not inintune from the antitrust laws due to inadequate state super- ision); Cantor v. Detroit Edison Co., 428 U.S. 579, 5S4-55. 49 L. Ed. 2d 1141, 96 S. G. 3110 (1976) (electric utility's free light bulb tariff which was approved b% public service commission was not exempt from the antitrust laws because there was no evidence of any state policy or statute relating to light bulbs). n8 n7 In New Mo(cr V:hicle Board v. Orrin W. Fox Co., the Court reviewed a state law (the Automobile Franchise Act) which give an existing auto dealer- ship the right to petition a state agency if a manu- facturer attempted to create a new dealership in the same area. 439 U S. 96. 99 S. Ct. 403. 58 L. Ed. 2d 361 (1978) The ,tare awzency could refuse to allow the new franchise. The Court held that the decisions of the agency %%ere outside the reach of the antitrust laws because the Act's regulatory scheme was "a system of regulation, clearly articulated and affirmatively expressed, designed to displace unfet- tered business freedom in the matter of the establish- ment and relocation of :automobile dealerships." Id. at 109. [**871 n8 The Court addre„cd anticompetitive activity carried out by priviic p;irncs in Cantor v. Detroit Edison Co., %%her, the 50prcnle Court held that a public utility's program of distributing free light bulbs to customers %was not initnune from antitrust attack despite the fact that the program was set forth in a tariff approved b\ the site. 428 U.S. 579, 96 S. Ct, 3110. 49 L E.I. ?d 1141 (1976). The Court stated that the statc's participation in adopt- ing and impienienting the anticompetitive conduct must be dominant in order to immunize such con - Page 82 duct from the Sherman act. in this case there was no statute authorizing the regulation of light bulbs; indeed, there was no evidence of any state policy re- lating to light bulbs. /d. at 584-85. Therefore, the Court found that this conduct was not immunized front the Sherman Act. in the instant case, the territorial agreement was ap- prm ed by a state agency, possibly pursuant to Chapter 366, Florida Statutes. The restraint was not approved by a state legislature or by the state supreme court acting as sovereign. Consequently this conduct must satisfy [**881 both parts of the Midcal Aluminum test in order for it to be immune from the antitrust laws. We must decide \.%ficther the FPSC, a nonsovereign state agency, acted pursuant to a clearly articulated and affirmatively expressed state policy in approving the territorial agree- ment, and whether such agreements are actively super- vised by the FPSC. 1. The First Prong: No Clearly Articulated State Policy The FPSC derives its power from Chapter 366, Florida Statutes. This Chapter defines a public utility to include any supplier of Pas - natural, manufactured or similar gaseous substance -- with exceptions which are not relevant here except that, notably, a person supply- ing LP gas is not a public utility. Fla. Stat. § 366.02 (1985). Tile powers of the FPSC with respect to public utilities are enumerated in § 366.05. They include the following powers: (1) In the exercise of such jurisdiction, the commis- sion shall have power to prescribe fair and reasonable rates and charges, classifications, standards of quality and measurements, and service rules and regulations to be observed by each public utility; to require repairs, im- provements, additions, and extensions to the plant and [**89] equipment of any public utility when reasonably necessary to promote the convenience and welfare of the public and secure adequate service or facilities for those reasonably entitled thereto: to employ and fix the com- pensation for such examiners and technical, legal, and clerical employees as it deems necessary to carry out the provisions of this chapter; and to prescribe all rules and regulations reasonably necessary and appropriate for the administration and enforcement of this chapter. Conspicuously absent from this broad list of powers is any reference to establishment of territories or resolution of territorial disputes. However, as noted in Southern Motor Carriers: A private party acting pursuant to an anticompetitive 9 9 - 7�l� L 665 F. Supp. 1493, *1526; 1987 U.S. Dist. LEXIS 6926, **89; 1987-2 Trade Cas. (CCH) P67,741 regulatory program need I•►5271 not "point to a specific, detailed legislative auQuuizarion" for its challenged con- duct. Lajay to v. Louiciima Anicr & Light Co., 435 U.S. at 415, (opinion of BRENNAN, 1.). As long as the State as sovereign clearly inicnds to displace com- petition in a particular field w all a rc.:ulaton' structure, the first prong of the Midcal test is satisfied. . . . If more detail than a clear intent to displace 1**901 competition were rcqutred of the legislature. States would find it difficult to implement through regulatory agencies their anticor;ihetitive policies. Agencies are created because they are able to deal with problems un•• foreseeable to, or outside the competence of, the legis- lature. Requiring express authorization for every action that an agency might find necessary to effectuate state policy would diminish, if not destroy, its usefulness. Cf. Hallie v. Eau Claire, ante, at 44 (requiring explicit leg- islative authorization of anticompetitive activity would impose "detrimental side effects upon municipalities' local autonomy"). Therefore, we hold that if the State's intent to establish ari anncompetirive re-_ulaton program is clear, as it is in Mississippi. the State's failure to de- scribe the implementation of its policy in detail will not subject the program to the restraints of the federal an- titrust laws. 471 U.S. at 64-65 (footnote omitted). It is clear from Chapter 366 that the Florida legisla- ture intended to substitute competition between public utilities for a regulmon• program which would include foreseeable anticompetitive effects. This is particularly clear from [**911 the list of powers which the FPSC has over public utilities. Although the focus of the list seems to be on rates, it includes quality of service and repair language as well. The case present)\• before this Court may be in some measure analogous to Southern Motor Carriers. In Southern Motor Carriers, the public service commis- sion had broad authority to prescribe rates but lacked specific authority to allow collective ratemaking. The Court held that specific authority was not necessary be- cause the legislature unendM th:u rates would he set by a regulatory agenc,,•, and that �ullectne ratemaking was just one detail of this utliercrnly anticompetitive rate - setting process. 471 L'.S in 63-6-4. Arguably, the same could be said about Horida's ratemaking struc- ture. Nevertheless. we are convinced that the power to authorize territorial agreements, which by their pur- pose and effect exclude competition \+ithin defined geo- graphic boundaries. is not Nimply a detail of the FPSC's explicit authority to re�til:ue rates, of to require repairs and improvements. or to hire employees or fix compen- Page 83 sction for examiners. Moreover, there is nothing un- foreseeable about the creation or regulation of territorial I**921 agreements not io compete in regulated indus- tries such as this one. This is particularly true where, as we note below, the Florida legislature has expressly and affirmatively given the FPSC the power to establish and regulate exclusive territories in such related public utilities as the telephone industry, water and sewer util- ities, and rural electric cooperatives. The most that can be said here is that territorial agreements, although not mentioned at all in Chapter 366 as to natural gas utilities, have an undisputable effect upon rates. in one FPSC or- der which addressed proposed tariffs and the resolution of a natural gas territorial dispute, the FPSC analyzed how each company's rate of return would be affected if it received or lost the territon• in question. In re: Tariff filed by Miller Gas Company and in Re: Petition of City Gas Company, Docket Nos. 850115-GU, 850118-GU, Order No. 15268, 85 FPSC 10:205 (October 18, 1985). The FPSC noted that loss of the customer "would force Stiller to seek significant increases in the rates to its residential and commercial customers." Id. at 3. "Agency approval may be undoubted in fact, clearly authorized by state law, and [**931 yet not constitute an expression of state policy that is meant to be contrary to the federal antitrust laws." i P. Areeda & D. Turner. Antitrust Law para. 214b (1978). One method which commentators have suggested [*1528) to determine leg- islative intent is the "central purpose" test. Id. at para. 214b4. Professors Areeda and Turner have noted that the primary objective of most state public utility regula- tions is the prevention of consumer exploitation by the regulated industry. Thus agency approval might mean that in the agency's judgment consumers are not injured by the practice, rather than that the practice is neces- sary to increase consumer welfare. In reviewing the instant territorial agreement, however, it is clear that the FPSC thought that the agreement was necessary to in- crease consumer welfare. The FPSC has stated numer- ous times that territorial agreements are in the public interest because they "will minimize, and perhaps even eliminate. unnecessary and uneconomical duplication of plant and facilities, . ." Order No. 2948, Docket No. 6081-EU: see, c.,.. Re Florida Abner Corporation, 78 P. U.R. 3d 411, 412 (FPSC 1969); Re Florida Power & Light Co.. 71 P.U.R. j**9413d 362, 364 (FPSC1967). Consequently. an application of the central purpose test at least suggests that territorial agreements may be part of the FPSC's central purpose in regulating the natural monopoly characteristics of natural gas. There is, however, powerful contrary authority which leads us to the conclusion that the legislature did not intend to_ive the FPSC the power to approve territo- �"" ri4u L Page 84 665 F. Supp. 1493, *1528; 1987 U.S. Dist. LEXIS 6926, **94; 1987 Trade Cas. (CCH) P67,741 rial agreements between natural gas companies. In the first place, in other FluritLt ',(elutes dealing with spe- cific utilities, the legislature iflirniatt%ely gave the FPSC the power to establish cC:lusi�e tcrruories fur telephone companies (Fla. Slat. o-i 135- ). n9 and water and sewer utilities ('I5")] �1 1a. S;at. § 367.04l .055), n10 and to resolve territorial disputes I)erwcell rural clec- triccooperalives(Fla Sint. 36604). rillBvvirtueof the fact that the legisl;mue ,pecifca1IN addressed these utilities, it can be untphed, as a sound rule of statutory construction, that it ,kould have included such a pro- vision for natural gas companies if it had intended to delegate such powers. See, e g., J. Rav McDermott & Co. r. Wssel MorningStar, 457 F. 2d 815, 818 (5th Cir.), [**951 cert. denied. 409 U.S. 948, 93 S. Ct. 292, 34 L. Ed. 2d 21 S r1972) ( "Where Congress has carefully employed a term in one place but excluded it in another, it should not be implied %here excluded."); State Highway Cotnrni.ssiolt r. V4Ipe, 479 F.2d 1099, 1114 (Sth Cir. 19'?) t '' here Congress has consis- tently made express its ticic,2 :uion of a particular power, its silence is strong es idcrnce that it did not intend to grant the power.'" (citations omi(ted)); tbestern States N",spapers, Inc, v. Gehringer, 203 Cal. App. 2d 793, 22 Cal. Rptr. 144 (1962); 2A Sutherland Stat. Const. § 51.02 (401 ed. 1984); see also Shell Oil Co. v. Federal Energ3• Administration, 1 *15301400 F. Supp. 964, 968 (S.D. Ter. 1975), alVd, 527 F.2d 1243 (Temp. Emerg. Cf. App. 19,"5t ( All intentional omission of a word is evidence that Congress did not intend to grant a power which the inchtsion of the word would have given." (citations omitted)(. n9 The relevant portion of Fla. Stat. § 364.335 (1985) provides as follows: Application for certificate. (1) Each application for a certificate shall: (a) Provide all information required by rule or order of the commission. cs hich may include a detailed in- quiry into the abilit% of the applicant to provide ser- vice, a detailed inquire, inter the territoryand facilities involved, and a detailed tncluitl into the existence of service from other source: ,.c ithin geographical prox- imity to the terriior% :ipphed for. (4) The commission nia% grant a certificate, in whole or in pan or with nutdilicauuns in the public interest, but in no event training authorit• greater than that requested in the application or amendments thereto and noticed under subsection or it may deny a certificate. The conunrc.sion shall not grant a certifi- cate for a proposed telephone company, or for the extension of an existing telephone company, which will be in competition with or duplicate the local exchange services provided by any other telephone company unless it first determines that the existing facilities are inadequate to meet the reasonable needs of the public and it first amends the certificate of such other telephone company to remove the basis for competition or duplication of services. T'he com- mission (nay, hov ever. Grant such a certificate for a proposed telephone company, which will be provid- ing competitive or duplicative pay telephone service only without determining that existing facilities arc inadequate to meet the reasonable needs of the public and without amending the certificate of another tele- phone company to remove the basis for competition or duplication of services. Pay telephone service shall include that telephone service using telephones that are capable of accepting payment by specie, pa- per money, or credit cards. Fla. Slat. § 364.337 (1985) provides as follows: Duplicative or competitive services. (1) When the commission grants a certificate to a telephone company for any type of service that is in competition with or that duplicates the services provided by another telephone company, the com- mission, if it finds that such action is consistent with the public interest, ma : (a) Prescribe different requirements for the company than are otherwise prescribed for telephone compa- nies: or (b) Exempt the company from some or all of the requirements of this chapter. (2) In determining whether the actions authorized by subsection ( 1 ) are consistent with the public interest, the commission shall consider: (a) The number of firms providing the service; (b) The ggeographic availability of the service from other firms; (c) The quality of service available from alternative suppliers: (d) The effect on telephone service rates charged to customers of other companies: and (e) Am- other factors that the commission considers relevant to the public interest. (3) Each amount paid by an interexchange telephone company to a telephone company providing local ser- vice 1'ur use of the local network shall be deducted from gross operating revenues for purposes of de- terruining the amount of the regulatory fee assessed the imerexchange telephone company pursuant to s. 350.113. �- V W Page 85 665 F. Stipp. 1493, *1530; 1987 U.S. Dist. LEXiS 6926. **96; 1987-2 Trade Cas. (CCH) P67,741 [**961 n10 The relevant portion of Fla. Star. § 367.041 (1985) provides as follows: .Application. Each applicant for a certificate shall: (1) Provide inform;,tion required by rule or order of the commission. %k hich ntav include a detailed in- quiry into the abilttof the applicant to provide ser- vice, the territory and facilities involved, the need for service in the tcrritor involved, and the existence or non-existence of service front other sources within geographical proximity to the territory applied for; The relevant portion of Fla. Star. § 367.051 (1985) provides as follows: Issuance of certificate. (2) If, within 20 days following the official date of filing, the commission receives from the public counselor a governmental agency, or from a utility or consumer who would be substantially affected by the requested certification, a written objection request- ing a proceeding pursuant to s. 120.57, the commis- sion shall order such proceeding conducted in or near the territory applied tier. if feasible. Notwithstanding the ability to object on an other ground, a county or municipal government has standing to object on the ground that the issuance of the certificate will vio- late established local comprehensive plans developed pursuant to ss. 163.3161-163.3211. If any con- sumer, utility, or governmental agency or the public counsel requests a public hearim-, on the application, such hearing shall. if feasible, be held in or near the territory applied for: and the transcript of such hearing and any material submitted at or before the hearing shall be con,idercd as part of the record of the application and m% proceeding related thereto. (3)(a) The commission ntc+s' grant a certificate, in whole or in part or %%nth modifications in the public interest, but rna% in 110 ckent _,rant authority greater than that requested m the;Ipplic:ttoil oran-lendntents thereto grid noticed under s. 367.041, or it may deny a certificate. The commission shall not grant a cer- tificate for a proposed system, or for the extension of air existing system. %\hich \\ril be in competition with, or a duplication of, any other system or por- tion of a system, unless it fire determines that such other system or portion thereof is inadequate to meet the reasonable needs of the public or that the person operating the system is unable. refuses, or neglects to provide reasonably adequate service. The relevant portion of Fla. Star. § 367.055 (1985) provides as follows: Application for deletion of territory. (1) Each applicant for deletion of territory shall: (a) Provide the information required by rule or or- der of the commission. «hich may include a detailed inquiry into the ability or lack of ability of the ap- plicant to provide service, the need or lack of need for service in the territory sought to be deleted, and the existence or non-existence of service from other sources within geographical proximity to the terri- tory sought to be deleted. [**971 nl l The relevant portion of Fla. Stat. § 366.04 (1985) provides as follows: Jurisdiction. (d) To approve territorial agreements between and among rural electric cooperatives, municipal elec- tric utilities, and other electric utilities under its ju- risdiction. However, nothing in this chapter shall be construed to alter existing territorial agreements as between the parties to such agreements. (e) To resolve any territorial dispute involving ser- vice areas between and among rural electric coopera- tives. municipal electric utilities, and other electric utilities under its jurisdiction. In resolving territorial disputes, the commission may consider, but not be limited to consideration of, the ability of the utilities to expand services within their own capabilities and the nature of the area involved, including population, the degree of urbanization of the area, its proximity to other urban areas, and the present and reasonably foreseeable future requirements of the area for other utility services. Furthermore. in a recent FPSC Order, the FPSC it- self questioned its authority [**98) to resolve territo- rial disputes between natural gas companies but decided the Petitions before it without reaching this issue. In re: Tariff filed by Miller Gas, 85 FPSC 10:205 at 5-6 (October 18, 1985). The FPSC stated: h is not clear that this Commission has the statutory authority to either establish exclusive service territories for natural -las utilities (as it does for telephone, wa- ter and sewer utilities) or resolve territorial disputes be- tween natural -las utilities (as specifically authorized for 09-- "12 �1 665 F. Supp. 1493, *1530; 1987 U.S. Dist. LEXiS 6926, **98; 1987-2 Trade Cas. (CCIi) P67,741 electric utilities). However. our resolution of this ques- tion is not necessar in \ ickk rf our finding iliat Stiller is the appropriate utility to sees WASA's natural gas re- quirements for both tic water pumps and the time kiln. id. This authority seems it) piok ide an cs cn stronger in- dication that the Florida lu_-tslature did not intend to give the FPSC the power to approve territorial agreements between natural gas companies Moreover, a review of FPSC decisions regarding this territorial agreement shows that the FPSC has known for at least 14 years that this agreement might violaic the federal antitrust laws, See In rc: ln\cstic,ttion of Territorial Agreement Between [**99] Peoples Gas System and City Gas Co., Order No. 5495. Docket 720.70-GU (July 25, 1972), as modified by Order No. 5S00 (July 11. 1973). Despite its initial concern, how ever, on rehearing, the FPSC dis- tinguished the cases which had found territorial agree- ments to be violative of the aniitntst laws and reaffirmed its position that it had the authority to approve these agreements. Noiabl}, the FPSC stated that City Gas contended "that due to recent legal developments it is now clear that the territorial a ,recment is invalid under the federal antitrust law arcs that this Commission should not put itself in the position of ordering the Respondents to continue to adhere to ant unlaw ful agreement." Order No. 5495 at 2. Of particular significance is the authority the FPSC cites as the source of its power to approve territorial agreements. it cites not Chapter 366 or any other state statute, but the Florida Supreme Court's decision in City Gas Co. y. Peoples Gas System, 182 So.2d 429 (Fla. 1965). Indeed, the FPSC has cited this case for this proposition in numerous cases involving territorial agreements. See, e.g., Re Florida Fbuver Corp., 78 P.U.R. 3d 411, 412 (FPSC 19691; Re Florida (**100] Power & Light Co., 71 P U R. 3(1362, 364 !FPSC 1967). State supreme court authority. however, does not form the basis for a clearly articulated suite policy except when the court acts in its le�,islatis e capacity. In the Cily Gas Co. case relied upon, tite Nord i Supreme Court was acting in its judicial capacw.. it did not by alfrrinativc command adopt, supenisc grid enioicc its own rule. Consequently, this decision canno, form the basis for state action immunity. For the same reason, the other Florida Supreme Court c:iscs which uphold territorial agreements and are cited b% Defendant are not control- ling. See, e g., Store% i .t w.o. 217 So.2d 304 (F7a. 1968), cent. denied. 39- 1-' S 40,/, 2. L. Eel. gel 222. 89 S. Cr. 1751 (1969). Peoples Gies sistent I.. ,Hasa(, 187 So.2d 335 (Flu. 19t o). Being mindful that Midcal Aluminum requires that the FPSC act pursuant to a clearly articulated and af- Page 86 rrrmalively expressed state policy, we cannot say that such a policy exists in view of the legislature's specific grant of similar power to the FPSC with regard to other utilities and the pronounced absence of such an express grant with respect to natural gas companies. While in tits 1- 1011 ahwnce of these ic-islati e enactments such a position might at least be arguable in light of Southern Motor Carriers, when these enactments are considered, as we think they must be. we do not think that even un- der the most liberal reading of Southern Motor Carriers that a clearly articulated state policy to allow approval of territorial agreements by the FPSC can be found. [* 15311 It is not for the federal courts to question why a state legislature chooses to state expressly a policy re- garding territorial agreements as to some utilities and not as to others. Rather, it is for us to note only that such a clearly expressed state policy does riot exist in Florida as to natural gas territorial agreements. If the Florida legislature wishes to establish such a policy, it is free to do so. But for us to imply that the legislature intended to make such a statement about so important a matter would create the kind of interference with state sovereienty which Parker was intended to prevent, 2. The Second Prong: Absence of Active Supervision of Territorial Agreements Turning to the second part of the Midcal Aluminum test, (tee issue becomes whether the FPSC actively [ ** 1021 supery ised territorial agreements between nat- ural gas companies. "The adequate supervision crite- rion ensures that state -federal conflict will be avoided in those areas in which the state has demonstrated its commitment to a program through its exercise of reg- ulator• oversight. At the same time, it guarantees that when the Sherman Act is set aside, private firms are not left to their own devices." 1 P. Areeda & D. Turner, Antitrust Law para. 213a (1978). In order to meet this test, super ision does not have to be rigorous. Id. at para. _' 13c. An allegation "that state officials cus- tomarily 'rubber stamp' the self -interested decisions or reconttrtcndations of cite private parries involved should not ordinariis oust Parker immunity." Id. However, in situations Miele a rrgul:ued firm submits tariffs to an agenc}. and the tariffs take effect unless the agency dis- approves client, Parker immunity will not lie. Id, at para. 2131. Agency inaction will not satisfy the active superytsi.vt requirement. A few case> have :uldressed how much supervision is adcquatr. Al ()tie end of the spectrum is Midcal Aluminum where the state simply enforced the prices established b\ priyaie parties. 1**1031 445 U.S. of 105- 06. The Court held that this did not meet the requirement Of active supervision. Some supervision was required in �V L 665 F. SuPp. 1493, *1531. 1987 U.S. Dist. LEXiS 6926, **103; 1987.2 Trade Cas. (CCH) P67.741 Coin Call, inc. V. Southern Bell Telephone & Telegraph Co., where the court found that es en assuming the coin telephone tariff was in laree mca�ane produced by defen- dant's initiative. that it met the x•:ond pronZ of Midcal because the PSC acne ck cntorccd the original tariff and participated in its res iswn. 6: 6 F Supp 60S. 614 (N.D. Ga. 1986). In ano?her case, a district court found that a city did not acti�cly super\ise a private company to whom it had granted the Cx:1HII\c right to perfornt electrical inspections Miere the city exercised control over standards, methods and/or practices employed by the private company in its inspections but maintained no control over the private party's fees. Englert v. Ciry of McKeesport, 637 F. Supi?. 930. 933 (1,VD. flu. 1986). Last, in Tambone v. ;Memorial Hospital, a court found that hospital peer re%ic\s actions acre not actively super- vised by the state. 635 F Supp. 508, 514-15 (N.D. 111. 1986). The court stated that although the Department of Health had access to peer review materials, inspectors were [**1041 not obligated to inspect these materials. Thus, there was no rcl-ular organized supervision of the peer review process. Little evidence of the FPSC's supervision of territorial agreements was adduced during this trial. it is clear that territorial agreements are not required to be submitted to the FPSC to become effective, but that when they are submitted, the FPSC %%ill act upon them. It also appears from a review of FPSC orders regarding this agreement, that the FPSC enforces the aereement or considers its re- vision, after a hearing, only when someone complains to it or petitions for a review of the agreement. The FPSC does not review the agreement on its own initia- tive. Thus, as the FPSC seems to supervise territorial agreements only on a sporadic basis. the FPSC does not appear to have mct even the less rigorous Coin Call, Inc. adequate supervision standard. Unlike the situa- tion in Coin Call, inc., �%e have been presented with no evidence that the FPSC actively enforces the territorial agreements it appro%es, 1' 15321 or that it participates in the revision of such apreenlents. It s,e apply the more rigorous Enelebert or Tambone sianda d• the FPSC def- initely [**105] would not be seen as engaging in active supervision. There is no evidencC iliat the FPSC has established any standards (or (he :nation of territorial agreements or that territorial a ,rcements are reviewed on a regular basis in the absence kit a petition by a party or utility customer for reconsideration. On this record, we find that the FPSC does not adCquately super ise nat- ural gas territorial aurecntents and accordingly, we must conclude that the second prong of the \Iidcil Aluminum test has not been met. Because we have found that Cite Gas has monopoly power in the relevant market, and that it acquired that Page 87 power by virtue of a territorial agreement that was not immune from the scope of the antitrust laws, we con- clude that City Gas has violated § 2 of the Sherman Act. For in the absence of state action immunity, a territorial agreement, even one between regulated utilities, is a per se violation of the Sherman Act. See, e.g., Gainesville Utilities Department v. Florida fbxer & Light Co., 573 F 2d 292. 299.300 (5th Cir. 1978), cent. denied, 439 U.S. 966. 58 1.. Ed _'d 424, 99 S. Ct. 454 (1978); Pennsylvania t4itter & Po„ver Co. %,. Consolidated Gas, Electric, Light & fbtcer/**1061 Co., 184 F2d 5.52, 558 (41h Cir.), cert. denied, .340 U.S. 906, 95 L. Ed. 655, 71 S. Cr. 282 (1950); accord Montana -Dakota Utilities Co. is il•tllianis Electric Cooperative, 263 F.2d 431 (8th Cir. 1959). F. The Willful Maintenance of Monopoly Power: Refusals to Deal; Other Predatory Acts Consolidated also has contended that City Gas' failure to negotiate in good faith a reasonable rate for natural gas sales or transportation amounts to an illegal refusal to deal in violation of § 2 of the Sherman Act. We agree and conclude that Defendant's refusal to deal with Plaintiff in the context of this case is an even more compelling and altogether independent basis to sustain a finding that § 2 has been violated. In general there exists no duty to deal, so long as the decision not to deal is made unilaterally. See, e.g., Associated Press >. United States, 326 U.S. 1, 14-15, 89 L. Ed. 101 3, 65 S. Ct. 1416 (1945); United States v. Colgate & Co., 250 U.S. 300. 307, 63 L. Ed. 992, 39 S. Ct. 465 (1919). This rule was enunciated by the Supreme Court: "in the absence of any purpose to create or maintain a monopoly, the [Sherman] act does not restrict the long, recoenized [**1071 right of trader or manufacturer engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he a ill deal." 250 U.S. at 307. Where a firm is a monopolist, however, additional obligations are imposed %\hich would not attach in the ordinary re- fusal to deal context. Bvars v. Bluff Ciry News Co., 609 F2(1843. 855 6th Cir. 1979). Consequently, Section 2 violations have bcett fined where a firm with monopoly power at one IO CI of the distribution chain refuses to deal with competitors at another level of the distribution chain, in order to drive these companies out of busi- ness so that the monopolist can integrate vertically and achieve a monopoly at both levels. See, e.g., Otter Tail fairer Co. v United States, 410 U.S. 366, 35 L. Ed. 2d 359, 93 S. Cr. 1022 (1973); AIC1 Communications Corp.. 708 F 2d 1081. There are two distinct lines of cases which have im- 09- 7�u Page 88 665 F. Supp. 1493. `1532; 1987 U.S. Dist. LEXiS 6926, •• 107; 1987-2 Trade Cas, (CCH) P67,741 posed a duty to deal upon a monopolist -- the "essential facilities" doctrine, or 'bottleneck" theory, and the "in- tent" test. Under either theory use think Plaintiff has proven a violation of § _`. 1. The Essential F;icilitirs Doctrine To begin with, the essential facilities I"1081 doctrine teaches that, when a NISltless controls a scarce facility, it assumes an obligation to provide its competitors reason- able access to that facility. Byars, 009 F2d at 856. A refusal to deal in this context may be unlawful because it could result in the monopolist extending its power vertically from one Icycl of production to [11533) an- other. MCI Corrmunicarions Corp., 708 F2d at 1132. The doctrine originated \yith United States v. Terminal Railroad Association, 224 U.S. 383, 56 L. Ed. 810. 32 S. Cr. 507 11912). where a group of railroads acquired ownership over the only feasible terminal for rail traf- fic coming to St. Louis from the West. The Supreme Court ruled that the terminal owners had to make the fa- cility equally accessible to all users. Over the years, the doctrine has been applied in a variety of contexts. See Otter Tail R)wer Co. v. United States, 410 US. 366, 35 L. Ed. 2d 359, 93 S. Ct. 1022 (1973) (utility that had monopoly over wholesale electric power market vi- olated § 2 by refusing to sell to competitors); Associated Press v. United States, 326 U..S. 1, 89 L. Ed. 2013, 65 S. Ct. 1416 (1945) (A.P's b}•latys restricting member- ship by competitors [" 1091 of existing members struck down as unreasonable restraint on competition): Byars v. Bluff City Nests Co.. 609 F 2d ,Sa, t61h Cir. 1979) (wholesale periodical distributor that refused to continue selling to a small jobber because it wished to take over the jobber's business violated § _'): hoods Etptoration & Producing Co. v. Aluminunn Co. of America, 438 F2d 1286 (5th Cir. 1971), cert. denied, 404 US. 1047, 30L. Ed. 2d 736, 92 S. Ct. 701 (1972) (defendants hin- dered plaintiff from extracting natural gas front a field by refusing access to transport facilities, pooling arrange- ments or a right-of-way ): Six Tu enn -.Fine Productions, Inc. v. Rollins Telecasting. Inc.. 365 F2d 418 r5th Cir. 1966) (focal radio station refused to pay normal com- mission for material prepared h} :tit IdVerhsim., agency, effectively refusing to deal .�ith It is Prtck41.�Cd Progranns, Inc. v. Westinghouse Broudcasun; Co., 255 F2d 708 fad Cir. 1958) (factual issue whether television station's refusal to accept a competitor's film programs ��as done in the exercise of business iudgntew or to eliminate com- petitor); Gantco, Inc i Pro%idence Fruit & Produce Building, Inc., 194 F2d 48.1 t Ist Cir. I, 1-* 1 101 cent. denied, 344 U.S. VI 7. 97 1_.. F_d. 636. 73 S. Ct. I1 (1952) (defendants had to proytde equal access to their cornmercially unique bwldin': hot% cyer, denial of access to competitor would be proper if done for valid business reason) Recent developments in the telecommunications in- dustry have further refined the essential facilities doc- trine. In SiCI Communications Corp., the Seventh Circuit found that "it x%as technically and economically feasible. for AT & T to have provided the requested interconnections, and that AT & T's refusal to do so constituted an act of monopolization," because AT & T controlled an `esscntial facility" for the establishment of long distance scr ice -- the local exchange service which brought the lu,t__ distance signals to and from individual businesses and residences. 708 F2d at 1133. The court stated: The case law sets forth four elements necessary to es- tablish liability tinder the essential facilities doctrine: (1) control of the essential facility by a monopolist; (2) a competitor's inability practically or reasonably to du- plicate the essential facility; (3) the denial of the use of the facility to a competitor; and (4) the feasibility of providing [``I111 the facility. Hecht v. Pro -Football, Inc., 187 U.S. App. D.C. 73, 570 F2d 982, 992-93 (D.C. Cir. 19171, cert. denied, 436 U.S. 956, 98 S. Ct. 3069, 57 L. Ed. 2d 1121 (1978). Id. at 1 132-33 (additional citations omitted). This test was applied by the Tenth Circuit in Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 738 F2d 1509, 1520-21 (10th Cir. 1984), aff'd, 472 US. 58S, 86 L. Ed. 2d 467. 105 S. Ct. 2847 (1985). In Aspen, the operator of one of four skiing facilities in Aspen, Colorado brought an antitrust action against the ownerof the other three facilities alleging that the latter's refusal to continue a joint marketing of an "all -Aspen ticket" vi- olated § 2. The court found that the defendant controlled an essential facility (3 of the 4 mountains), that plaintiff could not easily duplicate the facility due to regulatory restrictions, delays and expenses, that defendant denied the use of the facility to plaintiff, and finally that it was feasible for defendant to provide access to the facility. The Supreme Court affirmed the Tenth Circuit but found it unnecessar to rely on the essential ["1534] facilities doctrine, 472 US. 585. 600, 1**1121 105 S. Ct. 2847, 86 L. Ed. 2d 4e)7 tI9S-i). An application of the A1C1 Communications Corp. four-part test to the facts of this case yields a similar re- sult. First. Cir Gas, a monopolist, controlled an essen- tial facility -- a pipeline that transported wholesale gas. Prior to 1984, Mien Consolidated received a FERC a] - location. Consolidated could not have purchased whole- sale gas from anyone except City Gas. After 1984, Consolidated could have purchased from City Gas or FGT, but would have encountered a prohibitive trans- L 665 F. Supp. 1493, *1534; 1987 U.S. Dist, LEXIS 6926, "112; 1987-2 Trade Cas. (CCH) P67,741 portation problem if it had chosen the latter. A lateral pipeline connecting Consolidated's facilities to the FGT main would have cost S 250,000, or approximately five cents per therm. There is gra%e doubt as to Ahethcr Consolidated could have effectively competed with City Gas based on these additional eypenses, and there is also a serious question as to \%hether the FPSC would have approved such an increased cost based on in uneconom- ical duplication ref City Gas' existing line. This concern leads us to the second part of the MCI Communications Corp. test -- whether Consolidated could practicably or reasonably duplicate the essential facility. In the AT Q. T line 1``113) of cases. dupli- cation of the local exchange facilities would obviously be much more expensive than duplication of City Gas' lateral pipe. In Otter Tail, a case \%hich is factually more similar to this case than are the AT & T cases, however, the Court did not even suggest that the munic- ipalities should attempt to duplicate the electric trans- mission lines. Although the Court did not indicate the cost involved, we believe this to be highly supportive of a finding that such facilities cannot be reasonably dupli- cated. In Aspen Skiing Co., the Tenth Circuit found that duplication was unreasonable "due to regulatory restric- tions, and delays, and the expense and time required," 738 F.2d at 1521. The same is true here. Consolidated should not have had to wait two years to eet FERC approval for a natural gas allocation. Additionally, it would have been unreasonable to require Consolidated to spend $ 250,000, which would potentially have made it uncompetitive %%iih City Gas, to duplicate City Gas' lateral pipe. "To be 'essential' a facility need trot be indispensable; it is sufficient if duplication of the fa- cility would be economically infeasible and if denial of its use inflicts a severe 1-11.11 handicap on potential market entrants." Hecht s. Pro-/ixuba!l. 1nc., 187 U.S. App. D.C. 73. 570 F2d 952. 992 D.C. Gr. 1977), cert. denied, 436 U.S. 956, 571_. Ed. 2d 1121, 98 S. Ct. 3069 I191St (footnote onittted). We find that such duplication would haze been impractical and un- reasonable and Aould have seyerel\. if not fatally, hand- icapped Consolidated's potential entry into the natural gas market. See. e.,,., Gainco. hie., 194 F 2d at 487 (unique produce buiidin_ %could he unrcasonable to du- plicate even though space s%as a%ailable nearbs i. The third part of the test requires that the monopo- list deny the use of the faciht% to the competitor. It is undisputed that City. Gas hats rc!Ws01 to trautsport _as for Consolidated. (Tr. 3-15.161. Additionally, City Gas agreed to sell gas oniv at 10 cents per therin over cost [Tr. 1-19-20; 3 I + 1 11, sshich was eventually reduced to 7 cents per therm. (Tr. 3-16-171. These unreason- able offers essentially antounied to a refusal to deal at Page 89 all. City Gas justified the latter, price as reawnable be- cause that is Meat it paid Peoples pursuant to an agree- ment between them Ahereby City Gas would serve a small area located within People's 1'*115) territory. We note, however. that pursuant to their territorial agree- ment, City and Peoples do not compete. Accordingly, this price cannot be viewed as an arm's length reason- able price. The evidence presented by Consolidated at trial suegested that a reasonable price was less than I cent per therm over cost. (-fr. 3-691, Although we do not decide exactly what a reasonable price would have been, it is absolutely clear from the gross disparity be- tween one cent and seven cents per therm, that City Gas' proposal amounted to a refusal to deal. In Aspen Skiing Co., the Tenth Circuit similarly dealt with an unreasonable offer that constituted a refusal to deal. There, defendant offered plaintiff a 12.5% share of joint revenues for the 1978-79 ski season. [* 15351 In the past plaintiff's share had never fallen below 13.2% based on surveys, and 15.8% based on actual usage. 472 U.S. at 590 & n.5. Defendant admitted that it had refused to deal with plaintiff (738 F2d at 1521). and that it had offered plaintiff a deal that plaintiff could not accept. 472 U.S. at 592. Although City Gas has not been quite so explicit, it is clear to us from the evidence in this case that City Gas' offer [**1161 of seven cents per therm was one which was unreasonable and which it knew Consolidated could not accept. Indeed, City Gas' Vice President Bail indicated that he made no at- tempt to ascertain a reasonable price for direct gas sales to Consolidated, and that he came up with the cost -plus - ten -cents terms "out of the air." Consequently, we find that the third part of the I ICI Communications Corp. test has been met. Last, NIC1 Communications Corp. requires that it be feaisible for the monopolist to provide its facility to plaintiff. In this case it is unconiradicted that it was tech- nically feasible for City to provide Consolidated with an interconnection ,ind that the flow of seas via the intercon- nection could he easily monitored. Although City Gas has alleged that Such an interconnection could deplete its potentially needed surplus supply of gas, City Gas' con- cerns are not Supported by the record, and after 1984, when Consolidated received its own gas allocation, these concerns became moot. Accordingly, we find that all four parts of the NIC1 Communications Corp. test have been met, and thus, that Consolidated has established that this case myolyes in essential facility. Because 1"1171 City Gas has been unable to present us with any legitimate justification for its actions, we find that its refusal to dead constitutes an unlawful maintenance of monopoly power in flat violation of § 2 of the Sherman Act. ear 0 l W I 665 F. Stipp. 1493, *1535: 1987 U.S. Dist. LEXIS 6926, *•117; )987-2 Trade Cas. (CCH) 1'67,741 There are, however, defenses available to one who controls an essential facility and consciously refuses to make it available to others. "Abso(ute equality of ac- cess to essential facilities . . Is not mandated by the antitrust laws." Southern 111crTc Communications Co. v. American Tcicphonc & Telegraph Co., 238 U.S. App. D.C. 309, 740 F2d 9St), IW9 (D.C. Cir. 1984), cert. denied, 470 US. I(k)5. 84 L. Ed. 2d 380, 105 S. Cr. 1359 (1985). in Terminal Railroad Association, the Supreme Court made .fear that access only need be af- forded "upon such just and reasonable terms and regula- tions as will, in respect of use, character and cost of ser- vice, place every such company upon as nearly an equal plane as may be with respect to expenses and charges as that occupied by the Imonopolist]." 224 U.S. at 411; see Torn o%,lfassena v. Niagara Mohawk Power Corp., 1980-2 Trade Cas. (CCI1) P63,526 (N. D. N. Y 1980) (monopolist need not provide preferential access [** 1181 to its facilities). In Becht, the District of Colombia Circuit found that the essential facility must be made available on "fair terms." but that the "antitrust laws do not require than an essential facility be shared if such sharing would be impractical or %kould inhibit the de- fendant's ability to serve its customers adequately." 570 F.2d at 992-93 (footnote omitted); see also United States v American Telephone & Telegraph Co., 524 F Supp. 1336, 1361 (D.C. Cir. 1981) ("problems of feasibil- ity and practicability may be taken into account by the Court in determining the sufficiency under the law of the access to essential facilities granted by defendants to non -Bell carriers"). Denials of access have also been justified based on a "regulatory defense. " In several rele- vant cases against American Telephone & Telegraph, AT & T claimed that it refused to provide interconnections to other carriers because of its duty to comply with 201(a) of the Communications Act (47 U.S. C. ; 201(a) (1976)). Section 201(a) stated that when presented with an inter- connection request, AT & T had to determine whether the interconnection would scree the public interest, before deciding whether to ["1 191 grant the request. Southern Pacific Communication, Co., 740 F 2d at 1009: Mid- Te.ras Communications S�sients v. .•Imerican Telephone & Telegraph Co . 615 F'd 1 3.19 i 5th Cir. i, cert. denied, 449 US. 912, !01 S. 0. 2V), 66 L. Ld. 2d 140 (1980). In order to assert successfully this defense, it is required [*1536) ihat the deniad he reasonable and made in good faith on that basis. rather than solely on the basis of competitive considerations. Southern Pacific Communications Co.. 740 F 2d at 1009. Notably, the justification of self-preservation has not been successfully asseried as a defense to denial of access to an essential facility. Otter Trail Poiter Co., 410 U.S. at 380-82. In Otter Tail, the defendant unsuccessfully Page 90 relied on this defense; the Supreme Court accepted the district court's conclusion that Otter Tail's fears were greatly exaggerated. Id. at 381. A number of utility cases provide close factual com- parisons to the case at bar. Of these cases, however, the facts of Otter Tail are most similar. In Otter Tail, a regulated electric utility refused to sell power wholesale or to transport power purchased from other sources (a procedure i * * 1201 referred to as "wheeling") to munici- palities which chose to own their own retail distribution systems. Otter Tail's policy was to acquire existing mu- nicipal systems within its service area. Additionally, Otter Tail would attempt to prevent municipalities from replacing it when their franchises with Otter Tail ex- pired. Between 1945 and 1970, twelve municipalities proposed to replace Otter Tail; only three were success- ful. ;Municipalities faced great obstacles in establishing their own systems. They had to purchase electricity at wholesale, and act that electricity transported to their customers. The only existing transmission lines in the area belonged to Otter Tail. and Otter Tail refused to sell or wheel power to them. Furthermore, Otter Tail invoked restrictive contract clauses so that municipalities could not obtain power from other sources. Last, it engaged in a pattern of harassing litigation against any municipality which de- sired to set up its own system. Interestingly, Otter Tail did deal with municipalities which had always had their own power companies. Only when an Otter Tail cus- tomer attempted to establish its own power system would Otter Tail retaliate. The district court [**) 21 J found that Otter Tail used its monopoly power to foreclose competition or gain a com- petitive advanta tie, or to destroy a competitor. The court found further that there were no engineering factors that prevented Otter Tail from selling wholesale power and "that Otter Tail's refusal to sell at wholesale or to wheel were softy to prevent municipal power systems from eroding its monopolistic position." Id. at 378. Otter Tail's only defense %%as that "without the weapons which it used, more and more municipalities will turn to pub- lic power and Otter Tail «1Il ;o downhill." Id. at 380. The district Lours rejected this argument as "not sup- ported by the record." Id. at 381. The Supreme Court affirmed. Id. at 382. Although the district court relied on both the essential facilities doctrine and the intent test in finding Otter Tail's refusal to deal to be illegal under 2. the Supreme Court combined both theories in its analysis. The facts presented in the instant case are remark- ably similar to those in Otter Tail. City Gas initially refused to sell natural gas to Consolidated, and then, M 1� 665 F. Supp. 1493, *1538, 1987 U.S. Dist. LEXIS6926, **126; 1987-2 Trade Cas. (CCH) P67,741 undue or unreasonable preference or advantage to any person or locality, or subject the same to any undue or unreasonable prejudice or disadvantage in any respect. (emphasis added). Although Cite Gas has not explained how this statute «ould insulate it from federal antitrust liability, apparently it is once again asserting state ac- tion immunity. Unlike the circumstances surrounding the territorial agreement. this statute affirrnati�ely ex- presses [**1_27] a state police. Two areas of concern, however, remain. First, it is not at all apparent as required by Town of Hallie v. Cite of F_au Claire, 471 U.S. 34, 42-44, 85 L. Ed. 2d 24, 105 S. Ct, 1713 U985), n12 that the legis- lature clearly contemplated this type of anticompetitive effect. The statute appears to ha.e been derived from Florida Futter & Light Co. v. State ee rel. Afalcohn, 107 Fla. 317, 144 So. 657 U932). There, the Florida Supreme Coun upheld a utility's refusal to provide gas to a landlord who proposed to buy it at wholesale, re -meter it, and resell it to his tenants at higher prices. Notably, the attorney general of the state appeared and argued in support of the utility. The attorney general's concern was that a decision in favor of the landlord might put the regulation of such services "beyond the control of the public authorities having, jurisdiction over the subject - matter of reasonable rates to consumers of public utility services." Id. at 659. This concern plainly would not be applicable to sales by a utility to another gas company, which would have to submit to FPSC regulation before it could resell to the public. n12 In Town of Hallie v. City of Eau Claire, plain- tiffs claimed that the city was trying to extend its ex- isting sewage treatment monopoly to a monopoly on sewage transportation services. 471 U.S. 34, 105 S. Cf. 1713, 85 L. Ed. 2d 24 (19,35), The city relied on a state statute which pro ided that a municipal- ity may by ordinance fix the limits of its service to unincorporated nreas. and shall have no obliga- tion to serve beyond the area so delineated. The Seventh Circuit upheld the Ctt\'s pracncrs because they were effectuated pursuant to a clearly articulated and affirmatively expressed state policy to displace competition, the fir prong of the ,1lidcaLlIII nlintan test. 700 F2d 376, 3S4-85 t7tlt Cir. 19S.it. The Supreme Court affirmed, but noted that the activi- ties were authorized. but not compelled, by the state, which did not actncl} �uperv:u them. 411 1," S. at 45-47. The Court acid than the fiat prong tit' Midcal Aluminum had been met hccau.r the statute showed that "the legislature contemplated the kind of action Page 92 complained of." id. at 44 (quoting Citv of Lafayette v. Louisiana i'$vrer & Light Co., 435 U.S. 389, 98 S. Ct. 1123, 55 L. Ed. 2d 364 (1978). The Court thus indicated that the test v.-as one of forsecability by the legislature of the anticompetitive acts that would follow. id. at 42-44. Additionally, for the first time (lie Court held that a municipality, unlike a private party, need not satisfy the second Midcal Aluminum prong. because absent it contrary showing, a munic- ipality presumptively acts in the public interest. Id. at 46. **128 Second, as explained in our discussion of the territo- rial agreement, we have found that the FPSC does not adequately supervise this type of anticompetitive con- duct for .purposes of the second prong of the Midcal Aluminum test. For example, based on the evidence presented, the FPSC has approved wholesale natural gas resale prices of both one cent over cost and seven cents over cost. No explanation has been offered for this dis- parity. Rather, the evidence here suggests that when an agreement between two gas utilities is presented to the FPSC, the FPSC normally approves it, assuming that the private parties have struck their best bargain. Again we find that City Gas' refusal to sell gas is not immune from the sweep of the Sherman Act. Moreover, and more important, by its own terms Fla. Stat. § 366.03 has no application at all to Defendant's refusal to trans- port gas. Thus City Gas' refusal to transport gas would be subject in any event to Sherman Act scrutiny. We also note that the facts in this case are not like those presented in NICI Conununications [*15391 Corp. with respect to intercity interconnections. MCI alleged that Bell's intercity lines were essential facilities. [**1291 In rejecting this argument, the court stated that the "ev- idence presented did not demonstrate either that the du- plication of Bell's intercity lines was economically infea- sible or that the denial of access inflicted a severe hand- icap on market entrants." 708 F2d at 1148. We have specifically made findings to the contrary in this case. Additionally. the \iCI Communications Corp. court found that "NCI's primary business was to build pre- cisely the type of facilities to which it sought access from the Bell System." Id. In the instant case Consolidated's priman business is to serve retail customers, and in- deed, its retail pipes are already in place. Consolidated is not ancmptin, to rater flee wholesale gas business, and it is access uv this type of pipe which it claims is essential. We agree. I. The Intent Test A second and independent basis for imposing § 2 an- e79— 7 4O 1 665 R Supp. 1493, • 1539; 1987 U.S. Dist. LEX IS 6926, •' 129; 1987-2 Trade Cas. (CCH) P67,741 titrust liability upon City Gas for its refusal to deal would be adetermination that Cite Gas' actions constituted suf- ficient evidence of an intent to niunopolize. "In addition to the cases finding liability for a refusal to deal %%hen an essential service is in%ckcd, there are cases which find liability \chcn a nu n pc l st's 1 " 1301 refusal to deal with a competitor is shoccn to be evidence of an illegal intent to destroy cwnpctition. These cases fo- cus on the intent and conthetitice effect of the refusal to deal; not on slicker the facility itself is 'essential.'" MCI Communications Ccrp.. 708 F. 2d at 1148(citations omitted). In Bears, the theoretical distinction between the intent theory and the essential facilities doctrine was said to be that 'the former focuses on the monopolist's state of mind while the latter examines the detrimental effect on competitors." 609 F2d at 556. in practice, however, often there are mane overlapping considera- tions. The intent test orizinated with United States v. Colgate & Co.. 250 US. 300. 63 L. Ed. 992, 39 S. Ct. 465 (1919), where the Court said that a business is free to deal with a homever it pleases so long as it has no 'purpose to create or maintain a monopoly." id, at 307. This test was applied in Eastman Kodak Co. P. Southern Photo Materials Co., 273 U.S. 359, 71 L. Ed. 684, 47 S. Ct. 400 (1927). There, Kodak had monopoly power over the national wholesale market for certain photo- graphic supplies. Kodak decided to vertically integrate and began buying ["` 1311 out retail distributors. When one distributor refused to sell out. Kodak refused to sell it photographic supplies at Miolesale prices. The jury found that Kodak had violated § 2. The Supreme Court affirmed despite the tact fiat the only evidence of mo- nopolistic purpose was Kodak's desire to buy out retail distributors and its inabilit% to provide a legitimate busi- ness reason for its actions. In Lorain Journal Co. v. l'nned States, a newspaper which was indispensable to local businesses refused to sell advertising space to CtiS10111er5 %cho bought adver- tising on a local radio station 342 U.S. 143, 72 S. Ct. 181, 96 L. Ed. 162 t19�7/v The Court found that this was designed to desirm the radio station, a competitor, and enjoined it as an illegal attempt 10 nwnopoh/e. The Iasi well-kno,,cn "intent" test case is OtterTid. 410 U.S. 366, 35 L. Ed. 2d .359. 93 S. Ct. 1022. As noted earlier, Otter Tail is also hased on the essential facilities doctrine. Because Otter Tail's conduct was predatory and desiened to .Iesiro% its compemor, however, the decision can be hosed also on the intent test. Finally, courts have also found i inotiopulist's refusal to deal 10 be unlawful where 1"13'1 the monopolist has acted to preserve its nonopoly. Sec:. e._.. Aister Evchange, inc. v. National Screcvt Seri ice Corp.. 4.31 F2d 334, 339 Page 93 (5th Cir. 1970). cert. denied, 401 U.S. 912, 27L. Ed. 2d 811. 91 S. Ct. S:SO (1971) ("National Screen inten- tionally used the monopoly power it had at the manu- faciurine level to eliminate Poster as a competitor at the distributor -jobber level."); United States v. Klearflax Linen Looms, Arc., 63 F Supp. 32, 39 (D. Minn. 1945) ("[monopolist) cannot refuse to sell if its design and pur- pose is to establish a wrongful monopoly.") 1"15401 This does not end the analysis. As with the essential facilities doctrine, there are defenses available to a monopolist. Specifically, antitrust liability will not be imposed without first examining business reasons which might justify a refusal to deal. See Sargent-l%lch Scientific Co. v, lhntron Corp., 567 F.2d 701, 712 (7th Cir. 1977). ceri. denied, 439 U.S. 822, S8 L. Ed. 2d 113. 99 S. Ct. 87 11979) (lawfulness of a monopo- list's termination of a dealer depends upon the purpose for which it aas done). "The rationale for this is that since we tolerate the existence of some monopolists, we [w.133) must eiye them some leeway in making business decisions." Bars, 609 F2d at 862 (citations omitted). See, e.e., International Railways of Central America I-. United Brands Co., 532 F2d 231,'139-40 (2d Cir.), cert. denied, 429 U.S. 835, 50L. Ed. 2d 100, 97S. Cf. 101 (1976) (defendant's refusal to deal lawful because it "had no reasonable business alternative but to abandon an unprofitable and uncomfortable operation."); Gamco, Inc. tt Providence Fruit & Produce Building, Inc., 194 F2d 484. 487-88 & n.3 (Ist Cir.), cert. denied, 344 U.S. 817, 97 L. Ed. 636. 73 S. Ct. 11 (1952) (de- fendants may deny access to their building because of limited space or the applicant's financial unsoundness). The instant case bears many similarities to the "in- tent" cases. First, City Gas' Chairman baldly admit- ted at trial that its actions toward Consolidated were intended to "protect its o%%n domain." He posited that if Consolidated were to receive an allocation of natural Pas to save its customers that it "would give every other propane dealer :i chance to request natural gas for their okyn development thnnt_,h the state . . . or the court - it},." [Tr. 3-161-1621. %toreover, City Gas' ["'1341 Vice -President Iran Ball, said basically the same thing. These statements stronLiv sugcest that City Gas' intent simply was to destroy competition. Second, similar to Kodak, City Gas' refusal to sell gas to Consolidated took Place after Cin Gas had determined that it wished to buy out Consolidated. We have found that City Gas' defenses for this action do not justify its behavior. furthermore, we note attain the similarity this case bears to Otter Tail. Otter Tail's unjustified refusal to sell or wheel electricity was found to show an intent to drive out competition. We find similarly that City Gas' behavior was designed to foreclose competition. Finally, City Gas has offered us 00- ''i2U 665 F. Supp. 1493. *1540; 1987 U.S. Dist. LEXIS 6926. **134; 1987-2 Trade Cas. (CCH) P67,741 no business justification for its refusal to sell or transport gas to Consolidated. Indeed, the evidcncc suggests that since City Gas' charce to Cowolidaicd would lie based on a cost-plus basis, tha! e%en a one -cent -per -therm rate would provide Cite Gas �%ith a substantial profit and minimal additional related expcn,es. Accordingly, al- though City Gas cenerall% niat be free to deal with whomever it pleases. %kc find based on a review of the record evidence, that ws real puri,ose here was to main- tain its [**1351 smorwpoly unlastifuliv, and conclude that its behavior constitutes -in illegal refusal to deal under § 2 of the Sherman Act. 3. Other Predatory Acts Consolidated offered proof at trial of a number of other acts by City Gas which it claimed were also exclusionary and anticompetitive. Consolidated need not prove every single act; rather, it must establish that City Gars has en- gaged in an overall pattern of anticompetitive behavior. in Aspen Highlands Skiing Corp. v. Aspen Skiing Co., 73SF.2d 1509 (10th Cir. 1984r, aff'd. 472 U.S. 585. S6 L. Ed. 2d 467, 105 S. Ct. 2847 (1985), the defendant argued that each of the "six things" on which plaintiff re- lied to demonstrate deliberate exclusion from the Aspen ski market must be supported by sufficient evidence for a § 2 verdict. The court rejected that argument and held: We cannot agree that each one of the "six things" which plaintiff argued demonstrated abuse of monopoly power, taken alone, must he supported by sufficient eN idence to find a § 2 violation. . . . Defendant's argument �%ould require that we view each of the 'six things" in isolation. To do this, however would be contrary to the Supreme Court's admonition [**1361 that our antitrust plaintiff "should be given the full benefit of [its] proof i%ithout ti htls compartmental- izing the various ] * 1541 J factual components and wiping the slate clean after scrutiny of each." Plaintiff's evi- dence should be � iewed :is a whole. Each of the "six things" vie%sed in isolanon need nut be supported by sufficient evidence to aumount to a § _' violation. Id. at 1522 it. 1,1 rcitatt0ti, 0muttech. The record has sho%%n additional evidence of Defendant's anticompetitive behavior. And although we do not hold that auy of the following acts standing alone -- unlike the terntori,,il a_reement rot to compete or the refusal to deal -- \k ould neces,ar0*G viola ie the Shernian Act, when viewed in coticert U ith the anticompetitive be- havior already discussed. the.\ further demonstrate City Gas' abuse of 11ii11i01)0k po\\er ,aid support a finding that City Gas has � iolated In this context. «e bche\e that Cite Gas' acts of ac- Page 94 quiring Nationwide and Miramar are evidence of its in- tent to eliminate any potential competitors. City Gas' efforts to acquire Consolidated further support this find- ing. \\'hile we make no specific findings here as to whether Cite Gas also violated [**1371 § 7 of the Clayton Act, a number of the factors associated with violations of this provision are present here. One such factor is an industry trend toward concentration -- cer- tainly a characteristic of the natural Pas industry in this region and. indeed nationwide. See Brown Shoe Co. is United Stares, 370 U.S. 294, 343-46, 8 L. Ed. 2d 510, 82 S. Ct. 1502 t1962); United States i. Kimberly-Clark Corp.. 264 F. Sapp. 439. 462-65 (N.D. Cal. 1967); United States is Kennecott Copper Corp., 231 F. Supp. 95, 102-05 (S.D.N.Y. 1964), aff'd per curiam, 381 U.S. 414, 85 S. Ct. 1575, 14 L. Ed, 2d 692 (1965). Another factor Much has often figured prominently in the appli- cation of'7 is the hi�,h market share of the acquiring firm. See. c.g., United States v. Phillipsburg National Bank c& Trust Co.. 399 U S. 350, 26 L. Ed. 2d 658, 90 S. Ct. 2035 (1970). United States v. Continental Can Co., 378 U.S. 441. 12 L. Ed. 2d 953, 84 S. Ct. 1738 (1964). In this rc�mrd, City Gas clearly dominates the relevant market for natural gas. Yet a further factor deemed rel- evant to horizontal acquisitions such as City Gas has carried out with respect to Nationwide and Miramar is the inelastic 1-*1381 nature of supply and demand in the market. 4 \on hahnowski, Antitrust Laws and Trade Regulation. ; 19.02,11 1 J 11908). Because natural gas in these circun,iances is bein_ used as a home fuel product such as for cooklne sled heating, the demand for it re- mains relatively constant except for seasonal variations. This inelatsiicin is also present in the supply of natural gas, as to which there is expected to be a large surplus for the foreseeable future. Without deli in,, further into an inquiry as to City Gas' possible violation of this Clayton .Act provision, we note that City Gas' acquisition of Miramar and Nationwide, as %ell as its putative acquisition of Consolidated Gas, provide addition:d evidence of the corporation's intent to nionopoliic the relcN ant market and eliminate compe- (ition. Consolidated ails) cl:unis that City Gas violated § 2 by intervenin in Consolidated's FERC proceeding to oppose Consohdated's application for a natural gas al- location. City Gas arues that the Noerr-Pennington Doctrine immunizes its opposition before the FERC e%e11 thou_li ,uch actions delayed Consolidated's efforts to obtain natural gas. Two Supreme Court decisions -- Fasters R.uhoad Presidents 1**1391 Conference v. Noerr.lhvoi Fiei;ht. Inc.. 36i U.S. 127, 5 L. Ed. 2d 464, S1 .S. 0. 523 1l vol i and United Mine Workers of America i. Penningtcut, 381 U.S. 657. 14 L. Ed. 2d rc �'4 0 665 F. Supp. 1493, *1541, 1987 U.S. Dist. LEXIS 6926, ••139; 1987-2 Trade Cas. (CCH) P67,741 626, 85 S. Ct. 1583 (1965) -- established the general rule that "lobbying and other similar concentrated efforts by businessmen to obtain legislative or executive action do not violate the antitrust larks, even though intended to eliminate competition or otherwise restrain trade." 6 Von KalinoMski. Antitrust Lases and Trade Regulation § 46A.01 (1986) ifooumic omitted). The rationale be- hind the doctrine is the belief that "public participation in the legislative process, no matter how selfish the par- ticipant's motivation, must be encouraged eycn at the expense 1.15421 of possible injury to competition. . . " id. Whether the Nocrr-Pennington defense is applicable or not, two facts are clear: first, Consolidated was severely damaged by the delay which occurred as a direct result of City Gas' intervention; and, second, City Gas' reason for opposing Consolidated's application was to protect its own domain. 1Tr. 3-161-162, 1741, Thus, although we do not hold that City Gas' intervention in the FERC ["1401 proceeding violated § 2, Me believe evidence of City Gas' m olives are derived from its offi- cers' statements retarding Consolidated's application. Finally, Consolidated has alleged that City Gas engaged in price discrimination to take away Consolidated's existing and prospective customers. Courts have long recognized that "'predaton• pricing' may be a means of obtaining or maintaining a monopoly position in violation of Section 2 of the Sherman Act . . . lanich Bros. r. .-Dnerican Distilling Co., 570 F2d 848, 855 (9th Cir 1977.). cert. denied, 439 U.S. 829, 58 L. Ed. 2d 122. 99 S. Ct. 103 (1978) (citing United States v. .4mericain Tobacco Co.. 221 L'.S. 106, 160, 182, 55 L. Ed. 663. 31 S. Ct. 632 (1911). and Standard Oil Co. r. Umied States. 111 US. 1. 43, 55 L. Ed. 619. 31 S. Ct. �702 tl y11 u. The essence of the violation is whether there has been "discrimination" in the prices charged by a seller to different purchasers. In the instant case, Cite Gas' Chairman testified that his orders were to charge Byer customer contributions in aid of construction when the cost of emendim! natural gas service to any customer ex.eeded the "feasibility rule," [Tr. 5-192-1931. 1"1411 Cif% G.is' `'ice -president tes- tified that the Chairrnan's orders were (ulkiMed. (Tr. 8-871. There is no conflict in the eyidcnce that City Gas generally charted "cuntrihunoiis in aid of con>rruction" to commercial customers Mien appropriate (Tr. 9-471 and that none of Consolidated's cununcrciail customers were required to cownhwe to City Gars' in,,tallations of the pipes to serve them. (Tr. 3-241-2431. City Gas' counsel stipulated at the trial that sonu: S 19,000 in contributions Mere required under ilie feasibility rule and had been waived by Cite Gas in extending service. Page 95 Expert testimony was adduced that the FPSC procedures require use of prior gas bills to calculate whether con- tributions in aid of construction arc required and that, because they were not used, City Gas' estimations of residential revenues were overstated by some 71 %, to make it appear that contributions were not required. [Tr. 5-116-1201. The only feasibility study produced by City Gas as to these customers had been prepared four months after this suit was filed and almost one year after the ser- vice had been extended. [Tr. 8-41. Again, we do not hold that City Gas' failure to charge contributions in aid of [ •* 1421 construction establishes a predatory pricing scheme necessarily sufficient to state an independent cause of action under § 2 of the Sherman Act, but we do find that this conduct, when viewed with other bchaviur of City Gas, is still further evidence of City Gas' intent to eliminate Consolidated, G. Damages The Supreme Court has acknowledged the uncertainty necessarily involved in proving damages in antitrust cases: "Tire vagaries of the marketplace usually deny us sure knoMledge of what plaintiff's situation would have been in the absence of the defendant's antitrust vi- olation." J. Truett Pa ne Co. v. ChrtslerMorors Corp., 451 U.S. 557. 566, 68 L. Ed. 2d 442, 101 S. Ct. 1923 (1981). An antitrust wrongdoer cannot defeat recovery by insisting on rigorous proof of damages. See Zenith Radio Corp. r. Hazeltine Research, Inc., 395 U.S. 100, 123, 23 L. Ed. 2d 129, S9 S. Ct. 1562 (1969). The amount of dama_,es can be determined by the trier of fact based on "a just and reasonable estimate . . . based on relevant data." Bigelow i. RKO Radio Pictures, Inc., 327 U.S. 251. 264, 90 L. Ed. 652. 66 S. Ct. 574 (19.161. Such ail estimate may include both "'probable and inferentc), 1=°1431 as well as direct and positive proof.'" Id. tcitations omitted). An antitrust plaintiff 1•15431 has a lesser burden of proof as to damages than do plaintiffs in other types of civil actions. See Zenith Radio Corp.. 395 U.S. at 123; Malcolm t: Lfarathon Oil Co.. 642 F 2,1 S45, S64 (5th Cir.), cert. denied, 454 U. S. I . ?i L. Ed. 2d 113, 102 S. Ct. 975 (1981). Our f0rnter Fifth Circuit in Malcolm, recognizing the "relaxed standard" in calculating damages in antitrust cases, sated: This relaxed standard is based on a recognition of the difficulty in reconstructing events that might have hap- pened but for the defendant's unlawful conduct. it is appropriate !hat if there is uncertainty, the defendant should bear the burden of that uncertainty because his unlawful actions created if. W 665 F. Supp. 1493. "1543; 1997 U.S. Dist. LEXIS 6926, '•143; 1987-2 Trade Cas. (CCH) P67,741 642 F,2d at 864. The 1=le\enth Circuit has adopted the rule set forth in the Malcolin case. Scc Graphic Products Distributors, Inc. i. Itek Corp., 717 F'd 1560, 1578- 79, 1580n.38 (11th Cir. 1983). We find that the evidence presented by Plaintiff's ex- pert, Mr. Ben Ball, whose testimom we have credited, meets this standard. \tr. 131-i11 presented this Court with ("" 144) a detailed formula %%high supported his determination of the diminution in Consolidated's going concern Value. Ball began by determining the net present value of the cash flow stream cencrated by each of Consolidated's customers during the relevant time period, subtracted costs \thigh Consolidated would have incurred, and added the present value of customers which Consolidated probably :could have obtained in the absence of City Gas' actions. Each of these calculations was based on detailed estimates of costs and revenues which were broken do\Vn for each item Ball considered. The six percent ant;ual ,_rovoli rate. :yhich Ball used to determine :ghat Con>oiidated's growth :could have been, was also supported by the tesnnionv of another expert, Mr. Starke. Finally. Ball's determinations of both Consolidated's actual Value and its lost profits were based on the precise arnount offered for the company by City Gas and the actual gross revenues collected by City Gas less costs. In sum. pie conclude that Ball's testi- mony amply meets the definiteness standard set forth in this Circuit for proof of antitrust damages. Consolidated seeks to recover both its lost profits dur- ing the period of (111451 City Gas' antitrust misconduct and the resulting diminution in the value of the business as a going concern. We rind that Consolidated is entitled to recover both of these types of damages. See Eiberger v. Sony Corp. of.•Ilnerica, 622 F'd 1068, 1081 (2d Cir. 1980); Carpa, lnc. v, iktrd Foods, Inc., 536 F.2d 39, 51 (5th Cir. 1976)• overruled on other grounds, Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d 542 (5th Cir. 1983); Atlas BuiGliu Products Co. i. Dia»]ond Block & Gravel Co., _'h'l F "d 950. 958-59 (10th Cir. 1959), cen. denied, 363 L'.S. S43. 4 L. Ed. 'd 1727, 80 S. Ct. 1608 0960;. :%ddition:illy. C011SOIi1ated is entitled to three times ;!it: :mt,+unt of dam3_,1rs proved. 15 U.S.C. § 15. Loss of Dine concern an inV, l:es irintsrih an evaluation of the platntill busnie�s' loss of good will as a result of the dtfend;nu's conduct. The Eleventh Circuit in Graphic Produ�:ts Distributors, Inc. y. lick Corp., succinctly ,rated the manner in which diminution in going concern :glue i; calcul;ued and the method by which it is proved Proof of the diminution in the going concern Value of Page 96 a business is ascertainable by comparing the fair mar- ket value of the business ('" 146) before and after the antitrust violation. See I'bllock & Riley, Inc, v. Nord Brci%ing Co., 498 F2d 1240. 1245 (5th Cir. 1974). cen. denied, 420 U.S. 992. 95 S. Ct. 1427, 43 L. Ed. 2d 673 (1975). Testimony of business appraisal experts as to :ghat a hypothetical willing buyer would pay a hy- pothetical willing seller on the open market would be one method of estiblishine loss in going concern value. 717 F. 2d 1560. 1580. n.37 (11 th Cir. 1983). N1oreover, in determining what the value of a business would have been in the absence of an antitrust violation, the "mar- ket share" theory tnay be used. This theory involves an estimation of the market share the plaintiff would have had but for the (°1544) defendant's unlawful con- duct. Based on the market size and an estimate of plain- tiff's likely profit margin, the total profits the plaintiff would haye earned if the estimated market share had been achieved are determined. Zenith Radio Corp. v. Hazeltine Research, inc., 395 U.S. 100, 116, 23 L. Ed. 2d 129. S9 S. Ct. 1562 (1969). This theory, which takes into account the projected expansion of the plaintiff's business in a market unaffected by the wrongful conduct, serves to (-147( compensate the plaintiff not only for the actual customers or business lost to the monopolist but also for the additional business plaintiff would have had but for the defendant's unlawful conduct. Furthermore, Consolidated may recover both lost past profits for Cite Gas' unlawful conduct and damages for the resulting diminution in its going concern value. This was made clear by the Tenth Circuit in Atlas Building Products Co. v. Diamond Block && Gravel Co,: The statute speaks of injury, to "business or property." And see Section 4 of the C1avton Act, 38 Stat. 731, 15 U.S.C.A. § 15. And, those words in their ordinary sense have been construed in terms of (1) the differ- ence, if any. between the amounts actually realized by the inirired party and %hat it Would have reasonably ex- pected to realize from sales but for the unlawful acts complained of. and t' i the extent to which the value of the petitioner ; property had beet; diminished as a result of such arts. %%c think both loss of profits in business and drnuirtshtncnt of the assets were proper elements of damage. and the trial Court did not err in so submitting the case to the iury. 269 F',1 950. 'iiS-5a (10111 Cir. 1"1481 1959), cent. denied. 3h.1 U.S. 843. 80 S, Ct. 1608, 4 L. Ed. 2d 1727 t1V60) (emphasis added) (citations and footnote omitted): accord. Eiberger v.. Sony Corp. of America, 622 F.2d 106S, 1081-S2 tld Cir. 1980); Carpa, Inc. v. {turd Foods, Inc.. 536 F2d 31), 51 (51h Cir. 1976), over- 0 665 F. Stipp. 1493. 01544: 1987 U.S. Dist. LEXIS6926 **148; 1987-2 Trade Cas. (CCH) P67,741 ruled on other grounds, Cooper Liquor, Inc. v. Adolph Coors Co., 701 F2d 542 f'Wi Cir. laS3r. Consolidated is entitled it rccoscr darmr_es from February 20, 195', aS that is the date uhcn the Board of Directors of C its G,is )ocused tic economic power of Citv Gas on Consoltdcned in a resolution authorizing Sid I -anger to attempt to acquire Consolidated -- prior to any discussions with Consolidated. Much planning and activity must lw%c t,ccutn:d prier to this date tthe minutes reflect Mr. Lan,_,cr's report that he was already attempting ro acquire (7on) aOhdared), but the elate of the meeting presents a reasonable starting point, based on solid evidence, for calculating the damages herein. Cf. Hoban Bros. v. Malcolm T Gilliland, lric., 471 F,2d 894, 903 (5th Cir.), ccrt. denied, 412 U.S. 923, 37L, Ed. 2d 150, 93 S. Ct. 2 1736 r1973,: Zenith Radio Corp. v. Hazeltine Research, /nc.. 401 L".S.1-1491321, 339, 28 L.. Ed. 2d 77, 91 S. Ct. 795 (19711. Consequently, \%c find that, when applying these the- ories, City Gas' ;ififiCUil p line demons were the prox- imate cause of antitrust damages to Consolidated in the following amounts: t i t S 1,503,975 -- the difference between (a) Consolidated's market value as a natural gas company selling gas at the same rates charged by City Gas with the growth Consolidated could reasonably have been expected to enjoy and (b) the present market value of Consolidated as a result of the injuries caused by City Gas' actions: plus t 2) S 8?.090.15 -- lost profits that Consolidated \\ ould have earned from the customers taken by City Gas. calculated at the rates that City Gas charged such customers for natural gas less the costs of the natural eas sold to them. Consolidated is there- fore entitled to recover from City Gas the amount of S 1,587,065.15 trebled, or the total son of S 4,761,195.45 in antitrust dama�es. We also find that Consolidated is entitled to injunc- tive relief. Injunctive relief under 3 16 of the Clayton Act (15 U.S.C. § 26) i, �raniCd for the purpose of pre- venting threatened 10,S or dart:;rze by reason of a viola- tion of the federal :mm ru,1 ("15t)1 1;ms. I1e1J*t10ein v. Internarionallml«clrie.r, Inc., 43S F_',i /065. 1011 (81h Cir.), cen. denied..40-1 U...S. S-_'. W i.. F-d. 2d 115. 92 S. Cl. 63111_45) 1`)-1, In the fruiting of equitable decrees, the district COLITIS are clothed with broad dis- cretion to model their ;ud_lntcnts (o fit the ext-encies of the particular case. Sce t;lrreh,:huer., .Il,r«uJircl« ring Co. r. Mule Con.?,)10alei1 inrJralne+. Inc .. 414 F2d 506. 525 n.32 (3,1 Cir 1116i),, ccrt. denied, J96 U.S. 1009. 90 S. Ct. �z67. 24 1_ Ed. 2d 50/ ,1470). As the court in Rer_lans 1 ;trtn Dann Co. v. Sanitary Milk Producers stated: Page 97 An injunction in a suit by a private individual cannot correct completely a monopolistic situation caused by the unl:mkful action of defendants, but should open the market to competition in every way that is appropriate, because it is the purpose of the antitrust laws to pre- vent the accomplishment of an unlawful result by every means, and not by just the means found unlawful in that particular case. 241 F Supp, 476. 4S8 (E.D. Mo. 1965), aff'd, 368 F 2d 679 (81h Cir. 1966). In the instant case, Consolidated has asked this Court to require City Gas to sell or transport [**1511 natural gas to Consolidated at a reasonable price. Because we have found, among other things, that City Gas controls an essential facility, we are compelled to grant this re- quest. There is no adequate remedy at law which would make Consolidated whole. We arc not, however, pre- pared to determine exactly what a reasonable price would be. See, e.a.. Bears, 609 F 2d at 863-64. Florida has a regulatory agcncy to whom we can turn to obviate the problem of judicial price -setting in this regulated indus- try. 'Thus, we shall defer to a decision of the FPSC in making this finding. Accordingly, if Consolidated wishes to sell natural gas, which it may purchase from. City Gas. the Defendant shall sell or transport natural gas to Consolidated at a reasonable price to be determined by the FPSC. IV. CITY GAS' COUNTERCLAIM: THE ILLEGAL TYING CLAiM Defendant;Counterplaintiff City Gas has filed an Amended Counterclaim alleging in three counts that Consolidated violated §3 1 and 2 of the Sherman Act, and § 3 of the Clayton Act, by tying the sale of homes in the Bel Air. Point Royale Subdivision to the purchase of LP Sias from Consolidated. We find that City Gas has failed to sustain its burden as to [**1521 each of these contentions. Section 3 of the Clayton Act provides: Safe, etc., on agreement not to use goods of competitor It shall be unL•twful for any person engaged in com- merce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, mer- chandise, machinery, supplies, or other commodities, whether patented or unpatertted, for use, consumption, or resale within the United States . . . or fix a price charged therefor. or discount from, or rebate upon, such price, on the condition. agreement, or understanding that the lessee or purchaser thr.reof shall not use or deal in the goods, wares, merchandise, machinery, supplies, 0J-- wlZo L 665 P. Supp. 1493, *1545, 1987 U.S. Dist. LEXiS 6926, **152, 1987-2 Trade Cas. (CCIl) P67,741 or other commodities of a competitor or competitors of the lessor or seller, there the effect of such ]case, sale, or contract for sale or such condition, agreement, or un- derstanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce. 15U.S.C. §14. A tying arrangement is "an agreement by a party to sell one product but only on the condition that the: buyer also purchases a different for tied) product, or at least agrees that tic «ill not purchase that product from any [**1531 other supplier." Northern Pacific Railtyay Co. v. United Stares, 356 U...S. 1, 5-6. 2 L. Ed. 2d 545, 78 S. Ct. 514 (1958) (foo(note omitted). Tying arrange- ments have been challenged successfully under§§' I of the Sherman Act, § 3 of the Clayton Act, and as con- duct supporting a finding that ` 2 of the Sherman Act has been violated. Section 3 of the Ciavton Act, however, applies only to those arrangements in which both the ty- ing and tied products :Ire "goods, wares, merchandise, machinery, supplies or other commodities." 15 U.S.C. § 14 (emphasis added). Section 3 is by its literal terms limited to a sale, lease or contract of these enumerated items, and articles of the same [*15461 class and char- acter. A 'commodity` is thought generally to be tangi- ble personal property, and therefore tying arrangements involving such intangibles as credit, services and trade- marks do not fall within the ambit of § 3. It is equally clear that land is not a "commodity" un- der the Clayton Act, Former Enterprises, hic. t. United States Steel Corp, , 394 C S. 495. 521, 22 L. Ed. 2d 495, 89 S. Ct. 1252 (1969) t Fortas. 1.. dissentimz) ("Clayton Act provision applies only to 'goods, wares, merchan- dise, [**154] machinery, supplies, or other commodi- ties,' and not to land."): Blac%u ell v. Pot, er Test Corp., 540 F.Supp 802, 812 (D. N.J. 1981). aff'd, 688 F2d 818 (3d Cie 1982); see Gaylord Shops, Inc. v. Pittsburgh Miracle Mile To•,tit Lt.Courttri Shopping Cemer. Inc., 219 F. Supp. 400, -103 ttt'D. Pa. 1963). Thus, if the tying arrangement does not invoke a commodity, but rather land• services or credit, it is not eo%erned by the Clayton Act at all. it uotdd. however. fall within the scope of the Sherman Act. and the pi:minff ttould be required "to bear the addmonal burden of proving that the defendant's economic poiyer ss tth respect to the tying product is sufficient to produce an appreciable restraint." N. W. Controls, Inc. t. Owboard Marine Corp., 333 F Supp. 493. 500 iD. Del. 19:1 v Thus. Cir Gas can- not claim that this trine arran intent yullates § 3 of the Clayton Act. City Gas has also Manned th:u §§ i and 2 of the Sherman Act were violated by Consolidated's tying ar- Page 98 rangernent. Section 1 of the Sherman Act provides in pertinent part: Every contract, combination in the form of trust or othenyise, or conspiracy, in restraint of trade or com- merce among the several States, 1** 1551 or with foreign nations, is declared to be illegal. 15 U.S.C. § 1. Of course, not ever`' agreement vio- lates § 1, but rather only those that unreasonably restrict competition. Regardless of the character of the con- tract, combination, or conspiracy, every § I violation requires proof: (1) that a contract, combination or con- spiracy between two or more entities was present; (2) that a contract unreasonably restrains trade; and (3) that it affects interstate or foreign commerce. A tying ar- rangement will violate § I if the plaintiff can establish that two separate products are involved; that there is in- deed a sale or agreement which has conditioned the sale of one product (the tying product) upon the purchase of another tthe tied product): that the seller has engaged in some modicum of coercive conduct toward the buyer; that the seller has sufficient economic power in the mar- ket for the tying product to enable it to restrain trade in the tied product market; and, finally, that a not in- substantial amount of commerce in the tied product is affected. Hirsh t: Martindale -Hubbell, Inc., 674 F.2d 1343, 1346-47 (9th Cir.), cert. denied, 459 U.S. 973, 74 L. Ed. 2d 285, 103 S. 1**1561 Ct. 305 (1982). Citv Gas' Sherman Act tvin* claim must fail first be- cause it has not established that the seller (Consolidated Gas) had suRicicnt economic power as to the tying prod- uct (real estate) to restrain trade appreciably in the market for the tied product. See Kentucky Fried Chicken Corp. v Ell versified Packaging Corp., 549 F.2d 368, 375 (5th Cir. 1977). An analysis of market power as to the tying product and the effect of the wrongful activity must be made in the context of a relevant economic market. The Defendant has failed to present sufficient evi- dence, including economic testimony, to define the rel- evant product or geographic market for these products. That failure, rye think, i> fatal as to the tying claim. "An 'umtru,t pL:unu(f . . . makes out a prima fa- cie case under the rule of reason only upon 'proof of a well-defined relevant market upon which the challenged anticompetitive actions would have had a substantial im- pact.'" Dougherty v. Continental Oil Co., 579F.2d 954, 962 (5th Cir 1978). yarned by stipulation of the par- ties, 591 F. 2d 1206 (5th Cir 1979) (quoting Cornwell Quality Tools Co. v. C.TS. Co., 446 F.2d 825 (91h Cir. 1971 t, cert 1-* 1571 denied, 404 U.S. 1049, 92 S. Ct. 715, 30 L. rd. 2d 740 (1972)) (additional cita- tions oniittcd): see also L.A. Draper & Sat v. 1*15471 rt k, ' 665 F. Supp. 1493, * 1547, 1987 U.S. Dist. LEXIS 6926. "157; 1987-2 Trade Cas. (CCH) P67.7-1 I Wheelabrator-Fn e, Inc.. 735 F2d 414. 422 (!lilt Cir. 1984). A fair review of the facts presented has not established Consolidated's market po%%cr as to the tying product - - real estate. United States V. L.oew's. Inc., 371 U.S. 38, 45, 9 L. Ed. 2d 11. 83 S. Ct. 97 (1962). Nor has City Gas fully satisfied its burden -- even assum- ing it had sufficient market prnver a ithin a discernible market -- that customters tteie coerced into buying the tied product. Moreover, a claim of monopolization or attempted tnonopoli anon also requires proof that a de- fendant either possesses or is perilously close to possess- ing monopoly po%yer wiil.in t)lose markets. Cite Gas has not established either the relevant markets or apprecia- ble or monopoly power within those markets. Without sufficient proof that Consolidated has. within the rele- vant markets, monopole power as to its v 2 Sherman Act claim, or appreciable market power as to its s§' I Sherman Act claim, we cannot find any violation of the antitrust laws. Beyond failing to establish that Consolidated (**1581 possessed monopoly power or even appreciable market power within definable markets, City Gas has also failed to establish that Consolidated's conduct actually fore- closed City Gas from competin_. City Gas claims that "as a direct and proximate result of the inhibiting, threat- ening and coercive effect of the exclusivity provisions and restrictive convenants ... CITY GAS has been pre- cluded by CONSOLIDATED from effectively providing its natural gas product to the subdivision." (Amended Counterclaim, para. 101. Damages may be obtained under § 4 of the Clayton Act by "any person . . . injured in his business or property by reason of anything forbidden in the antitrust laws." 15 U.S.C. § 15, And "it is enough that the illegality is shown to be a material cause of the injury. - Zenith Radio Corp. v. Ha--eltine Research, luc., 395 U.S. 100, 114 1?.9. 23 L. Ed. _'d 129, S9 S. C1. 1562 (1969). Nevertheless. Cite G'is must sho-a soine direct causal relationship hemecn the purported violation of the antitrust laws and ihr inlun .i,t.uned. Brunsttick Corp. v. Pueblo 130�t1-U ,iirtt. 111i . 429 U.S. 477, 459, 50 L. Ed. 2d 701, 97 S. 0 690 i1977). ;and if tfie wrongful conduct was not the 1-1591 cause of any pal- pable injury, then no actionable violanoil of the antitrust law has occurred. Sonletinlcs the issue is framed as one of standing. In this Circuit. the to>i applied ir, order to determine sianding to sue in an ailiiiru,t case has been explained in Amcy. Inc. v. Glllf Abstract S Tilie, Inc.: The Eleventh Circuit has adopted the "target area" test used by the Fifth Circui(. See Cuusir-ucn nt :lggregaie Transport, Inc. v. Florida RoeA hulustries. Inc., 710 Page 99 F2d 752, 762 (Iltlt Cir. 1983). The rule of antitrust standing in this circuit, the target area test, does not pro- duce results materially different from the results obtained in Blue Shield and Associated General. See Construction Aggregate Transport, 710 F2d at 762, 765, n.28. First, as in Blue Shield, we recognize that a "target' does not have to be in the same area of the market as the an- titrusi act; a victim is a target when located in the same area of the market affected by the antitrust act or in an- other area of the market "so closely related" that both may be considered targets of the same anti -competitive act. Construction Aggregate Transport, 710 F2d at 764; Blue Shield, 457 U.S. at 1**1601 479-81, 102 S. Ct. at 2548-49. Second, our test is highly respon- sive to the Supreme Court's policies of denying stand- ing to plaintiffs with injuries that are too remote and whose injuries are not "the type of loss which a violation of antitrust lacy would be likely to cause." Midwestern fluff?es. Inc-. t. Wiffle House, /tic., 734 F2d 705, 710 Milt Cir. 19.54); Construction ,Aggregate Transport, 710 F2d at 764. 765. See .Associated General, 459 U.S. at 540. 103 S. Ct. at 910; Blue Shield, 457 U.S. at 479. 102 S. Ct. tit 2548. See also Jeffrey v. Southirestern 1*15431 Bell, 518 F2d 1129, 1131 (51h Cir. 1975). Third, the Supreme Court's policy against granting standing where the possibility exists of duplicative recovery by the indirectly injured plaintiff and the more directly injured person who has yet to sue, see Associated General. 459 US. at 545, 103 S. Ct. at 912, Blue Shield, 457 U.S. at 475, 102 S. Ct, at 2546. has long been part of this circuit's and the former Fifth Circuit's target area test. Construction Aggregate Transport, 710 F2d at 764; Jeffrey v Southwestern Bell, 518 F2d at 1131. The Supreme Court cases, therefore, provide policy 11*1611 guidance consistent with that which is the foundation of this circuit's tar- get area test. See Midiestern lihffles, Inc., 734 F.2d at 710. See also Qualiry Foods de Centro America, S.A. v Latin .American Agribusiness Development Corp., 711 F.2d 9A9, v99 tIIth Cir. /983), 758 F 2d 14,56. 1496.97 (1 ith Cir. 1985), cent. denied, 475 CS. l 107, 100 S. Ct. 1513, 89 L. Ed. 2d 912 (19S6r ifitttnote omitted). Part of the Counterclaim alleges damages for the pe- riod of time preceding Consolidated's cornmencement of the state court action on June I, 1982; another pan relates ul the period in %%hick City Gas was prelimi- narily enjoined from providing natural gas service to customers within the subdivision, that is, from June 16, 1982, through November 30, 1982, when the injunction %%as di,soltcd by the state court; and the last pan relates to the period after November 30, 1982. During no por- 59- 72 L 665 F. Supp. )493, *1548, 1987 U.S. Dist. LEXiS 6926, **161: 1987-2 Trade Cas. (CCN) P67,741 tion of time can City Gas claim that it sustained injuries as a result of Consolidated's conduct. In the first place, the record e� tdence c,t;ibhshcd that City Gas was not actu;illr precluded frotn Clump or of- fering to sell gas prior to the d.11c C'0t1W1ld;1tcd tiled the state coup complaint. I— 1c12I Cite has admitted that it was wholly unaware of the mstence of the "Easement Agreement" prior to June 1, 19132. lack Lancer of City Gas indicated that no one told him about Consolidaied's claim to have any exciusiNc n0its until filing the law- suit in state court. Not is there any record evidence suggesting that Cits Gas made an effort to sell natu- ral gas or to solicit customers prior to approximately February 1982. Indeed, Cite Gas has stipulated as fact that it did not consider sellin_ natural gas to customers in the territory scr\ed by Consolidated until 1982, and that once it decided to d0 so, it acted immediately to solicit Consolidated's custontcrs and beeari extending its pipelines accordingly. The evidence also leads us to conclude that City Gas did not consider it economically feasible to extend its pipelines into Consolidated's area until 1982, when it did so. We do not think City Gas can establish on this record that it sustained antitrust injury as a result of conduct about \�hich it knew nothing. In short, City Gas was neither restrained nor deterred in any way by Consolidated's conduct prior to June 1982. Nor, finally, does the record e\ idence establish that subdivision [** 1631 customers -- and indeed only a small handful of them were called to testifv it irml by City Gas - refrained from turning to City Gas as in alternative source of energv because of the "Easement Agreement." Those customers who did testily indicated that when they changed suppliers they, were driven to do so by consid- erations of price. City Gas has. therefore, presented no evidence that it suft'cred damages resulting from the "Easement Agreement" prior to June I. I98'� Moreover, for the period subsequent to November 30 L Page 100 1982, %k ten the state court preliminary injunction was dissolved, City Gas was in no way foreclosed or ex- cluded from providing natural gas service to homes and businesses k%ithin the subdivision. The state court held that Cite G;is uas free to pro%ide natural gas service across Consolidated's easen;cnts. And indeed follow- ing the dissolution of the injunction, City Gas resumed extending its lines to take customers from Consolidated and continued supplying the ones it had signed up earlier. Thus, Cite Gas also has failed to show that it suffered any damages subsequent to November 30, 1982. 1*15.391 Finally, as to the period when the injunction was in effect. from June [**1641 16, 1982 to November 30, 1982. a clear and unambiguous release was executed by the parties as to any damages which might arguably be attributed to the state suit or the preliminary injunc- tion, thereby releasing Consolidated from any potential liability. The release settled the record as to any "dam- ages and costs incurred by [City Gas] as a result of the fact the [Consolidated] obtained the issuance of an in- junction," ;uid the release constituted a "full settlement and payment for costs and damages incurred by the de- fendant as a result of this lawsuit." City Gas has not argued that the release was invalid for any reason, or that it does not operate to bar any claims for damages in this action for the time period between June 1, 1982 and November 30, 1982. in short, we can find no viable theory upon Mitch City Gas can sustain its burden as to injury and d;una_es durim, this time frame. Since we have concluded that City Gas has not estab- lished a number of critical elements necessary to sustain any claim under the Sherman Act, this Court need not ad- dress Consolidated's contention that the Counterclaims are barred also by the doctrines of res judicata and col- lateral estoppel. DONE 1-1651 AND ORDERED in Miami, Florida this 24th day of July, 1987. PACB1 i 317 U.S. 341 - 1527 Citing References Law Reviews & Periodicals 57 Tex. L. Rev. 1127 p.1128 55 Tex, L. Rev. 1 p.26 54 Tex. L. Rev. 1411 p.1425 82 Va. L. Rev. 1051 p.1183 69 Va. L. Rev. 563 p.608 68 Va. L. Rev. 333 p.354 1986 Wis. L. Rev. 83 p.90 1986 Wis. L. Rev. 1 p.9 1979 Wis. L. Rev. 125 p.152 1978 Wis. L. Rev. 633 p.704 96 Yale L.J. 466 p.488 �. p.503 91 Yale L.J. 1317 p.1330 91 Yale L.J. 425 p.426 86 Yale L.J. 385 p.470 86 Yale L.J. 215 p.235 84 Yale L.J. 1022 t p.1164 84 Yale L.J. 268 p.289 r t 8 t E It �� 4u 112 So. 2d 898, *902; 1959 Fla. App. LENS 2975, **12 application of this section to a franchise to collect, re- move and dispose of garbage and waste. Furthermore, the agreement does not involve the etpendittire of tax funds. Ob,�,iously. when the legislature provided throughout the two acts for 'i7arbagc collection and dis- posal [**131 scn•iccs,' and were onipowcred to collect fees from users of such sery(ccs to defray the cost neces- sary for the cstahlishr,tem, maintenance and operation of such collection and services, to purchase, rent or lease necessary equipment, facilities and lands, and to [*903] enter into certain contracts with other municipal- ities, the legislative bode intended the word 'garbage' to have more than a limited meaning of table scraps and food remnants. In addition, other courts have decided that the term 'garbage' includes 'waste.' Words and Phrases, 'Garbage,' Volume 18. It is also noted that the plaintiffs allege in their complaint that members of their Association presently hold franchises to collect and dis- pose of 'garbage, waste, rubbish and trash,' and have collected and disposed of sarne; chat in their proposal to the board they agreed to purchase land for a disposal area and dispose of 'garbage, waste, rubbish and trash,' thus indicating that the plaintiffs, operating under the two acts, have heretofore construed the word 'garbage' to include 'garbage, waste, rubbish and trash.' It is further observed that the franchise agreement is only permissive as to 'trash.' "The [**14] court is not unsympathetic and is fully aware of the consequences of and the effect the adop- tion of such a contract, as is litigated in this cause, by the board of county commissioners will have upon the franchise holders whose franchises expire September 30, 1958, and the dissatisfaction that it will produce in some of the users of the presem franchise holders, but the court cannot say, from the evidence thus far produced, that the action complained of is illegal, fraudulent, a gross abuse of discretion, or so clearly oppressive as to permit the court to issue a temporary restraining order, other than the one above, occasioned by an unauthorized party to the contract. The board was acting within its discretion in considering the agreement, and the fact that plaintiffs were opposed to the action does not justify this court's interference. '17he wisdom or policy of official action may not be a predicate for m injunction when the action taken does not involve illegality or a palpable abuse of authority amounting to Illegality. As stated in one of the above authorities, a difference or variance in opinion or Page 13 judgment is never a sufficient ground for interference by the court." A [**15[ good deal of argument in the brief of appel- lants is devoted to the economy of the contract and to the effect such a contract will have on appellants. This is a matter that the Board of Count%, Commissioners were authorized to determine for themselves. The lower coup correctly held that a court cannot invade the adminisira- tiye dunes of the Commissioners, it can only determine whether the action was illegal gel non. Where a public body is exercising discretionary pow- ers within the orbit of lasts affecting them, courts will not assume jurisdiction or exercise power to interfere with such public bodies. Courts will not determine whether or not the action of public officers is wise, economical or advantageous, such questions belonging exclusivefy to the public officers and boards. If they ex- ercise their powers foolishly or unwisely, the recourse of their constituents is to the ballot box and not to the courts. The rule is stated in 17 Fla.Jur., Injunctions § 52, as follows: "Equity will not ordinarily assume jurisdiction to pre- vent public officials or servants from doing their duty as required by law, or performing lawful acts that are not in excess of their authority. In the [**161 absence of fraud or gross abuse of discretion, equity will not interfere with or restrain public officers or agencies in the exercise of power rested in them, and will not at- tempt by im>.junction to substitute its own discretion for that of such officials in matters belon_ing to (heir proper jurisdiction. in other words, the injunctive remedy can- not normally be invoked to control the action of public [*904[ officers. This rule extends to determinations of quasi-judicial tribunals, such as supervisory boards and commissions, the proper and usual remedy in such cases being the writ of certiorari." Recently. the Supreme Court of Florida, in the case of Tvu n Of Ri i iera Beuch %,. State. Fla.1951, 53 So.2c1 828. 831. said: "'Whether the exercise, or refusal to exercise, by a municipal corporation. of a power conferred oil it ex- prrssly or by implication, is subject to control by the courts, ordinarily depends on whether the power is dis- cretionan or mandator-. Whether exercise of a par- ticular power is discretionary or mandatory has been considered in a preceding section. "'Assunrrrtg that the municipal authorities have acted tt ithin the orbit of their law ful authority, no principal 1' 171 rf lair is he(ter estahlishctl than that courts will not sit In reytew of proceedings of municipal officers and departtricnts inyolytn-, legislative discretion, in the L page 14 112 So. 2d 898, *904; 1959 Fla. App. LEXIS 2975, ** 17 to t absence of bad faith, fraud, arbitrary action or abuse of tion, as the letting of a contract for an improvement, the power. The rule has been stated as follows: "Where construction and operation of a particular utility or the the law or charter confer upon the city council, or lo- enactment of a certain ordinance, is an economic mis- sal legislature, power to determine upon the expediency take, a municipal extravagance, and an improper bur - or necessity of measures relating to local governmrnt, den upon the taxpayers, as so often urged in contests of their judgment upon the matters thus committed to them this nature, the prevailing answer of the courts is that while acting within the scope of their authority cannot the remedy, if any exists, is at the ballot box, rather be controlled by the courts." Where a municipal board than b>' injunction or other court proceeding,. It may be is authorized to do a particular act in its discretion, the stated broadly that this inumunits from judicial control courts will not control that discretion unless immifestly embraces the exercise of all municipal powers, whether abused, nor inquire into the propriety, economy and gen- legislative or administrative, which are strictly discre- eral wisdom of the undertaking, or into the details of the tonary. manner adopted to carry the matter into execution. A court carutot substitute its judgment for that of the nttr- On tht authority above cited, +ve find no error in nicipal authorities if there is room for debate. Another the decision of the lower court in the granting, as to statement of the rule is as follows: "With the exercise of .affiliated, or refusing to grant, as to the Association, discretionary powers, courts rarely, and only for grave the restraining orders herein complained of. We further reasons, interfere. These grave reasons are found only find no error in the lower court on the other orders herein where fraud, corruption, improper 1 ** 181 motives or in- sought to be reviewed. fluence, plain disregard of duty, gross abuse of power or Affirmed. violation of law, enter into and characterize the result. O'CONNELL, STEPHEN 1**191 C., and Difference in opinion or judgment is never a sufficient ground for interference." If the result of the given ac- PATTERSON, TERRY B., Associate Judges, concur.