Case No. 93-555-CA Motion to Dismiss Unfiled CopyIN THE CIRCUIT COUR'T', IN AND FOR THE
NINETEENTH JUDICIAL CIRCUIT, FOR
OKEECHOBEE COUNTY, FLORIDA.
CASE NO. 93-555-CA
OKEECHOBEE BEACH WATER
ASSOCIATION, INC.
Plaintiff,
-vs-
CITY OF OKEECHOBEE, FLORIDA,
a municipality existing under
the Laws of the State of Florida.
Defendant.
MOTION TO DISMISS
COMES NOW the City of Okeechobee, Florida, by and through
undersigned counsel, and files this motion to dismiss the complaint
filed herein by Plaintiff, pursuant to F.R.C.P. 1.140, and as
grounds therefore, :Mates the following:
I.
1. The complaint filed by Plaintiff pursuant to the provisions
of Florida Statutes Chapter 86, Declaratory Relief, is insufficient
as a matter of law. The requirements of Chapter 86 F.S.,
necessitate a pleading that sets forth allegations of doubt as to
the existence or nonexistence of any immunity, power, privilege or
right; an allegatioia of a claim of right under any instrument in
writing in which plaintiff-'s right might be in doubt, or any right
or status, either -quitable or legal, affected by any statute,
regulation, ordinaricr., or otherwise which would require a judicial
determination as a condition precedent to the existence or
establishment of such rights. Lyles v. Dade County. 123 So.2nd 466
(Fla. 3 DCA 1960).
1' - . I
2. The complaint filed by Plaintiff, a,- best, declares in
paragraph 18 that "Plaintiff and the Water Management District are
in doubt as to th(f service areas Plaintiff and Defendant may
legally serve after the existing bulk water supply contract
expires." Alleging the state of mind of the Water Management
District, since th(-y are not a party to the action, should be
stricken. Further, in ruling on a motion to dismiss a complaint for
declaratory relief-, t:he test is not whether Plaintiff is entitled
to a declaration :ii his favor, but rather it is whether he is
entitled to a declai.-.xLion of right at all. City of Homestead vs.
Dade County 425 So.2nd 593 (Fla. 3 DCA 1983).
3. The complainL of Plaintiff, by failing to allege the
necessary elements nE Chapter 86, to specifically show a bona fide
adverse interest I)etween parties concerning power, privilege,
immunity or rights ()f Plaintiff, fails to establish as a matter of
law that Plaintiff is entitled to declaratory relief at all; is
therefore deficient. as a matter of law, and subject to dismissal.
II.
4. The complaint of Plaintiff should be dismissed for failure
to join indispensable parties.
5. The basis for Plaintiff's complaint seems to be that they
received benefit of a franchise ordinance from Okeechobee County,
which grants a ceri:.ai_n described service area in which to conduct
the production of, and distribution of, potable water, and that
this granted service area overlaps the service area designated by
ordinance by Defendant City of Okeechobee. Based upon this overlap,
Plaintiff states they have not been able to procure a consumptive
use permit from the South Florida Water Management District, and
1
that they demand judgment declaring the rights of Plaintiff under
its existing contract. with Defendant; and also under Plaintiff's
franchise from Okeechobee County.
6. The provisions of Chapter 86, Florida Statutes, section
86.091, provide:
In any proceedi.iig concerning the validity of a County or
Municipal charter, ordinance, or franchise, such County
or Municipality shall be made a party.
7. Further, it is clear that:
"It is essenti;0 that the Defendant in a declaratory judgment
action be the F,,arty or parties whose interests will be
affected by the decree. All persons having an interest in
the subject matter should be before the Court."
Jacobs & GoodmanP_._A_. vs. McLin, Burnsed,_Morrison, Johnson
& Roebuck,__P._A._ 582 So.2nd 98 (Fla. 5DCA 1991); and Miller
v. Miller 151 So.2nd 869 (Fla. 2 DCA 1963).
8. The allegations of Plaintiff's complaint state they derive
rights under the franchise ordinance with Okeechobee County, and
that they require Lhe court's determination to ascertain those
rights. As this franchise ordinance ostensibly grants a certain
service area to Plaintiff, any determination by the court to the
contrary would nec-~;sarily affect the rights or interests of
Okeechobee County i,,. its ordinance. Therefore, the County of
Okeechobee would be <-ln indispensable party, and must be joined by
Plaintiff.
. III.
9. The complaint of Plaintiff should be dismissed, as the
Plaintiff, by its own pleading, is not a system, work, project, or
utility of similar character to that of Defendant.
10. The statutory language on which Plaintiff bases its claim
for declaratory relief is set forth in F.S. 180.06 (9), which
1' .
states:
"However, a private company or municipality shall not
construct any r;ystem, work, project or utility authorized
to be construr.ted hereunder in the event that a system,
work, project or utility of a similar character is being
actually opera-pled by a municipality or private company
in the municipality or territory immediately adjacent
thereto, unless such municipality or private company
consents to such construction".
11. The allegations of Plaintiff's complaint make a bare
assertion that "Pla.i.ntiff has the ability and is serving in excess
of two thousand meml,r_>t:s in the Overlap Area, which is part of the
service area Plaintiff has claimed since 1965" (at paragraph 14).
However, other ple:ld:i.ngs make it clear that Plaintiff is not a
system or utility of. "similar character", as defined in Chapter
180. The complaint states:
-at paragraph 4: "Since 1965, Plaintiff has been obtaining a
supply of water fVom Defendant under a series of bulk water
wholesale agreement;."
-at paragraph c,: "Plaintiff intends and has engineering plans
to build a 1.5 million gallon per day water treatment facility to
supply water to its members."
-at paragraph 8: "Plaintiff has applied for a water
consumptive use permit from the South Florida Water Management
District."
-at paragraph 14: "When its new plant is built, Plaintiff will
have the ability to serve the projected growth of new connections
in the Overlap Area for the next ten years."
12. The allegations of the complaint, in their best light,
illustrate that Plaintiff is a water customer of Defendant, who has
no present ability, nor any in the foreseeable future, to serve any
customers potable water, absent the purchase of such water from
Defendant.
13. The court's :interpretation of Chapter 180.06(9) has been
held to be that :if only prohibits direct encroachment by one
utility provider into an operating area already served by another.
Ortega Utility vs. C.ty_of Jacksonville 564 So.2nd 1156, 1158 (Fla.
1 DCA 1990).
14. The flaw i„ Plaintiff's complaint is two-fold: First, by
their own pleading:, they are not a competing utility of a similar
character to Defendant:; and Secondly, by their own pleadings, they
have no present ability to serve the area in dispute, and but a
hope of such service ability some unknown years in the future, in
the event they are ever able to construct a facility.
15. As previmisly discussed herein, the test of whether a
viable request fo)- Oeclai:atory relief is before the court is not
whether Plaintiff i.s likely to prevail, but whether they are
entitled to make a claim for relief at all. Citv of Homestead, id.
With the pleadings before the court, Plaintiff seeks a declaration
that because they ni-e a competing utility, and have the ability to
serve their customers, they are entitled to such declaration to
determine their service area. However, the pleadings make it clear
Plaintiff is not a competing utility of similar character, nor does
it have the ability to serve any customers without purchasing water
from Defendant. Therefore, as a matter of law, Plaintiff is not
entitled to a declaration of its rights under F.S. Chapter 86.
IV.
16. The complaint of Plaintiff should be dismissed by the
court for failure to exhaust administrative remedies.
17. The Plai_.ntiff, as alleged in their complaint, has a
pending applicatim) before the South Florida Water Management
1 ,
District for a consumptive use permit, to initiate the construction
of a well water supply, and distribution plant to serve its claimed
service area with potable water.
18. The application to the District well predates the filing
of this lawsuit. However, since the initiation of the lawsuit, on
August 3, 1993, the Plaintiff has furnished the District additional
information, particularly on August 19, 1993, which purpose is to
"...enable the District to address a request for service area
modification relative to the above referenced application." The
information furnished on that date included a revised service area
map, and revised population projections for the new requested
service area. (copy of letter attached, exhibit A).
19. It is evident from the application, and documents
furnished subsequent to the initiation of this lawsuit, that
Plaintiff is actively seeking an administrative determination to
obtain a consumptive use permit, and a service area designation
from the District.
20. The courts have held that while Section 120.73, Florida
4. Statutes stands for the proposition that nothing in the
administrative procedures act shall be construed to divest the
circuit. courts of jurisdiction to render declaratory judgments
under the provisions of chapter 86, the courts have consistently
held"that if administrative agencies are to function and endure as
viable institutions, courts must refrain from promiscuous
intervention in agency affairs, except for the most urgent reasons.
Odham v. Formost Dairies, Inc. 128 So.2d 586, 593, (Fla. 1961).
This reasoning is carried through in the recent decision of Gulf
Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc. 361 So.2d
695, 699 (Fla. 1978) wherein the court observed:
" . . as a ge,,nr:, I
c
proposition, sition,
the circuit court should refrain
from entertaiiii_r,c1
locl -irator.y
suits except
in the most
extraordinary ca F:
whe,:e the
party seeking
to bypass usual
administrative
can demonstrate that no
adequate remedy
remains available mi
er Chapter
120." See also:
School Board
of
Leon County v. 1Tt.ch
l_Y 346 So.2d
5G2 (Fla. 1DCA
1977).
21. Apparent f,.,,n, the complaint of Plaintiff, and the attached
letter of August 1.9, 7.993 from the agent of Plaintiff to the Water
Management District, i.he agency has not yet passed upon the
consumptive use pei-ioi1:. application of Plaintiff, nor their request
for a service arra m-1 1i fical.ion. Therefore, administrative remedies
have not been exl,,i,,stecl, and there is nothing contained in
Plaintiff's pleadir.iya which would indicate that they do not possess
adequate remedies ii„,ler such administrative procedures.
WHEREFORE, for I lie reasons expressed herein, Defendant City of
Okeechobee, Florida ,respectfully requests that the complaint of
Plaintiff be dismissed.
SUBMITTED this day of August, 1993.
I HEREBY CERT V7 that a true copy of the foregoing was
furnished by U.S. lvtil this day of August, 1993 to: Burton C.
Conner 301 N.W. 5th 51.. 01~eechobee, Florida 34972; and Vickers,
Caparello, Madsen, T-?,jis, Goldman & Metz, 2000 Palm Beach Lakes
Blvd. Suite 900, West Palm Beach, Florida 33409.
John'R. Cook
202 N.W. 5th Avenue
Okeechobee, Florida 34972
(813)467-0297
Florida Bar 262951