Summary
In State v. Jacksonville Port Authority, 266 So.2d 1 (Fla. 1972), the Jacksonville Port Authority, as the local agency undertaking an industrial development project, determined that another local governmental unit, the consolidated city of Jacksonville, would be able to cope satisfactorily with the impact of the project.
Summary of this case from State v. City of Riviera BeachOpinion
No. 42121.
July 28, 1972.
Appeal from the Circuit Court, Duval County, Lamar Winegeart, Jr. J.
Donald G. Nichols, State's Atty., and James L. Harrison, Asst. State's Atty., for appellant.
Francis P. Conroy of Marks, Gray, Conroy Gibbs and Thomas B. Slade, III, of Freeman, Richardson, Watson, Slade McCarthy, Jacksonville, for appellee.
This cause is before us on direct appeal from a final judgment of the Circuit Court of Duval County, validating and confirming the issuance of $1 million Industrial Development Revenue Bonds of the Jacksonville Port Authority, to be issued for the purpose of financing the acquisition and construction of an industrial plant for the bottling, storing, shipping and distribution of beverage products. We have jurisdiction pursuant to Fla. Const., Article V, § 4(2), F.S.A. as a bond validation proceeding.
In 1968, in conjunction with the consolidation of the municipal and county governments in Duval County, Jacksonville Port Authority acquired ownership of and responsibility for Imeson Airport, located on a tributary of the St. Johns River, and active at that time as a general aviation facility. As part of the transfer agreement, the Port Authority was pledged to shut down airport operations at Imeson as soon as practicable, and to dispose of the property, preferably by sale to a private party. Both these obligations have since been performed: the Airport was closed in 1969, and in 1970, a buyer was found who agreed to purchase the entire holding for the purpose of establishing "Imeson International Industrial Park". The sale was completed in May, 1971, and the development of the property into an industrial park is currently underway.
The Jacksonville Port Authority is a Florida corporation created by special act of the Legislature in 1963. See Chapter 63-1447, Laws of Florida, commonly known as the "Charter" of the Authority, and subsequent amendments thereto, particularly Chapter 67-1533, Laws of Florida.
To facilitate the industrial growth of the park, the Port Authority on January 26, 1972, adopted a resolution providing for the issuance of Industrial Development Revenue Bonds pursuant to Chapter 159, Part II, Florida Statutes, to finance the acquisition and construction of a wine and beverage processing plant on five acres of Imeson land. After construction, the Port Authority agreed to sell the project to C D Realty Corp. for subsequent leasing to and operation by National Distributing Company. Atlantic National Bank of Jacksonville was committed to purchase the $1 million dollar bond issue called for by the resolution.
The resolution declares that the bonds sought to be validated shall bear interest at the rate of seven per centum (7%) per annum. The principle and interest on the proposed bonds is to be paid exclusively from the proceeds derived from the sale of the project to C D Realty Corp. It is further provided that the bonds shall not constitute general obligations of indebtedness of the Authority as "bonds" within the meaning of Article VII, Section 12 of the 1968 Florida Constitution, but shall be payable solely from the revenues generated from the sale of the project.
As required by Fla. Stat. § 159.29, F.S.A., the resolution also determined: (1) that the project would make a significant contribution to the economic growth of the community, would provide gainful employment and would serve a public purpose by advancing the economic prosperity and general welfare of the State and its people; (2) that both C D Realty Corp., and its proposed lessee, National Distributing Company, were financially responsible and fully capable and willing to fulfill their obligations under the agreement of sale and lease; (3) that adequate provision would be made for the operation, repair and maintenance of the project at the expense of C D Realty Corp.; and (4) that the consolidated City of Jacksonville would be able to cope satisfactorily with the impact of the project and would be able to provide the public services and facilities necessary for the construction, operation, repair, and maintenance of the project. Fla. Stat. § 159.29, F.S.A. provides that the determination of the local agency as to compliance with the criteria of that section shall be final and conclusive. Accordingly, we deem the requirements of Fla. Stat. § 159.29, F.S.A. to have been satisfied by the Port Authority without the need for discussion. State v. County of Dade, 250 So.2d 875 (Fla. 1971).
Following hearing, the Circuit Court of Duval County, in its final judgment entered March 1, 1972, validated and confirmed the bond issue as being in compliance with Chapter 159, Part II, Florida Statutes. We affirm the judgment below.
Appellant asserts that the Jacksonville Port Authority is not a "local agency" empowered to issue Industrial Development Revenue Bonds within the purview of the Florida Industrial Development Financing Act. In effect, the Act authorizes local agencies as defined therein to issue revenue bonds for the purpose of funding projects permitted by the Act. Fla. Stat. § 159.27 (4) defines "local agency" for purposes of the Act as follows:
"(4) `Local agency' means any county or municipality existing or hereafter created pursuant to the laws of the state or any special district or other local governmental body existing or hereafter created pursuant to the laws of the state, the purpose for the creation of which could reasonably be interpreted to be consistent with the issuance of revenue bonds to finance the cost of projects within the meaning of this part." (Emphasis supplied.)
A "project" within subsection (5) of the same section means:
". . . any capital project comprising an industrial or manufacturing plant, including one or more buildings and other structures, whether or not on the same site or sites; any rehabilitation, improvement, renovation, or enlargement of, or any addition to, any buildings or structures for use as a factory, mill, processing plant, assembly plant, fabricating plant, industrial distribution center, repair, overhaul or service facility, test facility, and other facilities, including research and development, for manufacturing, processing, assembling, repairing, overhauling, servicing, testing, or handling of any products or commodities embraced in any industrial or manufacturing plant; and including also the sites thereof and other rights in land therefor whether improved or unimproved, machinery, equipment, site preparation and landscaping, and all appurtenances and facilities incidental thereto, such as warehouses, utilities, access roads, railroad sidings, truck docking and similar facilities, parking facilities, dockage, wharfage, and other improvements necessary or convenient for any manufacturing or industrial plant."
The Jacksonville Port Authority is a "local governmental body" which was "existing" on the effective date of the Industrial Development Financing Act. In our judgment, the beverage bottling and distribution plant sought to be financed by the Authority's current bond issue is a "project" within the Financing Act. It may be classed as a "processing plant", an "assembly plant" and/or as an "industrial distribution center" for products of the beverage industry.
However, the Port Authority may be classed as a local agency empowered to issue bonds under the Act only if the purpose for its creation ". . . could reasonably be interpreted to be consistent with the issuance of revenue bonds to finance the cost of projects within the meaning of this part." To determine whether this prerequisite is met, it is necessary to turn to the Charter of the Port Authority, together with relevant amendments thereto. The Charter is without a preamble delineating its express purpose. We turn instead, therefore, to the "powers" conferred on the Authority for enlightenment:
"Section 3. Powers. The Authority shall have the specific powers, in addition to other powers otherwise conferred:
"(1) To construct acquire, establish, improve, extend, enlarge, reconstruct, re-equip, maintain, repair and operate any project herein defined; . . ." (Emphasis supplied.)
Section 2(f) of the Charter, as amended by Chapter 67-1533, Laws of Florida, describes the projects which may be undertaken by the Authority in the following language:
"(f) The word `project' shall embrace any one or any combinations of two (2) or more of the following, to wit: facilities for the construction, manufacture, repair or maintenance of ships and other facilities, directly or indirectly related to the promotion and development of waterborne commerce, and other harbor, port, shipping and airport facilities of all kinds, including, but not limited to, harbors, channels, turning basins, anchorage areas, jetties, breakwaters, water ways, canals, locks, tidal basins, wharves, docks, piers, slips, bulkheads, public landings, runways, taxiways, warehouses, terminals, refrigerating and cold storage plants, railroads and air and motor terminals for passengers and freight, rolling stock, car ferries, boats, airplanes, conveyors and appliances of all kinds for the handling, storage, inspection and transportation of freight and the handling of passenger traffic, mail, express and freight, administration and service buildings, toll highways, tunnels, causeways, and bridges connected therewith or incident or auxiliary thereto, and may include all property, structures, facilities, rights, easements and franchises relating to any such project and deemed necessary or convenient for the acquisition, construction, purchase, or operation thereof." (Emphasis supplied)
Thus, it appears that the essential purpose for the creation of the Port Authority was the promotion, directly or indirectly, of waterborne commerce. Such purpose is consistent with the issuance of revenue bonds to finance industrial or manufacturing projects within the meaning of Chapter 159. Accordingly, we hold that the Jacksonville Port Authority is a "local agency" empowered to issue industrial development revenue bonds pursuant to Chapter 159, Florida Statutes.
However, this finding does not permit the Port Authority to issue bonds for purposes other than those permitted by its Charter. Is the construction of a beverage processing plant consistent with the purpose of the Port Authority to promote, directly or indirectly, waterborne commerce? In this case, we conclude that it is. Andrew Carlos, treasurer of the National Distributing Company, was called to testify before the Circuit Court on this aspect of the case. From his testimony, it appears that the processing plant will engage in three separate but related operations: (1) it will bottle and distribute domestic wines shipped in bulk from various parts of the United States to the Florida and Georgia marketing areas: (2) it will store and distribute wines imported in bottle from France, Spain and Italy; and (3) it will store and distribute bottled spirituous liquors, both domestic and imported.
The bulk domestic wine operation, concededly, will not utilize the Port of Jacksonville: these wines are to be shipped overland to Florida either by rail or truck, primarily from California and New York. There was some discussion in the record as to the availability of tanker ships for the transportation of bulk domestic wines, but the witness Carlos indicated that National had no plans to employ this method of transport for its domestic wines.
However, the witness also testified that all, or nearly all, of the imported wines distributed by the company would be transported by ship into the Port of Jacksonville. An example is the following exchange:
"Q. Now, when you import wines and liquors, how do they get to you or how do you propose they will get to you in Jacksonville?
"A. Primarily they come in through the Port of Jacksonville.
"Q. They will come by ship?
"A. By ship through the Port of Jacksonville.
"Q. Through the Port of Jacksonville?
"A. Yes, sir."
And further on:
"Q. So, you actually won't be importing anything that will come from, say France into Jacksonville by way of ship, will you?
"A. Oh, yes.
"Q. What will that be, sir?
"A. Wines, imported wines, French wines, Spanish wines, Italian wines."
We also mention two noteworthy observations of the witness concerning the Miami and Georgia operations of the National Distributing Company. First:
"Q. . . . And the port — Everglades port or harbor [in Fort Lauderdale, just north of Miami] is a receiving point for those wines down there?
"A. Some do come through Jacksonville because of the facilities afforded here.
"Q. I see.
"A. The containers, for instance, is a big thing here as against down there."
And the following comments:
"Q. One last question, Mr. Carlos, you are at this time in behalf of your Miami operation receiving imported wines through the Jacksonville port?
"A. I believe so; yes, sir.
"Q. Now, so strongly do you believe that — it's important to me and I don't mean to pick at words, but you say you believe so and that movement could go —
"A. We'd be receiving goods through the Jacksonville port. Let's go back a year ago. I would say the majority of our wines, imported wines, were coming in through Jacksonville. What the percentages are today, I do not know. I know we are receiving all our wines for our Jacksonville operation within Jacksonville now. For instance, in Georgia, I import wines and whiskies, Scotches and what-have-you, I hate to say this because I am — I am a Georgian, you might say, but the Port of Jacksonville affords me better facilities and I bring my stuff in through the Port of Jacksonville."
In our view these latter statements are of consequence because they underline the point that the Port of Jacksonville, which is equipped, among other things, to handle container ship operations, has been a significant factor in the concerns of the National Distributing Company, even prior to the opening of a processing plant in Jacksonville. So efficient, apparently, is the port, that National prefers to use it, where possible, in both its Georgia and Miami operations, although this necessitates extra overland hauling. Awareness of this background lends additional credence to the witness' testimony that the company intends to fully utilize the port in its imported wine operation in Jacksonville.
A discrepancy in the record should be cleared up at this point. Near the close of the proceedings the witness Carlos was asked:
"Q. Just — Mr. Carlos, with reference to the answers, your answers to Judge Winegeart's questions, do you at this time plan to use a tanker to bring in imported wines"
"A. No, sir."
This statement appears clear enough on its face, but directly conflicts with the preceding testimony by the same witness that the Port of Jacksonville would be the receiving point for wines imported by ship from Europe. On closer inspection, the conflict resolves itself. The questions posed to the witness by Judge Winegeart exclusively concerned the method of shipment of bulk domestic wines coming from California and New York. As to those wines, the witness admitted that land transportation was to be utilized — tank cars and trucks. It appears, therefore, that when the witness was later asked about plans to use a tanker, coupled with a reference to Judge Winegeart's earlier questions, he understood the question to refer to bulk wines coming from various parts of the United States, notwithstanding the reference to imported wines. Thus, we do not view this testimony, taken in context, as persuasive with regard to utilization of the Port of Jacksonville in the company's imported wine operation.
Accordingly, in our judgment there was sufficient evidence before the trial court from which it could conclude that substantial quantities of wines and some liquors will be imported by ship through the Port of Jacksonville to be distributed throughout the Florida and Georgia marketing areas. It is, moreover, highly probable that the existence of a distribution plant at a site close to the St. John's River will encourage shippers and importers of wines and spirits to do increased volumes of business through the Port, provided National's venture is financially successful, which we have no reason to doubt. Consequently, we are persuaded that this particular project will promote waterborne commerce, and is therefore an authorized project under the Charter of the Jacksonville Port Authority.
After careful consideration of the arguments, briefs and record in this cause, we are satisfied that appellees have complied in all respects with Fla. Const., Article VII, Section 10(c), with Chapter 159, Part II, Florida Statutes, and with the Charter of the Jacksonville Port Authority. Therefore, the judgment of the Circuit Court is affirmed.
It is so ordered.
ERVIN, CARLTON, ADKINS and McCAIN, JJ., concur.
ROBERTS, C.J., dissents.
DEKLE, J., dissents with opinion.
BOYD, J., dissents and agrees with DEKLE, J.
The enabling "project" essential to the validation of the bonds in question is plainly inconsistent with the purpose for the creation of the Jacksonville Port Authority, thereby prohibiting that Authority from acting pursuant to Fla. Stat. Ch. 159, Part II and under Fla. Const. art. VII, § 10(c). Further defect barring approval here is the fact that there is not a direct leasing of the facility to the using agency, namely the National Distributing Company. Instead, the agreement by the Port Authority is with C D Realty Corp. which will in turn later, it says, lease to National for operation. This is a defective link in the control of the proposed project because under this indirect arrangement the use can be varied without direct contact or control between the Port Authority and the using agency.
The language of the Port's Charter demonstrates that a liquor and wine processing and distribution plant is not included within the projects which are authorized under that legislation which creates the Jacksonville Port Authority. The majority agrees that the project must be within the meaning of the charter provisions in order to meet the requirements of this constitutional creation of such new revenue bonds. Fla. Const. art. VII, § 10(c); Fla. Stat. Ch. 159, Part II.
Ch. 63-1447, 67-1533, Laws of Florida.
It is understandable that the authorized projects contained in the enabling legislation for the Port of Jacksonville to which we must look, do not include wholesale distributing manufacturers in general nor breweries, nor wine distribution plants, inasmuch as Jacksonville like many cities has been benefited by private industry which has invested large sums of money in the economic development of that great "Gateway City". Recognizing this, those who backed and supported the Port and its Port Authority directed their attention toward the usual and ordinary matters of the development of a great port which this is and toward facilities related to a port such as defined in the Act creating it, and purposely left out provision for competing industry. Some of the Act's language in § 2 provides:
"(f) The word `project' shall embrace any one or any combinations of two (2) or more of the following, to wit: facilities for the construction, manufacture, repair or maintenance of ships and other facilities, directly or indirectly related to the promotion and development of waterborne commerce, and other harbor, port, shipping and airport facilities of all kinds, including, but not limited to, harbors, channels, turning basins, anchorage areas, jetties, breakwaters, water ways, canals, locks, tidal basins, wharves, docks, piers, slips, bulkheads, public landings, runways, taxiways, warehouses, terminals, refrigerating and cold storage plants, railroads and air and motor terminals for passengers and freight, rolling stock, car ferries, boats, airplanes, conveyors and appliances of all kinds for the handling, storage, inspection and transportation of freight and the handling of passenger traffic, mail, express and freight. . . ." (Ch. 67-1533, Laws of Fla.) (emphasis added.)
It will be seen that this clearly does not include a liquor and wine distribution business. Such a "project" seems as foreign to the creating legislation for the Jacksonville Port Authority as an alcoholic at a Temperance Convention.
The people of this state will be shocked to learn via the majority opinion that their vote for the new 1968 Constitution was a vote in favor of providing low cost bond financing for a national wine and liquor distributor at a public port in Jacksonville, Florida. This is a novel result, marking a new era when public support is provided for a competing business without regard for what type of concern it is, as against local private industry which over the years has in good faith built the community's economic base.
The allowance of such an improper encroachment by private industry under this constitutional largesse extends to it a financial windfall in providing revenue bonds that may invite attack under the equal protection provision of the U.S. Constitution.
The well established doctrine of ejusdem generis precludes such a project as that sought here. The doctrine provides that "where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase will usually be construed to refer to things of the same kind or species as those specifically enumerated." Obviously facilities promoting waterborne commerce do not include trucked in bulk wine and liquor, as the testimony clearly shows.
Children's Bootery v. Sutker, 91 Fla. 60, 107 So. 345, 347 (1926); Goldsmith v. Orange Belt Securities Co., 115 Fla. 683, 156 So. 3 (1934); Arnold v. Shumpert, 217 So.2d 116 (Fla. 1968); and State ex rel. Soodhalter v. Baker, 248 So.2d 468 (Fla. 1971).
Our previous approvals of such bonds under the new constitutional provision are only in clear cases where the purpose is plainly within appropriate areas, e.g., pollution control, educational facilities and meat processing.
State v. Putnam Co. Develop. Auth., 249 So.2d 6 (Fla. 1971); Nohrr v. Brevard County Educational Fac. Auth., 247 So.2d 304 (Fla. 1971); and State v. County of Dade, 250 So.2d 875 (Fla. 1971).
The majority hinges its permissiveness for spiritous liquors as a Port Authority "project" upon the promotion of waterborne traffic by import of the wines and liquors through the port by ship. The testimony is to the contrary. This 5-acre, $1 million bottling plant will receive "by rail and tank trucks" its wine output of approximately two million gallons per year, mostly from the State of California except for about 10% or 200,000 gallons from the State of Florida. The company official (only witness on the subject) flatly denied use of a tanker ship:
"Q. Mr. Carlos, with reference to the answers, your answer to Judge Winegeart's questions, do you at this time plan to use a tanker to bring in imported wines?
"A. No, sir." (p. 116)
It is to be distributed 40% in the Jacksonville trading area and the remaining 60% over the State of Florida by truck and rail lines. This is of course not the "waterborne" traffic suggested.
With regard to the bulk wine, the undisputed testimony of the company's official was:
"A. . . . We will buy from within the United States, we will bottle it, we will manufacture that. It will come in in tank cars, it will be put into our wine tanks and from that, it will be bottled on machinery and we will end up with a finished product.
"Q. How did you say that would come in?
"A. In tank cars.
"Q. From all —
"A. Tank cars or trucks. In Florida, we bring it in tank trucks. From California, for instance, it would come in in tank cars." (p. 106)
So we see that despite attempts to develop "possible imports by ship", the only actual testimony, that of the distributing company's official, is as above. It dissolves the foundation for the majority decision, i.e., that the "project" would "promote waterborne traffic." Without such a basis it is admitted that there is no "project" upon which to authorize the bond issue.
The anticipated plant in Jacksonville is to replace the present Miami bottling operation of this company. It is interesting that the company officer conceded that the same imported wines distributed from Miami are being received now through the Jacksonville Port. It is difficult to see how continuing the same process (in a lesser amount by 15%, he testified) in Jacksonville will "increase the waterborne" import, which is the majority's predicate for approval. It is apparent that the predicate simply is not substantiated in the testimony in this record and that there is absolutely no basis for the approval of such a project for revenue bonds.
The vacillating testimony and ultimate admissions of the liquor company official do not support the avowed (and essential) purpose of "the promotion of waterborne commerce." The admittedly "minor" imports for cargo as bottles in a ship's hold is the same as NOW being imported for the existing Miami plant (proposed to be moved to Jacksonville) and the imports for Georgia (not to be served in the proposed operation). Thus, there is no net increase "promoted" by this operation. If any can be inferred, it would be infinitesimal, if any at all. Hardly such a "promotion" of the economy as was anticipated as sufficient to activate this new constitutional provision for revenue bonds.
The principal operation testified to by the company officer would be "primarily bottling (bulk) wines" ALL of which would come ONLY by "truck or rail tankers."
"A. We will operate a manufacturing plant primarily bottling wines and alcoholic beverages. We will distribute, we will have an output approximately two million gallons of wines.
"Q. Per year?
"A. Per year; yes, sir." (p. 96)
As to the "spiritous liquors" ("Scotch lines") these are only in bottles and are purchased from distilleries "in Kentucky and some in Tennessee, Ohio." "Imported" yes, but "imported" from other importers. This adds nothing to "waterborne" commerce at the Port of Jacksonville. The interrogating attorneys used every inferential phrase possible to "make a record" to support such a project but the answers in toto simply do not "make it".
"Q. You buy them directly from those persons or buy them from people here in this country?
"A. We buy them from people within this country; yes, sir.
"Q. I see. In other words, you don't import them, you just buy them from somebody who has imported them?
"A. Well, like for instance, your Scotch lines, there is a selling agent or company that we buy through.
"Q. And that same policy will continue, I assume, here from the Jacksonville operation?
"A. Yes, sir." (emphasis supplied) (p. 104)
Following the testimony quoted in the majority opinion inferring DIRECT imports is the following which negates such inference:
"Q. And you will — you will buy those from — directly deal directly with the people overseas or will you buy from a selling agent here in this country?
"A. Majority from a selling agent." (emphasis supplied) (p. 104)
The Court then took up the inquiry but the witness stuck to his "no direct shipments" in the following exchange:
"THE COURT: Well, let me rephrase my question: I would assume you try to buy in such quantities where the ship would be direct to you and not circuitous through the selling agent?
"THE WITNESS: There are brands that have to come through a selling agent, liquor, Scotch." (p. 105)
And so it was throughout the repeated efforts to show differently. It just isn't there. They "lean too heavily upon a thin reed."
The "project" is clearly not one authorized by the Port charter.
I dissent.