        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

     CORRECTIONS CORPORATION OF AMERICA, INC., a Foreign
                       Corporation,
                        Appellant,

                                    v.

CITY OF PEMBROKE PINES, a Florida Municipal Corporation; and CCA
   PROPERTIES OF AMERICA, LLC, a Tennessee Limited Liability
                         Company,
                         Appellees.

                             No. 4D14-4815

                           [November 1, 2017]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol-Lisa Philips, Judge; L.T. Case No. 12-007337
CACE (25).

   Leonard K. Samuels, Paul S. Figg and Ashley Dillman Bruce of Berger
Singerman LLP, Fort Lauderdale, for appellant.

    Usher L. Brown and Victor Kline of Greenspoon Marder, P.A., Orlando,
for appellee City of Pembroke Pines.

   Alfredo Marquez-Sterling and Keith M. Poliakoff of Arnstein & Lehr LLP,
Fort Lauderdale, for Amicus Curiae the Town of Southwest Ranches.

                      ON MOTION FOR REHEARING

CIKLIN, J.

   We grant appellee’s motion for rehearing in part, withdraw our
previously issued opinion, and substitute the following in its place to
correct an erroneous factual reference.

   Corrections Corporation of America (“CCA”) appeals a trial court
order—sounding in declaratory relief—holding that the City of Pembroke
Pines did not have a duty to provide water and sewer services to CCA’s
property site, as well as a final order dismissing CCA’s counterclaims.
Because we find that Pembroke Pines affirmatively expressed its intention
to assume such a duty, we reverse the order determining that Pembroke
Pines did not. Because it appears the trial court dismissed CCA’s
counterclaims based on its determination that Pembroke Pines did not
have a duty to CCA, we also reverse the order dismissing CCA’s
counterclaims.

                                 Background

    CCA sought sewer and water services from Pembroke Pines for its
property located in the Town of Southwest Ranches but adjacent to
Pembroke Pines (“the CCA site”). Pembroke Pines operates potable water
and sewer systems that service properties within its boundaries, as well
as some properties outside of those boundaries. Those services provided
outside of the boundaries extend to a limited number of residential and
commercial properties. Southwest Ranches does not have potable water
or sewer systems to service its residents, and Pembroke Pines is the only
provider in the area. The CCA site is surrounded by four other properties,
all of which are, or were at one time, serviced by Pembroke Pines’ water or
sewer systems (or both). Only one of these properties is actually located
within the boundaries of Pembroke Pines. 1 At all times relevant to this
dispute, Pembroke Pines admitted that it had the capacity and
infrastructure in place to provide water and sewer services to the CCA site
through its systems that abut the site.

   In 2005, CCA and Southwest Ranches entered into an agreement
concerning the development of a correctional facility on the CCA site. The
agreement provided that “all required water, sewer and other utility
services are available” at the CCA site. CCA was advised that while a water
and sewer agreement with Pembroke Pines would be required, it was
unclear whether the Pembroke Pines City Commission would grant those
services. However, later in 2005, Southwest Ranches entered into an
interlocal agreement with Pembroke Pines regarding local roadways and
other matters (“Roadways ILA”), in which Pembroke Pines agreed not to
interfere with the development or operation of CCA’s jail facility:

      Jail Facility. [Pembroke Pines] shall not interfere with [CCA’s],
      or its successors or assigns, development and/or operation of
      the jail facility, or with [Southwest Ranches]’s Agreement with
      [CCA] concerning development of same.

1One of the properties was a women’s prison, which is no longer operational.
Another property is a future county jail site. Pembroke Pines also provides water
and sewer services to Everglades National Park, which is located outside of the
boundaries, and near the CCA site.

                                       2
   In 2011, Immigration and Customs Enforcement (“ICE”) tentatively
selected the CCA site to build a new detention facility. A few days later,
Pembroke Pines and Southwest Ranches entered into another interlocal
agreement concerning emergency medical and fire services (the “EMS ILA”)
that provided in pertinent part:

      Jail Facility: [Pembroke Pines] acknowledges that it has
      sufficient capacity to deliver emergency medical protection
      and fire prevention services to [Southwest Ranches]’s future
      2,500 bed detention/corrections facility, located on property
      currently owned by [CCA]. [Pembroke Pines] agrees to timely
      provide Broward County, upon request, any documentation
      that Broward County may require to acknowledge that
      Pembroke Pines has the capacity, ability, and the willingness
      to service this facility under the terms and conditions
      contained herein. . . . Further, [Pembroke Pines] agrees that
      it has sufficient capacity to provide water and sewer service to
      [Southwest         Ranches]’s        future       2,500        bed
      detention/corrections facility (approximately 500,000 gross
      square feet of floor area), and that it will expeditiously approve
      a water/waste water utility agreement to provide such service,
      at [Pembroke Pines]’s then prevailing rate, in accordance with
      state law ([Pembroke Pines]’s rate + surcharge).

(Emphasis added). In a special meeting on June 27, 2011, the Pembroke
Pines City Commission voted on and approved the EMS ILA in Resolution
No. 3312.

   Some five months later, in December 2011, the City Commission
passed yet another affirmative motion, that one being “to approve direction
that, should CCA come forward with a request for Pembroke Pines to
provide them water and sewer service, that the water and sewer agreement
stipulate that it would be for not more than 1,500 beds based on the
Engineer’s report” (the “December 2011 Motion”). CCA then submitted to
Pembroke Pines a proposed Water and Sewer Installation and Service
Agreement (the “W & S Agreement”) for a 1,500–bed facility, and requested
that the matter be finalized at the first available City Commission meeting.
Pursuant to the EMS ILA, the Pembroke Pines city attorney and the
Pembroke Pines city manager agreed on the contractual terms with CCA
and the W & S Agreement was then submitted to the City Commission. In
an abrupt departure from the numerous manifestations of intent
expressed by the Pembroke Pines City Commission over the previous six
years, the City Commission did not vote on the W & S Agreement and quite

                                      3
to the contrary, formally adopted a resolution expressing its opposition to
erecting the ICE detention center on the CCA site. In a later meeting, the
City Commission voted to both terminate the EMS ILA and, because it was
“in doubt as to its rights and obligations,” and to direct the city attorney
to seek declaratory relief.

    In its action for declaratory judgment, Pembroke Pines sought a ruling
that it was not required to provide CCA with water and sewer services or,
if it was required to provide utility services, a determination of “whether
there [were] any limitations on the obligation to provide service.” Following
trial, the court entered an order determining that Pembroke Pines did not,
in fact, have a duty to provide water and sewer services to CCA.

                                 Analysis

   On appeal, CCA argues that Pembroke Pines assumed a legally
enforceable duty to provide the CCA site with those services by expressly
manifesting a desire or intent to provide the services. CCA maintains the
evidence at trial established that the ongoing conduct of Pembroke Pines
created a duty to provide utilities. As such, the trial court’s rulings
concerned a question of fact that “must be sustained if supported by
competent substantial evidence.” Bellino v. W & W Lumber & Bldg.
Supplies, Inc., 902 So. 2d 829, 832 (Fla. 4th DCA 2005) (quoting State v.
Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001)). We agree with CCA.

    As a general rule, “a municipality has no duty to supply services to
areas outside its boundaries.” Allen’s Creek Props., Inc. v. City of
Clearwater, 679 So. 2d 1172, 1174 (Fla. 1996). In Allen’s Creek, the
Florida Supreme Court recognized exceptions to this general rule where
(1) a municipality has agreed to extend its services by contract, and (2)
where a municipality has assumed a duty to provide such services through
its conduct. Id. at 1175-76.

   With regard to the conduct exception, the court explained:

      According to the jurisdictions that recognize this exception, a
      municipality that holds itself out as a public utility for a
      particular area outside its city limits has a duty to supply
      everyone in that area. . . .

         We agree that through its conduct a municipality may
      assume the legal duty to provide reasonably adequate services
      for reasonable compensation to all of the public in an
      unincorporated area. See City of Winter Park v. Southern

                                     4
      States Utilities, Inc., 540 So. 2d 178, 180 (Fla. 5th DCA 1989)
      (city’s passage of ordinance requiring property owners outside
      the city but within a zone designated by the ordinance to
      connect to the city’s sewer service when available was conduct
      sufficient to bring into effect law applicable to public utilities).
      We add however that the conduct must expressly manifest the
      municipality’s desire or intent to assume that duty.              A
      municipality’s decision to provide service without restriction
      in an area outside its boundaries would meet this
      requirement.

Id. at 1176 (emphasis added).

   Allen’s Creek presents a scenario somewhat similar to the one at hand.
There, Allen’s Creek owned a parcel of land located in the unincorporated
area of Pinellas County, but adjacent to Clearwater. Id. at 1174. When
Allen’s Creek submitted a site development plan to Pinellas County,
Pinellas officials directed Allen’s Creek to Clearwater for sewer services
because the parcel was located within Clearwater’s sanitary sewer service
district. Id. Clearwater informed Allen’s Creek that it would have to
consent to annexation before receiving sewer services. Id. Allen’s Creek
declined and filed suit for declaratory judgment. Id.

    On appeal to the Florida Supreme Court, Allen’s Creek argued that the
conduct exception to the general rule applied, as Clearwater had assumed
an obligation to provide sewer service in its designated service area
through the Central Pinellas County 201 Facilities Plan (“201 Plan”) and
its interlocal agreement with the City of Largo. Id. at 1175-76. The
interlocal agreement between Clearwater and the City of Largo designated
service areas and stated, “The parties shall have the exclusive right to
provide wholesale and retail sanitary sewer service within the area
allocated to such part and further agree not to compete with each other as
to the provision of such sewer service outside their designated area.” Id.
at 1175. 2

   The 201 Plan was created in connection with the Federal Water
Pollution Control Act of 1972, the goal of which was “to eliminate the
discharge of pollutants into navigable waters by 1985,” and a provision of
which was federal “funding for the research and development of
wastewater treatment management plans.” Id. at 1174. Within the 201

2The court clarified that the use of the word “exclusive” to describe the service
areas is misleading, because Allen’s Creek could have sought services from
alternative sources. Id. at 1176 n.5.

                                       5
Plan, “service areas” were designated “to determine the scope of facilities
needed in the future.” Id. Allen’s Creek’s property was within Clearwater’s
service area as designated by the plan. Id. Clearwater approved the 201
Plan by local resolution in 1978, but the EPA rejected it, so the plan was
never implemented and Clearwater proceeded with development of
alternative methods for wastewater disposal. Id.

   The supreme court declined to extend the conduct exception to Allen’s
Creek, reasoning:

      [N]othing in either the Plan or agreement affirmatively states
      that Clearwater will provide services to the unincorporated
      area. Nor do these agreements preclude those located outside
      Clearwater’s city limits but within its service area from
      seeking services from an alternative source.

      ....

         . . . We find that the agreements entered by Clearwater in
      this case did not affirmatively express the City’s intent to
      supply sewer service to the unincorporated portion of its sewer
      service area. Nor did Clearwater engage in any other conduct
      that expressed the intent to serve this area.

Id. at 1176-77 (emphasis added). The court concluded that Clearwater’s
annexation requirements were therefore permissible, so long as the
requirements were reasonably justified and consistently applied. Id.

   While similar to the facts of the instant case, Allen’s Creek is somewhat
distinguishable. There, the 201 Plan and interlocal agreement on which
Allen’s Creek relied were in place before it requested service from the city.
As an apparent consequence, the court looked to the agreements at issue
for “affirmative[] state[ments] that Clearwater will provide services to the
unincorporated area.” Id. at 1176. In other words, the court reviewed the
documents for expressions of Clearwater’s intent to provide utility services
to anyone located within the specific, unincorporated service area. Id.

    Here, on the other hand, CCA relies on documents specifically
addressing the CCA site. Applying Allen’s Creek to the agreements at
hand, we find direct expressions of intent to provide services to the area
at issue in the EMS ILA:

      Jail Facility: . . . [Pembroke Pines] agrees to timely provide
      Broward County, upon request, any documentation that

                                     6
      Broward County may require to acknowledge that Pembroke
      Pines has the capacity, ability, and the willingness to service
      this facility . . . . Further, [Pembroke Pines] agrees that it has
      sufficient capacity to provide water and sewer service to
      [Southwest            Ranches]’s     future       2,500        bed
      detention/corrections facility (approximately 500,000 gross
      square feet of floor area), and that it will expeditiously approve
      a water/waste water utility agreement to provide such service,
      at [Pembroke Pines]’s then prevailing rate, in accordance with
      state law ([Pembroke Pines]’s rate + surcharge).

(Emphasis added). By including a statement that it would “approve a
water/waste water agreement to provide such service,” Pembroke Pines
affirmatively and expressly manifested its desire and intent to assume that
duty.

    Further, although they may not constitute affirmative expressions of
intent to provide water and sewer service, other actions of the City of
Pembroke Pines indicated its willingness to provide services to the CCA
site. Pembroke Pines provided these services to all surrounding sites.
Also, knowing that it was the only water and sewer service provider in the
area, Pembroke Pines agreed in the Roadways ILA that it “shall not
interfere with [CCA’s] . . . development and/or operation of the jail facility.”
Finally, Pembroke Pines indicated its willingness to provide these services
by the City Commission’s passage of the December 2011 motion to direct
CCA to limit its request for water and sewer services to a 1,500-bed facility.

    In fact, Pembroke Pines’s procedures as outlined in its Code of
Ordinances support our finding of an express manifestation of intent. The
Code specifies that “property located outside the city limits shall not be
allowed to connect to a city utility system unless the connection is
authorized by the City Commission,” and that “[n]o action of the
Commission . . . shall be valid or binding unless adopted by the affirmative
vote of three (3) members of the Commission.” See Pembroke Pines, Fla.,
Code of Ordinances §§ 3.07(e), 50.10(B). While the Commission did not
vote on CCA’s proposed W & S Agreement, which provided the negotiated
terms and conditions of utility services, it did vote on and approve the EMS
ILA in Resolution No. 3312, in which the City agreed that it would approve
a water/wastewater utility agreement. As a consequence of the City
Commission’s approval of the EMS ILA, CCA may have reasonably
expected that Pembroke Pines’s agreement to provide utility services was
valid and binding.

   Respectfully, the dissent misses the point and instead focuses its

                                       7
analysis on the question of whether a basic enforceable contract was
formed (or whether it was just “an agreement to agree”) to reach its
conclusion that Pembroke Pines is not bound to provide water and sewer
services to CCA. We are bound by the principles of law outlined in Allen’s
Creek, which clearly elevate the issue in this particular case beyond simple
contractual interpretation. The ILA is not a contract between the parties
to this action, and therefore analysis of it as such is misplaced and is
simply an irrelevant exercise. Allen’s Creek does not direct us to ascertain
the enforceability of the ILA as a contract; instead, it compels us to look for
conduct that “expressly manifest[s] the municipality’s desire or intent to
assume that duty.” See 679 So. 2d at 1176. We find such an express
manifestation in the language of the EMS ILA and in the City Commission’s
passage of a resolution approving the EMS ILA—plus the numerous other
forms of assent discussed herein.

   Consequently, we find that the conduct exception to the general rule
that a municipality has no duty to supply services to areas outside its
boundaries applies in the instant case. We reverse the trial court’s
determination to the contrary.

   Reversed and remanded for further proceedings.

TAYLOR, J., concurs.
KLINGENSMITH, J., dissents with opinion.

KLINGENSMITH, J., dissenting.

    Although municipalities typically do not have a duty to supply services
to areas outside their boundaries, I recognize that a municipality may be
required to supply services outside its boundaries if its conduct expressly
manifested the desire or intent to assume such a duty. See Allen’s Creek
Props., Inc. v. City of Clearwater, 679 So. 2d 1172, 1174–76 (Fla. 1996).
However, this exception, which is rooted in the concepts of detrimental
reliance and estoppel, does not apply here. CCA could not reasonably
claim detrimental reliance because Pembroke Pines never expressly
manifested its desire to such an extent as to impose the duty of providing
services to the CCA site. Accordingly, I dissent from the majority’s opinion.

    In the EMS ILA, Pembroke Pines expressed only a nascent willingness
to service some future facility. The stated desire to “expeditiously approve
a water/waste water utility agreement” was insufficient to constitute an
affirmative, express manifestation of Pembroke Pines’ unreserved intent.
Rather, the language of the EMS ILA was only an implicit expression of
possible future intent, devoid of an affirmative expression of present intent

                                      8
resembling a formal enactment of an ordinance or resolution. The EMS
ILA is best described as nothing more than an “agreement to make an
agreement,” which is unenforceable under Florida law. See Irby v. Mem’l
Healthcare Grp., 901 So. 2d 305, 306 (Fla. 1st DCA 2005).

   After the EMS ILA was approved, CCA submitted to Pembroke Pines a
proposed Water & Sewer Agreement for a 1,500-bed facility, requesting
that the agreement be finalized at the next City Commission meeting
because CCA knew that any water and sewer connection for the CCA site
would ultimately require formal approval by a vote of the City
Commission. 3 However, the City Commission never approved the
agreement for services with CCA. Instead, the City Commission voted to
adopt a resolution expressing its opposition to erecting the ICE detention
center on the CCA site.

   Thus, CCA proceeded on the incorrect assumption that Pembroke Pines
could not change its collective mind on its willingness to agree to provide
utility services, failing to consider that it is not uncommon for a
municipality to embark on a prospective plan of action only to later reverse
course due to its citizens’ disapproval. Respect for the separation of
powers precludes us from substituting our own collective judgment for
that of Pembroke Pines’ elected leaders who are, and must remain,
accountable to their citizens for any policy decisions they make.

    Moreover, although Pembroke Pines previously provided some utility
services to customers outside its boundaries, it did so only in limited
situations.    In light of CCA’s awareness that compliance with the
applicable provisions of the Code of Ordinances was required, these
circumstances on the whole did not amount to an affirmative expression
of Pembroke Pines’ unreserved intent to assume the duty of providing
utility services to the CCA site. See Allen’s Creek, 679 So. 2d at 1176
(“Providing service outside its boundaries in only limited situations, as
Clearwater has done here, does not amount to an affirmative expression
of intent to serve all in the area.”).




3 In fact, section 50.10(B) of the Pembroke Pines Code of Ordinances (2012),
states that “property located outside the city limits shall not be allowed to connect
to a city utility system unless the connection is authorized by the City
Commission.” This authorization can only occur as provided by section 3.07(e)
of the Charter of the City of Pembroke Pines, which states, “[n]o action of the
Commission . . . shall be valid or binding unless adopted by the affirmative vote
of three (3) members of the Commission.”

                                         9
    To conclude, this new majority opinion discusses nothing of
significance that was overlooked the first time we considered the issue.
That the City Commission formally approved the EMS ILA does not change
its wording; all that happened was that the City Commission approved at
that point an unenforceable “agreement to agree.” The majority’s opinion
should give every local government in this state considerable pause, as it
now holds that a city can now be bound by its mere favorable expressions
of future intent despite no formal approval by the city’s governing body, no
contract, and no estoppel created by detrimental reliance. Which, it
seems, is plenty for the majority to find that an enforceable duty was
created against Pembroke Pines. This “plenty,” however, “is plenty of
nothing, and, apparently, nothing is plenty for th[is] Court.” See Bank
Markazi v. Peterson, 136 S. Ct. 1310, 1335 (2016) (Roberts, C.J.,
dissenting).

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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