dissenting.
I must respectfully dissent from the majority opinion for the reasons cited hereinafter.
The facts in this matter are relatively simple and involve an interpretation of the language in American’s certificate no. L-50, to wit: “. . . from points in Dade County, Florida, to sites of sport*186ing events in Florida, and return.” (Italics added.) By way of background, Wylly’s Sportsman, Inc. (Wylly’s) applied for, among other things, authority to transport passengers from points in Dade County to sites of sporting events in Florida and return. During the course of the hearing on this application, the applicant, in answer to a request to interpret the term “sporting events,” stated that the term “sporting events” specifically excluded dog and horse race tracks, and Jai Alai frontons. This is evidenced by the following testimony adduced at that hearing —
Q. (to the applicant) What is your definition of a sporting event?
A. (by applicant) Football game, baseball game, prize fight, soccer game, basketball game.
* *
Q. Let me ask you this. Does the term sporting event include everything from a turkey shoot to a bull fight?
A. It includes any sporting event that we might choose other than a dog track, a horse track, a jai alai game, or harness racing ... (Italics added.)
The application was subsequently granted by the commission by order no. 7605-A, dated June 23, 1967, and such authority was incorporated into Wylly’s certificate no. L-50. For some reason, which is not in the record but presumedly through oversight, the commission did not define the term sporting events in certificate no. L-50, but it is apparent that all parties as well as the commission relied upon the representation made by the applicant at the hearing. (For that matter, reference to sporting events authority was completely omitted when order no. 7605 was entered; therefore, this necessitated the entry of order no. 7605-A to cure this defect.) While rule 25-2.111 is cited by the majority as a prohibition against considering the above quoted testimony, the commission may waive any of its rules and the Supreme Court has so held. See Van Gorp Van Service, Inc. v. Mayo, 207 So.2d 425 (Fla. 1968). This is particularly true, as well as necessary, when the interpretation of some particular language in a certificate is at issue. Only the record can clearly resolve any ambiguities which may surround certain language in a carrier’s operating authority, and for this reason, it is necessary to consider the above quoted testimony in order to determine precisely what American may or may not do under its certificate no. L-50. Moreover, the rules of evidence permit the introduction of the prior transcript of record into evidence through means other than a request to have the commission take judicial notice of same, as was done in this proceeding.
*187Certificate no. L-50 was acquired by American Sightseeing Tours, Inc. (American) on February 5, 1968 (order no. 7824, docket no. 9140-CCB). Some two years later in January, 1970, American filed for authority under §323.03, Florida Statutes, to transport passengers from Miami to race tracks in Dade and Broward counties. This application (see docket no. 70021-CCB) was subsequently withdrawn and American then began to transport passengers to race tracks in Dade and Broward counties. As the basis for conducting these operations, American alleged it held such authority since the definition of “sporting events” included, among other things, race tracks. Tropical then filed a complaint, which was ultimately dismissed by the commission by order no. 9399 on March 24, 1971.
It is my opinion that Tropical’s complaint that American was operating illegally was meritorius and should not have been dismissed. To dismiss the complaint and approve of the actions of American amounts, very simply, to granting additional authority to American without the requisite notice, hearing, and proving of public convenience and necessity as required by §323.03, Florida Statutes. In short, we have authorized American to conduct operations it has not heretofore had authority to conduct without it having to comply with the requirements of chapter 323, Florida Statutes.
My conclusions are buttressed by the undisputable facts in this proceeding, to wit — (1) the restriction by the certificate holder itself against the operations which it is now performing when it applied for the original authority, and (2) the actual conduct of the parties. By this I mean that the original certificate holder (Wylly’s) and the present certificate holder (American) apparently did not transport passengers to race tracks for a period of almost two and one-half years after the issuance of the authority obviously because they were aware of the restrictive interpretation placed on the term “sporting events” by the original holder. Moreover, American applied for the authority which it is now conducting presumedly on the basis that it did not hold authority to transport passengers from Miami to race tracks in Dade and Broward counties. The inescapable conclusion is that the action by the majority of the commission grants additional authority to American without meeting the requirements of the law.
I would reconsider the order dismissing the complaint, order American to cease and desist transporting passengers from Miami to Hialeah, Tropical, and Gulfstream horse race tracks, modify certificate no. L-50 in line with the discussion herein, and require it to file an application under §323.03, Florida Statutes, if it wishes to provide the transportation in question.