City of Hollywood, a political subdivision of the State of Florida v. Eric Arem , 2014 Fla. App. LEXIS 16790 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
CITY OF HOLLYWOOD, a political subdivision of
the STATE OF FLORIDA,
Appellant,
v.
ERIC AREM,
Appellee.
No. 4D12-1312
[October 15, 2014]
Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; Terri-Ann Miller, Judge; L.T. Case No. 11-68287T140A.
Edward G. Guedes and Samuel I. Zeskind of Weiss Serota Helfman
Pastoriza Cole & Boniske, P.L., Coral Gables, and Jeffrey P. Sheffel, City
Attorney, Hollywood, for appellant.
Jason T. Forman of Jason T. Forman, P.A., Fort Lauderdale, for
appellee.
ON MOTION FOR REHEARING
KLINGENSMITH, J.
We grant the motion for rehearing, deny rehearing en banc and
certification to the Florida Supreme Court, withdraw our previously issued
opinion, and substitute the following opinion in its place.
The City of Hollywood (the “City”) appeals an order granting Defendant
Eric Arem’s motion to dismiss a red light camera prosecution against him.
The county court certified the following questions of great public
importance pursuant to section 34.017, Florida Statutes (2011), and
Florida Rule of Appellate Procedure 9.160(d):
1. Does Florida Statute 316.0083(1)(a) authorize a
municipality to delegate and have a private vendor actually
issue Florida Uniform Traffic Citations, when notices of
violation, (also issued by the vendor), are not complied
with, where the only involvement of the traffic infraction
enforcement officer in the entire process is to push a
button saying “Accept” after having viewed the image of an
alleged violation electronically transmitted by the vendor?
2. Does Florida Statute 316.650(3)(c) permit a traffic
infraction enforcement officer to delegate to a non-
governmental entity, such as a private vendor of a
municipality, his or her statutory duty to electronically
transmit a replica of traffic citation data to a court having
jurisdiction over the alleged offense or its traffic violations
bureau?
3. And if the answer is in the negative to either question, is
dismissal the appropriate remedy?
We accept discretionary review pursuant to Florida Rules of Appellate
Procedure 9.030(b)(4)(A) and 9.160.
For the reasons set forth herein, we answer “No” to the first certified
question, and find that the City is not authorized to delegate police power
by entering into a contract that allows a private vendor to screen data and
decide whether a violation has occurred before sending that data to a
traffic infraction enforcement officer (“TIEO”) to use as the basis for
authorizing a citation. Such outsourcing to a third-party for-profit vendor
of a city’s statutorily mandated obligation to issue uniform traffic citations
for red light camera violations is contrary to the plain wording of the
Florida Statutes.
Inasmuch as we have answered the first question in the negative, we
answer “Yes” to the third certified question, and find that dismissal of the
citation is the appropriate remedy where a private third party effectively
decides whether a traffic violation has occurred and a citation should be
issued. We decline to answer the second question posed by the county
court because the City’s improper delegation of authority in this case
renders the citation void at its inception.
Factual and Procedural Background
Section 316.0083, Florida Statutes, known as the Mark Wandall Traffic
Safety Program (the “Act”), authorizes local governments to use red light
cameras to enforce violations of sections 316.074(1) and 316.075(1)(c)1;
both of which prohibit the running of red lights. See Ch. 2013-160, § 5,
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Laws of Fla.; § 316.008(8)(a), Fla. Stat. (2011). The Act specifically
authorizes the use of TIEOs to enforce red light violations. § 316.0083(1),
Fla. Stat. (2011). The City operates a red light camera enforcement
program pursuant to these statutes. As allowed by law, the City’s program
produces uniform traffic citations by electronic means. § 316.650(1)(c),
Fla. Stat. (2011).
To assist the City in implementing its red light camera enforcement
program, the City entered into a contract with American Traffic Solutions,
Inc. (“ATS”), a private for-profit vendor, located in Arizona. Pursuant to
that contract, ATS provides the City with, among other things, cameras
and a computerized system to review recorded images of red-light
violations to determine the occurrence of potential violations. If ATS
forwards an image to the City, the TIEO authorizes enforcement by clicking
a digital “Accept” button. The ATS computer program then handles the
printing and mailing of the notice of violation to the automobile’s registered
owner. If the cited car owner fails to elect an option that avoids the
issuance of a traffic citation, ATS then generates the resulting citation, and
inserts a computer generated signature of the TIEO along with the TIEO’s
badge number. ATS sends the original citation by certified mail to the
registered owner, and electronically transmits a replica of the citation data
to the county court clerk. After clicking “Accept,” the TIEO never actually
sees the citation, nor is the TIEO otherwise involved in its issuance.
In this case, the City’s red light camera system observed a car registered
to Defendant failing to comply with a red light signal. After the information
was forwarded to the City by ATS, the TIEO, acting as the City’s agent,
pressed the “Accept” button and initiated the aforementioned process.
ATS sent out the notice of violation to the Defendant, who did not respond.
In accordance with the standard procedure, ATS generated a uniform
traffic citation after noting Defendant’s failure to respond, sent it to him
by certified mail, and electronically transmitted a replica of the citation
data to the county court clerk.
Upon receiving the citation, Defendant denied the violation and
requested a trial. After hearing testimony from the TIEO at trial, the
county court found that the City’s red light enforcement program did not
comply with Florida Statutes by improperly delegating various tasks to
ATS, and dismissed the citation. In its written order, the trial court
determined inter alia that the Florida Statutes required that the citation
be issued by the TIEO and not a third-party vendor, finding that the TIEO:
[W]as merely hitting the “accept” button to begin the
process of generating a Notice of Violation (NOV) once she
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had viewed the video of the alleged infraction and
determined that a violation had taken place. Those NOVs
that were not paid within thirty (30) days eventually turned
into Uniform Traffic Citations (UTC), issued directly by
American Traffic Solutions (ATS), a vendor for the City of
Hollywood. The testimony also showed that although the CSO
believed that ATS was communicating with the Clerk of Court
once the UTC was issued, the CSO had no personal knowledge
of the communication, what information was sent to the
Clerk, and when it was done. . . .
....
The procedure employed by the City of Hollywood in this
case is also actually contrary to Florida Statute 316.0083
(1)(a) which provides in pertinent part:
. . . This paragraph does not prohibit a review (emphasis
supplied) of information from a traffic infraction
detector by an authorized employee or agent of the
department, a county or a municipality before issuance
(emphasis supplied) of the traffic citation by the traffic
infraction enforcement officer. (Emphasis supplied).
What appears to have occurred in this case is that the
traffic infraction enforcement officer (CSO) reviewed the
information from the traffic infraction detector, and the
[uniform traffic citation] was issued by a vendor, ATS, the
agent for the City of Hollywood.
(Emphasis added). This appeal followed.
Analysis
The interpretation of a statute in Florida is a legal matter and subject
to review de novo. Kasischke v. State, 991 So. 2d 803, 807 (Fla. 2008).
Courts strive to construe statutes to effectuate the Legislature’s intent.
See, e.g., id. at 807 (“When construing a statute, we strive to effectuate the
Legislature’s intent.”). To determine the intent, this court must first look
to the statute’s plain language. Id. “Florida case law contains a plethora
of rules and extrinsic aids to guide courts in their efforts to discern
legislative intent from ambiguously worded statutes.” Holly v. Auld, 450
So. 2d 217, 219 (Fla. 1984). However, “[w]hen the statute is clear and
unambiguous, courts will not look behind the statute’s plain language for
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legislative intent or resort to rules of statutory construction to ascertain
intent.” Borden v. East–European Ins. Co., 921 So. 2d 587, 595 (Fla. 2006)
(quoting Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005)).
As a result of concerns about interference by municipalities in enacting
and enforcing state traffic laws, the legislature adopted two sections which
expressly limit the power of a municipality to legislate over traffic matters
— sections 316.002 and 316.007, Florida Statutes — so as “to create a
uniform, statewide traffic control system.” State v. Smith, 584 So. 2d 145,
147 (Fla. 2d DCA 1991). From that, chapter 316 was titled as the “Florida
Uniform Traffic Control Law.” § 316.001, Fla. Stat. (2013) (italics added).
The legislature created chapter 316 to address two abuses arising from the
municipal court system of handling traffic infractions — the “history of
inconsistency of penalties imposed” by the municipal courts and the
inconsistency of traffic laws in municipalities across the state. Miller v.
City of Indian Harbour Beach, 453 So. 2d 107, 111-12 (Fla. 5th DCA
1984).1
First, in section 316.002 the legislature identified the purpose of
chapter 316 as being “to make uniform traffic laws to apply throughout
the state . . . and uniform traffic ordinances to apply in all municipalities.”
See Maddox v. State, 923 So. 2d 442, 446 (Fla. 2006) (indicating that the
1 In the preamble to chapter 71-135, Laws of Florida, the legislature identified
these problems with the municipal court system that chapter 316 was designed
to address:
1. “the movement of traffic in about 50 percent of the 394
incorporated municipalities of this state is controlled by chapter
186, Florida Statutes, which contains 195 sections,” while “the
traffic in the remaining incorporated municipalities . . . is controlled
by a hodgepodge of ordinances which vary as to language and
penalty”;
2. many “parts of our state and city traffic laws are nonuniform
and inconsistent”;
3. “from the stand point of the public, observance of traffic rules is
largely conditioned on the clarity, reasonableness and uniformity of
the regulations,” and
4. “nonuniform laws and ordinances are a source of inconvenience
and hazard to the motorist and pedestrian alike, and contribute to
accidents, traffic snarls, and congestion, increase the
administrative and enforcement burdens of governmental agencies,
and raise serious barriers to interstate and intrastate travel and
commerce.”
Ch. 71-135, Laws of Fla.
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“stated purpose” of chapter 316 is “outlined” in section 316.002). Section
316.002 expressly limits the power of municipalities to legislate over traffic
matters, as follows: “Section 316.008 enumerates the area within which
municipalities may control certain traffic movement or parking in their
respective jurisdictions.” Id. The powers of a municipality to legislate on
traffic matters are thus limited to those enumerated in section 316.008.
Finally, section 316.002 makes it “unlawful for any local authority to pass
or to attempt to enforce any ordinance in conflict with the provisions of
this chapter.” Id.Consistent with section 316.002, section 316.007, like a constitutional
provision over traffic matters, declares the principle of uniformity and the
supremacy of chapter 316: “The provisions of this chapter shall be
applicable and uniform throughout this state and in all political
subdivisions and municipalities therein, and no local authority shall enact
or enforce any ordinance on a matter covered by this chapter unless
expressly authorized.” § 316.007, Fla. Stat. (2013) (italics supplied). The
section 316.007 prohibition is even broader than that of 316.002; while
section 316.002 precludes ordinances that “conflict” with chapter 316,
section 316.007 bars ordinances “on a matter covered by [chapter 316]
unless expressly authorized.” Id. (italics supplied).
As the supreme court recognized in Masone v. City of Aventura, 39 Fla.
L. Weekly S406 (Fla. June 12, 2014), the history of Florida traffic law
supports the conclusion that these statutes should be strictly construed
to effectuate their purpose, and any attempt by a local government to
circumvent chapter 316 either by ordinance or contract is invalid unless
expressly authorized by the legislature.
Whether the City has the authority to outsource the issuance of these
citations, or to outsource any other statutory duty, must therefore be
derived from the plain wording of the statutes. Here, the applicable
statutes are clear and unambiguous. Section 316.0083(1)(a) provides, in
pertinent part:
A notice of violation and a traffic citation may not be issued
for failure to stop at a red light if the driver is making a right-
hand turn in a careful and prudent manner at an intersection
where right-hand turns are permissible. This paragraph does
not prohibit a review of information from a traffic infraction
detector by an authorized employee or agent of the
department, a county, or a municipality before issuance of the
traffic citation by the traffic infraction enforcement officer.
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§ 316.0083(1)(a), Fla. Stat. (2011) (emphasis added). Section 316.650
(3)(c) also provides:
If a traffic citation is issued under s. 316.0083, the traffic
infraction enforcement officer shall provide by electronic
transmission a replica of the traffic citation data to the court
having jurisdiction over the alleged offense or its traffic
violations bureau within 5 days after the date of issuance of
the traffic citation to the violator.
§ 316.650(3)(c), Fla. Stat. (2011) (emphasis added).
In Florida, only law enforcement officers and traffic enforcement officers
have the legal authority to issue citations for traffic infractions, which
means only law enforcement officers and traffic enforcement officers are
entitled to determine who gets prosecuted for a red light violation. See
§ 316.0083(3); see also § 316.640, Fla. Stat. (2011). By statute, a traffic
enforcement officer in a municipality must: (1) be an employee of the
sheriff’s or police department; (2) successfully complete the program as
described in the statute; and (3) be physically located in the county of the
sheriff’s or police department. § 316.640(5)(a).
Section 316.640(5)(a) permits employees of a sheriff’s department or
police department of a municipality, without conveying arrest powers, to
become TIEOs empowered to issue traffic citations under section
316.0083. However, the statute does not authorize a private vendor to issue
citations, either expressly or impliedly. Although the legislature in section
316.0083(1)(a) did permit cities to delegate the review of information
obtained from a traffic infraction detector, it did not permit cities to
delegate their authority to issue any resulting traffic citations anywhere in
these statutes. Had the legislature intended to allow for delegation of this
authority or responsibility, just as it expressly allowed for delegating the
review of traffic infraction detector information by employees or agents
under section 316.0083(1)(a), it could have easily done so. Under the clear
wording of the statute as enacted, it did not.
The trial court made various findings of fact about the process in
concluding that the City unlawfully outsourced its statutory
responsibilities to a private third-party vendor. The court found that
according to the City’s standard protocol and in accord with the terms of
its contract, ATS first reviews the video-captured images, yet ATS does not
furnish them all to the City – only those it deems to be suggestive of a
violation. Exhibit D to the contract between the City and ATS, entitled
“Infraction Processing,” contains the following paragraph:
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3. The Vendor [ATS] shall make the initial determination that
the image meets the requirements of the Ordinance and
this Agreement, and is otherwise sufficient to enable the
City to meet its burden of Demonstrat[ing] a violation of the
Ordinance. If the Vendor determines that the standards are
not met, the image shall not be processed any further.
(Emphasis added). Therefore, the contract requires ATS to send images
and information regarding the violation to the TIEO only if ATS determines
in its sole discretion that certain standards have been met, and ATS may
withhold sending information if it determines that those standards were
not met.2 Only in the event that ATS determines that a violation has taken
place is that information sent to the City. After the information is received
by the City, the information is then given to the TIEO who clicks the
“Accept” button on a computer that authorizes the Arizona vendor to
initiate and complete the process.
For all practical purposes, it is the vendor that decides which cases the
TIEO gets to review; it is the vendor who initially determines who is subject
to prosecution for a red light violation; it is the vendor that obtains the
information necessary for the completion of the citation; it is the vendor
that creates the actual citation; it is the vendor that issues the citation to
the registered owner of the vehicle; and, it is the vendor that eventually
transmits the traffic citation data to the court. As the trial court found,
the TIEO, merely acquiesces in the vendor’s decision to issue the citation.
The TIEO never sees the actual citation, nor does the TIEO personally sign
the citation before it is issued by the vendor to the alleged violator.
Although the City may have some input into who eventually is prosecuted,
that decision is wholly dependent upon the vendor’s initial determination.
Under these circumstances, it cannot be said that this is the legal
equivalent of a TIEO issuing the citation, especially when it is the third-
party vendor that controls what information is, or is not, made available
for the officer’s consideration.
In sum, Florida law does not grant the City any authority to delegate to
a private third-party vendor the ability to issue uniform traffic citations.
Only the City’s law enforcement officers and TIEOs have the authority to
issue such citations. The City also lacks the lawful authority to outsource
to a third-party vendor the ability to make the initial review of the
computer images of purported violations and then use its unfettered
2If the vendor unilaterally determines in its own discretion that either a violation
did not occur or that the City would not be able to sustain its burden of proof if
challenged in court, this information is never transmitted to the City.
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discretion to decide which images are sent to the TIEO, and which ones
are not. The City improperly delegated its police powers when it
contractually outsourced its statutory obligations to a for-profit, non-
governmental corporation. See Cnty. of Volusia v. City of Deltona, 925 So.
2d 340, 345 (Fla. 5th DCA 2006).
The process set forth in the contract between the City and ATS does not
comply with Florida Statutes; therefore, the TIEO did not have authority
to issue the citation in this case. As a result, the dismissal of the citation
is the proper remedy.
Affirmed.
TAYLOR and CONNER, JJ., concur.
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Not final until disposition of timely filed motion for rehearing.
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