City of Hollywood v. Mulligan

• Decision Date: 06 July 2006
• Docket Number: No. SC04-990.,SC04-990.
• Citation: 934 So.2d 1238
• Parties: CITY OF HOLLYWOOD, Petitioner, v. Colon Bernard MULLIGAN, Respondent.
• Court: Florida Supreme Court

934 So.2d 1238

CITY OF HOLLYWOOD, Petitioner, v. Colon Bernard MULLIGAN, Respondent.

No. SC04-990.

Supreme Court of Florida.

July 6, 2006.

COPYRIGHT MATERIAL OMITTED

Daniel L. Abbott, City Attorney, Hollywood, FL, for Petitioner.

Ronald S. Guralnick, Miami, FL, for Respondent.

Robert S. Glazier, Miami, FL, Maria Chiaro, Interim City Attorney and Warren Bittner, Assistant City Attorney, Miami, FL on behalf of City of Miami; Edward G. Guedes and Harriet R. Lewis of Weiss, Serota, Helfman, Pastoriza, Guedes, Cole and Boniske, P.A., Miami, FL on behalf of City of Dania Beach, FL and City of West Palm Beach, FL; Keith W. Davis of Corbett and White, P.A., General Counsel, Lake Worth, FL on behalf of the Palm Beach County League of Cities, Inc., for Amici Curiae.

BELL, J.

The Fourth District Court of Appeal has certified the following question to us as one of great public importance:

Does the Florida Contraband Forfeiture Act preempt local governments from adopting ordinances imposing forfeiture of personal property for misdemeanor offenses?

Mulligan v. City of Hollywood, 871 So.2d 249, 257 (Fla. 4th DCA 2003).¹ The Fourth District answered this question in the affirmative. We rephrase the question as follows:

Does the Florida Contraband Forfeiture Act (FCFA), sections 932.701-.707, Florida Statutes (2002), preempt a municipality from adopting an ordinance that authorizes the seizure and impoundment of vehicles used in the commission of certain misdemeanor offenses?

We answer this rephrased question in the negative. We hold that the FCFA does not preempt a municipality from using its home rule powers to enact such an ordinance. Therefore, we quash the decision of the Fourth District and remand this case for further proceedings consistent with this opinion.

I. FACTS

This case arose from a suit brought by Colon Bernard Mulligan (Mulligan) against the City of Hollywood (City) challenging the validity of the City's vehicle impoundment ordinance, section 101.46, Hollywood, Florida, Code of Ordinances (1999). Mulligan was arrested by City police officers for soliciting a prostitute in violation of section 796.07, Florida Statutes (2000), a misdemeanor offense. Because Mulligan was in his vehicle at the time of the solicitation, the police officers seized and impounded his vehicle pursuant to the City's ordinance.

As provided by the ordinance, Mulligan appeared before a special master and argued that the seizure was not supported by probable cause. The special master disagreed. Finding probable cause to support the seizure, the special master imposed the sanction as provided for in the ordinance. The special master ordered Mulligan to either pay a $500 administrative fine or forfeit the bond he had previously posted. Mulligan paid the administrative fine, and the vehicle was returned to him.

Mulligan then brought suit against the City seeking a declaratory judgment that the ordinance is invalid. The action was certified as a class action, and Mulligan was named class representative. Mulligan and the City filed cross-motions for summary judgment. The trial court granted the City's motion for summary judgment.

On appeal, the Fourth District reversed. Finding that the ordinance "effects a criminal forfeiture" of the vehicles seized and is therefore "a forfeiture scheme," Mulligan, 871 So.2d at 252, the Fourth District held the ordinance is preempted by or, in the alternative, is in conflict with the FCFA. Id. at 256.

II. ANALYSIS

As stated earlier, we hold that the FCFA does not preempt municipalities from adopting ordinances authorizing the seizure and impoundment of vehicles used in the commission of enumerated misdemeanor offenses. After we explain our rationale for this holding on the primary question of preemption, we turn to the alternative basis the Fourth District relies on to invalidate the ordinance. This alternative basis is that the FCFA and the ordinance conflict. As we explain, the ordinance does not conflict with the FCFA. However, in this discussion, we do note our agreement with the Fourth District that the ordinance raises significant constitutional concerns. Finally, we explain the distinction between an impoundment and a forfeiture which prompted our rephrasing of the certified question.

A. The FCFA Does not Preempt the Adoption of Municipal Ordinances Authorizing the Seizure and Impoundment of Vehicles

In analyzing the preemption question, we (1) describe the City's ordinance; (2) highlight the law of preemption; (3) discuss the FCFA; and, finally, (4) apply the law of preemption to the ordinance and the FCFA. As for our standard of review, the Fourth District's ruling on the validity of the ordinance is a question of law subject to de novo review by this Court. See State v. J.P., 907 So.2d 1101, 1107 (Fla.2004) (finding that rulings on the constitutionality of several ordinances should be reviewed de novo) (citing City of Miami v. McGrath, 824 So.2d 143, 146 (Fla.2002)).

1. The City's Ordinance

Section 101.46 of the Hollywood, Florida, Code of Ordinances is entitled "Vehicle Impoundment." This ordinance was enacted on May 5, 1999, as part of ordinance 0-99-12.² Its purpose is to aid the City's law enforcement in deterring crimes related to drugs and prostitution. The ordinance authorizes the seizure and impoundment of motor vehicles whenever a police officer has probable cause to believe that the vehicle (1) contains cannabis or a controlled substance under chapter 893 of the Florida Statutes; (2) was used to purchase or attempt to purchase cannabis or a controlled substance; or (3) was used to facilitate the commission of an act of prostitution, assignation, or lewdness pursuant to section 796.07, Florida Statutes. § 101.46(A), Ord. Significantly, each of the offenses enumerated in the ordinance is a misdemeanor crime, and, by its express terms, the ordinance does not apply when a vehicle is subject to seizure under the FCFA. § 101.46(C), Ord.

The ordinance requires that upon seizing and impounding a vehicle for one or more of the enumerated misdemeanor offenses, the City's police officers must follow a number of procedures. The officer must provide written notice to the owner of the vehicle or the person in control of the vehicle that the vehicle is being impounded by the City of Hollywood Police Department and that there is a right to request a preliminary hearing. § 101.46(B), (D), Ord. This notice must be delivered either by hand or, if the owner or operator is not available, by certified mail within five days. Id. An owner or operator may request a preliminary hearing, and, if requested, the hearing must be held within ninety-six hours. This preliminary hearing is held before a code enforcement official called a special master who, according to the City, is appointed pursuant to chapter 162, Florida Statutes, in lieu of appointing a local government code enforcement board. See § 162.03, Fla. Stat. (1999). The City bears the burden of showing that the seizure was supported by probable cause. § 101.46(D), Ord. If probable cause is shown, the owner can regain possession of the vehicle only by paying an administrative fee of up to $500 plus towing and storage costs or by posting a bond in the same amount. Id. If probable cause is not shown, the vehicle is released, and the vehicle owner is not liable for any costs. Id.

If the owner does not request a preliminary hearing, or if the special master finds probable cause for the seizure at the preliminary hearing, the City schedules a final hearing and notifies the vehicle owner. § 101.46(E), Ord. The final hearing must occur no later than forty-five days after the date that the vehicle is impounded. Id. At the final hearing, the City must establish by a preponderance of the evidence that the vehicle was (1) properly impounded pursuant to the ordinance and (2) that the owner of the vehicle either knew or should have known that the vehicle was used or was likely to be used in violation of the ordinance. Id. If the City fails to establish either of these elements, the vehicle is returned to the owner without penalty. Id. If the special master finds that the vehicle is subject to impoundment, an order is then entered finding the record owner of the vehicle civilly liable to the City for an administrative fee, not to exceed $500, as well as towing and storage costs. Id. The vehicle remains impounded until the administrative fees are satisfied. The funds recovered are allocated, first, as reimbursement to the police department for costs incurred in enforcing the ordinance (towing and storage), and second, as surplus to the City's general fund. § 101.46(G), Ord. Unclaimed vehicles are subject to Florida's provisions for the disposition of lost or abandoned property contained in chapter 705, Florida Statutes (1999). § 101.46(F), Ord.

2. The Law of Preemption

In Florida, a municipality is given broad authority to enact ordinances under its municipal home rule powers. Art. VIII, § 2(b), Fla. Const.; § 166.021(1), (3)(c), (4), Fla. Stat. (1999).³ Under its broad home rule powers, a municipality may legislate concurrently with the Legislature on any subject which has not been expressly preempted to the State. Wyche v. State, 619 So.2d 231, 237-38 (Fla. 1993) (citing City of Miami Beach v. Rocio Corp., 404 So.2d 1066, 1069 (Fla. 3d DCA 1981)); see also Barragan v. City of Miami, 545 So.2d 252, 254 (Fla.1989) (stating that the municipal home rule powers act "limits cities from legislating on any subject expressly preempted to state government by general law"). "Preemption essentially takes a topic or a field in which local government might otherwise establish appropriate local laws and reserves that topic for regulation exclusively by the legislature." Phantom of Clearwater, Inc. v. Pinellas County, 894 So.2d 1011, 1018 (Fla. 2d DCA 2005). "Express pre-emption requires a specific statement; the pre-emption cannot be made by implication nor by...