City of Hollywood v. Arem

• Decision Date: 23 April 2014
• Docket Number: No. 4D12-1312,4D12-1312
• Court: Florida District Court of Appeals
• Parties: CITY OF HOLLYWOOD, a political subdivision of the STATE OF FLORIDA, Appellant, v. ERIC AREM, Appellee.

CITY OF HOLLYWOOD, a political subdivision of the STATE OF FLORIDA, Appellant, v. ERIC AREM, Appellee.

No. 4D12-1312

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

January Term 2014

April 23, 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, for appellant.

Jason T. Forman of Jason T. Forman, P.A., Fort Lauderdale, for appellee.

CONNER, J.

The City of Hollywood appeals an order granting Eric Arem's motion to dismiss a red light camera prosecution against him entered by the county court in Broward County. 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 infractionenforcement 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. We consolidate the first two questions posed by the county court. By answering the reframed question of great public importance, we find it unnecessary to address the third question. We hold that the county court erroneously interpreted sections 316.0083(1)(a) and 316.650(3)(c), Florida Statutes (2011) and erred by dismissing the case after concluding that the county court did not have jurisdiction to entertain the prosecution.¹

Factual and Procedural Background

The City operates a red light camera enforcement program using cameras and a traffic enforcement officer. 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 vendor, located outside of Florida. Pursuant to that contract, ATS provides the City with, among other things, cameras and a computerized system through which the City's traffic enforcement officer can review the recorded images of potential violations and make individual determinations of whether to enforce such potential violations. Upon personal review of a potential violation, if the traffic enforcement officer makes the decision to enforce a violation, the computer program provided by ATS enables the officer to authorize enforcement by clicking a digital "accept" button. The ATS computer program then handles the printing and mailing of the notice of violation. If neither of the two options to avoid the issuance of the uniform traffic citation (discussed further below) are pursued, then ATS generates the uniform traffic citation, which bears a computer generated signature for the traffic enforcement officer and theofficer's badge number. ATS then 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.

The City's red light camera system observed a car registered to Arem failing to comply with a red light signal. The traffic enforcement officer reviewed the recording of the violation and pressed the "accept" button to initiate enforcement. ATS sent the notice of violation. Arem did not respond to the notice. ATS generated a uniform traffic citation, sent it by certified mail to Arem, and electronically transmitted the replica of the citation data to the county court clerk.

Arem denied the violation and a trial was held. After hearing testimony from the traffic enforcement officer, the county court dismissed the case and entered a written order which found that the City's traffic enforcement officer:

was not personally "providing by electronic transmission a replica of the traffic citation data to the court having jurisdiction over the alleged offense...," as required by Florida Statute 316.650(3), but was merely hitting the "accept" button to begin the process of generating a Notice of Violation (NOV) . . . . The testimony also showed that although the [traffic enforcement officer] believed that ATS was communicating with the Clerk of Court once the [uniform traffic citation] was issued, the [traffic enforcement officer] had no personal knowledge of the communication, what information was sent to the Clerk, and when it was done. Further, no testimony was ever elicited to prove that, even as of the date of the hearing, this statutory provision has yet ever been complied with.

In interpreting statutory provisions, the county court reasoned:

A plain reading of this statute demonstrates the intent of the legislature. Florida Statute 316.650(3)(c) requires that a traffic enforcement officer . . . provide the required information to the Clerk, not a third party vendor. The City's argument that the ATS is authorized to make such communication with the Clerk is unpersuasive to the Court. . . . Therefore, here it has become that a third party non-governmental entity rather than a governmental one which in essence is conferring upon a court the jurisdiction to hear a matter, contrary to the provision of the statute.

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 [] 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. []

What appears to have occurred in this case is that the traffic infraction enforcement officer [] 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 in original).

Legal Analysis

The county court's dismissal of the case based on its interpretation of sections 316.650(3)(c) and 316.0083(1)(a), Florida Statutes (2011), is reviewed de novo. Hill v. Davis, 70 So. 3d 572, 575 (Fla. 2011).

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. 2010-80 §§ 6, 7 Laws of Fla.; § 316.008(8)(a), Fla. Stat. (2011). The Act specifically authorizes the use of traffic infraction enforcement officers ("traffic enforcement officers") to enforce red light violations. § 316.0083(1), Fla. Stat. (2011).

If the City wishes to pursue a violation under the Act, within thirty days after the violation, a notification of the violation must be sent by first class mail to the registered owner of the motor vehicle involved in the violation. § 316.0083(1)(b)1.a., Fla. Stat. (2011). The notice of violation must give the registered owner two options to avoid the issuance of a traffic citation: (1) pay a penalty of $158 or (2) furnish an affidavit in compliance with section 316.0083(1)(d) to establish that the registered owner is not responsible for the violation.² Id. If the registered owner does not complywith either of the options within thirty days after the notice is sent, a uniform citation may be issued. § 316.0083(1)(c)1.a., Fla. Stat. (2011). The original citation must be mailed to the registered owner by certified mail. Id. Within five days after the date of issuance of the citation to the registered owner, the traffic enforcement officer must provide, by electronic transmission, a replica of the traffic citation data to the court having jurisdiction over the alleged offense or the appropriate traffic violations bureau. § 316.650(3)(c), Fla. Stat. (2011).

A uniform traffic citation charging a red light violation may be issued either by a law enforcement officer or a traffic enforcement officer. See §§ 316.640, 316.0083(3), Fla. Stat. By statute, a traffic enforcement officer 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), Fla. Stat.

Section 316.650(3)(c) 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.

(emphasis added).

Section 316.0083(1)(a) provides, in relevant 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

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