City of Miami v. Wellman, 3D01-3050.

• Decision Date: 04 February 2004
• Docket Number: No. 3D01-3050.,3D01-3050.
• Citation: City of Miami v. Wellman, 875 So.2d 635, 2004 WL 231192 (Fla. App. 2004)
• Parties: CITY OF MIAMI, Appellant, v. Sidney S. WELLMAN, et al., Appellees.
• Court: Florida District Court of Appeals

875 So.2d 635

CITY OF MIAMI, Appellant, v. Sidney S. WELLMAN, et al., Appellees.

No. 3D01-3050.

District Court of Appeal of Florida, Third District.

February 4, 2004.

Rehearing and Rehearing Denied June 16, 2004.

Alejandro Vilarello, City Attorney, and Warren Bittner, Assistant City Attorney; and Law Office of Robert S. Glazier, P.A., and Robert S. Glazier, Miami, for appellant.

Ronald S. Guralnick, P.A., and Ronald S. Guralnick, Miami, for appellees.

Before GERSTEN, RAMIREZ, and WELLS, JJ.

Rehearing and Rehearing En Banc Denied June 16, 2004.

RAMIREZ, J.

The City of Miami appeals the trial court's Order Granting Plaintiffs' Motion for Injunctive Relief. Appellees Sidney S. Wellman, Danielle Wellman, Nadine Theodore, Gustav Dorcilome, and Michel Chiche, on behalf of the class-action members, cross-appeal the same order. We affirm because the City of Miami's Vehicle Impoundment Ordinance, City of Miami Code, sections 42-120 through 42-125 (1997), is preempted by the Florida Contraband Forfeiture Act, sections 932.701 through section 932.707, Florida Statutes (2002)(hereinafter referred to as the "Forfeiture Act").

The City of Miami enacted an ordinance which allows the police to seize and impound any motor vehicle that the police have probable cause to believe has been used to facilitate crimes that were a threat to the health, safety and welfare of the City. See City of Miami Code, §§ 42-120-125 (1997). The ordinance allows impoundment of a vehicle where the vehicle contained a controlled substance; had been used for the sale or purchase of a controlled substance; had been used to facilitate the commission of an act of prostitution, assignation, or lewdness; or had been used for the illegal dumping of litter or hazardous waste. See City of Miami Code, § 42-121(a)(1)-(5) (1997).

There are four situations in which the ordinance does not apply and impoundment is not permitted. These situations include when: (1) the possession or sale of the controlled substance is authorized by Florida Statutes, (2) the vehicle was reported stolen at the time that it was subject to seizure and impoundment, (3) the vehicle was operated as a common carrier at the time that it was subject to seizure and impoundment, and (4) a law enforcement agency has expressed its intent, in writing, to bring forfeiture proceedings on the vehicle. See § 42-121(d)(1)-(4).

Upon seizure of the motor vehicle, the City tows the vehicle. The police officer is then required to notify, in writing, the person determined to be the owner of the vehicle and any person found to be in control of the vehicle at the time of the seizure and impoundment. See § 42-121(b)(1), (2). The officer is also required to advise the vehicle owner or the person in control of the vehicle of their right to request a preliminary hearing or to recover their vehicle upon payment of a $1,000 administrative civil penalty, plus towing and storage charges. See § 42-121(b)(2). Notices are provided by hand delivery at the time of the seizure and impoundment to the person in control of the vehicle. If neither the record owner nor the person in control of the vehicle at the time of its seizure is available to receive the notice, then the notice is provided to the record owner by certified mail, return receipt requested, within 48 hours of the time of the impoundment, excluding Saturdays, Sundays and legal holidays. See § 42-121(c).

Under section 42-122(a) of the ordinance, the motor vehicle owner (or the person's agent or authorized representative) is entitled to request, in writing, a preliminary hearing within five days of receiving notice to determine whether there is probable cause to impound the vehicle. If there is no probable cause to believe that the vehicle is subject to impoundment, then the vehicle must be released to the owner, agent or authorized representative and no administrative civil penalty is imposed. See § 42-122(a)(2). If it is determined that there is probable cause to believe that the vehicle is subject to impoundment, then the vehicle continues to be impounded unless the owner, agent or authorized representative pays a $1,000 administrative civil penalty, plus the accumulated towing and storage costs.

At the preliminary hearing, the owner, agent, or authorized representative may request a final hearing that has to be held no later than thirty days after the date on which the vehicle was seized and impounded. See § 42-122(b). At the final hearing, the City has the burden to show by a preponderance of the evidence that the vehicle was being used for the enumerated illegal purpose. If, after the hearing, a finding is made that the none of the exceptions to impoundment under section 42-121(d) apply, then an order must be entered finding that the owner of record is civilly liable to the City for up to $1,000 in administrative civil penalties, plus towing and storage costs. If, after the hearing, a finding is made that the City did not meet its burden of proof or that one of the exceptions to impoundment applies, then the vehicle must be returned to the owner. See § 42-121(b).

The Trial Court Proceedings

In the first case filed by appellees, law enforcement impounded Danielle Wellman's vehicle pursuant to the City's ordinances after they arrested her husband, Sidney Wellman, for having operated the vehicle to solicit prostitution. The Wellmans then brought a class action suit against the City for a declaratory judgment to find that the ordinances were invalid, for injunctive relief, and for unjust enrichment.

In the second case, three separate individuals also challenged the City's ordinances. Law enforcement impounded Nadine Theodore's vehicle pursuant to the City's ordinances after the arrest of her husband for having used the vehicle to commit prostitution. Theodore asserted that she was not present at the time of her husband's arrest and the seizure of the vehicle. She further contended that she did not know that her husband might use the vehicle to do anything illegal. Law enforcement impounded Gustav Dorcilome's vehicle when one of the passengers in his vehicle attempted to purchase marijuana from an undercover police officer and impounded Michel Chiche's vehicle after he offered to commit prostitution. These three litigants brought a declaratory action against the City (the Theodore action) in which they claimed that the City ordinance's impoundment and administrative civil penalty procedures were void on their face because the ordinances violated the common law prohibition against a party judging its own case and violated the Florida Constitution. They also sought class certification.

The Wellmans' action and the Theodore action were consolidated, and the class was certified. The class members are all owners of motor vehicles that the City impounded pursuant to the Vehicle Impoundment Ordinance, from June 1, 1997 to the present.

At the trial court level, the parties filed cross motions for summary judgment to determine the validity of the City's Vehicle Impoundment Ordinance. On April 6, 2001, the trial court found that the ordinance was unconstitutional in part and granted partial summary judgment in the City's favor. The trial court issued the following three orders regarding the validity of the ordinance: 1) Order entered April 6, 2001; 2) Supplemental Order on Cross Motions for Summary Judgment entered May 18, 2001; and 3) Order Granting Plaintiffs' Motion for Injunctive Relief entered October 9, 2001.

In the April 6, 2001 order, the trial court found the City's ordinance unenforceable to the extent that the ordinance conflicted with the provisions of the Forfeiture Act. The trial court noted that the ordinance did not provide for an "innocent owner" exception. For example, it stated that owners who are not present at the time of the driver's arrest, such as spouses, lessors or renters, joint owners or those with liens on the vehicle, should be afforded the due process set out in the Forfeiture Act. The trial court stated that the City must provide by a preponderance of the evidence that these owners knew or should have known that the vehicle would be used for illegal purposes before the imposition of the administrative penalty would be fair. The court noted, however, that the City's ordinance provided no such protection to these categories of owners. Because the Forfeiture Act provided for due process in similar cases, the trial court concluded that, at a minimum, the City must provide protection for the owners not present at the time of the driver's arrest, innocent spouses, co-owners, lienors, or lessors or renters of vehicles.

In the trial court's May 18, 2001 Supplemental Order on Cross Motions for Summary Judgment, the trial court found that the City's ordinance notice requirement adequately placed on notice owners not present at the time of an arrest. If the City did not provide notice to the owner or person in control of the vehicle at the time the vehicle was seized, the City nonetheless provided notice through certified mail to the record owner within 48 hours of the seizure. The trial court found, however, that the notice provisions were inconsistent with the Forfeiture Act and did not adequately provide notice to joint owners, including innocent spouses, lessors, renters, and lienors. The trial court held that these categories of owners were not automatically given notice of an impoundment. The court then cited to the Forfeiture Act and pointed out that the act provided for notice to joint owners and for notice to rental or leasing companies as soon as practicable. The trial court further found that the City should have to establish not only probable cause for the seizure, but also should have to establish that the joint-owners, innocent spouses, lessors, renters, and lienors had knowledge, or should have had knowledge, that the vehicle would be used for certain criminal activity, such as prostitution, drug violations,...