City of Sarasota v. Windom

• Decision Date: 23 June 1999
• Docket Number: No. 98-02595.,98-02595.
• Parties: CITY OF SARASOTA, a municipal corporation under the laws of the State of Florida, Appellant, v. Robert E. WINDOM and John A. Hartenstine, Appellees.
• Court: Florida District Court of Appeals

736 So.2d 741

CITY OF SARASOTA, a municipal corporation under the laws of the State of Florida, Appellant, v. Robert E. WINDOM and John A. Hartenstine, Appellees.

No. 98-02595.

District Court of Appeal of Florida, Second District.

June 23, 1999.

Michael S. Perry of Taylor, Lawless & Singer, P.A., Sarasota, for Appellant.

J. Michael Hartenstine, Sarasota, for Appellees.

Betsy M. Steg, Sr. Assistant County Attorney, Clearwater, for Amicus Curiae Florida Association of County Attorneys, Inc.

Leslie K. Dougall-Sides, City Attorney, Clearwater, for Amicus Curiae City of Clearwater.

Charles J. Bartlett and Andrew K. Fritsch of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Thomas A. Dickerson, et al., as Representative of South Sarasota Traffic Calming Task Force.

CASANUEVA, Judge.

The City of Sarasota appeals injunctions enjoining the City from erecting speed humps and speed tables on City streets and requiring it to remove all previously placed speed humps and speed tables. Because we conclude that the plaintiffs, Robert Windom and John A. Hartenstine, lacked standing, we reverse the summary final judgments entered against the City.

The City approved implementation of Phase I of the South Sarasota Traffic Abatement Plan at its regular meeting of May 6, 1996. Phase I included the placement of speed humps and speed tables on various City streets to reduce the volume and speed of traffic and to enhance pedestrian safety. The cost to complete the installation of the asphalt speed humps and brick and concrete speed tables was $105,239. Mr. Windom and Mr. Hartenstine live in different neighborhoods within the City, and neither is required to traverse any of the speed humps or speed tables for normal ingress or egress to his residence.

On August 22, 1996, Mr. Windom and Mr. Hartenstine instituted a two count civil complaint against the City. One count sought a permanent injunction enjoining the City from installing speed humps or speed tables within the City. The second count sought a permanent mandatory injunction requiring the removal of those speed humps and speed tables already installed. Count I asserted the City lacked legal authority to approve the installation of the speed humps and tables because the devices do not conform to the requirements of chapter 316, Florida Statutes (1995). Count II asserted their installation obstructs the normal use of the City's streets in violation of chapter 316. The City sought to dismiss the action, alleging the plaintiffs lacked standing. The trial court concluded otherwise, denied the motion, and ultimately entered a summary final judgment on both counts for the plaintiffs. This appeal ensued.

In section 316.0745(1), Florida Statutes (1995), the legislature granted the Department of Transportation authority to adopt a uniform system of traffic control devices for use on Florida's streets and highways. Section 316.0745(3) requires that all traffic control signals or devices installed by a public body, such as the City, conform with the DOT's regulations. The authority to direct the removal of any traffic control device that fails to meet the requirement of section 316.0745 rests with the DOT. See § 316.0745(7). This authority extends to an improper device "wherever located." Id. Further, the DOT may require a public agency such as the City immediately to remove an offending device, but the DOT never took any action to direct the removal of the City's speed humps or tables.

Legislative intent is the luminous polestar by which this court must be guided. See In re: Order on Prosecution of Criminal Appeals by Tenth Judicial Circuit Public Defender, 561 So.2d 1130, 1137 (Fla.1990). Therefore, we must ascertain whether the legislature intended to create a private cause of action by enacting section 316.0745. In Murthy v. N. Sinha Corp., 644 So.2d 983, 986 (Fla.1994), the supreme court stated that "a statute that does not purport to establish civil liability but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing a civil liability." We determine that analysis to be appropriate here. The legislative intent of chapter 316 is to provide for the public safety of both vehicle operators and pedestrians by standardizing equipment and by ensuring that each device is appropriate for its function. Further, the enforcement power for section 316.0745 is vested in the Department of Transportation. In the absence of legislative intent to create a private cause of action on behalf of citizens seeking to challenge an allegedly improper traffic control device, we decline to create such a cause of action. Therefore, the plaintiffs possess no private cause of action and, accordingly, lack standing to institute such a claim.

We next consider whether standing derives from any other basis. First, because the plaintiffs claim entitlement to the protections afforded by section 316.0745, Florida Statutes, they contend that they can seek redress in the courts as guaranteed by Article I, Section 21, of the Florida Constitution. As to this contention, we have held that section 316.0745 does not create a privately enforceable duty; therefore, the argument that redress is available in the courts for the claimed injury also fails.

The second question is whether the plaintiffs possess standing by filing of a taxpayer suit or by means of a constitutional attack. In Boucher v. Novotny, 102 So.2d 132, 135 (Fla.1958), the supreme court held that "one seeking redress, either preventive or corrective,...