City of Tampa v. McAfee

• Decision Date: 09 March 2005
• Docket Number: No. 2D04-3870.,2D04-3870.
• Citation: City of Tampa v. McAfee, 896 So.2d 943 (Fla. App. 2005)
• Parties: CITY OF TAMPA, a municipality and political subdivision, Appellant, v. Richard McAFEE, on behalf of himself and all others similarly situated, Appellee.
• Court: Florida District Court of Appeals

896 So.2d 943

CITY OF TAMPA, a municipality and political subdivision, Appellant, v.Richard McAFEE, on behalf of himself and all others similarly situated, Appellee.

No. 2D04-3870.

District Court of Appeal of Florida, Second District.

March 9, 2005.

David L. Smith, City Attorney, and Kirby C. Rainsberger, Assistant City Attorney, Tampa, for Appellant.

Ronald S. Guralnick of Ronald S. Guralnick, P.A., Miami, for Appellee.

ALTENBERND, Chief Judge.

The City of Tampa appeals an order granting Richard McAfee's motion for class certification and a separate order enjoining the City from enforcing section 14-27 of the Tampa Code of Ordinances.SeeTampa, Fla., Code§ 14-27(2002).The ordinance is a motor vehicle impound ordinance that is very similar to the ordinances that have been invalidated in Mulligan v. City of Hollywood,871 So.2d 249(Fla. 4th DCA2003),review pendingNo. SC04-990(Fla. filed May 27, 2004), and City of Miami v. Wellman,875 So.2d 635(Fla. 3d DCA2004),review pendingNo. SC04-1408(Fla. filed July 15, 2004).We affirm the temporary injunction, but we reverse the order granting the motion for class certification and remand for further consideration of that motion.

Mr. McAfee filed this action in 2003, alleging that he was arrested and charged with possession of marijuana on December 17, 2002, by officers of the Tampa Police Department.At the time of his arrest, he allegedly was driving a car, which was seized and impounded pursuant to section 14-27 of the Tampa Code of Ordinances.As a result of this impoundment, he was required to pay a $500 bond for the release of the car and another $390 for towing and storage charges.Following a finding of probable cause by a hearing master, he was forced to forfeit these funds.

Mr. McAfee has not alleged that he was falsely arrested or that he did not possess marijuana in the car.Instead, he maintains that section 14-27 is unlawful or unconstitutional for thirteen separate reasons.Primarily, he argues that the section is preempted by or conflicts with the Florida Contraband Forfeiture Act and that the procedures of the ordinance violate due process.See§§ 932.701-.707, Fla. Stat.(2003).

Section 14-27 was enacted in 1997.A copy of this ordinance is attached to this opinion as appendix "A."In summary, section 14-27 permits the police to temporarily seize and impound a vehicle whenever a police officer has probable cause to believe that the vehicle was used to facilitate the commission of drug crimes or prostitution.Once a police officer has seized such a vehicle, it is towed to the police impound lot and the owner is notified of the right to request a preliminary hearing to contest its impoundment.The hearing is scheduled on a somewhat expedited basis before a "hearing master provided by the city."At the preliminary hearing, the only issue is whether the police officer had probable cause to seize and impound the vehicle.The City has the burden of proof at this administrative hearing, but the rules of procedure and evidence are more informal than in a court proceeding.

If the City proves probable cause, the hearing master orders the continued impoundment of the vehicle pending a final hearing or the payment of a $500 civil penalty, along with towing costs and storage fees not to exceed $10 per day.In the alternative, the vehicle may be released upon the posting of an equivalent cash bond.If no probable cause is found at the preliminary hearing, the vehicle is released.

Without regard to whether the owner requests a preliminary hearing, the City is obligated to schedule and hold a final hearing, typically within forty-five days of the seizure.At this hearing, the City must prove by a preponderance of the evidence that the vehicle was used to facilitate the commission of one of the specified crimes.If this is proven, the $500 civil penalty is imposed and the vehicle owner is responsible for the towing and storage fees.If the City fails to prove its case, the vehicle is returned without the imposition of fees or costs.The ordinance provides that it does not apply if the vehicle is seized by a law enforcement agency pursuant to the Florida Contraband Forfeiture Act.SeeTampa, Fla., Code§ 14-27(c)(2)(2002);§§ 932.701-.707, Fla. Stat.(2003).Obviously, between 1997 and 2003, this ordinance was enforced against many people in addition to Mr. McAfee.As a result, Mr. McAfee alleged that he was a proper class representative for a broad group of people whose cars were seized and who paid the $500 civil penalty.His complaint contained the necessary allegations to satisfy the pleading requirements of Florida Rule of Civil Procedure 1.220.

As to the matter of damages and relief, Mr. McAfee's complaint seeks (1) a declaration that the enforcement of section 14-27 is unlawful, (2) a temporary and permanent injunction against the future enforcement of the ordinance, (3) a refund of all funds illegally collected by the City pursuant to the ordinance, (4) compensation to the vehicle owners for the loss of their vehicles, and (5) attorneys' fees.

The City answered the complaint and affirmatively alleged that it was not a proper class action, that some claims would be barred by the statute of limitations, that some potential class members had already released their claims, and that the complaint was subject to sovereign immunity and the requirements of section 768.28, Florida Statutes(2003).

Mr. McAfee then filed a motion to certify the class and a motion for summary judgment on all issues.The motions were heard by the trial court on June 29, 2004, which was after the Third District had issued Wellman and the Fourth District had issued Mulligan.Both of these cases had invalidated similar ordinances on the theory that they were preempted by the Florida Contraband Forfeiture Act.In light of this precedent, the trial court decided to grant the motion for summary judgment and the motion to certify a class.The City appeals both orders, and we consider each separately.

I.THE ORDER GRANTING THE MOTION FOR SUMMARY JUDGMENT

The order granting the motion for summary judgment accomplishes two separate legal functions without any detailed findings of fact or conclusions of law.First, it states: "Plaintiff's Motion for Summary Judgment is GRANTED."Second, it provides that the City is "enjoined from enforcing Section 14-27 of the Tampa Code of Ordinances from July 20, 2004."We interpret the second portion of the order as an order granting a preliminary injunction.

The City has appealed this order, but the only issue it has raised is the validity of the ordinance.This court has no jurisdiction to review a nonfinal order granting a motion for summary judgment.¹SeePalm Hill Villas Homeowners Ass'n v. Rose-Green,855 So.2d 83(Fla. 4th DCA2003);Lidsky Vaccaro & Montes, P.A. v. Morejon,813 So.2d 146, 148(Fla. 3d DCA2002).Thus, we have no authority to review the issue presented by the City.Hopefully, the supreme court will address the validity of these ordinances in Wellman and Mulligan.Wellman,875 So.2d 635, review pendingNo. SC04-1408(Fla. filed July 15, 2004);Mulligan,871 So.2d 249, review pendingNo. SC04-990(Fla. filed May 27, 2004).²To the extent that the order grants a temporary injunction, we do have jurisdiction to review this nonfinal order.SeeFla. R.App. P. 9.130(a)(3)(B).We affirm that injunction as to the issues raised on appeal.Under Florida Rule of Civil Procedure 1.610(a)(1)(A), a temporary injunction is an extraordinary remedy that can only be granted if the movant establishes (1) a likelihood of irreparable harm, (2) unavailability of an adequate legal remedy, (3) substantial likelihood of succeeding on the merits, and (4) support for the injunction within considerations of public interest.SeeSnibbe v. Napoleonic Soc'y of Am., Inc.,682 So.2d 568, 570(Fla. 2d DCA1996).In this case, the City has not challenged the trial court's rulings on any of these four requirements.In light of the two cases from the other districts, the trial court certainly had a basis to conclude that Mr. McAfee was substantially likely to succeed on the merits.Indeed, the trial court was obligated to follow controlling precedents from the other districts.SeePardo v. State,596 So.2d 665, 666-67(Fla.1992)("[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.").Given that we have no jurisdiction to review the order granting summary judgment, we decline to rule upon the merits of Mr. McAfee's various challenges to the ordinance under the guise of reviewing the preliminary injunction.

II.THE ORDER GRANTING CLASS STATUS

The order granting the motion for class certification is three pages in length.The class it certifies is: "All owners of motor vehicles impounded pursuant to Section 14-27 of the Tampa Code of Ordinances since its inception."This order is defective because it does not contain the necessary findings of fact.It contains only cursory conclusory statements and no detailed findings of fact.It does not contain the facts because the hearing on this motion was conducted quite informally.No affidavits or witnesses were presented, and the court reviewed limited documentation.The trial court had no evidence to permit it to enter adequate factual determinations.

A class action is a serious undertaking.It can permanently affect the rights and lives of people who have little knowledge or understanding of the action.It is important for a trial court to consider fully the ramifications of such an action before entering an order granting certification.See, e.g., Braun v. Campbell,827 So.2d 261, 265(Fla. 5th DCA2002)(stating, "[t]he decision to certify a class should be made carefully on the basis of sufficient information because the granting of class certification considerably expands the dimensions of the lawsuit and commits the court and the parties to...