GOMEZ v. Vill. of PINECREST
| Decision Date | 08 July 2010 |
| Docket Number | No. SC09-1401.,SC09-1401. |
| Citation | 41 So.3d 180 |
| Parties | Zenaida GOMEZ, Petitioner, v. VILLAGE OF PINECREST, Respondent. |
| Court | Florida Supreme Court |
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Richard J. Diaz, Coral Gables, Florida, and Guy Richard Strafer, Miami, FL, for Petitioner.
Cynthia A. Everett, Miami, FL, for Respondent.
This case is before the Court for review of the decision of the Third District Court of Appeal in Gomez v. Village of Pinecrest, 17 So.3d 322 (Fla. 3d DCA 2009). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in In re Forfeiture of a 1993 Lexus ES 300, 798 So.2d 8 (Fla. 1st DCA 2001), and the decision of the Fifth District Court of Appeal in Brevard County Sheriff's Office v. Baggett, 4 So.3d 67 (Fla. 5th DCA 2009). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
The issue presented in this case is whether the Florida Contraband Forfeiture Act ("the Act"),1 requires a seizing agency to establish at the seizure stage of a forfeiture proceeding that the owner knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity. We conclude, based on the plain and unambiguous language of the Act, that the seizing agency is not required to establish the owner's actual or constructive knowledge at the seizure stage. Rather, at the seizure stage, the seizing agency is required to establish only that there is probable cause to believe that the property was being employed or likely to be employed in criminal activity—establishing the owner's actual or constructive knowledge is not required until the forfeiture stage inquiry, that her property was employed or was likely to be employed in criminal activity. Because the trial court correctly determined that Pinecrest established the necessary probable cause at the adversarial preliminary hearing, the preforfeiture seizure of Gomez's real property was lawful.
Id. at 327. In reaching this conclusion, the Third District reasoned:
A careful review of section 932.703 reveals that the focus at the first stage of the process, the seizure stage, is on the property and whether there exists probable cause to believe that the property was used in violation of the Act (to conceal, transport, or possess contraband). At the second stage, the forfeiture stage, however, the seizing agency must not only prove that the property was in fact being used to conceal, transport or possess contraband, it must also prove that the owner or owners knew or should have known that the property was being used or was likely to be used for an illegal purpose.
Id. at 326. The Third District also noted:
[T]he Legislature has already considered the possibility that some seizures will not ultimately result in a forfeiture of the property, and has provided for penalties to be imposed against a seizing agency where insufficient evidence is submitted to support a forfeiture of the property and the seizing agency has retained or restricted seized property prior to forfeiture, or acted in bad faith.
The Third District certified conflict with In re Forfeiture of a 1993 Lexus ES 300, 798 So.2d 8 (Fla. 1st DCA 2001), and Brevard County Sheriff's Office v. Baggett, 4 So.3d 67 (Fla. 5th DCA 2009), in which the First and Fifth Districts concluded that establishment of probable cause to believe that property was used in violation of the Act requires, among other things, a preliminary showing of the owner's actual or constructive knowledge of criminal activity. The trial court granted the parties' agreed motion to stay the proceedings pending the outcome of this appeal.
The certified conflict issue before this Court is whether the Florida Contraband Forfeiture Act requires a seizing agency to establish at the seizure stage of a forfeiture proceeding that the owner knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity. Because the conflict issue involves the interpretation of the Act, resolving the issue requires an analysis of the language of the Act to discern legislative intent. In analyzing this issue, we first set forth the applicable history and provisions of the Act. Next, we examine the Act's plain language to determine whether the Legislature intended to require a seizing agency to establish the owner's actual or constructive knowledge at the seizure stage of a proceeding. In doing so, we explain why we approve the reasoning of the Third District in Gomez.
Section 932.702(3) of the Act provides in relevant part that it is unlawful "[t]o use any ... real property to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article." Under the Act, a "contraband article" is defined in pertinent part as follows:
Any real property, including any right, title, leasehold, or other interest in the whole of any lot or tract of land, which was used, is being used, or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony....
§ 932.701(2)(a)6., Fla. Stat. (2008). This Court recently explained that forfeiture proceedings in this state are a two-part process. Velez, 934 So.2d at 1164. In the first stage, the seizure stage, the Act provides in relevant part as follows:
(a) Personal property may be seized at the time of the violation or subsequent to the violation, if the person entitled to notice is notified at the time of the seizure or by certified mail, return receipt requested, that there is a right to an adversarial preliminary hearing after the seizure to determine whether probable cause exists to believe that such property has been or is being used in violation of the Florida Contraband Forfeiture Act....
(b) Real property may not be seized or restrained, other than by lis pendens, subsequent to a violation of the Florida Contraband Forfeiture Act until the persons entitled to notice are afforded the opportunity to attend the preseizure adversarial preliminary hearing. A lis pendens may be obtained by any method authorized by law. Notice of the adversarial preliminary hearing shall be by certified mail, return receipt requested. The purpose of the adversarial preliminary hearing is to determine whether probable cause exists to believe that such property has been used in violation of the Florida Contraband Forfeiture Act. The seizing agency shall make a diligent effort to notify any person entitled to notice of the seizure. The preseizure adversarial preliminary hearing provided herein shall be held within 10 days of
(c) When an adversarial preliminary hearing is held, the court shall review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband. A copy of the findings of the court shall be provided to any person entitled to notice.
(d) If the court determines that probable cause exists to believe that such property was used in violation of the Florida Contraband Forfeiture Act, the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the claimant to post a bond or other adequate security equivalent to the value of the property.
§ 932.703(2), Fla. Stat. (2008). If an adversarial preliminary hearing is held, "the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Forfeiture Act." Velez, 934 So.2d at 1164 (citing § 932.701(2)(f), Fla. Stat. (2002)).
The second stage, the forfeiture stage, "is a forfeiture proceeding `in which the court or jury determines whether the subject property shall be forfeited.'" Velez, 934 So.2d at 1164 (quoting § 932.701(2)(g), Fla. Stat. (2002)). The seizing agency must file a complaint for forfeiture within forty-five days after the seizure. §§ 932.701(2), 932.704(4), Fla. Stat. (2008). "At the forfeiture proceeding, the court `shall' order the seized property forfeited to the seizing agency `[u]pon clear and convincing evidence that the contraband article was being used in violation' of the Forfeiture Act." Velez, 934 So.2d at 1164 (citing § 932.704(8), Fla. Stat. (2002)). Moreover, after amendments to the Act in 1995, the Legislature shifted the burden to the seizing agency to establish the owner's actual or constructive knowledge in order to establish a forfeiture.2 Section 932.703(6)(a) now provides:
Property may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the owner either knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity.
§ 932.703(6)(a), Fla. Stat. (2008).
Because this case involves statutory interpretation, this Court's review is de novo. Larimore v. State, 2 So.3d 101, 106 (Fla.2008). "A court's purpose in construing a statute is to give effect to legislative intent, which is the polestar that guides the court in statutory construction." Id. (citing Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003)). "To discern legislative intent, a court must look first and foremost at the actual language used in the statute." Id...
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