Mulligan v. City of Hollywood, 4D02-3626.

• Decision Date: 01 October 2003
• Docket Number: No. 4D02-3626.,4D02-3626.
• Citation: 871 So.2d 249
• Parties: Colon Bernard MULLIGAN, Appellant, v. CITY OF HOLLYWOOD, Appellee.
• Court: Florida District Court of Appeals

871 So.2d 249

Colon Bernard MULLIGAN, Appellant, v. CITY OF HOLLYWOOD, Appellee.

No. 4D02-3626.

District Court of Appeal of Florida, Fourth District.

October 1, 2003.

Order Denying Rehearing and Granting Certification May 12, 2004.

Ronald S. Guralnick, Miami, for appellant.

Daniel Abbott, City Attorney, and Robert Oldershaw, Chief Litigation Counsel, Hollywood, for appellee.

FARMER, C.J.

Today we consider the extent of municipal powers by ordinance to seize personal property used in the commission of a crime. In so doing, we also address whether a city's willingness to restore the property it has thereby seized, upon payment of an "administrative" fee, conduces to a finding of validity for such an ordinance. In the end we hold the ordinance in question invalid.

First we set the factual stage. The City of Hollywood (City) has adopted a vehicle "impoundment" ordinance. It purports to authorize the City to seize motor vehicles of those accused of violations of section 796.07, Florida Statutes—that is, offenses involving prostitution. According to the ordinance, a vehicle is subject to seizure whenever a police officer has probable cause to believe that the vehicle was used to facilitate prostitution. Ord. § 101.46(A)(3).

Upon seizure the vehicle is towed to a facility controlled by the City. The City then gives notice to the owner that the vehicle has been seized and that the owner has the right to a preliminary hearing. § 101.46(B)(1)-(3). The owner must request the hearing in writing within five days of the written notice. § 101.46(D)(1). The police chief is then required to schedule a hearing before another City official, called a "special master", within 96 hours. § 101.46(2).

At the preliminary hearing, the City has the burden to show probable cause to believe that the vehicle is subject to seizure. § 101.46(3). If the City official finds probable cause, the vehicle shall remain "impounded" unless the owner pays $500 plus towing and storage costs, or posts a bond in the same amount. § 101.46(4). The City must set a final hearing within 45 days from the date the vehicle was seized. § 101.46(e)(1).

The City has the burden at the final hearing to show by the greater weight of the evidence that the vehicle was properly seized under the ordinance and that the owner of the vehicle knew the vehicle was likely to be used to facilitate an act of prostitution. § 101.46(E)(2)(a), (b). If the City official finds that the City has carried its burden, the official enters a written determination that the owner is "civilly liable to the City for an administrative fee not to exceed $500, plus towing and storage costs." § 101.46(E)(2)(b). The vehicle remains seized until and unless the penalty assessed by the official is paid. § 101.46(E)(2)(b).

Mulligan (owner) was arrested for offering to commit prostitution in violation of section 796.07. The City seized his vehicle under the authority of ordinance section 101.46. The official found probable cause and ordered him to pay $500 or forfeit the bond he had previously posted. He paid the fee, and his vehicle was returned to him. The owner then filed suit challenging the validity of the ordinance. The court certified a class of "all owners of motor vehicles impounded by the City of Hollywood under the City of Hollywood Code, section 101.46." Both parties moved for summary judgment. The trial court's decision and rationale, omitting only formal parts, states as follows:

"The ordinance in question does not pass the `smell test.' In a somewhat similar context it was once noted that `[i]mproperly used, forfeiture could become more like a roulette wheel employed to raise revenue.'1 Further, `there is strength ... in the contention that ... [the ordinance at issue] seems to violate that justice which should be the foundation of the due process of law required by the Constitution.'2 However, this Court is constrained to follow precedent and uphold the practice in question, as the court just quoted did. Unfortunately, as Justice Thomas once noted, `the Federal Constitution does not prohibit everything that is intensely undesirable.'3 There are no fatal constitutional problems with this ordinance. Temporary impoundment is not a forfeiture scheme. The City is trying to deter illegal activity, not to punish."

1 Bennis v. Michigan, 516 U.S. 442, 116 S.Ct. 994, 1001, 134 L.Ed.2d 68 (1996), J. Thomas, concurring.

2 Id. quoting J.W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 190, 65 L.Ed. 376 (1921).

3 Bennis at 1001-02.

The order went on to grant the city's motion and deny the owner's. This appeal followed.

Although the owner raises a number of challenges to the validity of the ordinance, we find it necessary to discuss only the following issues. He contends that in essence the ordinance effects a criminal forfeiture without the kind of process due for forfeitures of private property. And as a forfeiture scheme, he argues, it conflicts with state forfeiture statutes. He also maintains that the ordinance creates a "police court" exercising essentially judicial powers in violation of our constitutional separation of powers. It denies him, he claims, a right to trial by jury before his property may be taken.

We begin with the owner's contention that effectually impoundment under the Hollywood scheme is but a kinder, gentler description for what is actually a forfeiture. The supreme court once defined forfeiture in another context as "contemplat[ing] a loss of property or a right, vested in one, as a penalty for violating law...." Howard Cole & Co. v. Williams, 157 Fla. 851, 859, 27 So.2d 352, 356 (Fla. 1946). Proceedings under the ordinance do in fact begin with the police taking an owner's vehicle as a result of an alleged facilitation of an act of prostitution. The city then transfers the vehicle to a facility controlled by the City, where the vehicle is placed beyond the owner's control and use.

The owner is thus certainly dispossessed of that property until and unless he manages to recover it. A vehicle so seized remains "impounded" until the owner prevails or pays the "administrative fee" and all costs. Vehicles not "claimed" by prevailing at the hearings or by payment are "subject to disposal pursuant to chapter 705." Therefore, owners who do not prevail before the City's "special master" and who are unable to pay the "administrative fee" are thus subjected to a permanent loss of the vehicle. Hence, whether temporary (through payment of the fee) or permanent (as where the owner cannot or will not pay the "fee"), owners are deprived of certain rights in the seized vehicles "as a penalty for violating law." Whatever meaning may otherwise attach to its title, this ordinance functions well within Howard Cole & Co.'s general definition of a forfeiture.

A long line of authority in this State applies the principle that forfeitures are harsh remedies, not favored by the legal system, and thus forfeiture statutes are strictly construed. See Byrom v. Gallagher, 609 So.2d 24 (Fla.1992); Butterworth v. Caggiano, 605 So.2d 56 (Fla. 1992); Dep't of Law Enforcement v. Real Property, 588 So.2d 957, 961 (Fla.1991) ("In construing the [Florida Contraband Forfeiture] Act, we note that forfeitures are considered harsh exactions, and as a general rule they are not favored either in law or equity."); Fla. State Board of Architecture v. Seymour, 62 So.2d 1 (Fla. 1952); Boyle v. State, 47 So.2d 693 (Fla. 1950); City of Miami v. Miller, 148 Fla. 349, 4 So.2d 369 (1941). Strict construction in this context suggests that in doubtful cases the courts will construe ambiguous statutes, or even clear forfeiture provisions resting on uncertain authority, against any loss and in favor of an owner's retention of property. See Williams v. Christian, 335 So.2d 358, 361 (Fla. 1st DCA 1976) ("Statutes imposing forfeiture will be strictly construed in a manner such as to avoid the forfeiture and will be liberally construed so as to avoid and relieve from forfeiture."). Under this strict construction, in the absence of clear meaning and manifest authority we should construe the ordinance in question in a manner consistent with the interest of the owner and against the City.

With personal property, especially with motor vehicles, use is their critical value and for many owners their only measure. Under this ordinance, the seizure of the vehicle operates identically to a traditional forfeiture, in that it begins with the owner's dispossession of the property and the loss of the right of use until the thing is returned. In other words, the principal— indeed often the only—reason for having the thing is lost by the act of seizure. Calling the seizure an impoundment, rather than a forfeiture, hardly distinguishes the essential nature of the deprivation thereby inflicted from an ordinary forfeiture.

With this particular ordinance, the seizure (or impoundment) may end up being only temporary rather than permanent. An owner may post the bond before any hearing and thereby gain the return of the property. At that point, the owner's loss has certainly been ended short of permanency. Thus the ordinance is so written that any loss of possession and use of the thing may ultimately be limited to a finite duration short of the complete loss of the thing forever.

We note, however, that under the takings clauses of the State and Federal Constitutions, both temporary and permanent takings may be compensable. See U.S. Const., amend. V; and Art. X, § 6(a), Fla. Const.; see also First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987); Keshbro v. City of Miami, 801 So.2d 864 (Fla.2001) (temporary closing of apartment complex was compensable taking). Similarly under the state criminal law of theft, there is no significant difference between a temporary taking of property and a permanent one. See § 812.014(1), Fla. Stat. (20...