State v. Jimenez

• Decision Date: 27 July 2016
• Docket Number: 3D15–2303.,Nos. 3D15–2271,s. 3D15–2271
• Citation: 211 So.3d 158
• Parties: STATE of Florida, by and through the CITY OF AVENTURA, et al., Appellants, v. Luis Torres JIMENEZ, Appellee.
• Court: Florida District Court of Appeals

211 So.3d 158

STATE of Florida, by and through the CITY OF AVENTURA, et al., Appellants,

v.Luis Torres JIMENEZ, Appellee.

Nos. 3D15–2271

3D15–2303.

District Court of Appeal of Florida, Third District.

July 27, 2016.

Pamela Jo Bondi, Attorney General, and Robert Dietz, Tampa, Assistant Attorney General, as Intervener for appellant; Weiss Serota Helfman Cole & Bierman, and Edward G. Guedes and Samuel I. Zeskind, for appellant City of Aventura.

Louis C. Arslanian, Hollywood; Wites & Kapetan, P.A., and Marc A. Wites, Lighthouse Point, for appellee.

Carlton Fields Jorden Burt, and Joseph H. Lang, Jr. and Kevin P. McCoy ; Hamilton, Miller & Birthisel, and Jerry D. Hamilton and Ashlee A. Pouncy ; Baker & Hostetler and Krista A. Sivick, for American Traffic Solutions, Inc., and Xerox State and Local Solutions, Inc., as amici curiae.

Johnson, Anselmo, Murdoch, Burke, Piper & Hochman and Christopher J. Stearns, for Bal Harbour Village, Town of Campbellton, City of Clermont, City of Cocoa Beach, City of Coral Springs, Town of Cutler Bay, City of Doral, Village of El Portal, City of Green Cove Springs, City of Hialeah Gardens, City of Holly Hills, Town of Juno Beach, Village of Key Biscayne, City of Lauderdale Lakes, Manatee County, City of Miami Gardens, City of Miami Springs, City of Milton, City of North Bay Village, City of Oldsmar, City of Opa Locka, City of Orange Park, City of Palatka, City of Palm Coast, Village of Palm Springs, City of Pembroke Pines, City of Sunrise, City of Surfside, City of Sweetwater, City of Tamarac, City of West Miami, City of West Park, City of Fort Lauderdale, New Port Richey, Port Richey, City of Cocoa Beach, Town of Davie, City of Coral Gables, North Miami Beach, Hillsborough County, City of Groveland, City of Hallandale Beach, City of Apopka, and Orange County "Local Governments", as amici curiae.

Before WELLS, EMAS, and LOGUE, JJ.

LOGUE, J.

The City of Aventura and the Attorney General of Florida appeal a decision of the county court dismissing a traffic citation that charged Luis Torres Jimenez with running a red light by turning right at an intersection marked no-turn-on-red. Probable cause for the citation was based on photographs and a video from the City's red light camera program which is serviced by American Traffic Solutions, Inc., a City vendor.

Jimenez challenged his ticket based on a claim that the City's red light camera program was illegal because (1) the Vendor was given unfettered discretion that exceeded the City's statutory authority to use an agent to "review" images, section 316.0083(1)(a), Fla. Stat. (2014) ; (2) the Vendor had unfettered discretion in printing and mailing notices and citations in violation of a statutory requirement that only an officer can "issue" citations, id.; and (3) the Vendor had unfettered discretion to send an electronic copy of the citation to the Clerk of Courts in violation of the statutory requirement that only an officer "shall provide" an electronic copy to the Clerk, section 316.650(3)(c), Fla. Stat. (2014).

For the reasons explained below, we reject Jimenez's arguments. In particular, we hold that the review of red light camera images authorized by section 316.0083(1)(a) allows a municipality's vendor, as its agent, to review and sort images to forward to a police officer where, as here, (1) the vendor's decisions in this regard are strictly circumscribed by contract language, guidelines promulgated by the municipality, and actual practices, such that the vendor's decisions are essentially ministerial and non-discretionary; (2) these ministerial decisions are further limited by an overarching policy of automatically passing all close calls to the police for their review; (3) it is the police officer that makes the actual decision whether probable cause exists and whether a notice and citation should issue; and (4) the officer's decision that probable cause exists and a citation issues consists of a full, professional review by an identified officer who is responsible for that decision and does not merely acquiesce in any determination made by the vendor.

Due to these circumstances, we distinguish City of Hollywood v. Arem, 154 So.3d 359 (Fla. 4th DCA 2014), in which the Fourth District dismissed a traffic citation on the grounds that a city's process of using red light cameras gave unfettered discretion to a vendor. Because of the broad public and institutional interest in red light cameras, we certify three issues to the Florida Supreme Court as having great public importance.

BACKGROUND AND FACTS

A. The Mark Wandall Traffic Safety Act.

On July 1, 2010, the Legislature enacted the Mark Wandall Traffic Safety Act, which authorized local governments to use cameras to enforce traffic lights. Ch. 2010–80, Laws of Fla., partially codified at § 316.0083, Fla. Stat. (2010). The Wandall Act was named in honor of Mark Wandall, whose wife was nine months pregnant when he was killed by a driver who ran a red light. City of Orlando v. Udowychenko, 98 So.3d 589, 596 n. 10 (Fla. 5th DCA 2012). According to the accompanying committee report, seventy-six people were killed in 2008 in Florida by drivers running red lights. See House of Representatives Staff Analysis, at p. 2, CS/CS/HB 325 (Mar. 9, 2010).

At the heart of the dispute in this case is the Wandall Act's express authorization for local governments to use "agents" to "review" images before the "officer" issues a citation. On this point, the Wandall Act reads, "[t]his paragraph does not prohibit a review of information from a traffic infraction detector by an authorized employee or agent of the department, a county, or a municipality before issuance of the traffic citation by the traffic infraction enforcement officer." § 316.0083(1)(a), Fla. Stat.

B. The Vendor's Sorting of Images.

The City and the Vendor entered into a contract whereby the Vendor is responsible for installing, maintaining, monitoring, and assisting in administering a "digital photo red light enforcement system" which includes a network of computers, sensors, speed detectors, timers, cameras, printers, and mailing capabilities, all supported by software owned by or licensed to the Vendor.

Under the contract and its various amendments, the Vendor sorts the information and images generated by the system into two databases: a "working" database that the City police review to decide whether to issue a citation and a "non-working" database that the City police do not review for that purpose. Each image placed in the non-working database is reported, and the reason for placing the image in the non-working database is explained by the Vendor on a report screen. The report screen is periodically reviewed by the sergeant in charge of the City's review. The non-working database remains available and is occasionally accessed by the police for other investigations.

Each month, approximately 5,000 images are sorted into the working database and 3,000 are sorted into the non-working database. The police sergeant who oversees the City's review testified that the City would be overwhelmed if it was required to review all images generated by the system.

To sort images, the Vendor conducts a review that includes (1) confirming workable images exist (and the camera did not simply misfire); (2) examining the images to verify the license plate of the subject vehicle is legible; (3) using the license plate number in an automated process to obtain the identifying information of the registered owner from the Florida Department of Motor Vehicles; (4) confirming the capture of date, time-of-day, speed, and timing-of-light data; (5) checking the "A" shot, which is a still photograph showing the vehicle approaching the intersection; (6) checking the "B" shot, which shows the vehicle in the intersection; and (7) checking the twelve-second video clip that shows the vehicle approaching and traveling through the intersection. The Vendor can pause the video and view it frame by frame.

A representative of the Vendor testified that the Vendor's task when reviewing images was to filter out images that were "useless." A clear example, she explained, is where a camera simply misfired and failed to record an image. Other examples are where the light displays green or where images fail to capture a vehicle's license plate number. These images were useless, she testified, because "the police cannot do anything with them." But other images are determined to be useless based on the specific and detailed contract language and City guidelines.

C. Sorting Under the Prior 2008 Contract.

The Vendor's responsibility and authority to sort images was first established in the 2008 Contract, where the Vendor's authority to review images was stated in a broad manner:

The vendor shall make the initial determination that the image meets the requirements of the Ordinance and this Agreement, and is otherwise sufficient to enable the City [to] meet its burden of demonstrating a violation of the Ordinance. If the Vendor determines that the standards are not met, the image shall not be processed any further.

As discussed below, it is this 2008 Contract language that was quoted, analyzed, and relied upon by the Fourth District in the Arem decision cited by Jimenez. When this 2008 Contract was signed, no statute authorized local governments to enforce red lights with cameras.¹ On July 19, 2010, immediately after the effective date of the Wandall Act, the City and the Vendor amended the 2008 Contract and removed this language.

D. Sorting Under the Current Amended Contract.

Among other things, the 2010 amendment expressly deleted the language from the 2008 Contract quoted above. Importantly, the deleted language was replaced with new language substantially narrowing the nature and scope of the Vendor's role in the process. The Amended Contract reads:

Vendor shall act as City's agent for the limited purpose of making an initial determination of whether the recorded images should be forwarded to an Authorized

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