HomeMy WebLinkAboutBack-Up DocumentsCity of Hollywood v. Arem (Fla. App., 2014)
CITY OF HOLLYWOOD, a political subdivision of the STATE OF FLORIDA, Appellant,
v.
ERIC AREM, Appellee.
No. 4D12-1312
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
July Term 2014
October 15, 2014
Appeal from the County Court for the
Seventeenth Judicial Circuit, Broward County;
Terri -Ann Miller, Judge; L.T. Case No. 11-
68287T140A.
Edward G. Guedes and Samuel I. Zeskind of
Weiss Serota Helfinan Pastoriza Cole &
Boniske, P.L., Coral Gables, and Jeffrey P.
Sheffel, City Attorney, Hollywood, for
appellant.
Jason T. Forman of Jason T. Forman, P.A., Fort
Lauderdale, for appellee.
ON MOTION FOR REHEARING
KLINGENSMITH, J.
We grant the motion for rehearing, deny
rehearing en banc and certification to the Florida
Supreme Court, withdraw our previously issued
opinion, and substitute the following opinion in
its place.
The City of Hollywood (the "City") appeals
an order granting Defendant Eric Arem's motion
to dismiss a red light camera prosecution against
him. The county court certified the following
questions of great public importance pursuant to
section 34.017, Florida Statutes (2011), and
Florida Rule of Appellate Procedure 9.160(d):
Page 2
1. Does Florida Statute
316.0083(1)(a) authorize a
municipality to delegate and
have a private vendor actually
issue Florida Uniform Traffic
Citations, when notices of
violation, (also issued by the
vendor), are not complied with,
lastcase
where the only involvement of
the traffic infraction
enforcement officer in the entire
process is to push a button
saying "Accept" after having
viewed the image of an alleged
violation electronically
transmitted by the vendor?
2. Does Florida Statute
316.650(3)(c) permit a traffic
infraction enforcement officer to
delegate to a nongovernmental
entity, such as a private vendor
of a municipality, his or her
statutory duty to electronically
transmit a replica of traffic
citation data to a court having
jurisdiction over the alleged
offense or its traffic violations
bureau?
3. And if the answer is in the
negative to either question, is
dismissal the appropriate
remedy?
We accept discretionary review pursuant to
Florida Rules of Appellate Procedure
9.030(b)(4)(A) and 9.160.
For the reasons set forth herein,. we answer
"No" to the first certified question, and find that
the City is not authorized to delegate police
power by entering into a contract that allows a
private vendor to screen data and decide whether
a violation has occurred before sending that data
to a traffic infraction enforcement officer
("TIEO") to use as the basis for authorizing a
citation. Such outsourcing to a third -party for -
profit vendor of a city's statutorily mandated
obligation to issue uniform traffic citations for
City of Hollyw
od v. Arem (Fla. App,. 2014)
red light camera violations is contrary to the
plain wording of the Florida Statutes.
Inasmuch as we have answered the' first
question in the negative, we answer "Yes" to the
third certified question, and find that dismissal
of the citation is the appropriate remedy where a
private third party effectively decides whether a
traffic violation has occurred and a citation
should be issued. We decline to answer the
second question posed by the county court
because the City's improper delegation of
authority in this case renders the citation void at
its inception.
Factual and Procedural Background
Section 316.0083, Florida Statutes, known
as the Mark Wandall Traffic Safety Program
(the "Act"), authorizes local governments to use
red light cameras to enforce violations of
sections 316.074(1) and 316.075(1)(c)1; both of
which prohibit the running of red lights. See Ch.
2013-160, § 5,
Page 3
Laws of Fla.; § 316.008(8)(a), Fla. Stat. (2011).
The Act specifically authorizes the use of TIEOs
to enforce red light violations. § 316.0083(1),
Fla. Stat. (2011). The City operates a red light
camera enforcement program pursuant to these
statutes. As allowed by law, the City's program
produces uniform traffic citations by electronic
means. § 316.650(1)(c), Fla. Stat. (2011).
To assist the City in implementing its red
light camera enforcement program, the City
entered into a contract with American Traffic
Solutions, Inc. ("ATS"), a private for -profit
vendor, located in Arizona. Pursuant to that
contract, ATS provides the City with, among
other things, cameras and a computerized system
to review recorded images of red-light violations
to determine the occurrence of potential
violations. If ATS forwards an image to the
City, the TIED authorizes enforcement by
clicking a digital "Accept" button. The ATS
computer program then handles the printing and
mailing of the notice of violation to the
automobile's registered owner. If the cited car
owner fails to elect an option that avoids the
issuance of a traffic citation, ATS then generates
the resulting citation, and inserts a computer
generated signature of the TIED along with the
TIEO's badge number. ATS sends the original
citation by certified mail to the registered owner,
and electronically transmits a replica of the
citation data to the county court clerk. After
clicking "Accept," the TIEO never actually sees
the citation, nor is the TIEO otherwise involved
in its issuance.
In this case, the City's red light camera
system observed a car registered to Defendant
failing to comply with a red light signal. After
the information was forwarded to the City by
ATS, the TIEO, acting as the City's agent,
pressed the "Accept" button and initiated the
aforementioned process. ATS sent out the notice
of violation to the Defendant, who did not
respond. In accordance with the standard
procedure, ATS generated a uniform traffic
citation after noting Defendant's failure to
respond, sent it to him by certified mail, and
electronically transmitted a replica of the
citation data to the county court clerk.
Upon receiving the citation, Defendant
denied the violation and requested a trial. After
hearing testimony from the TIED at trial, the
county court found that the City's red light
enforcement program did not comply with
Florida Statutes by improperly delegating
various tasks to ATS, and dismissed the citation.
In its written order, the trial court determined
inter alia that the Florida Statutes required that
the .citation be issued by the TIED and not a
third -party vendor, finding that the TIEO:
[W]as merely hitting the
"accept" button to begin the
process of generating a Notice
of Violation (NOV) once she
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had viewed the video of the
alleged infraction and
determined that a violation
I'astcase 2
City of Hollywood v. Arem (Fla. App., 2014)
had taken place. Those NOVs
that were not paid within thirty
(30) days eventually turned into
Uniform Traffic Citations
(UTC), issued directly by
American Traffic Solutions
(ATS), a vendor for the City of
Hollywood. The testimony also
showed that although the CSO
believed that ATS was
communicating with the Clerk
of Court once the UTC was
issued, the CSO had no personal
knowledge .of the
communication, what
information was sent to the
Clerk, and when it was done.. .
The procedure employed by the
City of Hollywood in this case
is also actually contrary to
Florida Statute 316.0083 (1)(a)
which provides in pertinent part:
. . . This paragraph does not
prohibit a review (emphasis
supplied) of information from a
traffic infraction detector by an
authorized employee or agent of
the department, a county or a
municipality before issuance
(emphasis supplied) of the
traffic citation by the traffic
infraction enforcement officer.
(Emphasis supplied).
What appears to have
occurred in this case is that
the traffic infraction
enforcement officer (CSO)
reviewed the information
from the traffic infraction
detector, and the [uniform
traffic citation] was issued by
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a vendor, ATS, the agent for
the City of Hollywood.
(Emphasis added). This appeal followed.
Analysis
The interpretation of a statute in Florida is a
legal matter and subject to review de novo.
Kasischke v. State, 991 So. 2d 803, 807 (Fla.
2008). Courts strive to construe statutes to
effectuate the Legislature's intent. See, e.g., id. at
807 ("When construing a statute, we strive to
effectuate the Legislature's intent."). To
determine the intent, this court must first look to
the statute's plain language. Id. "Florida case law
contains a plethora of rules and extrinsic aids to
guide courts in their efforts to discern legislative
intent from ambiguously worded statutes." Holly
v. Auld, 450 So. 2d 217, 219 (Fla. 1984).
However, "[w]hen the statute is clear and
unambiguous, courts will not look behind the
statute's plain language for
Page 5
legislative intent or resort to rules of statutory
construction to ascertain intent." Borden v. East -
European Ins. Co., 921 So. 2d 587, 595 (Fla.
2006) (quoting Daniels v. Fla. Dep't of Health,
898 So. 2d 61, 64 (Fla. 2005)).
As a result of concerns about interference
by municipalities in enacting and enforcing state
traffic laws, the legislature adopted two sections
which expressly limit the power of a
municipality to legislate over traffic matters —
sections 316.002 and 316.007, Florida Statutes
— so as "to create a uniform, statewide traffic
control system." State v. Smith, 584 So. 2d 145,
147 (Fla. 2d DCA 1991). From that, chapter 316
was titled as the "Florida Uniform Traffic
Control Law." § 316.001, Fla. Stat. (2013)
(italics added). The legislature created chapter
316 to address two abuses arising from the
municipal court system of handling traffic
infractions — the "history of inconsistency of
penalties imposed" by the municipal courts and
the inconsistency of traffic laws in
municipalities across the state. Miller v. City of
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City of Hollywood v. Arem (Fla. App., 2014)
Indian Harbour Beach, 453 So. 2d 107, 111-12
(Fla. 5th DCA 1984).1
First, in section 316.002 the legislature
identified the purpose of chapter 316 as being
"to make uniform traffic laws to apply
throughout the state . . and uniform traffic
ordinances to apply in all municipalities." See
Maddox v. State, 923 So. 2d 442, 446 (Fla.
2006) (indicating that the
Page 6
"stated purpose" of chapter 316 is "outlined" in
section 316.002). Section 316.002 expressly
limits the power of municipalities to legislate
over traffic matters, as follows: "Section
316.008 enumerates the area within which
municipalities may control certain traffic
movement or parking in their respective
jurisdictions." Id. The powers of a municipality
to legislate on traffic matters are thus limited to
those enumerated in section 316.008. Finally,
section 316.002 makes it "unlawful for any local
authority to pass or to attempt to enforce any
ordinance in conflict with the provisions of this
chapter." Id.
Consistent with section 316.002, section
316.007, like a constitutional provision over
traffic matters, declares the principle of
uniformity and the supremacy of chapter 316:
"The provisions of this chapter shall be
applicable and uniform throughout this state and
in all political subdivisions and municipalities
therein, and no local authority shall enact or
enforce any ordinance on a matter covered by
this chapter unless expressly authorized." §
316.007, Fla. Stat. (2013) (italics supplied). The
section 316.007 prohibition is even broader than
that of 316.002; while section 316.002 precludes
ordinances that "conflict" with chapter 316,
section 316.007 bars ordinances "on a natter
covered by [chapter 316] unless expressly
authorized." Id. (italics supplied).
As the supreme court recognized in Masone
v. City of Aventura, 39 Fla. L. Weekly S406
(Fla. June 12, 2014), the history of Florida
traffic law supports the conclusion that these
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statutes should be strictly construed to effectuate
their purpose, and any attempt by a local
government to circumvent chapter 316 either by
ordinance or contract is invalid unless expressly
authorized by the legislature.
Whether the City has the authority to
outsource the issuance of these citations, or to
outsource any other statutory duty, must
therefore be derived from the plain wording of
the statutes. Here, the applicable statutes are
clear and unambiguous. Section 316.0083(1)(a)
provides, in pertinent part:
A notice of violation and a
traffic citation may not be
issued for failure to stop at a red
light if the driver is making a
right-hand turn in a careful and
prudent manner at an
intersection where right-hand
turns are permissible. This
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.
Page 7
§ 316.0083(1)(a), Fla. Stat. (2011) (emphasis
added). Section 316.650 (3)(c) also provides:
If a traffic citation is issued
under s. 316.0083, the traffic
infraction enforcement officer
shall provide by electronic
transmission a replica of the
traffic citation data to the court
having jurisdiction over the
alleged offense or its traffic
violations bureau within 5 days
after the date of issuance of the
traffic citation to the violator.
§ 316.650(3)(c), Fla. Stat. (2011) (emphasis
added).
- 4 -
City of Hollywood v. Arem (Fla. App.. 2014)
In Florida, only law enforcement officers
and traffic enforcement officers have the legal
authority to issue citations for traffic infractions,
which means only law enforcement officers and
traffic enforcement officers are entitled to
determine who gets prosecuted for a red light
violation. See § 316.0083(3); see also § 316.640,
Fla. Stat. (2011). By statute, a traffic
enforcement officer in a municipality must: (1)
be an employee of the sheriff's or police
department; (2) successfully complete the
program as described in the statute; and (3) be
physically located in the county of the sheriffs
or police department. § 316.640(5)(a).
Section 316.640(5)(a) permits employees of
a sheriffs department or police department of a
municipality, without conveying arrest powers,
to become TIEOs empowered to issue traffic
citations under section 316.0083. However, the
statute does not authorize a private vendor to
issue citations, either expressly or impliedly.
Although the legislature in section
316.0083(1)(a) did permit cities to delegate the
review of information obtained from a traffic
infraction detector, it did not permit cities to
delegate their authority to issue any resulting
traffic citations anywhere in these statutes. Had
the legislature intended to allow for delegation
of this authority or responsibility, just as it
expressly allowed for delegating the review of
traffic infraction detector information by
employees or agents under section
316.0083(1)(a), it could have easily done so.
Under the clear wording of the statute as
enacted, it did not.
The trial court made various findings of
fact about the process in concluding that the City
unlawfully outsourced its statutory
responsibilities to a private third -party vendor.
The court found that according to the City's
standard protocol and in accord with the terms
of its contract, ATS first reviews the video -
captured images, yet ATS does not furnish them
all to the City - only those it deems to be
suggestive of a violation. Exhibit D to the
contract between the City and ATS, entitled
"Infraction Processing," contains the following
paragraph:
lastca
Page 8
3. The Vendor [ATSJ 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
Demonstrat[ing] a violation of
the Ordinance. If the Vendor
determines that the standards
are not met, the image shall not
be processed any further.
(Emphasis added). Therefore, the contract
requires ATS to send images and information
regarding the violation to the TIED only if ATS
determines in its sole discretion that certain
standards have been met, and ATS may
withhold sending information if it determines
that those standards were not meta Only in the
event that ATS determines that a violation has
taken place is that information sent to the City.
After the information is received by the City, the
information is then given to the TIED who
clicks the "Accept" button on a computer that
authorizes the Arizona vendor to initiate and
complete the process.
For all practical purposes, it is the vendor
that decides which cases the TIED gets to
review; it is the vendor who initially determines
who is subject to prosecution for a red light
violation; it is the vendor that obtains the
information necessary for the completion of the
citation; it is the vendor that creates the actual
citation; it is the vendor that issues the citation to
the registered owner of the vehicle; and, it is the
vendor that eventually transmits the traffic
citation data to the court. As the trial court
found, the TIEO, merely acquiesces in the
vendor's decision to issue the citation. The TIED
never sees the actual citation, nor does the TIED
personally sign the citation before it is issued by
the vendor to the alleged violator. Although the
City may have some input into who eventually is
prosecuted, that decision is wholly dependent
upon the vendor's initial determination. Under
these circumstances, it cannot be said that this is
-a-
City of Hollywood v. Arern (Fla. App., 2014)
the legal equivalent of a TIED issuing the
citation, especially when it is the third -party
vendor that controls what information is, or is
not, made available for the officer's
consideration.
In sum, Florida law does not grant the City
any authority to delegate to a private third -party
vendor the ability to issue uniform traffic
Citations. Only the City's law enforcement
officers and TIEOs have the authority to issue
such citations. The City also lacks the lawful
authority to outsource to a third -party vendor the
ability to make the initial review of the computer
images of purported violations and then use its
unfettered
Page 9
discretion to decide which images are sent to the
TIEO, and which ones are not. The City
improperly delegated its police powers when it
contractually outsourced its statutory obligations
to a for -profit, nongovernmental corporation.
See Cnty. of Volusia v. City of Deltona, 925 So.
2d 340, 345 (Fla. 5th DCA 2006).
The process set forth in the contract
between the City and ATS does not comply with
Florida Statutes; therefore, the TIED did not
have authority to issue the citation in this case.
As a result, the dismissal of the citation is the
proper remedy.
Affirmed.
TAYLOR and CONNER, JJ., concur.
Not final until disposition of timely filed
motion for rehearing.
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lastca ye
Footnotes:
z In the preamble to chapter 71-135, Laws of
Florida, the legislature identified these problems with
the municipal court system that chapter 316 was
designed to address:
1. "the movement of traffic in about
50 percent of the 394 incorporated
municipalities of this state is
controlled by chapter 186, Florida
Statutes, which contains 195
sections," while "the traffic in the
remaining incorporated
municipalities ... is controlled by a
hodgepodge of ordinances which
vary as to language and penalty";
2. many "parts of our state and city
traffic laws are nonuniform and
inconsistent";
3. "from the stand point of the
public, observance of traffic rules is
largely conditioned on the clarity,
reasonableness and uniformity of
the regulations," and
4. "nonuniform laws and
ordinances are a source of
inconvenience and hazard to the
motorist and pedestrian alike, and
contribute to accidents, traffic
snarls, and congestion, increase the
administrative and enforcement
burdens of governmental agencies,
and raise serious barriers to
interstate and intrastate travel and
commerce."
Ch. 71-135, Laws of Fla.
If the vendor unilaterally determines in its own
discretion that either a violation did not occur or that
the City would not be able to sustain its burden of
proof if challenged in court, this information is never
transmitted to the City.
_g_
ANNIE MIGDAL,
individually and on behalf of all others
similarly situated,
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA
CASE NO.: 14027132CA01
GENERAL JURISDICTION
Plaintiff,
v. `
THE CITY OF MIAMI, 1\
individually and on behalf of all others
similarly situated, and ATS PROCESSING
13 tiC(
SERVICES, LLC, a foreign corporation,
Defendants, /?..
SUMMONS
TO THE SHERIFF OF SAID STATE:
YOU ARE HEREBY COMMANDED to serve this summons and a copy of this61
`,
Complaint in this action on: ..-Y .t
CITY OF MIAMI
C/O Mayor Tomas Regalado
3500 Pan American Drive
Miami, FL 33133
Defendant is required to serve its response to the Complaint on Plaintiffs attorney via e-
mail to:
Primary e-mail: m:nwites@wkla.wyers.coni
Secondary e-mail: c tdin.gs(c@)LvvkIPKY. a s con ,
Marc A. Wites
Fla, Bar No, 24783
Wites & Kapetan, P.A.
4400 North Federal Highway
Lighthouse Point, FL 33064
(954) 570-8989
(954) 428-3929 (fax)
bate:
Assigned To:
Matrryryiix:
A
Msttcr No...
r
5igi ature.
CASE NO.; 14027132CA01
within 20 days after service of this summons on that defendant, exclusive of the day of service,
and to file the original of the defenses with the Clerk of this Court either before service on
Plaintiffs attorney or immediately thereafter. If a defendant fails to do so, a default will be
entered against that defendant for the relief demanded in the Complaint.
DATED ON
ec, , 2014,
Clerk of the Court
By:
IMPORTANT
As Deputy Clerk
(COURT SEAL)
A lawsuit has been fled against you. You have 20 calendar days after this summons is
served on you to file a written response to the attached complaint with the clerk of this court. A
phone call will not protect you. Your written response, including the case number given above
and the names of the parties, must be filed if you want the court to hear your side of the case. If
you do not file your response on time, you may lose the case, and your wages, money, and
property may thereafter be taken without further warning from the court. There are other legal
requirements. You may want to call an attorney right away. If you do not know an attorney, you
may call an attorney referral service or a legal aid office (listed in the phone book).
If you choose to .file a written response yourself, at the same time you file your written
response to the court you must also mail or take a copy of your written response to the
"Plaintiffs Attorney named above. •
-2-
Wites & Kapetan, P.A.
4400 N, Federal Highway, Lighthouse Point, FL 33064
Phone: (954) 570-8989; Fax: (954) 354-0205
Filing # 19685812 Electronically Filed 10/22/2014 02:24:30 PM
IN THE CIRCUIT COURT OF THE 11th
JUDICIAL CIRCUIT IN AND FOR
MIAMI DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
ANNIE MIGDAL, individually and on
behalf of all others similarly situated;
CLASS REPRESENTATION
Plaintiff,
v.
THE CITY OF MIAMI, individually and on
behalf of all others similarly situated, and
ATS PROCESSING SERVICES, LLC,
a foreign corporation,
Defendants.
CLASS ACTION COMPLAINT
Plaintiff Annie Migdal, on behalf of herself and all others similarly situated, bring this
action against Defendants The City of Miami, individually and as the representative of the
Defendant Florida Cities Class (the "Defendant Cities Class", as more fully defined below), and
ATS Processing Services, LLC ("ATS")(collectively, "Defendants") for compensatory damages
and injunctive relief, Plaintiff makes the following allegations based upon knowledge as to her
own acts, and upon information and belief, as well as upon her attorneys' investigation, and
alleges as follows:
INTRODUCTION
1. This action is brought on behalf of a class of persons who were charged with and
paid for a red light violation (the "Plaintiff Class", as more fully defined below) issued pursuant
to the authority of The Mark Wandall Traffic Safety Program (the "Act"), whereby Defendants
employed red light cameras to enforce violations of Sections 316,074(1) and 316.075(1)(c) of the
Florida Statutes, which requires drivers to make a full stop at red lights.
-1-
2. The Red Light Violations were imposed upon the Plaintiff Class in violation of
. the Defendant Cities Class' police powers through the outsourcing of their statutory obligations
to determine when a red light violation occurs, and to issue a traffic citation, to Defendant ATS.
See City of Hollywood v. Eric Ar^em, 2014 WL 5149159 (Fla. 46 DCA October 15, 2014).
3. The Class also includes persons that were charged with other traffic citations
where Defendant ATS, in connection with its contractual relationship with Defendant City of
Miami and other Florida cities and municipalities, determined whether a traffic infraction had
occurred and issued the traffic citation.
4. As a result of Defendants' conduct, Plaintiff and the Class have been injured in
the form of, inter alia, their payment to the Defendant Cities Class of fines for red light violations
that were improperly.issued.
PARTIES
5. Plaintiff Annie Migdal is a resident of Miami -Dade County, Florida. She is over
the age of 18, and is otherwise su.i juris.
6. Defendant City of Miami is a political subdivision of the State of Florida.
7. Defendant ATS Processing Services, headquartered in Scottsdale, Arizona, with
regional facilities in New York City, and other U.S. cities, is a division of American Traffic
Solutions, Inc. ATS contracts with cities and municipalities such as The City of Miami to install,
administer and operate red light camera systems pursuant to which ATS determines when a red
light violation has occurred and issues a resulting traffic citation, as well as other traffic citation
systems that operate in a similar and common•manner.
-2-
JURISDICTION AND VENUE
8. This Court has jurisdiction over this dispute because this complaint seeks
damages in excess of $15,000.00 dollars, exclusive of interest and attorneys' fees.
9. Venue is proper in Miami Dade County because the cause of action accrued here.
GENERAL ALLEGATIONS
10. The Mark Wandall Traffic Safety .Program (the "Act") authorizes local
governments to use cameras to capture red light violations and enforce such violations. Pursuant
to the Act, a county or municipality may authorize a traffic infraction enforcement officer
("TIEO) to enforce the violations, and issue them through electronic means.
11. Pursuant to the Act:
[a] notice of violation and a traffic citation may not be issued for failure to stop at
a red light if the driver is making a right-hand turn in a careful and pru.dent
manner at an intersection where right-hand turns are permissible. A notice of
violation and a traffic citation may not be issued under this section if the driver of
the vehicle came to a complete stop after crossing the stop line and before turning
right if permissible at a red light, but failed to stop before crossing over the stop
line or other point at which a stop is required. This 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.
(emphasis added).
12. Florida's statutes do not authorize the delegation of the authority to issue citations
to anyone other than a Florida law enforcement officer such as a TIED. To satisfy this standard,
as set forth in Florida Statute 316.640(5)(a), the officer authorized to determine who is
prosecuted for a red light violation must (a) be employed by the sheriff or police department, (b)
"successfully complete[] instruction in traffic enforcement procedures and court presentation
through the Selective Traffic Enforcement Program as approved by the Division of Criminal
Justice Standards and Training of the Department of Law Enforcement, or through a similar
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program," and (c) "be physically located in the county of the respective sheriff's or police
department."
13. In contravention of these Florida Statutes, Defendant The City of Miami, and
many other Florida municipalities, have outsourced to private third -parties, including Defendant
ATS, their legislatively granted authority to issue uniform traffic citations,
14. Defendant City of Miami, and the other members of the Defendant Cities Class,
have contracted with Defendant ATS to perform virtually all of the functions that the Florida
Legislatures authorized only the Defendant Cities Class to perform. Specifically, Defendant
ATS, and not a TIED or other authorized officer, determines whether a violation has occurred,
and Defendant ATS issues the citation.
15. As detailed by the Fourth District Court of Appeals:
ATS provides the City with, among other things, cameras and a computerized
system to review recorded images of red-light violations to determine the
occurrence of potential violations. If ATS forwards an image to the City, the TIED
authorizes enforcement by clicking a digital "Accept" button. The ATS computer
program then handles the printing and mailing of the notice of violation to the
automobile's registered owner. If the cited car owner fails to elect an option that
avoids the issuance of a traffic citation, ATS then generates the resulting citation,
and inserts a computer generated signature of the TIED along with the TIEO's
badge number. ATS sends the original citation by certified mail to the registered
owner, and electronically transmits •a replica of the citation data to the county court
clerk. After clicking "Accept," the TIED never actually sees the citation, nor is the
TIED otherwise involved in its issuance.
16. Importantly, if Defendant ATS determines that a violation has not occurred, ATS
does not forward information concerning such alleged violation to Defendant City of Miami and
the respective members of the Defendant Cities Class.
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17. The Court further explained that:
it is the [Defendant ATS] that decides which cases the T.JEO gets to review; it is
the [Defendant ATS] who initially determines who is subject to prosecution for a
red light violation; it is the [Defendant ATS] that obtains the information
necessary for the completion of the citation; it is the [Defendant ATS] that creates
the actual citation; it is the [Defendant ATS] that issues the citation to the
registered owner of the vehicle; and, it is the [Defendant ATS] that eventually
transmits the traffic citation data to the court. As the trial court found, the TIEO,
merely acquiesces in the [Defendant ATS]'s decision to issue the citation. The
TIED never sees the actual citation, nor does the TIED personally sign the citation
before it is issued by the [Defendant ATS] to the alleged violator. Although the
City may have some input into who eventually is prosecuted; that decision is
wholly dependent upon the [Defendant ATS]'s initial determination. Under these
circumstances, it cannot be said that this is the legal equivalent of a TIEO issuing
the citation, especially when it is the third -party [Defendant ATS] that controls
what information is, or is not, made available for the officer's consideration.
.18. Defendant City of Miami's and the Defendant Cities Class' delegation of the sole
and absolute authority to Defendant ATS to determine if a violation has occurred, along with the
delegation of the issuance of the citation is an improper delegation of police powers.
19. Defendant ATS5 in connection with its contractual relationships with other Florida
cities and municipalities, determines, in the same manner as it does red light violations, whether
other traffic infractions have occurred, including those captured by School Bus Camera Arms,
Speed Safety Cameras, and Plate Pass, and issues those traffic citations.
20. On October 3, 2013, Plaintiff Annie Migdal was driving a car leased in the name
of her husband, Joshua Adam Migdal, and received a violation for allegedly failing to stop at a
red light in violation of Sections 316.0083, 316.074(1), and 316.075(1)(c)(1) of the Florida
Statutes. On information and belief, Defendant ATS, pursuant to its contract with Defendant City
of Miami, determined that Plaintiff Migdal violated the respective statutes and issued the citation
to Plaintiff Migdal, which she paid.
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CLASS REPRESENTATION ALLEGATIONS
THE PLAINTIFF AND DEFENDANT CLASSES
21. Plaintiff brings this action in her own behalf and in a representative capacity on
behalf of all persons and entities that were charged in Florida with a traffic infraction, including
but not limited to a red light violation captured by a red light camera system operated by
Defendant ATS, where Defendant ATS determines if a violation has occurred and issues the
citation, pursuant to a contract between Defendant ATS and the respective members of the
Defendant Cities Class (the "Plaintiff Class").
22. Plaintiff brings claims for unjust enrichment and injunctive relief against
Defendant City of Miami, individually, and as the representative of the Defendant Cities Class,
which includes all other Florida municipalities and government entities that operate red light
camera systems, School Bus Stop Arm Cameras, Speed Safety Cameras, and Plate Pass Devices,
pursuant to a contract with Defendant ATS, including but not necessarily limited to all entities
identified on 'Exhibit A to this Class Action Complaint (the "Defendant Cities Class"), and
against Defendant ATS.
23. Plaintiff seeks certification of the Plaintiff Class and the Defendant Cities Class
pursuant to Rule 1.220(b)(2) and (3), F1a.R,Civ.P,, including the following Plaintiff subclasses:
CITY OF MIAMI SUBCLASS: All persons and entities that were charged in Florida
with a traffic infraction, including but not limited to a red light violation captured by a
red light camera system operated by Defendant ATS, where Defendant ATS determines
if a violation has occurred and issues the citation, pursuant to a contract between
Defendant ATS and Defendant City of Miami.
CITIES CLASS SUBCLASS: All persons and entities that were charged in Florida with a
traffic infraction, including but not limited to a red light violation captured by a red light
camera system operated by Defendant ATS, where Defendant ATS determines if a
violation has occurred and issues the citation, pursuant to a contract between Defendant
ATS and the respective members of the Defendant Cities Class.
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NUMEROSITY
24. The members of the Class are so numerous that joinder of all members is
impractical. While the exact number of Class members is unknown to Plaintiff at this time,
Plaintiff believes in good faith that the Plaintiff Class includes thousands of persons, and that the
Defendant Cities Class includes more than 75 Florida cities and municipalities.
TYPICALITY
25. The respective claims and defenses of Plaintiff and Defendant The City of Miami
are typical of those of the respective absent Class Members' claims and defenses. Plaintiff and
the Class' claims arise from the same factual background and legal theories. Plaintiff's claims
are typical of those of the Class because Plaintiff and each Class Member were charged with a
red light violation and other traffic violations by a Florida municipality that outsourced its police
powers to determine and issue citations red light violations to Defendant ATS. The defenses of
the Defendant Cities Class are typical for the same reason.
ADEQUACY OF REPRESENTATION
26. Plaintiff will fairly and adequately protect the Class' interests and have retained
counsel competent and experienced in class-action litigation. Plaintiffs interests are coincident
with, and not antagonistic to, absent Class members' interests because by proving their individual
claims they will necessarily prove the Defendant Cities Class' liability as to the Plaintiff Class'
claims. Plaintiff is also cognizant of, and determined to, faithfully discharge her fiduciary duties
to the absent class members as the Class Representative.
27. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy. The expense and burden of individual litigation effectively
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makes it impossible for individual Class members to seek redress for the wrongs complained of
herein.
MANAGEABILITY
28. There are no unusual difficulties likely to be encountered in the management of
this action as a class suit that could not be managed by this Court, The advantages of maintaining
the action as a class suit far outweigh the expense and waste of judicial effort that would result in
hundreds of separate adjudications.
29. Class treatment further insures uniformity and consistency in results and will
provide optimum compensation of Class members for their injuries and deterrence of Defendant
and other similar government entities from engaging in such wrongful acts in the future.
PREDOMINANCE AND COMMONALITY
30. The questions of law and fact common to the claims and defenses of each member
of the Plaintiff Class and Defendant Cities Class overwhelmingly predominate over any
questions of law or fact affecting only individual members of the Class. Questions of law and
fact common to the Class include, but are not necessarily limited to, the following:1
A. Whether Defendant City of Miami "improperly delegated its police
powers by contractually outsourcing its statutory obligations to [Defendant
ATS] a for -profit, non -government corporation." See City of Hollywood
v. Arem,
B. Whether Defendant ATS determines which cases the TIED reviews;
C. Whether Defendant ATS reviews video and photographs of alleged
violation and determines which ones to forward to the respective members
The list of common questions of law and fact is not intended to be exhaustive; by
setting forth this argument, Plaintiff does not waive her rights to assert additional claims against
Defendants, raise additional common questions of fact and law, and amend the class definitions.
-8-
of the Defendant Cities Class;
D. Whether Defendant ATS determines who is subject to prosecution for a
traffic infraction;
E. Whether Defendant ATS creates the traffic citations;
F, Whether Defendant ATS issues the traffic citations to the vehicle owner;
G. Whether Defendant ATS transmits the traffic citation information to the
respective court;
H. Whether Defendant City of Miami and the Defendant Cities Class were
unjustly enriched at the expense of Plaintiff and the Class;
I. Whether Plaintiff and the Class suffered damages; and
J. The extent of the damages injuries suffered by Plaintiff and the Class.
COUNT 1— UNJUST ENRICHMENT
(Unjust Enrichment Against All Defendants)
31. Plaintiff repeats and realleges each and, every allegation contained above, and
incorporates by reference all other paragraphs of this Complaint as if fully set forth herein.
32, Defendant City of Miami and the Defendant Cities Class received, and continue
to receive, a benefit at the expense of Plaintiff and the Class in the form of monies paid for red
light violations and other traffic infractions. determined and issued by Defendant ATS.
Defendant ATS likewise receives monetary benefits as a result of the payment of such red Light
violations and other traffic infractions by the Plaintiff Class.
33. Defendant City of Miami, the Defendant Cities Class, and Defendant ATS
(collectively "Defendants"), knowingly and intentionally accepted and retained these benefits.
34. It would be unjust and improper under the circumstances to allow Defendants :to
retain the monies paid by Plaintiff and the Class for red light violations.
-9-
COUNT II — INJUNCTIVE RELIEF
35. Plaintiff repeats and realleges each and every allegation contained above, and
incorporates by reference all other paragraphs of this Complaint as if fully set forth herein.
36. Defendant City of Miami and the Defendant Cities Class have improperly
outsourced their police powers to .Defendant ATS, thereby rendering null and void all red light
traffic violations and other traffic violations paid by the Plaintiff Class.
37. Plaintiff and the Plaintiff Class will suffer irreparable harm absent injunctive
relief, as Defendant City of Miami and the Defendant Cities Class may continue to improperly
issue red light violation and other traffic citations the result from Defendant ATS determining
whether an infraction has occurred and issuing the citation, through an improper delegation of
the Defendant Cities Class' police powers:
38. There is no adequate remedy at law which may serve to prohibit Defendant City
of Miami and the Defendant Cities Class from continuing to improperly outsource and delegate
their police powers.
39. The threatened injury to the Plaintiff Class outweighs any injury to Defendant
City of Miami and the Defendant Cities Class, who may not act in contravention of and/or
outside of their legislatively granted authority.
40. The grating of an injunction will serve the public interest.
CLASSWIDE PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on her own behalf and on behalf of the Plaintiff Class, prays
for the following relief:
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(a) an order certifying this action as a class action as set forth herein and designating
Plaintiff as the Class Representatives of the Plaintiff Class described above and Defendant The
City of Miami as the representative of the Defendant Cities Class described above;
(b) an order directing Defendant City of Miami and the members of the Defendant
Cities Class to cease issuing red light violation citations and other traffic citations pursuant to the
terms of their contracts with Defendant ATS;
(c) an order awarding Plaintiff and the Class damages from all Defendants for unjust
enrichment;
(d) an order awarding Plaintiff and the Plaintiff Class attorneys' fees, costs and
expenses incurred in this action, including but not limited to reasonable costs of experts retained
by counsel;
(e)
a preliminary and permanent order providing for injunctive relief to enjoin
Defendant City of Miami and the members of the Defendant Cities Class from issuing red light
violation citations and other traffic citations pursuant to their contracts with Defendant ATS; and
(fj such other relief this Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury of all issues so triable.
WITES & KAPETAN, P.A.
Attorneys for Plaintiff and the Class
4400 North Federal Highway
Lighthouse Point, FL 33064
(954) 570-8989/(954) 354-0205 (fax)
By: /s/Marc A, Wites
MARC A. WITES
Fla. Bar No.: 24783
mwites ,,,wklawyers.com
-11-
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