IN THE SUPREME COURT OF FLORIDA

Filing # 15140956 Electronically Filed 06/23/2014 05:57:34 PM RECEIVED, 6/23/2014 17:58:42, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA RICHARD MASONE, v. Petitioner, CASE NO. SC12-644 CITY OF AVENTURA, Respondent. CITY OF ORLANDO, FLORIDA, v. Petitioner, CASE NO. SC12-1471 MICHAEL UDOWYCHENKO, etc., et al., Respondents. CITY OF AVENTURA S MOTION FOR REHEARING Pursuant to Fla. R. App. P. 9.330(a), respondent, City of Aventura ( City ), hereby moves for rehearing of the Court s decision dated June 12, 2014 (the Decision ). INTRODUCTION In the Decision, the Court makes clear that, prior to the enactment of the Mark Wandall Traffic Safety Act ( Wandall Act ) in 2010, the City had the statutory authority to install and operate red light cameras to regulate, restrict or monitor traffic at certain intersections within the City. The Court took issue,

however, with the enforcement scheme the City adopted to address red light camera violations caught by the cameras. Slip Op. at 9. As the Court explained: [T]he powers granted to municipalities by section 316.008 are powers by which municipalities may control certain traffic movement or parking in their respective jurisdictions. Control[ling] certain traffic movement through [r]egulating, restricting, or monitoring traffic by security devices does not specifically encompass undertaking enforcement measures that is, imposing punishment outside the framework established by chapters 316 and 318 for conduct that is proscribed by chapter 316 and subject to punishment under chapter 318. Id. at 9-10. The Court subsequently summarized its position on this issue as follows: Nothing in section 316.008(1)(w) provides that municipalities are granted the authority to enact an enforcement regime different from the enforcement regime applicable under the provision of section 316.075(4) that red light violations are punishable pursuant to chapter 318. Slip Op. at 11-12. The Court also apparently took issue with the penalties imposed by the City s red light camera ordinance: [N]othing in section 316.008(1)(w) creates an exception from the express preemption imposed by section 318.121 of any fines other than the penalties imposed as provided in chapter 318. Slip Op. at 12. The Decision does not explain, however, in what manner the City s red light camera ordinance imposed fines that violated the limitations imposed by section 318.121, Florida Statutes. 1 1 Section 318.121 read as follows: Notwithstanding any general or special law, or municipal or county ordinance, additional fees, fines, surcharges, or costs other than the court costs and surcharges assessed under s. 318.18(11), (continued...) 2

As the record reflects, the City s ordinance imposed a fine of $125 for a first offense red light violation caught by a camera, a $250 fine for a second violation, and a $500 fine for each subsequent violation. R. 17. The ordinance, though, did not impose points on either the owner or driver of the vehicle. R. 15. Masone was fined $125 for his first infraction, and $250 for his second. R. 18, 20. Florida Statutes at the time specifically, section 318.18(15) imposed a $125 fine for a red light violation. 318.18(15), Fla. Stat. (2009). State law also imposed four points on the driver s license. 322.27(3)(d)(6), Fla. Stat. (2009). The Decision does not discuss the differences in penalties between the statutory scheme and the City s ordinance. ARGUMENT While the Court has primarily invalidated the City s ordinance because the enforcement mechanisms set forth in Chapter 318 expressly preempted any other mechanism of enforcement, the Decision misapprehends or overlooks the following: (A) when the Florida Legislature enacted the Wandall Act in 2010 and for the first time expressly indicated its intention to preempt the regulation of red light cameras ( 316.0076, Fla. Stat. (2010)), it specifically declined to invalidate local enforcement mechanisms operating outside Chapter 318; and (B) enforcement of red light cameras through the procedures of Chapter 318 would (... continued) (13), (18), and (19) may not be added to the civil traffic penalties assessed in this chapter. 318.121, Fla. Stat. (2009) (emphasis added). 3

have been impossible, thus effectively vitiating the authority conferred by section 316.008(1)(w), Florida Statutes. As to the issue of the ordinance s preemption by section 318.121, the Court has overlooked or misapprehended that the appropriate remedy for such preemption would be to invalidate that portion of the City ordinance s penalties that exceeded the statutory scheme, rather than invalidating the entire ordinance. I. THE USE OF ENFORCEMENT MECHANISMS OUTSIDE CHAPTER 318. A. Use of enforcement mechanisms other than Chapter 318 to effectuate the authority conferred by section 316.008(1)(w) was specifically endorsed by the Florida Legislature. If, in fact, the use of enforcement mechanisms other than those set forth in Chapter 318 for red light camera violations was inherently at odds with the statutory scheme created by Chapters 316 and 318, then one would have expected the Legislature, when it enacted the Wandall Act and expressly preempted regulation of red light cameras, to have invalidated all local enforcement schemes and insisted upon compliance with Chapter 318. See, e.g., 166.044, Fla. Stat. (2012) (preempting local regulation of ammunition and stating any such ordinance in effect on June 24, 1983, is void. ). After all, the Legislature did not delete, amend or qualify the preemption language in sections 316.002 and 316.007, upon which the Court relied in the Decision. Not only did the Legislature not invalidate local enforcement schemes, it allowed without expressly authorizing municipalities to use their own enforcement mechanisms and report back to the 4

Legislature. If local enforcements schemes outside Chapter 318 ran afoul of the preemption language in sections 316.002 and 316.007, then the Legislature s course of action in adopting the Wandall Act made little sense. Conspicuously absent from the primary provision of the Wandall Act (section 316.0083, Florida Statutes) was any mention that existing local red light camera programs had to rely solely on Chapter 318 for enforcement. On the contrary, Chapter 318 was modified solely to provide for the imposition of a $158 fine upon the violation of a traffic signal enforced by a municipal traffic infraction enforcement officer. Laws of Fla., Ch. 2010-80 (amending section 318.18(15), Florida Statutes). In short, local enforcement mechanisms targeting red light signal violations could co-exist with the penalties imposed by Chapter 318. The Legislature further endorsed the continued vitality of local enforcement schemes by enacting section 316.0083(4)(a), which read: Each municipality that operates a traffic infraction detector shall submit a report by October 1, 2012, and annually thereafter, to the department which details the results of using the traffic infraction detector and the procedures for enforcement for the preceding state fiscal year. 316.0083(4)(a), Fla. Stat. (2010) (emphasis added). Had the Legislature believed that enforcement of red light traffic signals through the use of cameras was compatible solely with the enforcement mechanisms set forth in Chapter 318, there would have been little purpose to requiring municipalities to 5

provide annual reports to the Legislature as to the procedures for enforcement they used. 2 The City respectfully suggests that the Court s invalidation of the City s ordinance for failure to rely on Chapter 318 to enforce violations detected by red light cameras is an unwarranted and unduly restrictive interpretation of the preemption language in Chapter 316, given that the Legislature found in 2010 that local enforcement schemes were compatible with and could continue to co-exist with the enforcement mechanisms set forth in Chapter 318. For this reason, the City respectfully requests that the Court grant rehearing and uphold the City s ordinance. B. The City could not have relied on Chapter 318 to enforce the authority conferred upon it by section 316.008(1)(w). At the heart of the Court s enforcement preemption analysis is the idea that the City, while undoubtedly authorized to use red light cameras to regulate, restrict or monitor traffic within its jurisdiction, was required to rely on the 2 By 2013, the Legislature formalized in the Wandall Act the local hearing officer mechanisms that had already been employed by municipalities for years. See 316.0083(5)(b) (providing for a clerk for the local hearing officer), 5(c) (providing violator with a hearing before a local hearing officer), 5(d) (requiring the local hearing officer to take testimony under oath), and 5(e) (granting authority to local hearing officer to determine whether violation of signal occurred and to impose fines and municipal costs). Most significantly, the mechanism for review of the local hearing officer s decision is pursuant to section 162.11, Florida Statutes, which governs appeals of code enforcement decisions. 316.0083(5)(f), Fla. Stat. 6

mechanisms of Chapter 318 to effectuate compliance. The plain language of Chapters 316 and 318, however, undermines that conclusion. While Chapter 318 undoubtedly provided the mechanisms for enforcement of uniform traffic citations issued for traffic signal violations, the mechanisms would not have been applicable to violations detected by cameras. For example, in 2009, section 318.18(15) provided the penalty for a violation of a traffic signal as set forth in sections 316.074(1) or 316.075(1)(c)1. 318.18(15), Fla. Stat. (2009). However, the issuance of a citation pursuant to those statutory provisions required the traffic enforcement officer to observe the commission of [the] traffic infraction. It was this incongruity that led Florida s Attorney General to conclude in 2005 that while municipalities may install and operate red light cameras, they lacked the authority to enforce them, notwithstanding the explicit legislative authorization to regulate, restrict or monitor traffic through the use of such devices. See AG 2005-41 (considering enforcement of violations detected by red light cameras and concluding that while monitoring of violations was permitted, enforcement required personal observation of the violation). As the Court has apparently recognized, the Legislature intended to authorize municipalities to use red light cameras to regulate, restrict or monitor traffic within their jurisdictions. And consistent with the Court s prior jurisprudence, the concept of regulation necessarily includes the authority to enforce violations. Nichols v. Yandre, 9 So. 2d 157, 159 (Fla. 1942). However, the Court s solution to the enforcement conundrum reliance on the provisions of 7

Chapter 318 was not workable when Chapter 316 required personal observation of the traffic infraction. 3 For this reason, an enforcement mechanism independent of Chapter 318 was and remains necessary. To hold otherwise is to strip from municipalities an exercise of police power the Legislature has expressly conferred on them. For this additional reason, the City respectfully requests that the Court grant rehearing and uphold the City s ordinance. II. TO THE EXTENT THE CITY S ORDINANCE WAS PREEMPTED BY THE PENALTY LIMITATIONS OF SECTION 318.121, THE REMEDY WAS TO STRIKE THAT PORTION OF THE CITY S ORDINANCE IMPOSING FINES INCONSISTENT WITH THE STATUTORY SCHEME. As to the Court s second basis for finding that the City s ordinance was preempted that section 318.121, Florida Statutes, precludes the imposition of additional fines not set forth in Chapter 318 the Court has regrettably thrown the proverbial baby out with the bathwater. There is no dispute in the record that the City s ordinance imposed a fine of $125 for a first violation of a red light signal. Nor is there a dispute that such a fine was consistent with section 318.18(15), Florida Statutes. Assuming there to have been an impermissible additional fine imposed by the ordinance, it arose only upon the repeat occurrences of a violation 3 The City will not belabor the various other ways in which Chapter 318 is inherently incompatible with a camera-based violation detection system, but petitioner certainly noted that Chapter 318 imposes penalties on drivers, whereas the City s red light camera program imposed penalties initially on vehicle owners, because indicia of ownership of the vehicle was detectable by the cameras. 8

and the imposition of higher fines. Even assuming compliance with Chapter 318 s enforcement mechanisms, had the City s ordinance merely imposed the same $125 fine for each additional traffic signal violation, the ordinance would have been entirely consistent with and not preempted by section 318.121. It was undisputed that the City s ordinance contained a severability provision. R. 121-22. This Court has specifically held that where a particular provision of local legislation is preempted by or in conflict with state law, the remedy is to declare that particular provision invalid not to strike the entire local scheme. Thus, in Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880 (Fla. 2010), the Court struck a particular section of the proposed revision to Sarasota County s charter because it conflicted with Florida s Election Code. Id. at 883-84, 890-91. The Court concluded that because the provision was severable as the City s ordinance explicitly provided here it was appropriate to strike only the offending provision. A similar result obtained in Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d 1011 (Fla. 2d DCA 2005), approved, Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008), in which the Second District Court of Appeal considered what should be done with a penalty provision in a county ordinance that conflicted with state law: This conflict does not require us to invalidate the entire ordinance. Section 7 of the ordinance contains a severability clause that provides that if any court finds that any Section, Subsection, sentence, clause, phrase or provision of the ordinance is invalid or unconstitutional, the ruling shall not be construed to render the remainder of the 9

ordinance invalid or unconstitutional. We recognize that a severability clause is persuasive but not binding upon a court. Cf. State v. Champe, 373 So. 2d 874, 880 (Fla.1978) (regarding severability of a portion of a Florida state legislative provision). Nevertheless, because the final sentence of the first full paragraph of section 2 can be separated from the remainder of the ordinance without subverting the intent or purpose of the ordinance, and because the severability clause demonstrates that the County would have enacted the ordinance without this provision, we hold this provision severable from the remainder of the ordinance. 894 So. 2d at 1021. The primary purpose of the City s red light camera ordinance was to enhance safety and protect City residents from dangerous accidents caused by red light violators. The invalidation of a portion of the penalty provision relating to repeat offenders would not subvert the intent or purpose of the ordinance. And since the City Commission clearly expressed its intent that the ordinance s provisions be severable, there is no reasonable basis to conclude that the red light camera ordinance would not have been enacted had the fines for repeat offenders been omitted. For this reason, should the Court not uphold the City ordinance in its entirety, the City respectfully requests that the Court grant rehearing and modify the Decision to invalidate only the penalty provisions of the ordinance relating to repeat offenders. 10

CERTIFICATE OF SERVICE We certify that a copy of this motion was served via e-mail and e-portal on June, 2014, on Bret Lusskin, Esq., (blusskin@theticketcricket.com) Bret Lusskin, P.A. d/b/a The Ticket Cricket (Counsel for Petitioner), 1001 N. Federal Highway, Suite 106, Hallandale, FL 33009; Bard D. Rockenbach, Esq. (bdr@flappellatelaw.com), Andrew A. Harris, Esq. (aah@flappellatelaw.com), Burlington & Rockenbach, P.A. (jew@flappellate.com) (Counsel for Petitioners Masone and Udowychenko), 444 West Railroad Avenue, Ste. 430, West Palm Beach, Florida, 33401; David B. King, Esq., and Thomas Zehnder, Esq. (dking@kbzwlaw.com, tzehnder@kbzwlaw.com, courtfilings@kbzwlaw.com), King, Blackwell, Zehnder & Wermuth, P.A. (Counsel for City of Orlando), 25 E. Pine St. (32801), Post Office Box 1631, Orlando, Florida 32802-1631; Samuel J. Salario, Jr. (ssalario@cfjblaw.com) and Joseph H. Lang, Jr. (jlang@cfjblaw.com), Carlton Fields Jorden Burt, P.A. (counsel for amicus curiae, American Traffic Solutions, Inc.), Corporate Center Three at International Plaza, 4221 W. Boy Scout Blvd., Suite 1000, Tampa, FL 33607-5736. 11

Respectfully submitted, Edward G. Guedes, Esq. Florida Bar No. 768103 Prim. E-mail: eguedes@wsh-law.com Sec. E-mail: szavala@wsh-law.com Weiss Serota Helfman Pastoriza Cole & Boniske, P.L. 2525 Ponce de Leon Blvd., Ste. 700 Coral Gables, Florida 33134 Telephone: (305) 854-0800 Facsimile: (305) 854-2323 Counsel for City of Aventura By: /s/ Edward G. Guedes Edward G. Guedes 12