IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR ORANGE COUNTY, FLORIDA
Case No.: 2016-CV-29-A-O
NOV No.: 0821500476683
STEPHEN VINCENT FACELLA,
Appellant,
v.
ORANGE COUNTY, FLORIDA,
Appellee.
__________________________________/
APPELLEE’S ANSWER BRIEF
GEORGIANA HOLMES
Assistant County Attorney
Florida Bar No. 490393
ANDREA AZUKA ADIBE
Assistant County Attorney
Florida Bar No. 74125
Orange County Attorney’s Office
Orange County Administration Center
201 S. Rosalind Avenue, Third Floor
P.O. Box 1393
Orlando, Florida 32802-1393
Counsel for Orange County, Florida
Filing # 45712573 E-Filed 08/25/2016 07:08:28 PM
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ............................................................................................ i
TABLE OF CITATIONS ......................................................................................... ii
ABBREVIATIONS AND CITATIONS ................................................................... 1
I. STATEMENT OF CASE AND OF THE FACTS ............................................. 2
II. SUMMARY OF THE ARGUMENT ............................................................... 13
III. STANDARD OF REVIEW .............................................................................. 13
IV. LEGAL ARGUMENT ...................................................................................... 14
A. APPELLANT WAS AFFORDED PROCEDURAL DUE
PROCESS BY THE LOCAL HEARING OFFICER AT
THE NOV HEARING. ............................................................................. 14
B. THE LOCAL HEARING OFFICER DID NOT DEPART
FROM THE ESSENTIAL REQUIREMENTS OF LAW
PURSUANT TO SECTION 316.0083(5), FLORIDA
STATUTES. ............................................................................................. 22
V. CONCLUSION ................................................................................................. 34
CERTIFICATE OF SERVICE ................................................................................ 36
CERTIFICATE OF COMPLIANCE ....................................................................... 36
ii
TABLE OF CITATIONS
Page
Cases
Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, (Fla. 2003) ..................................30
Barrett v. City of Margate, 743 So. 2d 1160 (Fla. 4th DCA 1999) .........................29
Board of County Commissioners of Pinellas County v. City of Clearwater,
440 So. 2d 497, 499 (Fla. 2nd DCA 1983) ......................................................27
Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 845 (Fla. 2001) ..................27
Bush v. City of Mexico Beach, 71 So. 3d 147, 150 (Fla. 1st DCA 2011) ................16
Carillon Cmty. Residential v. Seminole County, 45 So. 3d 7, 9 (Fla. 5th DCA
2010) .................................................................................................... 14, 15, 24
City of Aventura v. Jimenez, 2016 WL 4016645 (Fla. 3rd DCA 2016) ........... 31, 32
City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982) ........ 13, 22, 29
City of Deland v. Benline Process Color Co., 493 So. 2d 26, 28 (Fla. 5th
DCA 1986) ................................................................................................ 13, 27
City of Hollywood v. Arem, 154 So. 3d 359, 36 (Fla. 4th DCA 2015) 11, 23, 27, 28,
……………………………… .................................... 29, 30, 31, 32, 33, 34, 35
Department of Highway Safety & Motor Vehicles v. Hofer, 5 So. 3d 766, 771
(Fla. 2d DCA 2009) ................................................................................... 18, 24
iii
Department of Highway Safety & Motor Vehicles, v. Allen, 539 So. 2d 20,
21 (Fla. 5th DCA 1989)....................................................................................25
Dept. of Financial Services v. Brank Banking & Trust Co. 40 So. 3d 829,
833 (Fla. 1st DCA 2010) ..................................................................................17
Dept. of Highway Safety and Motor Vehicles v. Stenmark, 941 So. 2d 1247,
1249 (Fla. 2nd DCA 2006) ...............................................................................27
Dumorange v. Florida Unemployment Appeals, 947 So. 2d 472, 475 (Fla. 3d
DCA 2006) .......................................................................................................21
Faretta v. California, 422 U.S. 806 (1975) .............................................................28
Gulf Oil Realty Co. v. Windhover Ass’n, 403 So.2d 476 (Fla. 5th DCA 1981) ......35
Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) .... 14, 22, 25, 30
Hastings v. City of Orlando (Ninth Judicial Circuit Case No. 2015-CV-
000049-A-O) ......................................................... 11, 23, 24, 27, 29, 30, 33, 34
Homestead Land Group v. City of Homestead, 165 So. 3d. 62, 65 (Fla. 3d
DCA 2015) .......................................................................................................15
Housing Authority of City of Tampa v. Burton, 874 So. 2d 6, 8 (Fla. 2nd
DCA 2004) .......................................................................................................30
Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) ...............................................30
James v. Crews, 132 So. 3d 896 (Fla. 1st DCA 2014) ............................................29
Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991)..................15
iv
Key Citizens for Responsible Gov’t, Inc., v. Fla. Keys Aqueduct Auth., 795
So. 2d 940, 948 (Fla. 2001) ....................................................................... 15, 20
Kupke v. Orange County, 838 So.2d 598, 599 (Fla. 5th DCA 2003) ......................15
Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So.2d 996 (Fla. 2d
DCA 1993) .......................................................................................................15
Malloy v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 850 So. 2d 578,
581 (Fla. 2d DCA 2003) ...................................................................................30
Seminole Entertainment, Inc. v. City of Casselberry, 811 So.2d 693, 696
(Fla. 5th DCA 2001) .........................................................................................15
State v. Devine, 2015 WL 10943646 (Polk Co. 2015) ............................................31
State v. Langham, 2015 WL 10943644, (Duval Co. 2015) .....................................31
State v. Meador, 2015 WL 10943643 (Polk Co. 2015) ...........................................31
Tamiami Trail Tours, Inc. v. Railroad Commission, 128 Fla. 25 (Fla. 1937) .........35
Verdi v. Metropolitan Dade County, 684 So. 2d 870, 873-874 (Fla. 3d DCA
1996) .................................................................................................................14
Statutes
Chapter 318 ................................................................................................................ 4
Section 162.11 ................................................................................... 6, 12, 13, 14, 32
Section 316.003(87) ................................................................................................... 2
Section 316.003(91) .............................................................................................4, 22
v
Section 316.0083 ............................................................................. 2, 4, 6, 10, 25, 31
Section 316.0083(1)(a) .............................................................................................. 2
Section 316.0083(1)(b)1.a. ....................................................................................3, 4
Section 316.0083(1)(b)1.b. ........................................................................................ 3
section 316.0083(1)(c)1.a. ......................................................................................... 3
Section 316.0083(1)(d)1. ........................................................................................... 3
Section 316.0083(1)(d)1.a. ............................................................................... 16, 23
Section 316.0083(5) .............................................................................. 18, 23, 24, 33
Section 316.0083(5)(b) .............................................................................................. 5
Section 316.0083(5)(c) .............................................................................................. 5
Section 316.0083(5)(d) ................................................................................. 5, 16, 22
Section 316.0083(5)(e) ................................................................................. 5, 13, 22
Section 316.074(1) .................................................................................................2, 6
Section 316.075(1)(c)1...........................................................................................2, 6
Section 316.640(5)(a)................................................................................................. 2
Section 316.650(3)(c)................................................................................................. 4
Section 318.14 ............................................................................................................ 4
Section 318.14(5) .....................................................................................................26
Section 318.18 ..........................................................................................................26
vi
Other Authorities
Art. V, Fla. Const. ....................................................................................................33
Chapter 2010-80, Laws of Florida ............................................................................. 2
Chapter 2013-160, Laws of Florida .......................................................................4, 5
House Bill No. 325 ..................................................................................................... 2
House Bill No. 7125................................................................................................... 4
Rules
Fla. R. App. P. 9.020(a)(3) .......................................................................................14
Fla. R. App. P. 9.030(c) ...........................................................................................22
Fla. R. App. P. 9.030(c)(1)(C) .......................................................................... 13, 14
Fla. R. App. P. 9.030(c)(3) .......................................................................................14
Fla. R. App. P. 9.190 ................................................................................................12
Fla. R. App. P. 9.190(b)(3) ......................................................................................14
Fla. R. App. P. 9.210(a)(2) .......................................................................................36
Fla. R. App. P. 9.210(c) ............................................................................................. 2
Fla. R. Traf. Ct. R. 6.630 ........................................................................................... 4
Regulations
Orange County Code Chapter 35, Article V .............................................................. 5
Orange County Ordinance 2013-17 ........................................................................... 5
vii
Resolution 2013-M-18 ............................................................................................... 5
Section 35-76, Orange County Code .......................................................................22
1
ABBREVIATIONS AND CITATIONS
For clarity and ease of reference, the following abbreviations and citations
will be used:
Abbreviation Description
Act Mark Wandall Traffic Safety Program
Appellant Appellant Stephen Vincent Facella
County Appellee Orange County, Florida
R [page number]. Citation page in the Appendix to the Answer Brief
TIEO Traffic Infraction Enforcement Officer
2
I. STATEMENT OF CASE AND OF THE FACTS
Pursuant to Fla. R. App. P. 9.210(c), and also considering that Appellant’s
Statement of the Case and Facts contains argument, Appellee provides its own
Statement of Case and of the Facts below.
In 2010, House Bill 325 created the Mark Wandall Traffic Safety Program,
or Section 316.0083, Fla. Stat., (2010), which authorized a county or municipality
to use a “traffic infraction enforcement officer” (“TIEO”) to issue traffic citations
for violations of sections 316.074(1) or 316.075(1)(c)1, Fla. Stat. (collectively
herein referred to as a “red light signal violation”). See Ch. 2010-80, Laws of Fla.
Pursuant to section 316.640(5)(a), Fla. Stat., once instructed in traffic enforcement
procedures and court presentation through the Selective Traffic Enforcement
Program, a TIEO is authorized to issue Notices of Violations (“NOVs”) and
Uniform Traffic Citations (“UTCs”) consistent with the act.
Pursuant to sections 316.0083(1)(a) and 316.003(87), Fla. Stat. (2010),
camera-recorded photographic or electronic images or streaming video footage of
an anticipated red light signal violation are captured by an automated computerized
system and electronically transmitted to a certified TIEO to review. The
Legislature anticipated and authorized a “pre-review” of the images and video in
section 316.0083(1)(a), Fla. Stat. (2010), which states “[t]his paragraph does not
prohibit a review of information from a traffic infraction detector by an authorized
3
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.)
After review of the recorded images and video evidencing a red light signal
violation, the TIEO issues a NOV to the registered owner of the motor vehicle
(“owner”) identified by its state license tag number. § 316.0083(1)(b)1.a., Fla. Stat.
(2010). Upon receipt of the NOV, section 316.0083(1)(b)1.a., Fla. Stat. (2010)
gives the owner the option to (1) pay a penalty of $158.00, (2) furnish an affidavit
establishing non-liability1 to avoid the issuance of a UTC, or (3) of course, the do
nothing at all. Section 316.0083(1)(b)1.b., Fla. Stat. (2010) requires the NOV to
include notice to the owner of the right to review the photographic or electronic
images or streaming video evidence reviewed by the TIEO that constituted the
probable cause that a red light signal violation occurred.
Without an election of one of the remedies specified in the NOV within 30
days, section 316.0083(1)(c)1.a., Fla. Stat. (2010) mandates a UTC be issued to the
1 Section 316.0083(1)(d)1., Fla. Stat. (2010) allows the registered owner cited in an
NOV to furnish an affidavit establishing: (1) the vehicle passed through the
intersection in order to yield right-of-way to an emergency vehicle or as part of a
funeral procession; (2) the vehicle passed through the intersection at the direction
of a law enforcement officer; (3) the vehicle was, at the time of the violation, in the
care custody, or control of another person; or (4) a uniform traffic citation was
issued by a law enforcement officer to the driver of the vehicle for the same
alleged offense.
4
owner for the red light signal violation. Upon issuance of the UTC, section
316.650(3)(c), Fla. Stat. (2010) requires the TIEO to provide an electronic replica
of the UTC to the court having jurisdiction over the alleged offense. Once filed
with the court, and consistent with chapter 318, Fla. Stat., and the Florida Rules of
Traffic Court, an owner could contest the UTC at a hearing before a Civil Traffic
Infraction Hearing Officer or request assignment to a County Judge. See generally
§ 318.14, Fla. Stat. and Fla. R. Traf. Ct. R. 6.630.
Most important for this appeal’s purpose, in 2013, with House Bill No.
7125, the Legislature modified section 316.0083, Fla. Stat. by creating a new
option allowing a registered owner issued a NOV to contest it at a local
government administrative hearing. See Ch. 2013-160, Laws of Fla. Under the
statutory revision, the remedies previously available to an owner upon receipt of an
NOV remained (i.e., pay penalty, furnish affidavit, do nothing), but section
316.0083(1)(b)1.a., Fla. Stat. (2013) added the option of requesting a hearing2 in
order to avoid the issuance of a UTC. Along with adding section 316.003(91), Fla.
Stat. (2013), the Legislature authorized a county or municipality to designate a
“local hearing officer” to conduct hearings related to NOVs, or use its currently
2 Additionally, upon issuance of a NOV, the prescribed time period to elect a
remedy to avoid the issuance of a UTC was lengthened from 30 to 60 days.
5
appointed code enforcement board or special magistrate to serve as the local
hearing officer.
On July 2, 2013, with Ordinance 2013-17, the Orange County Board of
County Commissioners revised Orange County Code Chapter 35, Article V. Red
Light Running, consistent with Chapter 2013-160, Laws of Florida to include the
new NOV hearing procedure and allowable costs. R. 100-107. Concurrent with the
Ordinance adoption, and in compliance with section 316.0083(5)(b), Fla. Stat.
(2013), the County adopted Resolution 2013-M-18 and designated a Traffic
Engineering Division employee to provide administrative support and serve as
“clerk” to the local hearing officer. R. 108-109.
Now, under section 316.0083(5)(c), Fla. Stat. (2013), once a hearing is
requested challenging a NOV, the registered owner, referred to as “petitioner”,
shall be notified by the clerk to the local hearing officer of the scheduled date, time
and location to appear. Section 316.0083(5)(d), Fla. Stat. (2013) requires the local
hearing officer to take recorded testimony under oath from the TIEO and petitioner
and to review the photographic or video evidence that constituted the rebuttable
presumption that a red light signal violation occurred. It is worth noting that
“[f]ormal rules of evidence do not apply, but due process shall be observed and
govern the proceedings.” § 316.0083(5)(d), Fla. Stat. (2013). Upon the
conclusion of the NOV hearing, section 316.0083(5)(e), Fla. Stat. (2013) requires
6
the local hearing officer to determine whether a red light signal violation occurred,
and either uphold or dismiss the NOV and issue a final administrative order
including the determination. If the NOV is upheld, the order requires the petitioner
to pay the penalty previously assessed and county costs. The final administrative
order may be appealed pursuant to section 162.11, Fla. Stat., within 30 days. Since
the 2013 revision, the Legislature has not amended section 316.0083, Fla. Stat.
On August 30, 2015 at 11:37 am, an automated traffic infraction detector at
the intersection of CR 535/Winter Garden Vineland Road and Overstreet Road, in
Orange County, captured photographic and video evidence of a vehicle registered
to the Appellant in violation of sections 316.0083, 316.074(1) and 316.075(1)(c)1.,
Fla. Stat. R. 1-2. Following review of the evidence, on September 9, 2015,
certified TIEO Ellene Cardenas (“TIEO Cardenas”) issued Appellant an NOV. R.
1-2. The two-sided NOV contained options for Appellant to pay the statutory
penalty of $158.00, request a hearing, or furnish an affidavit establishing non-
liability on or before the due date of November 8, 2015 to avoid the issuance of a
UTC. R. 1-2. The NOV contained a unique notice and pin number, with
instruction that Appellant could view the photo and video evidence of the red light
signal violation online at a designated website address. R. 2. Specifically, the
reverse side of the NOV provided detailed instruction on how to request a hearing.
R. 2. It also advised:
7
If you fail to respond as outlined above, postmarked
by the due date, a UTC will be issued to you. Upon
issuance of a UTC, you shall have the remedies specified
in Florida Statutes §§ 316.0083 and 318.14, which
include (a) the right to pay the civil penalty in the amount
of $262.00; (b) the right to submit an affidavit; or (c) the
right to have a hearing before a designated official, who
shall determine whether an infraction has been
committed. If the official concludes that no infraction
has been committed, the UTC will be dismissed and no
costs or penalties shall be imposed. If the official
concludes an infraction has been committed, the official
will uphold the UTC and may impose an additional civil
penalty not to exceed $500.00 and court fees and costs.
Failure to pay, submit an affidavit, or request a hearing
on the UTC could result in your driving privileges being
suspended.
(Emphasis in original.) R. 2. On or about November 8, 2015, Appellant
submitted to Orange County’s Red Light/Intersection Safety Program a written
Request for Local Hearing. R. 9-10. On or about November 18, 2015, Appellant
was notified of the scheduled hearing for February 12, 2016 at 2:00 pm. R. 11.
At the hearing on February 12, 2016 TIEO Cardenas testified and submitted
to the local hearing officer an electronic copy of the photographs and video
depicting the red light signal violation detailed in the NOV (R. 1-8, 14), and a
certified copy of the Florida vehicle registration of the identified tag as belonging
to Appellant. R. 19-20. The local hearing officer accepted the evidence without
objection from Appellant, however he queried whether the submitted video
contained audio. R. 20.
8
Once given the opportunity to respond, Appellant testified that his children
were traveling with him in his vehicle on August 30, 2015 and he remembered
hearing screaming and/or a fire engine siren “[s]o when they sounded their alarm, I
kept going [through the intersection].” R. 21-24. Appellant provided the local
hearing officer an aerial depiction of the intersection showing its proximity to a
nearby fire station. R. 15, 22-23. Appellant indicated that he tried to find public
records online but was unable to find any specific records of sirens for that date.
R. 24-25. TIEO Cardenas indicated to the local hearing officer that she could aid
in a request for public records through the sheriff’s office to determine whether a
record of a siren test or emergency call existed. R. 24-25. Accordingly, the local
hearing officer continued the hearing until March 11, 2016 to give her an
opportunity to request any available public records. R. 25-26. The local hearing
officer required her to share any public records obtained with Appellant before the
next hearing date in March 2016. R. 26. On February 16, 2016, Appellant was
notified in writing of the second scheduled hearing for March 11, 2016, at 11:00
am. R. 30.
On March 11, 2016, the hearing resumed. TIEO Cardenas provided the
local hearing officer with email responses from Orange County Fire Rescue which
were the product of her internal public records request. R. 31-51. Said email
responses were admitted into evidence by the local hearing officer. R. 56-57.
9
According to the email exchanges, Orange County Fire Rescue responded to TIEO
Cardenas with the following statement:
“We do not departmentally conduct annual siren testing
on the units. The crews should perform a short test of the
siren system … each morning during their Daily Check-
out of the unit. After a review of our service records,
there were no work orders for any repair on 8/27, 8/28,
8/29, 8/30 or 8/31.” R. 34.
Appellant emphasized “[t]hey do shift testing” and “[t]here’s no
documentation for that.” R. 61. Appellant requested the video be played again and
stated:
“When we were approaching the intersection, there was a
siren sound. I turned around, and I didn’t know whether
it was my – my one-year-old son screaming in his car
seat, or one of the fire trucks that were out there … out
on the driveway, if you will.” R. 64.
After additional testimony by Appellant related to the siren and Orange
County Fire Rescue’s email records, Appellant turned to question TIEO Cardenas
about the images and video she reviewed to determine whether probable cause
supported a violation of the red light signal. R. 67.
APPELLANT: All right. So your name is the one that’s on my
ticket?
TIEO CARDENAS: Yes, sir.
APPELLANT: Okay. So you reviewed my image?
TIEO CARDENAS: I reviewed your images.
APPELLANT: My image –
10
TIEO CARDENAS: And the video.
APPELLANT: My images and video was [sic] presented to you
by ATS [American Traffic Solutions]?
TIEO CARDENAS: It was on our queue as a violation to be reviewed.
APPELLANT: From ATS?
TIEO CARDENAS: From ATS, who is the vendor.
APPELLANT: Okay. So does ATS send you every video, or just
the videos that they ---
R. 67-68.
At this point, during the Appellant’s cross examination of TIEO Cardenas,
Assistant Orange County Attorney Georgiana Holmes, also present at the hearing,
objected. R. 68. For the record, Ms. Holmes stated the jurisdiction of the NOV
hearing and local hearing officer was limited to that given by section 316.0083,
Fla. Stat. R. 68-69. The local hearing officer sustained the objection but after back
and forth with Appellant advised:
HEARING OFFICER: … You’re allowed to ask questions.
APPELLANT: I was just told I wasn’t allowed to ask questions.
HEARING OFFICER: You can ask questions. You just can’t go – within
the guidelines.
************************
HEARING OFFICER: You can go ahead and ask questions. If she
objects, I have to make a decision.
APPELLANT: That’s fine.
11
R. 70-72. Ms. Holmes had also explained for the record and Appellant:
“I want to allow him the opportunity to – to question the
officer [because] … due process is what matters here. …
But if your line of questioning deals with a contract, or
the constitutionality of the statute, then I would like a
standing objection that those – that line of question is not
proper here.” R. 70.
Appellant then cited two cases for the local hearing officer; Hastings v. City
of Orlando (Ninth Judicial Circuit Case No. 2015-CV-000049-A-O) and City of
Hollywood v. Arem (Fourth District Court Appeal Case No. 4D12-1312) and
argued the red light camera system was invalid because the County used the same
vendor, American Traffic Solution (“ATS”), who he claimed “makes the initial
judgment as to whether a violation occurs, and presents it to the traffic
enforcement officer” and “delegat[ed] [the County’s] policing powers to a private
for-profit corporation in Arizona.” R. 73-75. Appellant further questioned TIEO
Cardenas about the placement of her badge number and electronic signature on the
NOV he received. R. 74-75. When asked for a response by the local hearing
officer, Ms. Holmes stated that the administration of Orange County’s Red
Light/Intersection Safety Program is different from the City of Orlando’s program
(at issue in Hastings) and that of the City of Hollywood (at issue in Arem), despite
the commonality of using the same vendor and conclusions stated by Appellant. R.
75. Appellant reiterated that the “circumstances were identical”. R. 76.
12
Upon conclusion of the hearing, the local hearing officer upheld the NOV as
properly issued to Appellant based on the evidence presented and imposed the
statutory fine of $158.00 for committing the red light signal violation. R. 77-78.
Appellant inquired about his right to appeal and whether he would receive
documentation of the local hearing officer’s decision. R. 77-78. A written Final
Administrative Order was sent to Appellant on or about March 11, 2016. R. 52.
On or about March 23, 2016, legal counsel in this appeal for Appellant filed with
Orange County’s Red Light/Intersection Safety Program a Motion for Rehearing or
Relief from Judgment. R. 87-92. On or about April 6, 2016, counsel was notified
by the clerk that another hearing was scheduled for Appellant before the local
hearing officer for August 12, 2016 at 10:00 am. R. 93. The clerk also informed
counsel that an Administrative Hearing Notification Letter would be sent directly
to Appellant at his record address. R 93-94. Before the August hearing date
arrived, on or about April 8, 2016, Appellant filed this appeal pursuant to section
162.11, Fla. Stat. and Fla. R. App. P. 9.190, with a copy sent to the clerk for
Orange County’s Red Light/Intersection Safety Program. R. 95-98. Accordingly,
on or about April 26, 2016, the clerk notified counsel for Appellant that as she
assumed/requested, the August 12, 2016 hearing was cancelled. R. 99.
13
II. SUMMARY OF THE ARGUMENT
The local hearing officer’s determination to uphold the NOV was proper
because Appellant was afforded adequate due process, the local hearing officer did
not depart from the essential requirements of law, and the administrative judgment
was supported by competent substantial evidence. Alternatively, the legal
challenges raised by Appellant that the per se application of the Mark Wandall
Traffic Safety Program are invalid as administered by Orange County’s Red
Light/Traffic Safety Program are incorrect.
III. STANDARD OF REVIEW
The standard for judicial review of a local government administrative
decision rendered pursuant to section 316.0083(5)(e), Fla. Stat., shall not be de
novo and is limited to the record created before the enforcement board [lower
tribunal]. § 162.11, Fla. Stat. When given to a party as a matter of right, judicial
review must determine “whether procedural due process [was] accorded, whether
the essential requirements of the law have been observed, and whether the
administrative findings and judgment are supported by competent substantial
evidence.” City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982);
see also City of Deland v. Benline Process Color Co., 493 So. 2d 26, 28 (Fla. 5th
DCA 1986); Fla. R. App. P. 9.030(c)(1)(C). While in the instant appeal, Appellant
does not contest the administrative factual findings by the local hearing officer,
14
(Initial Brief at p.10) it would nevertheless be improper to reweigh or reevaluate
the evidence that was presented before the lower tribunal and/or substitute this
Court’s judgment for that of the local hearing officer below. Id.
IV. LEGAL ARGUMENT
A. APPELLANT WAS AFFORDED PROCEDURAL DUE PROCESS BY THE LOCAL HEARING OFFICER AT THE
NOV HEARING.
The “‘core’ of due process is the right to notice and an opportunity to be
heard. Carillon Cmty. Residential v. Seminole County, 45 So. 3d 7, 9 (Fla. 5th
DCA 2010). These core elements are particularly essential to the concept of
procedural due process. However, the “extent of procedural due process afforded
to a party in a quasi-judicial hearing3 is not as great as that afforded to a party in a
3 This Court has jurisdiction over this appeal pursuant to Rules 9.020(a)(3),
9.030(c)(1)(C) and 9.190(b)(3) of the Florida Rules of Appellate Procedure and as
provided by general law in Section 162.11 of the Florida Statutes; however, such
jurisdiction “shall be limited to appellate review of the record created before the
enforcement board.” §162.11, Fl. Stat. (2016) (emphasis added). Such “code
enforcement proceedings are quasi-judicial” in nature and are not subject to the
Administrative Procedure Act. Verdi v. Metropolitan Dade County, 684 So. 2d
870, 873-874 (Fla. 3d DCA 1996). Also, “[c]ommon-law certiorari has been made
available to review quasi-judicial orders of local agencies and boards not made
subject to the Administrative Procedure Act when no other method of review is
provided. . . . However, certiorari in circuit court to review local administrative
action under Florida Rule of Appellate Procedure 9.030(c)(3) is not truly
discretionary common-law certiorari, because the review is of right.” Haines City
Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).
15
full judicial hearing.” Id. at 9-10. (quoting Seminole Entertainment, Inc. v. City of
Casselberry, 811 So.2d 693, 696 (Fla. 5th DCA 2001)). Unlike administrative
hearings which are governed by the Administrative Procedure Act, “quasi-judicial
proceedings are not controlled by strict rules of evidence and procedure.” Jennings
v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991). However, “a party to
a quasi-judicial hearing, by virtue of its direct interest that will be affected by
official action, ‘must be able to present evidence, cross-examine witnesses, and be
informed of all the facts upon which the commission acts.’” Id. (quoting Kupke v.
Orange County, 838 So. 2d 598, 599 (Fla. 5th DCA 2003) (citing Lee County v.
Sunbelt Equities, II, Ltd. Partnership, 619 So. 2d 996 (Fla. 2d DCA 1993))).
In the instant case, Appellant’s fundamental due process rights were not
violated by the local hearing officer. Even a cursory examination of the
administrative procedural record here shows that Appellant had ample notice of the
scheduled hearings, and also had a meaning opportunity to participate in both of
them. See generally Key Citizens for Responsible Gov’t, Inc., v. Fla. Keys
Aqueduct Auth., 795 So. 2d 940, 948 (Fla. 2001) (“Procedural due process requires
both fair notice and a real opportunity to be heard.”); Homestead Land Group v.
City of Homestead, 165 So. 3d. 62, 65 (Fla. 3d DCA 2015) (Due process requires,
16
at a minimum, that a party in interest to a governmental proceeding be given
reasonable notice and a meaningful opportunity to be heard.); Bush v. City of
Mexico Beach, 71 So. 3d 147, 150 (Fla. 1st DCA 2011) (“A quasi-judicial hearing
generally meets basic due process requirements if the parties are provided notice of
the hearing and an opportunity to be heard.”).
Appellant requested a hearing on November 8, 2015 and shortly thereafter
received notice of its scheduling almost three months later. R. 9-11. With the time
between the notice and the hearing, Appellant could prepare for the hearing,
request that it be rescheduled if the date/time was inconvenient or unacceptable, or
cancel it altogether. R. 11. Section 316.0083(5)(d), Fla. Stat., allows Appellant to
testify and present evidence to the local hearing officer in an informal environment
and without an understanding of the formal rules of evidence (which would apply
had Appellant elected a hearing on an issued UTC). Appellant came prepared to
the first hearing with an aerial photograph of the intersection and its proximity to a
fire station as evidence to support his argument that an emergency vehicle was
possibly heard at the relevant time and to rebut the presumption that he was liable
for the red light signal violation. R. 15.
When presented, Appellant’s argument on the presence of an emergency
vehicle drew particular attention from the local hearing officer because consistent
with section 316.0083(1)(d)1.a., Fla. Stat., if such emergency event were
17
established by the Appellant, it would have negated Appellant’s liability for the red
light signal violation and necessitated a dismissal of the issued NOV. After
continuing the NOV hearing, the local hearing officer provided notice of a new
date and time to Appellant in person at the February 2016 hearing and the clerk
subsequently provided additional notice in writing to his confirmed address. R.
26-27, 30. Furthermore, public record emails exchanged between TIEO Cardenas
and Orange County Fire Rescue were provided to Appellant, allowing him
opportunity to return for the second hearing with the same information as the TIEO
on siren testing or emergency call records. R. 31-51, 57. This allowed Appellant
to return in March 2016 prepared to argue his position relative to any information
uncovered, or absent, from the public records provided to TIEO Cardenas. Hence,
the record establishes Appellant was afforded ample notice as required by
procedural due process and upon review, this Court should conclude the same.
It seems that the crux of Appellant’s complaint to this Court hinges on the
“meaningful participation” component of due process, rather than any lack of or
defect in notice provided. At its essence, Appellant’s right to procedural due
process includes the right to have an administrative hearing before the local
hearing officer regarding his issued NOV and the right to introduce evidence at a
meaningful time and in a meaningful manner. See Dept. of Financial Services v.
Brank Banking & Trust Co. 40 So. 3d 829, 833 (Fla. 1st DCA 2010). Furthermore,
18
the right to a fair and real opportunity to be heard depends on the nature of the
private interest at stake and that of the government function involved. See
Department of Highway Safety & Motor Vehicles v. Hofer, 5 So. 3d 766, 771 (Fla.
2d DCA 2009). When examined, the “amount” of due process varies based on the
particular factual context at issue in the administrative proceeding. Id.
Nevertheless, despite Appellant’s inflammatory accusations that “he was not
allowed to proceed with questioning”, he was “thwarted from eliciting pertinent
testimony”, and he was “blocked from creating an appellate record”; see Initial
Brief at p. 14, a careful review of the record establishes he was afforded a
meaningful opportunity to be heard and that his participation in the NOV hearings
was both full and fair.
It seems evident Appellant exercised his right to review the photo and video
evidence online because at two different hearings, Appellant came prepared to
rebut the commission of the offense by arguing a circumstance he believed would
excuse any liability. In fact, upon his claim regarding an emergency vehicle and
inability to locate relevant public records, it was TIEO Cardenas who offered aid in
getting records beyond those accessible online. R. 24-25. This perfectly
demonstrates the informal and flexible environment envisioned by section
316.0083(5), Fla. Stat., afforded to those who challenge their NOV by electing an
administrative proceeding where the rules of evidence, civil and traffic procedure
19
are inapplicable, yet due process governs. By agreeing and ordering the
continuation, both the TIEO and local hearing officer considered the additional
investigation beyond the photographic images and video potentially helpful in light
of Appellant’s affirmative defense and the absence of audio or other vehicles
present in the video submitted. R. 24-25. Appellant was not only afforded
meaning opportunity to be heard on his “excuse” from liability, but received free
assistance from the issuing TIEO in its presentation to the local hearing officer.
Appellant never objected to the assistance by TIEO Cardenas, or the continuance
of the hearing for another month to allow her time to make a public records request
on his behalf.
At the second hearing, Appellant pivoted his argument from audible sirens
and possible emergency vehicles present, to the County’s use of its vendor and
TIEO Cardenas’ review of the images and video collected by their automated
cameras. R. 65-68. Appellant claims a sustained objection by the local hearing
officer “blocked” his further opportunity to be heard, offending his guarantee of
due process, and that the County “refused” to allow further meaningful
participation in the proceeding. See Initial Brief at p. 13-14. The County believes
this mischaracterizes the record at best, and misleads the Court at its worst.
Appellant was not denied continued participation following the County’s
objection, despite it being sustained; and in fact, to clarify any confusion possibly
20
created, he was specifically advised he could continue. R. 70-72. Both the
Assistant County Attorney who objected, and the local hearing officer presiding
over the hearing, advised Appellant he could continue with questions. R. 70-72.
Even if the Appellant did not understand the legal vernacular of “standing
objection” or “sustained”, words routinely heard in a courtroom, he was
specifically advised that he could continue to ask questions of TIEO Cardenas. R.
70-72. Furthermore, Appellant did in fact continue to ask additional questions of
the TIEO, and continued to make argument to the local hearing officer in the
proceeding below. R. 72-78. To conclude that the County’s objection either
“blocked”, “refused” or “thwarted” Appellant’s continued participation or
presentation of argument is disingenuous and not supported by the record at all.
Additionally, in evaluating whether at the administrative hearing Appellant
was afforded adequate and proper due process, this Court should not ignore the
relaxed procedure or jurisdictional limitations of the NOV proceeding. See Key
Citizens 795 So. 2d at 948 (“The specific parameters of the notice and the
opportunity to be heard required by procedural due process are not evaluated by
fixed rules of law, but rather by the requirements of the particular proceeding.”)
An administrative NOV hearing is designed to be informal and encourage pro se
representation. Without a crystal ball, the County cannot know what a petitioner
will present at a NOV hearing to rebut the allegation that a red light signal
21
violation occurred as there is no requirement for motion practice or discovery. To
suggest the County has no right to object for the record to something as
fundamental as a jurisdictional limitation without offending a petitioner’s due
process ignores the due process that is equally afforded to the County. See
Dumorange v. Florida Unemployment Appeals, 947 So. 2d 472, 475 (Fla. 3d DCA
2006) (“[a]n elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated, under
all the circumstances, to apprise interested parties of the pendency of the action
and afford them an opportunity to present their objections.” (emphasis added.)).
Identical to Appellant, the County has the right to present testimony and argument,
object to argument presented, respond to the local hearing officer when asked, and
appeal the final decision as an “aggrieved party”. The mandate an Appellant
receive a “meaningful opportunity to be heard” before the local hearing officer
does not require the County to remain silent when a jurisdictional objection is
appropriate or refrain from responding to an inapplicable argument or avoid
distinguishing critical points of arguments offered for the record.
This Court should affirm the local hearing officer’s decision to uphold the
NOV because Appellant was afforded due process through both notice and a
meaningful opportunity to be heard throughout the NOV proceeding.
22
B. THE LOCAL HEARING OFFICER DID NOT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW
PURSUANT TO SECTION 316.0083(5), FLORIDA
STATUTES.
In Haines City Community Dev. v. Heggs, the Florida Supreme Court
concluded that when a circuit court functions as an appellate court for review of an
administrative action under Fla. R. App. P. 9.030(c), that review is governed by
whether procedural due process was accorded; whether the essential requirements
of law have been observed; and whether the administrative judgment is supported
by competent substantial evidence.4 658 So. 2d 523, 530 (Fla. 1995).
Additionally, this Court is not permitted to reweigh evidence or substitute its
judgment for that of the lower tribunal. See id.; see also Vaillant, 419 So. 2d 624,
(Fla. 1982). The local hearing officer did not depart from the essential
requirements of law and her decision was supported by competent substantial
evidence and upon review this Court should agree.
By definition in section 316.003(91), Fla. Stat., a “local hearing officer” is
empowered only under section 316.0083, Fla. Stat., to conduct hearings related to a
notice of violation issued consistent with the Mark Wandall Traffic Safety
4 Appellant does not contest per se whether the administrative factual findings of
the local hearing officer were supported by evidence, accordingly the County does
not provide a separate response to address the third prong of this Court’s review,
but nevertheless will demonstrate that it was met in addressing the second prong.
23
Program. Section 35-76, Orange County Code and sections 316.0083(5)(d) & (e),
Fla. Stat., provide that the local hearing officer shall: 1) hear testimony of the
TIEO, the petitioner or others; 2) review the photographic or electronic images or
the streaming video; 3) determine whether a red light signal violation has occurred;
and 4) based on whether the violation is supported by the evidence collected,
uphold or dismiss the violation; and 5) issue a final administrative order of its
determination.
The instant record is brimming with support that the local hearing officer
complied with the essential requirements of section 316.0083(5), Fla. Stat. Over
the course of two different hearing, she took testimony and evidence in support of
upholding the red light signal violation and in support of its dismissal consistent
with section 316.0083(1)(d)1.a., Fla. Stat. R. 19-24, 31-51, 56-65. In addition,
Appellant raised a challenge to the entire Orange County Red Light/Intersection
Safety Program using the Arem and Hastings decisions, and claimed that because
the County used the vendor ATS to “make[] the initial judgment as to whether a
violation occur[ed], and present[ed] it to the traffic enforcement officer” it was an
improper delegation of policing powers. R. 73-75. The County responded with
argument to the local hearing officer that its program operated differently from
both programs at issue in the cases provided. R. 75. The local hearing officer
upheld the red light signal violation and issued a Final Administrative Order
24
determining “that there was substantial competent evidence to support a violation”
and Appellant was ordered to pay $158.00 for the civil penalty, along with $125.00
in administrative County costs, for a total of $283.00 within 90 days. R. 52, 77.
Because the local hearing officer complied with the essential requirements of law
this Court should affirm the determination upholding the NOV.
While the local hearing officer’s role and responsibilities at the NOV
hearing are both governed by, and restricted to, section 316.0083(5), Fla. Stat.,
again, what seems to be at the heart of Appellant’s grievance to this Court is
something outside of an error in application of procedural law to his case.
Appellant’s chief complaint is that the local hearing officer ignored his substantive
legal challenge to the County’s whole Red Light/Intersection Safety Program as
impermissible in light of the holding of Arem and its application by this Court in
Hastings. But again, this Court has to evaluate due process and the substantive
nature of Appellant’s argument presented consistent with the jurisdictional
limitations of an NOV administrative proceeding. See Hofer, 5 So. 3d 766, 771
(Fla. 2d DCA 2009); Carillon Cmty. Residential v. Seminole County, 45 So. 3d 7,
9–10 (Fla. 5th DCA 2010) (“The extent of procedural due process protection varies
with the character of the interest and nature of the proceeding involved. There is,
therefore, no single unchanging test which may be applied to determine whether
the requirements of procedural due process have been met. Courts instead consider
25
the facts of the particular case to determine whether the parties have been accorded
that which the state and federal constitutions demand.”). In fact, “[i]t is neither the
function nor the prerogative of [this Court] to reweigh evidence and make findings
when [it] undertakes a review of a decision of an administrative forum.”
Department of Highway Safety & Motor Vehicles, v. Allen, 539 So. 2d 20, 21 (Fla.
5th DCA 1989) (holding that the circuit court judge exceeded the limitations of his
certiorari review by improperly reweighing the evidence in the case and coming to
a different factual conclusion than that of the administrative body). Essentially, as
the first tier certiorari review of this quasi-judicial proceeding, the court “functions
as an appellate court, and, among other things, is not entitled to reweigh the
evidence or substitute its judgment for that of the agency.” Haines City Cmty. Dev.
v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).
Under the statutory scheme of section 316.0083, Fla. Stat., it is the registered
owner or driver of the vehicle issued a red light signal violation that selects the
forum for its challenge (i.e., NOV local government hearing, UTC hearing before a
civil traffic infraction hearing officer, or UTC hearing before a county court
judge), if at all. Once challenged, the issuing authority carries the initial burden to
establish the violation consistent with the rules and procedures of the venue
selected. Unlike other civil traffic infraction citations, the issuing authority for a
red light camera violation is without any power to control whether one challenges
26
the liability upon receipt of the NOV, or awaits the issuance of a UTC to exercise
that right. Each of the remedies available come with pros and cons to consider, but
once one is selected by the driver or owner, they accept the pros and cons of that
forum.
Appellant elected to challenge his NOV in the less formal local government
hearing forum, and with it he chose its relaxed procedure, an informality allowed
in the presentation of evidence, a fixed civil fine5 should the NOV be upheld and
the jurisdictional and substantive limitations of the proceedings. Appellant claims
that “no where on the face of the [NOV] is it made clear that petitioner has a
choice of forum”; that “it appears that the only viable choices” are to either pay the
NOV or request a hearing; and that even if the choice was apparent, a litigant
“would be unaware of any potential jurisdictional benefit to doing so.” Initial
Brief at p. 2-3. In fact, the NOV does contain both instruction on how to request a
NOV hearing and notice that failure to respond will result in a UTC being issued,
for which “you shall have the … right to have a hearing before a designated
official, who shall determine whether the infraction has been committed.” R. 1-2.
Any ignorance to the differences between the two forums does not erase their
5 Pursuant to section 318.14(5), Fla. Stat. when electing to challenge a UTC issued
for a red light signal violation, the civil penalty provision of section 318.18, Fla.
Stat., is waived and if the infraction is proven the official may impose a civil
penalty not to exceed $500.00. There is no such waiver for electing to challenge
an NOV and the civil penalty provision of section 318.18, Fla. Stat. is fixed.
27
existence, nor does it change the difference in rules, procedure, or laws that govern
them. Similarly, the sophistication or lack thereof of a litigant can no more grant
extra jurisdictional capacity to a local hearing officer than it could strip authority
vested with a county traffic infraction hearing officer or judge.
The local hearing officer was presented testimony that the County’s program
was similar to the one reviewed by the Fourth District Court of Appeal in Arem
(and applied in Hastings), and testimony that it was not. R. 73-76. This Court
cannot sit as an appellate reviewer of those conflicting positions and reweigh or
reevaluate them to reach a different conclusion, and therefore declare the local
hearing officer offended due process with a departure from the essential
requirements of law. See Dept. of Highway Safety and Motor Vehicles v.
Stenmark, 941 So. 2d 1247, 1249 (Fla. 2nd DCA 2006) (“If the circuit court
reweighs the evidence, it has applied an improper standard of review, which ‘is
tantamount to departing from the essential requirements of law[.]’”) quoting
Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 845 (Fla. 2001); City of
Deland v. Benline Process Color Co., 493 So. 2d 26, 28 (Fla. 5th DCA 1986) (“A
circuit court acting in its appellate capacity which reevaluates the credibility of
evidence or reweighs conflicting evidence before the lower tribunal departs from
the essential requirements of law.”); Board of County Commissioners of Pinellas
County v. City of Clearwater, 440 So. 2d 497, 499 (Fla. 2nd DCA 1983) (“A
28
circuit court acting in such a capacity departs from the essential requirements of
law if, in determining whether the administrative action is supported by substantial
competent evidence, it reevaluates the credibility of evidence or reweighs
conflicting evidence.”)
Nevertheless, Appellant argues he was “prevented” or “blocked” from
creating a record of additional support for his position that the County’s Red
Light/Intersection Safety Program was similar enough to the one held invalid as an
improper delegation of a police power by the Arem court. For the sake of this
argument let’s ignore the County’s response to the Appellant, which distinguished
its program from that of the City of Hollywood and the City of Orlando, and also
ignore that the County is better qualified to testify about the administration of its
own program. To operate as Appellant suggests in his brief could require the local
hearing officer to entertain Appellant’s argument ad infinitum under an umbrella of
“building the record”. This potentially unlimited stream of one-sided, possibly
irrelevant information, would improperly and unnecessarily expand the subject
matter of a local government’s administrative hearing well beyond the collection of
relevant testimony from the TIEO, petitioner (and others) and review of the video
and electronic images. Such reasoning could also severely limit a local hearing
officer’s ability to control the very proceeding she presides over. See Faretta v.
California, 422 U.S. 806, 834 (1975) (“The right of self-representation is not a
29
license to abuse the dignity of the courtroom. Neither is it a license not to comply
with relevant rules of procedural and substantive law.); Barrett v. City of Margate,
743 So. 2d 1160, 1162 (Fla. 4th DCA 1999) (“Notwithstanding the fundamental
principle of allowing pro se litigants procedural latitude, a practice effected to
ensure access to the courts for all citizens, pro se litigants are not immune from the
rules of procedure. . . An individual is entitled to represent himself or herself in a
civil proceeding but he or she must not proceed without regard for the rules of
procedure. . . . the court cannot assist the pro se litigant to the detriment of the
opposing party or to the point that the impartiality of the tribunal can be called into
question.”); James v. Crews, 132 So. 3d 896, 899 (Fla. 1st DCA 2014)
(“Compassion for a pro se litigant and justice under law are entirely different
concepts that should not be confused. Further, we should avoid the temptation to
require governmental entities to defend because they seemingly have an
inexhaustible supply of legal talent available. To do so would penalize the public
who ultimately pays the bill.”).
Alternatively, Appellant claims that even if the local hearing officer ignored
the application of Arem and Hastings because the proceeding was without the
jurisdictional power to hear it – this Court can, and should, even with the very
limited record before it. Initial Brief at p. 17-18. As part of this Court’s review of
the three prong review standard outlined in Vaillant, this Court must determine
30
whether the Appellant has established “that the trial court departed from the
essential requirements of the law.” Malloy v. Gunster, Yoakley, Valdes-Fauli &
Stewart, P.A., 850 So. 2d 578, 581 (Fla. 2d DCA 2003) (quoting Allstate Ins. Co. v.
Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003)). “The departure from the essential
requirements of the law necessary for the issuance of a writ of certiorari is
something more than a simple legal error. There must be a violation of a clearly
established principle of law resulting in a miscarriage of justice. See Ivey v.
Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000). A failure to observe ‘the
essential requirements of law’ has been held synonymous with a failure to apply
‘the correct law.’” Heggs, 658 So.2d at 528.” Housing Authority of City of Tampa
v. Burton, 874 So. 2d 6, 8 (Fla. 2nd DCA 2004).
Appellant continues to assert that the County’s procedure related to the use
of its vendor is “strikingly similar” to Arem based on the “ample evidence” in the
instant appeal’s record. Initial Brief at p. 20-21. However, all the record really
establishes about the County’s Red Light/Intersection Safety Program is that it uses
the same vendor as the jurisdictions in Arem and Hastings, that TIEO Cardenas
reviewed photo and video images of Appellant’s red light signal violation sent to
her from the vendor, and that her electronic signature and badge number were put
on the issued NOV by the vendor. R. 67-68, 74-75. And nevertheless Appellant
asks this Court to conclude the County’s program is so materially “identical” to the
31
one examined in Arem that a reversal of the local hearing officer’s ruling is
warranted due to a misapplication of law and miscarriage of justice.
Following Arem, many jurisdictions changed the operations of their red light
camera enforcement programs and counties and municipalities continue to argue in
various legal challenges that reliance on Arem is misplaced if a program’s
procedures specific to its use of a private camera vendor do not give the
“unfettered discretion” found impermissible in Arem. See generally State v.
Meador, 2015 WL 10943643 (Polk Co. 2015) (denying a motion to dismiss raising
Arem); State v. Langham, 2015 WL 10943644, (Duval Co. 2015) (denying a
motion to dismiss raising Arem); State v. Devine, 2015 WL 10943646 (Polk Co.
2015) (denying a motion to dismiss raising Arem); City of Aventura v. Jimenez,
2016 WL 4016645 (Fla. 3rd DCA 2016).
Most recently, the Third District Court of Appeal, concluded that it saw
“nothing in the statutory language [of section 316.0083] indicating any legislative
intent to bar law enforcement from using third-party software and servers to
accomplish these ministerial and clerical tasks. To read such a requirement into
the statute, where it does not exist, would serve only to waste limited law
enforcement resources and taxpayer dollars.” (emphasis added) City of Aventura v.
Jimenez, 2016 WL 4016645 (Fla. 3rd DCA 2016). Jimenez was issued a NOV for
a red light signal violation by the City of Aventura, but unlike Appellant, Jimenez
32
did not respond to any of the remedies afforded by the statute and accordingly a
UTC was issued for the infraction. Id. Jimenez challenged the UTC, arguing the
City of Aventura impermissibly delegated its police power to ATS. Id.
Ultimately, upon reviewing a record that included: (1) the City’s ordinance; (2) the
contract and its amendments between the City and ATS; (3) the applicable
business records with detailed directives that establish the procedure for the
vendor’s review process; and (4) the testimony of employees from city, the county
clerk’s office and ATS, the district court ruled that due to the circumstances at
issue in the City of Aventura’s program, “we distinguish City of Hollywood v.
Arem [citation omitted], 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.” Id.
In the instant case, while the Appellant keeps insisting that the County’s
program is “substantially similar” or even “identical” to the City of Orlando and
City of Hollywood programs the County’s program is not. While Appellant’s
repetition of his claim makes it no more or less true than the County’s – this
Court’s review pursuant to section 162.11, Fla. Stat. is limited to the record created
below which does not support a conclusion that the County’s program is identical,
or substantially similar beyond the commonality of the vendor.
33
TIEO Cardenas testified she reviewed the Appellant’s photo and video
images and she had her badge number and electronic signature filed in the vendor’s
system to cause it to be placed on the issued NOV. R. 68, 74. When applying
Arem in Hastings, this Court questioned whether the City of Orlando TIEO issued
the NOV – but in the instant case there is support in the record that TIEO Cardenas
issued Appellant’s NOV. R. 1-2, 68, 74. At issue in Arem was the automated
function of ATS relative to the issuance of a UTC. The defendant in Arem was
issued an NOV, but he did not respond. After noting the defendant’s failure to
respond, and in accordance with the standard procedure employed at that time in
the City of Hollywood’s program, “ATS generated a [UTC], sent it to him by
certified mail, and electronically transmitted a replica of the citation data to the
county court clerk.” Arem, 154 So. 3d 359, 36 (Fla. 4th DCA 2015). In the instant
case, Appellant was issued an NOV, not a UTC. And while the jurisprudence that
has developed after Arem has come to include the question of whether a “pre-
review” of photographic images or video by a vendor is acceptable, in the instant
case, TIEO Cardenas testified that she reviewed the electronic images and video of
Appellant’s red light signal violation and issued the NOV. R. 67-68. Whether she
reviewed other videos, all videos, or just the video depicting Appellant’s red light
signal violation is irrelevant to the limited purpose of the local government
administrative proceeding created by section 316.0083(5), Fla. Stat.
34
An NOV hearing is a venue with relaxed procedure and operates outside the
requirements of the rules of evidence, traffic and civil procedure, and the authority
vested with courts under Art. 5 of the Florida Constitution. The County’s response
to Appellant and the local hearing officer was appropriate, simple and true: its
program is distinguishable from that at issue in Arem and applied in Hastings. To
expect the County to defend the application of its Red Light/Intersection Safety
Program related to all drivers or owners in a hearing without the protections and
guarantee afforded in an evidentiary proceeding before a court vested with power
to hear arguments in equity is simply legal fiction.
The local hearing officer did not depart from the essential requirements of
section 316.0083(5), Fla. Stat., and the determination to uphold the NOV was
proper as supported by competent substantial evidence provided by the testimony
of the TIEO, Appellant, and the photos and video depicting.
V. CONCLUSION
Because the administrative proceeding was conducted compliant with due
process and the local hearing officer’s conclusion did not depart from the essential
requirements of law and was supported by competent substantial evidence, this
Court should affirm the ruling. This Court should not engage in reweighing
evidence or substituting its judgment for that of the local hearing officer to reach a
different conclusion, even if it believes the local hearing officer’s consideration of
35
evidence presented by Appellant and County should have resulted differently.
While the County ardently disagrees with Appellant’s assertion that it was
“prevented” from building a record – there was enough presented to the local
hearing officer to concluded Arem was distinguishable because the County’s
program operated differently.
Finally, it is improper to remand this case for further proceedings, as
requested by Appellant. Even if this Court were to agree that error was committed
by not applying Arem, the remedy is to vacate the order, not to remand the case.
See Nat’l Advert. Co. v. Broward County, 491 So. 2d 1262, 1263 (Fla. 4th DCA
1986) (“A court’s certiorari review power does not extend to directing that any
particular action be taken, but is limited to denying the writ of certiorari or
quashing the order reviewed.”); Tamiami Trail Tours, Inc. v. Railroad
Commission, 128 Fla. 25, 31 (Fla. 1937) (“On certiorari the appellate court only
determines whether or not the tribunal or administrative authority whose order or
judgment is to be reviewed has in the rendition of such order or judgment departed
from the essential requirements of the law and upon that determination either to
quash the writ of certiorari or to quash the order reviewed.”); Gulf Oil Realty Co. v.
Windhover Ass’n, 403 So.2d 476, 478 (Fla. 5th DCA 1981) (“[A]fter review by
certiorari, an appellate court can only quash the lower court order; it has no
authority to direct the lower court to enter contrary orders.”).
36
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 25, 2016, the foregoing was
electronically filed with the Clerk of the Court using the Florida Courts eFiling
Portal, which will send electronic notice of filing to Appellant and Intervenor at
primary email addresses on record.
CERTIFICATE OF COMPLIANCE
I HEREBY CERTIFY that this Brief is written in Times New Roman, 14-
point font, and therefore complies with the font requirement as set forth in Florida
Rule of Appellate Procedure 9.210(a)(2).
/s/ Georgiana Holmes /
Georgiana Holmes
Assistant County Attorney
Florida Bar No. 490393