Legal Report, August 2016

General Counsel, Jennifer G. Ashton
Corbett, White, Davis & Ashton, P.A.

1.         State v. Jimenez, 2016 Fla. App. LEXIS 11373 (Fla. Dist. Ct. App. 3d Dist. July 27, 2016).
Red light cameras.
The City of Aventura and the Florida Attorney General appealed a county court decision dismissing a traffic citation that charged Jimenez with running a red light. Probable cause for the citation was based on photographs and a video from the City’s red light camera program which was serviced by a City vendor. Jimenez challenged the ticket, claiming: 1) vendor was given unfettered discretion that exceeded the City’s statutory authority to use an agent to “review” images; 2) vendor had unfettered discretion in printing and mailing notices and citations in violation of a statutory requirement that only an officer can “issue” citations; and 3) the vendor had unfettered discretion to send an electronic copy of the citation to the Clerk of Courts in violation of the statutory requirement that only an officer “shall provide” an electronic copy to the Clerk. The 3rd DCA rejected Jimenez’s arguments and upheld the City’s action, holding that the review of red light camera images authorized by § 316.0083(1)(a), F.S. allows a municipality’s vendor, as its agent, to review and sort images to forward to a police officer where, as here, 1) the vendor’s decisions in this regard are strictly circumscribed by contract language, guidelines promulgated by the municipality, and actual practices, such that the vendor’s decisions are essentially ministerial and non-discretionary; 2) these ministerial decisions are further limited by an overarching policy of automatically passing all close calls to the police for their review; 3) it is the police officer that makes the actual decision whether probable cause exists and whether a notice and citation should issue; and 4) the officer’s decision that probable cause exists and a citation issues consists of a full, professional review by an identified officer who is responsible for that decision and does not merely acquiesce in any determination made by the vendor.  This case distinguishes City of Hollywood v. Arem, 154 So. 3d 359 (Fla. 4th DCA 2014) where the 4th DCA dismissed a traffic citation on the grounds that a city’s process of using red light cameras gave unfettered discretion to a vendor.  Specifically, in Arem, the contract had no standards or guidelines for the vendor to follow, the vendor determined probable cause, and the city officer merely acquiesced to the vendor’s determination.  The 3rd DCA also certified three issues to the Florida Supreme Court as having great public importance: 1) Does the review of red light camera images authorized by § 316.0083(1)(a), F.S., allow a municipality’s vendor, as its agent, to sort images to forward to the law enforcement officer, where the controlling contract and City guidelines limit the Vendor to deciding whether the images contain certain easy-to-identify characteristics and where only the law enforcement officer makes the determinations whether probable cause exists and whether to issue a notice of violation and citation?; 2) Is it an illegal delegation of police power for the vendor to print and mail the notices and citation, through a totally automated process without human involvement, after the law enforcement officer makes the determinations that probable cause exists and to issue a notice of violation and citation?; and 3) Does the fact that the citation data is electronically transmitted to the Clerk of the Court from the vendor’s server via a totally automated process without human involvement violate § 316.650(3)(c), F.S., when it is the law enforcement officer who affirmatively authorizes the transmission process?

2.   Homeless Helping Homeless, Inc. v. City of Tampa,(MD FL, Aug. 5, 2016). Free speech, First Amendment.
The City of Tampa had an ordinance that banned the solicitation of “donations or payment” within parts of Tampa including the downtown area and Ybor City.  Violators were subject to a fine or imprisonment.  Homeless Helping Homeless, Inc. sued for injunction against the City’s enforcement of the ordinance and for a declaration that the ordinance infringed on the right to free speech under the First Amendment. Homeless Helping Homeless, Inc. relies on staff and volunteers to fundraise and seek donations for their cause in downtown Tampa and the Ybor City areas. Homeless Helping Homeless, Inc. argued that the ordinance was a content-based regulation of speech that cannot withstand strict scrutiny under the First Amendment. The court agreed and ruled against the City.  The Court held that (1) the soliciting of “donations or payment” is a form of speech protected by the First Amendment, (2) the City was regulating the soliciting of money in areas that contain traditional public forums such as public streets, sidewalks or parks, and (3) the City’s ban of solicitations relating to “donations or payment” was a content-based regulation because it applied to the idea or message expressed and required enforcement authorities to examine the content of the message to determine whether a violation occurred.  Therefore, relying on Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the Court held that the City was required to meet the strict scrutiny standard in order for the ordinance to be upheld meaning the City had to demonstrate that its ordinance constituted the least restrictive means of advancing a compelling governmental interest.  The City admitted it had no compelling governmental interest to support its ordinance.  The City’s goodwill and benevolence in trying to help the homeless was immaterial in determining whether there was a content-based infringement on free speech.  Therefore, the City failed to meet the strict scrutiny standard.  As a result, the section of the ordinance banning the solicitation of “donations or payment” was declared unconstitutional.  Of note, the court did state that without Reed, it would have upheld the City’s ordinance in accordance with Norton v. City of Springfield, 768 F. 3d (7th Cir. 2014).  

3.   City of Miami v. Navarro, 187 So. 3d 292, 2016 Fla. App. LEXIS 3065, 41 Fla. L. Weekly D 554 (Fla. Dist. Ct. App. 3d Dist. 2016). Negligence; photographs of defect as constructive knowledge.
A pedestrian sued the City for injuries allegedly caused when she tripped and fell on a raised brick paver on a City sidewalk.  In order to recover for her damages, the pedestrian had to prove either 1) the City had actual knowledge of the sidewalk defect or 2) had constructive knowledge through some evidence that the sidewalk defect existed long enough that the City should have known of it. The pedestrian relied upon a color photograph of the raised brick that she argued was sufficient, by itself, to infer that the defect had existed for a significant period of time to establish the City's constructive notice of the defect. The trial court entered judgment in favor of the pedestrian.  The City appealed.  On appeal, the 3rd DCA reversed in favor of the City and held that the pedestrian presented no evidence that the City had actual or constructive notice of the raised brick.  The 3rd DCA relied on the Florida Supreme Court’s decision in Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308 (Fla. 1982), which held that “if the photograph portrays a condition that has some distinguishing feature which clearly shows that the defect has existed for a long period of time, it may afford the jury a basis to infer that a significant period of time has passed” and that “the photograph must clearly demonstrate that a significant period of time has passed.” Here, the 3rd DCA found that there was nothing contained in the photograph itself that demonstrated, much less clearly demonstrated, the passage of any time relative to the raising of the brick. The 3rd DCA remanded the case for entry of a directed verdict in favor of the City of Miami.