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.