IN THE NINTH JUDICIAL CIRCUIT COURT, IN AND FOR ORANGE COUNTY, FLORIDA

APPELLATE DIVISION

Appellate case no.: 16-CV-29-A-O Lower Administrative hearing case no.: NOV0821500476683

__________________________________________________________________

STEPHEN VINCENT FACELLA, Appellant,

v.

ORANGE COUNTY, FLORIDA

Appellee

__________________________________________________________________

BRIEF OF AMICUS CURIAE FLORIDA ATTORNEY GENERAL IN SUPPORT OF APPELLEE ORANGE COUNTY, FLORIDA

__________________________________________________________________

PAMELA JO BONDI ATTORNEY GENERAL ROBERT DIETZ ASSISTANT ATTORNEY GENERAL Florida Bar No. 0845523 501 E. Kennedy Blvd., Suite 1100 Tampa, FL 33602-5242 Tel.: (813) 233-2880 Fax: (813) 233-2886 Robert.Dietz@myfloridalegal.com Tyrell.Daniel@myfloridalegal.com Julia.Heckman@myfloridalegal.com For Attorney General

Filing # 46106736 E-Filed 09/06/2016 06:09:01 PM

ii

TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................................... ii-iii

TABLE OF AUTHORITIES ............................................................................. iv-vii

PRELIMINARY INSTRUCTIONS AND ABBREVIATIONS .......................... viii

ATTORNEY GENERAL’S STATEMENT OF AMICUS CURIAE INTEREST .... 1

SUMMARY OF THE ARGUMENT ...................................................................... 1

STANDARD OF REVIEW ...................................................................................... 2

ARGUMENT ........................................................................................................... 4

I. A Notice of Violation hearing officer has limited authority ............................. 4

II. A hearing officer’s duties are defined by statute ............................................. 4

III. A local hearing officer has limited authority ................................................... 5

IV. The Appellant chose an NOV hearing with a lower penalty than a proceeding in the county court ......................................................................... 6

V. County courts have been hearing the Arem defense ......................................... 8

VI. The Third District Court of Appeal has now explained Arem ........................ 9

VII. Mr. Facella elected his remedies and waived the Arem defense by electing an NOV hearing over county court ............................................................... 10

iii

VIII. De novo review to reweigh evidence is not permitted in these cases .......... 11

IX. Non-criminal traffic hearings are designed to be less complicated .............. 12

X. The Anderson and Punsky case are not on point .......................................... 13

XI. There was no departure from the essential requirements of law .................. 14

XII. Dismissal is not the appropriate remedy ...................................................... 18

XIII. Mr. Facella does not have standing .............................................................. 19

CONCLUSION ....................................................................................................... 20

CERTIFICATE OF SERVICE .............................................................................. 20

CERTIFICATE OF COMPLIANCE ...................................................................... 21

iv

TABLE OF AUTHORITIES

Cases Pages

American Home Assur.Co. v. Plaza Materials Corp., 908 So. 2d 360, 377 (Fla. 2005) ………………………...……………………...….8 Anderson Columbia v. Brown, 902 So. 2d 838 (Fla. 1st DCA 2005)……………..13 Bass v. Department of Transportation, 516 So. 2d 972, 973 (Fla. 1st DCA 1987)…………………………………...……11 Citizens of State of Fla. v. Wilson, 567 So. 2d 889, 892 (Fla. 1990)………….…..18 City of Hollywood v. Arem, 54 So. 3d 359 (Fla. 4th DCA 2014)…………….……8 City of Jacksonville, Jacksonville Sheriff's Office v. Cowen, 973 So. 2d 503, 509 (Fla. 1st DCA 2007)………..……………………………….10 City of Miami v. McGrath, 824 So. 2d 143, 146 (Fla. 2002)……………………..14 County Collection Services v. Charnock, 789 So. 2d 1109, 1112 (Fla. 4th DCA 2001) ………………………………….…16 Davis v. State, 928 So. 2d 442, 448 (Fla. 5th DCA 2006)………………………..12 Depaola v. Town of Davie, 872 So. 2d 377, 382 (Fla. 4th DCA 2004) …………15 Dusseau v. Metro. Dade Cnty. Bd. of Cnty. Comm'rs, 794 So. 2d 1270,1276 (Fla. 2001)………………………………………………….3

Florida Fish & Wildlife Conservation Comm'n v. Caribbean Conservation Corp., Inc., 789 So. 2d 1053, 1054 (Fla. 1st DCA 2001)……………………………...…14

Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523,530 (Fla. 1995)……………..…3

Hallandale Prof'l Firefighters, Local 2238 v. City of Hallandale, 777 So. 2d 435 (Fla. 4th DCA 2001)……………………………………………...11

Hastings v. Orlando, No. 2015-CV-000049-A-O (Fla. Orange Co. Ct. 2016)…….2

Hollywood v. Arem,154 So. 3d 359 (Fla. 4th DCA 2014)…………………………6

v

In re Certification of Need For Add'l Judges, 178 So. 3d 390, 394 (Fla. 2015)…..5

In re Certification of Need For Add'l Judges, 29 So. 3d 1110, 1113-1114 (Fla. 2010)………………………………………..…..9 Kraay v. State, 148 So. 3d 789 (Fla. 1st DCA 2014)……………………………..10

Largo Hosp. Owners, Ltd. v. Int'l Glass & Mfg. Co., Inc., 410 So. 2d 518, 521 (Fla. 2d DCA 1981)………..……………………………….12

Loper v. State, 840 So. 2d 1139 (Fla. 1st DCA 2003)………..……………….….19

Metro. Dade County v. Dade County Ass'n of Firefighters, Local 1403, 575 So. 2d 289, 290 (Fla. 3d DCA 1991)…………………………………………11

Mickens v. State, 121 So. 3d 563, 565 (Fla. 4th DCA 2013)…………………..…..3

Pardo v. State, 596 So. 2d 665 (Fla. 1992)……………………………………….14

Punsky v. Clay County, 60 So. 3d 1088 (Fla. 1st DCA 2011)………………….…13

Ramon A. Rasco v. Miami, No. 13-2016-AP-000235[NOV 3141600206030], (Fla. Miami-Dade Cir. Ct. 2016)………………………………………………..….1 Sarasota Cnty. v. Bow Point on Gulf Condo. Developers, LLC, 974 So. 2d 431,433 (Fla. 2d DCA 2007)………………………………….………..3

Seven Hills, Inc. v. Bentley, 848 So. 2d 345,350 (Fla. 1st DCA 2003)…….………4

State v. Lisette Acevedo, No. 2015-TR-020788 (Fla. Osceola Co. Feb. 19, 2016)………………………………………………..….1 State v. Devine, No. 2014-TR-049530-XX (Polk Co. 2015)………………….……8 State v. Hancock, 529 So. 2d 1200, 1201 (Fla. 5th DCA 1988)………………..…18

State v. Jimenez, No. 3D15-2303……………………………………………...…8,9

State v. Johnson, 345 So. 2d 1069, 1070-71 (Fla. 1977)………………….………11

State v. Langham , No.16-2014-TR-119298-CIXX-MA (Duval Co. June 5, 2015).8

State v. Meador, 2015 WL 10943643 (Fla. Polk Co. 2015)………….……….……8

vi

State v. Perez, 783 So. 2d 1084 (Fla. 3d DCA 1998)……………………………..19

State v. Trinh, No. 2D15-4898…………………………………………………..…8

State of Florida, by and through City of Aventura, et. al v. Luis Torres Jimenez, Nos. 3D15-2303 and 3D15-2271 (Fla. 3d DCA July 27, 2016)……..….10 Taylor v. Pub. Empls. Rels. Comm’n, 878 So.2d 421,422 (Fla. 4th DCA 2004)….11 Terzis v. Pompano Paint & Body Repair, Inc., 127 So. 3d 592, 596 (Fla. 4th DCA 2012)…………………...……………………19

Toliver v. State, 953 So. 2d 713, 715 (Fla. 1st DCA 2007)…………..………..….12

Statutes

§ 16.01 Fla. Stat.……………………………………………………………………1

§ 34.01 Fla. Stat……………………………………………………………………8

§ 162.11 Fla. Stat…………………………………………………………. 2,3,11,14

§ 316.003(91) Fla. Stat……………………………………………………………..5

§ 316.0083 Fla. Stat………………………………………………….……1,8,14,17

§ 316.0083(1)(b)1.a., (5)(e) Fla. Stat……………………………………………6,8

§ 316.0083(1)(b), (5)(e) Fla. Stat……………………………………………...6,7,8

§ 316.0083 (5)(c) Fla. Stat......................................................................................10

§ 316.00835(d)(e) Fla. Stat…………………………………..………………2,4,5,8

§ 316.0083(5)(f) Fla. Stat……………………………………………………....2,11

§ 318.12 Fla. Stat………………………………………………………………....12

§ 318.36 Fla. Stat…………………………………………………………………..6

vii

Rules

Fla.R.App.P. 9.100(1) …………………………………………………………….21

Fla.R.Traf.Ct. 6.620 (2014)……………………………………………….…...12,13

Fla.R.Traf.Ct. 6.630 (d)…………………………………………………………...12

Fla.R.Traf.Ct. 6.630(d)(2)(3)……………………………………………………….5

Fla.R.Traf.Ct. 6.630(n)………………………………………………………….….7

viii

PRELIMINARY INSTRUCTIONS

Emphasis has been added to all quotes unless indicated otherwise.

Abbreviations used in this brief:

References to:

Stephen Vincent Facella will appear as “Mr. Facella” or “Appellant”;

Orange County, Florida, will appear as “County” or “Appellee”;

Attorney General, Pamela Bondi, will appear as “Attorney General”;

American Traffic Solutions, the camera vendor for the County, will be “ATS”;

Local hearing officer will be “NOV hearing officer” or “local hearing officer”;

Section will be “§”;

The traffic infraction enforcement officer will be “officer”;

Notice of Violation will be “NOV” or notice of violation;

The Appendix attached to the Facella Brief will appear as “App.” followed by the

page number, e.g., “App. 3” for Appendix page 3; and

The Amicus Curiae Brief, Attorney General’s Supplemental Appendix, will be

“AG App.” followed by the page number, e.g., “AG App. 3” for page 3.

1

ATTORNEY GENERAL’S STATEMENT OF AMICUS CURIAE INTEREST

The Attorney General is authorized by statute to give local government legal

advice (§ 16.01, Fla. Stat.), and supports the efficient, and uniform administration

of justice provided by section 316.0083, Fla. Stat., known as the Mark Wandall

Traffic Safety Program. The issues in this appeal are also being raised elsewhere in

Florida. See AG App. 3-4, & 8, for example, State v. Lisette Acevedo, No.: 2015-

TR-020788 (Fla. Osceola Co. Feb. 19, 2016); Ramon A. Rasco v. Miami, No.: 13-

2016-AP-000235 [NOV 3141600206030], (Fla. Miami-Dade Cir. Ct 2016).

SUMMARY OF THE ARGUMENT

The Attorney General agrees with Orange County. The NOV hearing officer

afforded Mr. Facella due process, did not deviate from the essential requirements

of law, and made a decision supported by competent substantial evidence.

Particularly, this amicus brief discusses the NOV hearing officer’s proper handling

of the below proceeding and ruling upon evidentiary issues. In that regard, the

NOV hearing officer commendably allowed Mr. Facella to present a defense on

two separate hearing dates at which he never denied actually running the red light.

Although the NOV hearing officer gave Mr. Facella great latitude in presenting his

case, the hearing officer correctly sustained Orange County’s objection to certain

evidence because the evidence was related to issues for which the NOV hearing

officer did not have jurisdiction to decide. App. 16. The evidence was irrelevant

2

because sections 316.0083(5)(d) and (e) does not give an NOV hearing officer

jurisdiction to render declaratory judgments that contracts are illegal. AG App. 14.

The Appellant wanted the evidence admitted to support a defense based on

Hastings v. Orlando, 2015-CV-000049-A-O (Fla. Orange Co. Ct. 2016), which

asserted a defense based on the case of Hollywood v. Arem, 154 So. 3d 359 (Fla.

4th DCA 2014) (hereinafter “Arem defense”). App. 25, Transcript, ll. 7-8.

Generally, the Arem defense decides whether the local government’s contract with

its camera vendor illegally delegated the police power of issuing a traffic citation

to the camera vendor. AG App. 55: Arem at 365. Such evidence was not proffered

by Mr. Facella nor should it have been allowed to be asserted. The NOV hearing

officer did not have jurisdiction to decide the Arem defense because the local

hearing officer only has authority to decide whether a traffic signal was violated

and not to render declaratory opinions on the legality of contracts. When the

Appellant voluntarily opted to request an NOV hearing which offered Appellant a

lower cost of adjudication of his violation instead of opting to go before a county

court judge, the Appellant elected remedies and waived the Arem defense

argument. Thus, the County’s objection was correctly sustained.

STANDARD OF REVIEW

For NOV hearings, section 316.0083(5)(f) requires an appeal be brought

pursuant to section 162.11. AG App. 14. For appeals taken under section 162.11,

3

Florida Statutes, a court decides: 1) whether due process was afforded, 2) whether

the administrative body applied the correct law, and 3) whether the findings are

supported by competent substantial evidence.” Sarasota Cnty. v. Bow Point on

Gulf Condo. Developers, LLC, 974 So. 2d 431, 433 (Fla. 2d DCA 2007) (internal

quotation marks omitted). Specifically, a circuit court “is not entitled to reweigh

the evidence or substitute its judgment.” Haines City Cmty. Dev. v. Heggs, 658 So.

2d 523, 530 (Fla. 1995). As the Florida Supreme Court explains:

Evidence contrary to the agency's decision is outside the scope of the inquiry at this point, for the reviewing court above all cannot reweigh the “pros and cons” of conflicting evidence. While contrary evidence may be relevant to the wisdom of the decision, it is irrelevant to the lawfulness of the decision. As long as the record contains competent substantial evidence to support the agency's decision, the decision is presumed lawful and the court's job is ended.

Dusseau v. Metro. Dade Cnty. Bd. of Cnty. Comm'rs, 794 So. 2d 1270, 1276 (Fla.

2001). Section 162.11 specifically states, “Such an appeal shall not be a hearing

de novo but shall be limited to appellate review of the record”. AG App. 49. Also,

when determining if evidence should have been admitted, the appropriate standard

is an abuse of discretion. Mickens v. State, 121 So. 3d 563, 565 (Fla. 4th DCA

2013) (“[T]he trial court has broad discretion in determining the relevance of

evidence and such determination will not be disturbed absent an abuse of

discretion.”) The only issue that is decided as a matter of law and decided de novo

4

is whether the local hearing officer had jurisdiction to hear the Arem defense.

Seven Hills, Inc. v. Bentley, 848 So. 2d 345, 350 (Fla. 1st DCA 2003).

ARGUMENT

I. A Notice of Violation hearing officer has limited authority.

In the NOV hearing below, the County objected to the Arem evidence as

being irrelevant because the NOV hearing officer had no authority to decide the

legality of a contract between the County and ATS. App. 16, Transcript ll. 4-9. Mr.

Facella never defended this objection with any argument or evidence. Also, on

appeal, Mr. Facella has not argued that the NOV hearing officer has jurisdiction to

enter declaratory judgments regarding contracts or decide whether ATS was acting

unlawfully. Therefore, the lack of jurisdiction to interject the Arem defense

evidence into the NOV hearing has essentially been conceded to by the Appellant.

Thus, the actual basis of the NOV hearing officer’s ruling is not properly at issue

in this appeal. Therefore, the issue before this court is whether it was an abuse of

discretion to deny the admission of irrelevant evidence. Certainly, denying

irrelevant evidence is not an abuse of discretion. Mickens at 565.

II. A hearing officer’s duties are defined by statute.

A local hearing officer’s duties are defined by statute. The duties are stated

in sections 316.0083(5)(d) & (e). AG App. 14. The hearing officer may take

testimony, review the images, and determine whether a violation occurred. AG

5

App. 14: § 316.0083(5)(d) & (e), Fla. Stat. The statute does not give NOV hearing

officers jurisdiction to render declaratory judgments to decide if the contract

between a local government and a vendor is illegal. Hearing officers only have

jurisdiction to decide if an infraction has occurred.

III. A local hearing officer has limited authority.

In the Florida Rules of Traffic Court, the Florida Supreme Court limits the

authority of county court traffic hearing officers. AG App. 16: Fla. R. Traf. Ct.

6.630(d)(2) & (3). The Rules of Traffic Court deny county court hearing officers

the right to decide traffic infractions when the infraction involves an accident with

injuries or criminal activity (e.g., reckless driving, driving under the influence, etc.

. . ). Id. County court traffic hearing officers do not have plenary authority. Rather,

as the Florida Supreme Court has noted, they are quasi-judicial officers granted the

limited power to dispose of civil traffic citations so judicial officers, such as county

and circuit judges, can use their time to adjudicate the more complex civil and

criminal matters. In re Certification of Need For Add’l Judges, 178 So. 3d 390,

394 (Fla. 2015); In re Certification of Need For Add’l Judges, 29 So. 3d 1110,

1113-1114 (Fla. 2010).

There are several notable reasons for this: (1) section 316.003(91) does not

even require a local hearing officer to be a member of the Florida Bar; (2) an NOV

hearing officer hired to be a county employee is not expected to be on the same

6

level or handed over the same responsibilities as an Article V judge; and (3)

hearing officers are not bound by the Judicial Code of Ethics. See § 318.36, Fla.

Stat. Thus, the NOV hearing officer’s power to decide the issues Mr. Facella

attempted to present below, which went far beyond whether a video showed him

running a red light, were not within the limited grant of power of the NOV hearing

officer. Indeed, Mr. Facella has not provided any legal authority to show that a

county employee hired as an NOV hearing officer has jurisdiction to review the

validity of the county’s contract with a vendor. Therefore, the hearing officer

below rightfully denied the admission of Arem evidence because it was irrelevant

to whether there was a violation of a red light.

IV. The Appellant chose an NOV hearing with a lower penalty than a proceeding in the county court.

Mr. Facella had an opportunity to bring the Arem defense before a county

court judge. Instead, he took advantage of the Notice of Violation process that

guaranteed him a lower penalty if found liable.1 In this case, when Mr. Facella

received the notice of violation, he had several options,2 one of which included

1 For an NOV hearing, sections 316.0083(1(b)a & (5)(e) allows a fine of $158.00 plus costs no greater than $250.00 while in county court the maximum payable pursuant to section 318.14(5) is a penalty of $500.00 plus costs. These differences are stated on the Notice of Violation. See County Appendix, pp. 1-2. 2 When prospective violators receive the notice of violation they have several options: 1) pay the fine; 2) send in an affidavit naming another; 3) request an administrative hearing (the Appellant took this option below); or 4) await a citation

7

awaiting a traffic citation and go to county court where a county court judge could

hear the legality of the contract defense he wanted to raise. AG App. 18, 9 & 14:

Fla. Stat.; Fla. R. Traf. Ct. 6.630(n); § 316.0083(1)(b)1.a. & (5)(e). This choice of

forums, the difference in the process and potential penalty, and the availability of

defenses was made known to Mr. Facella in the Notice of Violation. On the reverse

side of the Notice of violations it states:

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.

Answer Brief App. 2. (Bold in original.)

The Appellant’s attorney claims Mr. Facella was ignorant of his choice of

forums below. However, even if such were true, the ignorance of a red light

violator cannot legally empower a hearing officer with jurisdiction that was

not given by the Legislature. The statute’s legislative design cannot be defeated to go to county court where a county court judge can hear the Arem defense. § 316.0083(1)(b)1.a. & (5)(e), Fla. Stat.; Fla. R. Traf. Ct. 6.630(n).

8

merely because a litigant did not go to law school or get a lawyer to represent him.

Ignorance of the law is no excuse. Davis v. State, 928 So. 2d 442, 448 (Fla. 5th

DCA 2006); see also American Home Assur. Co. v. Plaza Materials Corp., 908

So.2d 360, 377 (Fla.2005). Of course, Mr. Facella’s actual ignorance of the law is

not only irrelevant, but questionable. It is apparent that the Appellant read section

316.0083 because he raised a narrow (and relatively obscure) defense to liability

due to emergency vehicles. App. 12. So, it is likely Mr. Facella also read sections

316.0083(1)(b)1.a., (5)(e), and the Notice of Violation. AG App. 9 & 14.

Regardless, NOV hearing officers do not have the authority to render declaratory

judgments regarding contracts.

V. County courts have been hearing the Arem defense. County court judges can hear matters in equity which include the legality of

contracts, and they have been hearing such issues in these kinds of cases since the

City of Hollywood v. Arem, 54 So. 3d 359 (Fla. 4th DCA 2014), opinion was

released. § 34.01 Fla. Stat.; See AG App. 19-48: State v. Meador, 2015 WL

10943643 (Fla. Polk Co. 2015) (Arem defense denied); State v. Langham, No. 16-

2014-TR-119298-CIXX-MA(Duval Co. June 5, 2015) (Arem defense denied);

State v. Devine, No. 2014-TR-049530-XX (Polk Co. 2015) (Arem defense denied);

State v. Trinh, No. 2D15-4898) (District Court accepted jurisdiction to answer

certified question.); State v. Jimenez, No. 3D15-2303 (District Court accepted

9

jurisdiction to answer certified question); See also AG App. 57-93: Opinion in

State v. Jimenez; (hereinafter “Arem antidote cases”).

All five of the above Arem antidote cases dispel the Arem myth that Florida

cities and counties were illegally delegating a police power to issue uniform traffic

citations to a private red light camera vendor. They found that camera vendors

were not exercising illegal, unfettered discretion.3 This is because that while the

City of Hollywood may have had a similar program to other local government

programs, when the facts that were not made available in the Arem appellate record

were placed into evidence in the Arem antidote cases, it was obvious that private

camera vendors were not given illegal police power and the Arem court did not

have all the facts as presented in these Arem antidote cases. See AG App. 19-48.

VI. The Third District Court of Appeal has now explained Arem.

The above Arem antidote trial cases disagreed with Arem. Also, now the

Third District Court of Appeal on July 27, 2016, has issued an opinion explaining

the facts missing in the Arem case. The Third District Court explains that when the

complete facts of the camera program are in the record, it is clear that there was no

unfettered discretion and the activity by ATS or other vendors is merely clerical 3 The Trinh and Jimenez case trial orders disagree with the Arem opinion but based on the wisdom of the judges granted the motions to dismiss which in turn allowed the cities to take certified questions from the county court to the Second and Third District Courts of Appeal as matters of great public importance.

10

and ministerial. AG App. 72-73: Jimenez Op. 16-17. Therefore, the camera

vendor’s services of reviewing video images, printing and mailing citations and

transmitting traffic citation data to the court are all ministerial activities.

Given that State of Florida, by and through City of Aventura, et. al v. Luis

Torres Jimenez, Nos. 3D15-2303 & 3D15-2271 (Fla. 3d DCA July 27, 2016), is

now the law of the State of Florida, see Pardo v. State, 596 So. 2d 665 (Fla. 1992),

Mr. Facella cannot demonstrate a departure from the essential requirements of law

on this record or in any event.4

VII. Mr. Facella elected his remedies and waived the Arem defense by electing an NOV hearing over county court.

Mr. Facella was the petitioner at the NOV hearing. AG App. 14: §

316.0083(5)(c), Fla. Stat. He chose an NOV hearing over county court. Therefore,

Mr. Facella elected his remedy and waived the right to argue the Arem defense. It

is not uncommon that a choice of forum can limit avenues to proceed. See City of

Jacksonville, Jacksonville Sheriff's Office v. Cowen, 973 So. 2d 503, 509 (Fla. 1st

DCA 2007) (“A career service employee shall have the option of utilizing the civil

4 In Kraay v. State, 148 So. 3d 789 (Fla. 1st DCA 2014), the First District Court of Appeal had occasion to consider the precedential value of an appellate decision shortly after it was released. The First District stated observed that an appellate decision “was binding on the trial courts of [the] district from the date the opinion was issued.” Id. at 790.

11

service appeal procedure, an unfair labor practice procedure, or a grievance

procedure ... but such employee is precluded from availing himself or herself to

more than one of these procedures.”); see also, Bass v. Department of

Transportation, 516 So. 2d 972, 973 (Fla. 1st DCA 1987) “[An employee] who is

also a union member may contest a disciplinary action taken by his or her

employer either through the union or by filing a civil service appeal, but may not

pursue both avenues”.); Taylor v. Pub. Empls. Rels. Comm'n, 878 So. 2d 421, 422

(Fla. 4th DCA 2004); Depaola v. Town of Davie, 872 So. 2d 377, 382 (Fla. 4th

DCA 2004) (holding, in part, that discharged firefighter did not elect grievance

procedure as remedy and thereby waived court action for declaratory and

injunctive relief); Hallandale Prof'l Firefighters, Local 2238 v. City of Hallandale,

777 So. 2d 435 (Fla. 4th DCA 2001) (holding that union waived right to arbitrate

because it appealed to the Florida Public Employee Relations Commission

instead); Metro. Dade County v. Dade County Ass'n of Firefighters, Local 1403,

575 So. 2d 289, 290 (Fla. 3d DCA 1991) (holding that discharged employee

waived grievance procedure after civil service appeal proved “unsuccessful”).

Herein, the Appellant waived his argument.

VIII. De novo review to reweigh evidence is not permitted in these cases. Appeals from NOV hearings are based on § 162.11. AG App. 14: §

316.0083(5)(f). And, pursuant to § 162.11, an “appeal shall not be a hearing de

12

novo”. AG App. 49. In these cases, where de novo review is not allowed, the

appellate court does not act like a second trial court and does not reweigh the

evidence. Toliver v. State, 953 So. 2d 713, 715 (Fla. 1st DCA 2007) (“We, as an

appellate court, concern ourselves only with the legal sufficiency of evidence; we

do not reweigh evidence.”); Largo Hosp. Owners, Ltd. v. Int'l Glass & Mfg. Co.,

Inc., 410 So. 2d 518, 521 (Fla. 2d DCA 1981) (“By and large, appellants simply

ask us to reweigh the evidence and rule in their favor. We cannot do that.”)

IX. Non-criminal traffic hearings are designed to be less complicated.

It is important to consider that our traffic law is “to provide a forum that

could consider problems involving minor traffic infractions … without the

necessity of applying the strictness and technicalities that often accompany routine

litigation.” State v. Johnson, 345 So. 2d 1069, 1070-71 (Fla. 1977); see also Fla.

Stat. § 318.12 (“facilitating the implementation of a more uniform and expeditious

system for the disposition of traffic infractions.”) NOV cases only involve traffic

fines for non-criminal traffic infractions. As indicated in Florida Rule of Traffic

Court 6.630(d), for county hearing officers, many important matters such as

injuries, criminal infractions, or even contempt shall not be ruled upon by a

hearing officer. The Florida’s Traffic Court Rules are designed to “secure

simplicity and uniformity in procedure, fairness in administration and the

elimination of unnecessary expense and delay.” AG App. 56: Fla. R. Traf. Ct.

13

6.020 (2014). Raising the Arem defense in an NOV hearing creates unnecessary

expense and delay. NOV hearings are typically 4 to 8 minutes in length.

X. The Anderson and Punsky case are not on point.

For all of the reasons stated above, the workers’ compensation cases cited by

the Mr. Facella, Anderson Columbia v. Brown, 902 So. 2d 838 (Fla. 1st DCA 2005)

and Punsky v. Clay County, 60 So. 3d 1088 (Fla. 1st DCA 2011), do not support

the Appellant’s argument that the record is able to be supplemented for appellate

review. Both Anderson and Punsky cases involve constitutional issues that were

able to be reviewed directly by the district courts of appeal. Anderson at 840;

Punsky at 1090. These cases only reach the circuit court on appeal. Also, the

presiding Florida Chapter 120 workers’ compensation judges are vetted by a

judicial nominations commission.5 This is because workers’ compensation cases

are significant matters that involve work debilitating injuries. Worker

compensation courts do not merely impose traffic fines like in NOV cases.

But, more importantly, the Anderson and Punsky cases stand for the

proposition that constitutional challenges to a statute may be argued for the first

time on appeal to the district courts of appeal. This is permitted because the

constitutionality of a statute is a pure question of law legally entitled to de novo 5https://www.floridabar.org/tfb/TFBComm.nsf/840090c16eedaf0085256b61000928dc/8ad2eebc5181f84385256e370061e888?OpenDocument.

14

review. See Florida Fish & Wildlife Conservation Comm'n v. Caribbean

Conservation Corp., Inc., 789 So.2d 1053, 1054 (Fla. 1st DCA 2001) (Holding that

whether a state statute is constitutional is a pure question of law subject to de novo

review); City of Miami v. McGrath, 824 So. 2d 143, 146 (Fla. 2002).

In contrast to Anderson and Punsky, this Court is prohibited from

performing a de novo review. AG App. 49: § 162.11, Fla. Stat. This case does not

involve a constitutional challenge to any statute. The Appellant herein specifically

stated “[T]he validity of a red light camera program does not turn on the

constitutionality of §316.0083.” Initial Brief, p. 11. The Attorney General agrees

with the Appellant that he has not made a constitutional challenge. The Arem

defense, as presented, is based on a factual determination of whether ATS is

constructively issuing a uniform traffic citation as the result of the local

government giving unfettered discretion to ATS in its contract. AG App. 55: Arem

at 365. An Arem determination should be decided in a trial court of competent

jurisdiction which is a county court and not an NOV court.

XI. There was no departure from the essential requirements of law.

The contract defense Mr. Facella wanted to pursue would review whether

ATS was given unfettered discretion tantamount to ATS constructively issuing a

traffic citation. AG App. 55: Arem at 365; AG App. 72-73: Jimenez Op. 16-17.

Essentially, the primary question is whether ATS processors are using their own

15

standards or the County’s standards to decide which images are sent to the officer?

Jimenez is the most recent and controlling decision on this matter.

As the petitioner below, Mr. Facella had the burden of proof to show

dismissal was proper. In this Court, Mr. Facella must show a departure from the

essential requirements of law. Yet, there are no determinative facts upon which to

determine that ATS processors were making any unfettered decisions. What is

known from this record is that: (1) images are electronically transferred from ATS

to the officer (App. 15), (2) Orange County documents were mailed by ATS (App.

8), and (3) the officer pushes an accept button to issue the Notice of Violation

which also places her electronic signature on the Notice of Violation (App. 22-23;

Initial Brief p. 1, fn 1). These facts do not show ATS was wielding a police power

or that ATS was exercising unfettered discretion in the NOV process.

The Arem court held that because ATS had been given unilateral, sole,

unfettered discretion by Hollywood to decide which images were sent to the

officer, such was an illegal delegation of police power. AG App. 55: Arem at 364-

365. Therefore, only evidence that has a tendency to prove that ATS had

“unfettered” discretion in sending the images would be determinative. No such

evidence is within this record. Mr. Facella’s bare assertion that certain services

performed for Orange County by ATS are the same services that were performed

for the City of Hollywood is not enough to draw a conclusion that ATS was

16

wielding police power and was issuing traffic citations. At the most general level,

Mr. Facella argues that certain services ATS provides Orange County are the same

services it provides the City of Aventura. However, Jimenez controls and fatally

undermines any assertion that the NOV hearing officer departed from the essential

requirements of law.

Furthermore, the record facts herein do not prove or disprove ATS was making

unilateral, sole, unfettered decisions and in reality the actual facts would show

otherwise. This was the problem in the Arem case. The record facts did not reveal

the actual facts that would have changed the decision.

For example, ATS had a contract with Hollywood and this Court is asked to

assume that Orange County also had a contract with ATS. Even if true, these facts

are merely background facts that a contract existed. Standing alone, the plain fact

that there was a contract with a third party is not enough to show the contract

unlawfully delegated police power to the third party. See Att’y Gen. Fla. 84-100

(1984); County Collection Services v. Charnock, 789 So. 2d 1109, 1112 (Fla. 4th

DCA 2001). As the Attorney General’s opinion states, “[B]ecause Pinellas County

and a private company signed an agreement that the private company would

“provide fire protection services [which is a police power] . . . [this] did not in and

of itself constitute a delegation of the fire protection authority's governmental or

legislative powers”. Id. The relevant fact was whether the private company could

17

“enforce the municipal and state fire prevention codes or any local ordinance or

state law”. Id.

Very importantly, if the Arem defense could be decided de novo herein,

which it may not, there is no evidence that ATS was making police power

decisions. The point is that knowing that ATS performed services for Orange

County does not in and of itself give a court sufficient evidence to make a decision

that ATS was illegally delegated a police power by Orange County. What is

important is whether ATS was acting with unfettered discretion and there is no

evidence in this record to reach such a conclusion.

In addition, on page 16-17 of the Jimenez decision, the court stated:

“The question thus becomes whether the Vendor’s review in this case involves the exercise of unfettered discretion. We hold that it does not. The record reflects that the type of evaluation exercised in the Vendor’s decisions is clerical and ministerial.”

In turn, the fact that the County’s documents were mailed by ATS (App. 8)

is not determinative that ATS was wielding police power. ATS printers collating

envelopes without human interaction is a secretarial act, not a police power no

matter where they are located. Nowhere in section 316.0083 does it state that once

the officer decides probable cause and pushes an accept button to issue the citation

that a computer can’t print and mail the citations. Jimenez specifically rejects the

argument that the officer is required to affix the stamp, seal the envelope and mail

18

the citation. AG App. 82-83: Jimenez at 26-27. Secretarial functions are not police

powers. Citizens of State of Fla. v. Wilson, 567 So. 2d 889, 892 (Fla. 1990);

Charnock at 1112.

Based on the Jimenez, Citizens and Charnock cases, it is abundantly clear

that it takes much more than electronically transferring photographs and mailing

documents to amount to an illegal exercise of police power.

XII. Dismissal is not the appropriate remedy.

Mr. Facella argues that his violation should be dismissed based the fact that

the infraction video images were sent to the officer from ATS and that ATS mails

the Notice of Violation. These are not activities that are grounds for dismissal. First

the evidence does not show that either of these activities was being carried out

improperly. Also, even if there was an irregularity in either activity, such would

not be grounds for dismissal. The court in State v. Hancock, 529 So. 2d 1200, 1201

(Fla. 5th DCA 1988) stated:

Not all procedural requirements are jurisdictional in the sense that they are indispensable to the acquisition of jurisdiction by the court. Instead, they may be procedural matters of statutory origin that are not essential to the constitutional requirement of due process.

Herein, transferring video images and mailing notices are only clerical acts that are

part of the processing procedure. Jimenez at 16-18, & 26. These activities are not

part of the elements that must be proven to show that there was a violation of the

19

red light. Hancock involved the procedure of filing the traffic citation and the court

stated “there is no provision in the traffic statute that the filing of the citation

within five days of issuance is a jurisdictional prerequisite”. Id., see also Loper v.

State, 840 So. 2d 1139 (Fla. 1st DCA 2003) (The failure to file a traffic citation

with the clerk “was not a jurisdictional prerequisite to the prosecution of the

defendant”. Therefore, dismissal was not the appropriate remedy.) Based on

Hancock and Loper, if the procedural process has not prejudiced the defendant, it

is clear that dismissal is not an appropriate remedy. See also State v. Perez, 783 So.

2d 1084 (Fla. 3d DCA 1998).

XIII. Mr. Facella does not have standing.

Mr. Facella lacks standing to challenge the Notice of Violation process. His

argument herein is not claiming that he suffered an injury as a result of ATS

forwarding the images or mailing the notice of violation. He is merely stating that

it is wrong that the Notice of Violation was mailed by ATS and that it is wrong that

ATS cameras take the images and then transfer the to the enforcement officer. Mr.

Facella admits to running the red light and does not complain that any of the

procedures were performed improperly, or any of his rights were violated.

Therefore, the Appellant has no standing to challenge these protocols. Terzis v.

Pompano Paint & Body Repair, Inc., 127 So. 3d 592, 596 (Fla. 4th DCA 2012).

20

CONCLUSION

The NOV hearing officer’s decision should be affirmed.

Respectfully Submitted, PAMELA JO BONDI ATTORNEY GENERAL

/s Robert Dietz________________ Robert Dietz, Asst Atty General Fbn: 0845523 Office of the Attorney General 501 East Kennedy Blvd., Ste. 1100 Tampa, Florida 33602 (813) 233-2880 Robert.Dietz@myfloridalegal.com Tyrell.Daniel@myfloridalegal.com Julia.Heckman@myfloridalegal.com

CERTIFICATE OF SERVICE

I hereby certify that on September 6, 2016, I electronically filed the

foregoing with the Clerk of the Circuit Court by using the Florida Courts E-Filing

Portal, which will electronically serve copies of the foregoing to Georgiana

Holmes, ACA, and Andrea Adibe, ACA, for Orange Co., at

georgiana.holmes@ocfl.net, and andrea.adibe@ocfl.net and to Kelli B. Hastings,

for Facella, at khastings@kbhastingslaw.com.

/s/ Robert Dietz Robert Dietz, Assistant Attorney General

21

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this brief complies with the font requirements of Fla.

R. App. P. 9.100(l), in that it was prepared in Times New Roman, 14-point font.

/s/ Robert Dietz Robert Dietz, Assistant Attorney General