Steven J. Pincus, etc. v. American Traffic Solutions, Inc., etc. ( 2022 )


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  •            Supreme Court of Florida
    ____________
    No. SC21-159
    ____________
    STEVEN J. PINCUS,
    Appellant,
    v.
    AMERICAN TRAFFIC SOLUTIONS, INC.,
    Appellee.
    February 3, 2022
    LABARGA, J.
    This case is before the Court for review of questions of Florida
    law certified by the United States Court of Appeals for the Eleventh
    Circuit (the Eleventh Circuit Court of Appeals) that are
    determinative of a cause pending in that court and for which there
    appears to be no controlling precedent. We have jurisdiction. See
    art. V, § 3(b)(6), Fla. Const.
    The Eleventh Circuit Court of Appeals certified several
    questions to this court, including: “Does Pincus’s unjust
    enrichment claim fail because he received adequate consideration
    in exchange for the challenged fee when he took advantage of the
    privilege of using his credit card to pay the penalty?” Pincus v.
    American Traffic Solutions, Inc., 
    986 F.3d 1305
    , 1321 (11th Cir.
    2021). For the reasons discussed below, we answer this
    determinative question in the affirmative and decline to address the
    remaining questions.
    FACTS AND PROCEDURAL HISTORY
    The City of North Miami Beach (the City) contracted with
    Appellee American Traffic Solutions, Inc. (ATS), to install and
    maintain red-light traffic cameras throughout the City, issue and
    mail citations, and process violators’ payments of the civil penalties
    imposed. 
    Id. at 1309
    . In February 2018, ATS mailed Appellant
    Stephen J. Pincus a Notice of Violation (NOV) on behalf of the City
    for failing to comply with a steady red light signal, in violation of
    sections 316.0083, 316.074(1), and 316.075(1)(c)1, Florida Statutes
    (2017). 
    Id. at 1309-10
    . The NOV informed Pincus he was required
    to pay a statutory penalty of $158. 
    Id.
     The NOV explained Pincus
    could request a hearing or submit an affidavit if he wished to claim
    a statutory exemption; otherwise, the NOV instructed Pincus to pay
    the penalty online, by phone, or by mailing a check or money order.
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    Id. at 1310
    . The NOV advised that a convenience fee would be
    charged for payments made online or by phone. 
    Id. at 1309
    .
    Pincus elected to pay with his credit card. 
    Id. at 1310
    . In addition
    to the $158 penalty, Pincus paid ATS a 5% convenience fee of
    $7.90. 
    Id.
    Pincus subsequently filed a putative class action in the United
    States District Court for the Southern District of Florida, arguing
    the convenience fee was prohibited by sections 316.0083(b)(4),
    318.121, and 560.204, Florida Statutes (2017), and ATS was
    therefore unjustly enriched by retaining the fee. 
    Id.
     ATS moved to
    dismiss the complaint, arguing Pincus failed to state a claim for
    unjust enrichment. Pincus v. American Traffic Solutions, Inc., No.
    18-cv-80864, 
    2019 WL 9355827
    , *1 (S.D. Fla. Jan. 14, 2019). The
    federal district court agreed, finding: (1) ATS’s fee was not
    prohibited under section 316.0083(b)(4) because the fee was not a
    “commission” within the meaning of the statute; (2) ATS’s fee was
    not prohibited under section 318.121 because this statute only
    applies to violations assessed under chapter 318, Florida Statutes
    (2017), and Pincus’s violation was assessed under chapter 316,
    Florida Statutes (2017); and (3) section 560.204 does not provide a
    -3-
    private right of action, as violations of this statute are enforced by
    the Financial Services Commission’s Office of Financial Regulation.
    
    Id.
     Accordingly, the court dismissed Pincus’s complaint for failure
    to state a claim. Pincus, 
    2019 WL 9355827
    , at *5-9.
    On appeal, the Eleventh Circuit Court of Appeals determined
    there was no guiding precedent on the key issues and certified the
    following questions to this Court:
    (1) Did ATS violate Florida law when it imposed a five
    percent fee on individuals who chose to pay their red
    light traffic ticket with a credit card? In particular:
    a. Does the challenged fee constitute a
    “commission from any revenue collected from
    violations detected through the use of a traffic
    infraction detector” under 
    Fla. Stat. § 316.0083
    (1)(b)(4)?
    b. Was the fee assessed under Chapter 318
    and therefore subject to § 318.121’s surcharge
    prohibition?
    c. Was ATS a “money transmitter” that was
    required to be licensed under 
    Fla. Stat. § 560.204
    (1)?
    (2) If there was a violation of a Florida statute, can that
    violation support a claim for unjust enrichment? In
    particular:
    a. Does Pincus’s unjust enrichment claim fail
    because the statutes at issue provide no
    private right of action?
    -4-
    b. Does Pincus’s unjust enrichment claim fail
    because he received adequate consideration in
    exchange for the challenged fee when he took
    advantage of the privilege of using his credit
    card to pay the penalty?
    Pincus, 986 F.3d at 1320-21. This review followed.
    ANALYSIS
    To state a claim for unjust enrichment, a plaintiff must allege
    “a benefit conferred upon a defendant by the plaintiff, the
    defendant’s appreciation of the benefit, and the defendant’s
    acceptance and retention of the benefit under circumstances that
    make it inequitable for him to retain it without paying the value
    thereof.” Fla. Power Corp. v. City of Winter Park, 
    887 So. 2d 1237
    ,
    1241 n.4 (Fla. 2004) (quoting Ruck Bros. Brick, Inc. v. Kellogg &
    Kimsey, Inc., 
    668 So. 2d 205
    , 207 (Fla. 2d DCA 1995)); see also
    Agritrade, LP v. Quercia, 
    253 So. 3d 28
    , 33 (Fla. 3d DCA 2017) (“The
    elements of a cause of action for unjust enrichment are: (1) plaintiff
    has conferred a benefit on the defendant, who has knowledge
    thereof; (2) defendant voluntarily accepts and retains the benefit
    conferred; and (3) the circumstances are such that it would be
    inequitable for the defendant to retain the benefit without first
    -5-
    paying the value thereof to the plaintiff.” (quoting Peoples Nat’l Bank
    v. First Union Nat’l Bank, 
    667 So. 2d 876
    , 879 (Fla. 3d DCA 1996))).
    There is no dispute that Pincus can plead the first two elements of
    this cause of action. Pincus, 986 F.3d at 1311 n.8. What is at
    issue here is whether he can plead that it was inequitable for ATS to
    retain what Pincus paid.
    We find that, as a matter of Florida law, he cannot, and that
    this is determinative of the other questions before us. Pincus
    argues it would be unjust for ATS to retain a fee collected in
    violation of Florida law, specifically, sections 316.0083(1)(b)4,
    318.121, and 560.204, Florida Statutes (2021). However, even if
    the fee is prohibited under one or more of these statutes, ATS’s
    retention of the fee is not inequitable because ATS gave value in
    exchange: (1) Pincus did not have to procure postage and a check or
    money order; (2) he could pay the balance over time; (3) he avoided
    the risk of his payment being delayed, stolen, or lost en route; (4) he
    was afforded more time to make the payment because it was
    -6-
    instantaneous;1 and (5) ATS provided immediate confirmation (by
    way of a “confirmation number”) that Pincus’s payment was
    received and his obligation to pay the penalty fulfilled. Therefore, it
    is not inequitable under the circumstances for ATS to retain the
    convenience fee because it “first pa[id] the value thereof to the
    plaintiff.” Agritrade, 253 So. 3d at 33 (quoting Peoples Nat’l Bank,
    
    667 So. 2d at 879
    ).
    Accordingly, Pincus’s unjust enrichment claim fails because
    he has not alleged a benefit conferred and accepted which would be
    unjust for ATS to retain.
    CONCLUSION
    The Eleventh Circuit Court of Appeals certified the following
    question to this Court: “Does Pincus’s unjust enrichment claim fail
    because he received adequate consideration in exchange for the
    challenged fee when he took advantage of the privilege of using his
    credit card to pay the penalty?” Pincus, 986 F.3d at 1321. For the
    reasons discussed, we answer this determinative question in the
    1. Indeed, Pincus’s penalty payment was due sixty days after
    the NOV was issued, and he paid on the sixtieth day.
    -7-
    affirmative, decline to answer the remaining certified questions, and
    remand the case to the Eleventh Circuit Court of Appeals.
    It is so ordered.
    CANADY, C.J., and POLSTON, LAWSON, MUÑIZ, COURIEL, and
    GROSSHANS, JJ., concur.
    NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
    AND, IF FILED, DETERMINED.
    Certified Question of Law from the United States Court of Appeals
    for the Eleventh Circuit – Case No. 19-10474
    Bret L. Lusskin, Jr. of Bret Lusskin, P.A., Aventura, Florida; Keith
    J. Keogh of Keogh Law, Ltd., Chicago, Illinois; and Scott D. Owens
    of Scott D. Owens, P.A., Hollywood, Florida,
    for Appellant
    Joseph H. Lang, Jr., Kevin P. McCoy, and David R. Wright of
    Carlton Fields, P.A., Tampa, Florida,
    for Appellee
    Henry C. Whitaker, Solicitor General, Jeffrey Paul DeSousa, Chief
    Deputy Solicitor General, Evan Ezray, Deputy Solicitor General, and
    David M. Costello, Assistant Solicitor General, Tallahassee, Florida;
    and Anthony Cammarata, General Counsel, Office of Financial
    Regulation, Tallahassee, Florida,
    for Amicus Curiae Office of Financial Regulation
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