State v. Jimenez , 211 So. 3d 158 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed July 27, 2016.
Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D15-2303 & 3D15-2271
Lower Tribunal No. 14-A369OZE
________________
State of Florida, by and through the City of Aventura, et al.,
Appellants,
vs.
Luis Torres Jimenez,
Appellee.
Appeals pursuant to Florida Rule of Appellate Procedure 9.160 from the
County Court for Miami-Dade County, Steven Leifman, Judge.
Pamela Jo Bondi, Attorney General, and Robert Dietz (Tampa), Assistant
Attorney General, as Intervener for appellant; Weiss Serota Helfman Cole &
Bierman, and Edward G. Guedes and Samuel I. Zeskind, for appellant City of
Aventura.
Louis C. Arslanian (Hollywood); Wites & Kapetan, P.A., and Marc A. Wites
(Lighthouse Point), for appellee.
Carlton Fields Jorden Burt, and Joseph H. Lang, Jr. and Kevin P. McCoy;
Hamilton, Miller & Birthisel, and Jerry D. Hamilton and Ashlee A. Pouncy; Baker
& Hostetler and Krista A. Sivick, for American Traffic Solutions, Inc., and Xerox
State and Local Solutions, Inc., as amici curiae.
1
Johnson, Anselmo, Murdoch, Burke, Piper & Hochman and Christopher J.
Stearns, for Bal Harbour Village, Town of Campbellton, City of Clermont, City of
Cocoa Beach, City of Coral Springs, Town of Cutler Bay, City of Doral, Village of
El Portal, City of Green Cove Springs, City of Hialeah Gardens, City of Holly
Hills, Town of Juno Beach, Village of Key Biscayne, City of Lauderdale Lakes,
Manatee County, City of Miami Gardens, City of Miami Springs, City of Milton,
City of North Bay Village, City of Oldsmar, City of Opa Locka, City of Orange
Park, City of Palatka, City of Palm Coast, Village of Palm Springs, City of
Pembroke Pines, City of Sunrise, City of Surfside, City of Sweetwater, City of
Tamarac, City of West Miami, City of West Park, City of Fort Lauderdale, New
Port Richey, Port Richey, City of Cocoa Beach, Town of Davie, City of Coral
Gables, North Miami Beach, Hillsborough County, City of Groveland, City of
Hallandale Beach, City of Apopka, and Orange County (“Local Governments”), as
amici curiae.
Before WELLS, EMAS, and LOGUE, JJ.
LOGUE, J.
The City of Aventura and the Attorney General of Florida appeal a decision
of the county court dismissing a traffic citation that charged Luis Torres Jimenez
with running a red light by turning right at an intersection marked no-turn-on-red.
Probable cause for the citation was based on photographs and a video from the
City’s red light camera program which is serviced by American Traffic Solutions,
Inc., a City vendor.
Jimenez challenged his ticket based on a claim that the City’s red light
camera program was illegal because (1) the Vendor was given unfettered discretion
that exceeded the City’s statutory authority to use an agent to “review” images,
section 316.0083(1)(a), Fla. Stat. (2014); (2) the Vendor had unfettered discretion
2
in printing and mailing notices and citations in violation of a statutory requirement
that only an officer can “issue” citations, id.; 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, section 316.650(3)(c), Fla. Stat. (2014).
For the reasons explained below, we reject Jimenez’s arguments. In
particular, we hold that the review of red light camera images authorized by
section 316.0083(1)(a) 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.
3
Due to these circumstances, we distinguish City of Hollywood v. Arem, 154
So. 3d 359 (Fla. 4th DCA 2014), 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. Because of the broad public and institutional
interest in red light cameras, we certify three issues to the Florida Supreme Court
as having great public importance.
BACKGROUND AND FACTS
A. The Mark Wandall Traffic Safety Act.
On July 1, 2010, the Legislature enacted the Mark Wandall Traffic Safety
Act, which authorized local governments to use cameras to enforce traffic lights.
Ch. 2010-80, Laws of Fla., partially codified at § 316.0083, Fla. Stat. (2010). The
Wandall Act was named in honor of Mark Wandall, whose wife was nine months
pregnant when he was killed by a driver who ran a red light. City of Orlando v.
Udowychenko, 98 So. 3d 589, 596 n.10 (Fla. 5th DCA. 2012). According to the
accompanying committee report, seventy-six people were killed in 2008 in Florida
by drivers running red lights. See House of Representatives Staff Analysis, at p. 2,
CS/CS/HB 325 (Mar. 9, 2010).
At the heart of the dispute in this case is the Wandall Act’s express
authorization for local governments to use “agents” to “review” images before the
“officer” issues a citation. On this point, the Wandall Act reads, “[t]his paragraph
4
does not prohibit a review of information from a traffic infraction detector by an
authorized employee or agent of the department, a county, or a municipality before
issuance of the traffic citation by the traffic infraction enforcement officer.” §
316.0083(1)(a), Fla. Stat.
B. The Vendor’s Sorting of Images.
The City and the Vendor entered into a contract whereby the Vendor is
responsible for installing, maintaining, monitoring, and assisting in administering a
“digital photo red light enforcement system” which includes a network of
computers, sensors, speed detectors, timers, cameras, printers, and mailing
capabilities, all supported by software owned by or licensed to the Vendor.
Under the contract and its various amendments, the Vendor sorts the
information and images generated by the system into two databases: a “working”
database that the City police review to decide whether to issue a citation and a
“non-working” database that the City police do not review for that purpose. Each
image placed in the non-working database is reported, and the reason for placing
the image in the non-working database is explained by the Vendor on a report
screen. The report screen is periodically reviewed by the sergeant in charge of the
City’s review. The non-working database remains available and is occasionally
accessed by the police for other investigations.
5
Each month, approximately 5,000 images are sorted into the working
database and 3,000 are sorted into the non-working database. The police sergeant
who oversees the City’s review testified that the City would be overwhelmed if it
was required to review all images generated by the system.
To sort images, the Vendor conducts a review that includes (1) confirming
workable images exist (and the camera did not simply misfire); (2) examining the
images to verify the license plate of the subject vehicle is legible; (3) using the
license plate number in an automated process to obtain the identifying information
of the registered owner from the Florida Department of Motor Vehicles; (4)
confirming the capture of date, time-of-day, speed, and timing-of-light data; (5)
checking the “A” shot, which is a still photograph showing the vehicle approaching
the intersection; (6) checking the “B” shot, which shows the vehicle in the
intersection; and (7) checking the twelve-second video clip that shows the vehicle
approaching and traveling through the intersection. The Vendor can pause the
video and view it frame by frame.
A representative of the Vendor testified that the Vendor’s task when
reviewing images was to filter out images that were “useless.” A clear example,
she explained, is where a camera simply misfired and failed to record an image.
Other examples are where the light displays green or where images fail to capture a
vehicle’s license plate number. These images were useless, she testified, because
6
“the police cannot do anything with them.” But other images are determined to be
useless based on the specific and detailed contract language and City guidelines.
C. Sorting Under the Prior 2008 Contract.
The Vendor’s responsibility and authority to sort images was first
established in the 2008 Contract, where the Vendor’s authority to review images
was stated in a broad manner:
The vendor shall make the initial determination that the image meets
the requirements of the Ordinance and this Agreement, and is
otherwise sufficient to enable the City [to] meet its burden of
demonstrating a violation of the Ordinance. If the Vendor determines
that the standards are not met, the image shall not be processed any
further.
As discussed below, it is this 2008 Contract language that was quoted, analyzed,
and relied upon by the Fourth District in the Arem decision cited by Jimenez.
When this 2008 Contract was signed, no statute authorized local governments to
enforce red lights with cameras.1 On July 19, 2010, immediately after the effective
date of the Wandall Act, the City and the Vendor amended the 2008 Contract and
removed this language.
D. Sorting Under the Current Amended Contract.
1 The Florida Supreme Court subsequently held that local governments required
statutory authorization to use automatic cameras to enforce red light laws. Masone
v. City of Aventura, 147 So. 3d 492 (Fla. 2014). While the Masone case was
pending, the Legislature enacted the Wandall Act.
7
Among other things, the 2010 amendment expressly deleted the language
from the 2008 Contract quoted above. Importantly, the deleted language was
replaced with new language substantially narrowing the nature and scope of the
Vendor’s role in the process. The Amended Contract reads:
Vendor shall act as City’s agent for the limited purpose of making an
initial determination of whether the recorded images should be
forwarded to an Authorized Employee to determine whether an
infraction has occurred and shall not forward for processing those
recorded images that clearly fail to establish the occurrence of an
infraction.
(emphasis added).
Significantly, the Amended Contract also expressly recognized that the
Vendor had no authority to decide that a citation would issue. Instead, it provided
that the decision to issue a citation can be made only by a police officer. The
Amended Contract states:
VENDOR HEREBY ACKNOWLEDGES AND AGREES THAT
THE DECISION TO ISSUE A NOTICE OF VIOLATION SHALL
BE THE SOLE, UNILATERAL AND EXCLUSIVE DECISION
OF THE AUTHORIZED EMPLOYEE AND SHALL BE MADE
IN SUCH AUTHORIZED EMPLOYEE’S SOLE DISCRETION (A
“NOTICE OF VIOLATION DECISION”), AND IN NO EVENT
SHALL VENDOR HAVE THE ABILITY OR AUTHORIZATION
TO MAKE A NOTICE OF VIOLATION DECISION.
E. Creation of City’s Standards for Sorting Images.
Central to the issue of unfettered discretion in this case are certain
guidelines, which the City and Vendor call the “Business Rules Questionnaire.”
8
The guidelines govern the Vendor’s task of checking the “A” and “B” shots and
the video clip. The guidelines were created by a process in which the Vendor
identified scenarios or decision points and suggested alternative solutions to the
City. For the most part, the City selected one of the alternative solutions suggested
by the Vendor, but in several instances, the City created its own solutions.
For example, guideline 4.1 concerns the line of demarcation, which means
the boundary of the intersection. This is the line used to evaluate the “A” shot,
which is the photograph that shows the vehicle approaching the intersection. In
reviewing this guideline, one must keep in mind that if the front tires of a vehicle
crossed the boundary and entered the intersection when the light is still displaying
green, the vehicle obviously is not running a red light. Conversely, if the front tires
had not yet reached this line when the light displays red, the vehicle would appear
to be running a red light (assuming the vehicle does not immediately stop within
the edge of the intersection and wait for a green light). All of the City intersections
containing red light cameras have painted stop lines. The Vendor provided four
alternative suggestions for the line of demarcation: (1) the stop line; (2) the
prolongation of the curb; (3) the crosswalk; and (4) whichever line the tires will hit
first. The City adopted the first suggestion: the line of demarcation is the painted
stop line. A similar process was followed for the other guidelines.
F. Police Decision to Issue Citation.
9
The police officers assigned to red light camera enforcement access the
working database by logging into the server using their own unique user
identification and password. The officers decide to issue a citation based on the
images in the same manner they decide to issue a roadside citation. If, after
reviewing the photographs, video, and other information, the officer decides to
issue a citation, the officer clicks the “accept” button on the screen. By doing so,
the officer authorizes his or her electronic signature and badge number to appear
on the notice and citation. The officer’s review and determination in this regard is
far from a mere rubber stamp. As the trial court expressly found, “[o]f the images
reviewed by the City’s police officers, only between sixty-five percent (65%) and
seventy percent (70%) are approved as a violation.”
G. Probable Cause in Jimenez’s case.
An example of the nature and extent of the police officer’s review is
provided by the issuance of Jimenez’s citation for turning right on red at an
intersection marked no-turns-on-red. Jimenez’s ticket was issued by Officer
Jeanette Castro, a thirteen-year veteran of the City Police Department who has
issued thousands of traffic citations roadside, and hundreds as part of the red light
camera program. Her badge number and electronic signature appear on the notice
and citation. Officer Castro explained her thought process in deciding why
probable cause was demonstrated by the images in Jimenez’s case:
10
Q. Can we see the video again and walk us through what
you see as you watch the video?
OFFICER CASTRO: You see again the vehicle approaches
the right turn. At this point, the light is—like I stated, it’s already
been red for 5.7 seconds. He proceeds to—the vehicle proceeds to
make a right-hand turn, and that oncoming traffic is moving.
Q. Was that the same video that you watched when you
made your probable cause determination in this case?
OFFICER CASTRO: Yes.
Q. Again, you determined that there was probable cause
that Mr. Jimenez had committed a red light infraction?
OFFICER CASTRO: Yes.
Q. Did anyone else make that determination?
OFFICER CASTRO: No.
Q. Can you describe again the factors that you
considered in making that determination?
OFFICER CASTRO: The fact that the light was indeed red,
that it was a no turn on red intersection, that the vehicle proceeds to
make the right-hand turn through the intersection while the light is
red.
Q. You considered that to be a violation of the red light
statutes?
OFFICER CASTRO: Yes, I do.
Q. You made that determination as a law enforcement
officer based on your interpretation of those red light statutes?
OFFICER CASTRO: Yes.
11
Officer Castro testified that her decision to issue a citation to Jimenez was
based on the same factors and criteria she uses when she issues a citation for a
similar roadside violation.
H. Vendor’s Involvement in Printing, Mailing, and Processing Notices
and Citations.
The record reflects the Vendor plays an important role in administering the
printing, mailing, and electronic delivery of the notice and citation. The officer
records in the City’s computers his or her determination that probable cause exists
and that a notice and citation will issue. That decision is immediately
communicated to the Vendor’s computers and triggers a pre-programed, automated
process of printing and mailing the notice. If the required payments or affidavits
are not received within the statutory deadlines, the Vendor’s system then
automatically prints and mails the citation. The Vendor’s system also automatically
delivers an electronic copy of the citation to the Clerk of the Courts, who creates a
court file. The forms of the notice and citation are provided by the City. The
information on the notice and citation are approved by the officer when she or he
authorizes the issuance. Once triggered by the police officer, the officer does not
view the notice or citation again before it is sent out. Also, once triggered by the
police officer, this process involves no exercise of judgment or discretion on the
part of the Vendor.
12
I. Trial Court’s Decision and Certification of Questions of Great Public
Importance.
After an evidentiary hearing, the trial court issued an opinion that made
extensive and detailed findings of fact which neither side challenged on appeal.
Citing to Arem, 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, the trial court quashed Jimenez’s traffic citation. The trial court,
however, determined that the Vendor’s actions in printing and mailing the notice
and citation to Jimenez, and in delivering an electronic copy of the citation to the
clerk, did not involve unfettered discretion. The trial court certified to this court the
following issues:
1. Does the review of red light camera images authorized by Florida
Statute 316.0083(1)(a) allow a municipality’s vendor, as its agent,
to review and then select which images to forward to the law
enforcement officer, where the municipality has provided the
vendor with specific written guidelines for determining which
images to forward or not to forward?
2. If the vendor is permitted to review and then forward images in
accordance with a municipality’s written guidelines, is it an illegal
delegation of police power for the vendor to print and mail the
[citation], through a totally automated process without human
involvement, after the law enforcement officer has affirmatively
made a probable cause determination and authorizes the
prosecution of the violation by selecting the “accept” button?
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 Florida
Statute §316.650(3)(c) when it is the law enforcement officer who
13
affirmatively authorizes the transmission process by selecting the
“accept” button?
The City and the Attorney General appealed. We accepted the questions for review
and therefore have jurisdiction. Art. V, § 6, Fla. Const.; § 34.017(1) & (2), Fla.
Stat. (2015).
ANALYSIS
A. Certified Question Number 1: the Vendor’s Sorting of Images.
The trial court’s first certified question reads:
Does the review of red light camera images authorized by Florida
Statute 316.0083(1)(a) allow a municipality’s vendor, as its agent, to
review and then select which images to forward to the law
enforcement officer, where the municipality has provided the vendor
with specific written guidelines for determining which images to
forward or not to forward?
In regards to this certified question, Jimenez’s main argument is that the
guidelines allow the Vendor unfettered discretion to place items into the non-
working database where they are never reviewed by the police for purposes of
issuing citations.2 The starting point for this argument is the language in the
2 Jimenez also argues that the creation of the guidelines reflects unfettered
discretion by the Vendor. The Vendor’s suggestion of a range of options that
included solutions diametrically opposed to one another falls far short of
establishing as a matter of law that the Vendor exercised unfettered discretion in
the creation of the standards. In fact, in at least two guidelines (4.3 and 4.4), the
City added requirements to the guidelines without Vendor input. There is nothing
illegal in government obtaining input from private parties in these circumstances.
See generally, Walker v. Trump, 549 So. 2d 1098, 1102 (Fla. 4th DCA 1989)
(“[T]he supreme court has held that there is no prohibition on the use of outside
appraisers to assist the property appraiser in fulfilling her function, since such
14
Wandall Act authorizing the City to use “agents” to “review” the information
generated by the red light traffic program “before issuance of the traffic citation by
the traffic infraction enforcement officer.” § 316.0083(1)(a), Fla. Stat.
In his brief, Jimenez acknowledged that “it makes perfect sense for the
Legislature to have allowed the private entity to ‘review’ this evidence [generated
by the red light camera program] to ensure that it is usable.” Jimenez therefore
essentially conceded that the term “review” as used in the statutes, connotes not
just viewing, but also some modicum of assessment. To be sure, it is hard to deny
that the legal term “review” indicates some level of evaluation: the Florida
Constitution, after all, uses the term “review” when establishing the jurisdiction of
the Supreme Court and district courts. Art. V, §§ 3(b) & 4(b).
Nevertheless, behind the statutory term “review” is the principle of law that
a city’s legislative body cannot delegate its legislative function by investing
unbridled discretion in an administrative agency, government official, or private
party. See, e.g, Arem, 154 So. 3d 359; Cty. of Volusia v. City of Deltona, 925 So.
2d 340, 345 (Fla. 5th DCA 2006); City of Belleview v. Belleview Fire Fighters,
Inc., 367 So. 2d 1086, 1088 (Fla. 1st DCA 1979); Amara v. Town of Daytona
Beach Shores, 181 So. 2d 722, 724 (Fla. 1st DCA 1966) (“Licensing ordinances
must prescribe definite rules and conditions which the applicant shall meet and
appraisals produced by outside firms are not binding upon the property appraiser
but may serve as a guide.”).
15
may not leave the determination of the applicant’s fitness or suitability to the
undirected and uncontrolled discretion of even the licensing authority.”).
At the same time, a government entity can outsource services and use private
vendors, provided the essential decisions regarding the exercise of government
power are retained by the government or controlled by that body through the
promulgation of standards that prevent the private party from having unfettered
discretion in the exercise of governmental power. See St. Johns Cty. v. N.E. Fla.
Builders Ass’n, Inc., 583 So. 2d 635, 642 (Fla. 1991) (upholding a county impact
fee for school infrastructure that authorized the School Board to spend the fees
collected “because the fundamental policy decisions have been made by the
county, and the discretion of the school board has been sufficiently limited”); Cty.
Collection Servs., Inc. v. Charnock, 789 So. 2d 1109, 1112 (Fla. 4th DCA 2001)
(upholding a contract in which a county hired a private entity to collect code
enforcement liens because the private entity was not given unfettered discretion).
See generally Citizens of State of Fla. v. Wilson, 567 So. 2d 889, 892 (Fla. 1990)
(upholding a delegation of the authority to grant a rate increase to its staff because
“[t]he Commission specified the conditions for approval, and the staff merely
carried out the ministerial task of seeing whether these conditions were met”).
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
16
reflects that the type of evaluation exercised in the Vendor’s decisions is clerical
and ministerial. When sorting images into the working and non-working databases,
the Vendor separates the images that are usable because they contain certain easy-
to-ascertain information, from those that are not usable because they fail to contain
that information. For example, the Vendor exercises no unfettered discretion when
it determines the camera misfired, the traffic light in the image displays green, or
the vehicle license plate number in the image is illegible.
Nor is unfettered discretion involved when the Vendor sorts images under
the main guideline, guideline 4.1.3 This guideline requires the Vendor to identify
images in which the vehicle’s front tires are behind (have not reached) the painted
stop line and the light displays red. Whether a photograph shows that the front tires
have reached a line painted on the pavement is a purely ministerial observation. In
the overwhelming majority of the cases, the answer is a simple yes or no. In the
few instances where there might be a close call, for example, where the front tires
are barely touching, on, or over the painted line, guideline 4.2 further eliminates
any discretion by directing that those images must always be placed in the working
database for police review. Moreover, this guideline, like the others, is interpreted
3 We note that although Jimenez’s violation squarely falls under guideline 4.5,
which deals with right turns on red at intersections marked no-turns-on-red by
giving the address of those intersections, he challenges the validity of the City’s
entire red light camera program and all guidelines. As no party raised the issue of
whether Jimenez has standing to challenge the other guidelines, we do not address
this issue.
17
under the principle, “when in doubt, send it out.” In other words, if there is any
doubt, the Vendor will send it to the police for review. We find no unfettered
discretion in the Vendor’s sorting in this regard.
Similarly, it is hard to imagine a more ministerial act than deciding whether
a traffic light in a photograph is displaying red. Determining whether a picture of a
traffic light shows red involves no discretionary judgment. The answer is either
yes, the traffic light in the photograph is displaying red, or no, the traffic light in
the image is not displaying red. In the few instances where there might be close
calls, involving traffic lights with strobes or incandescent bulbs, guidelines 4.6 and
4.7 require those events always to be placed in the working database for police
review. Again, the Vendor’s decision involves no exercise of unfettered discretion.
Guideline 4.4 governing right turns on red also directs the Vendor to sort
into the working database for police review images demonstrating the following
events: (1) traffic light displays red; (2) vehicle turns right without stopping; and
(3) speed over 15 mph. Determining speed involves no judgment because the
Vendor merely documents the figure recorded on a sensor in the pavement. The
task of following these bright-line instructions involves no unfettered discretion.
Jimenez contends that unfettered discretion is involved in guideline 4.3,
which concerns the “B” shot for vehicles allegedly running a red light while
turning left and towing a trailer. The first part of guideline 4.3 is straightforward.
18
The City directs the Vendor to place into the working database only events where
the “B” shot shows the entire vehicle crossed the painted stop line. That decision
involves no unfettered discretion.
But the City also created an exception for vehicles pulling trailers. In this
situation, even if the “B” shot does not show the entire trailer over the painted stop
line, the City directed the Vendor to process the plates (which means obtain
identification from the Department of Motor Vehicles) and place the event in the
working database for police review “if the video supports violation.” Taken out of
context, this language might appear to give the Vendor the authority to decide
whether a violation occurred. Understood in context, however, this language does
no such thing. A supervisor of the Vendor testified that this language means that
the event is to be placed in the working database, if the video shows the entire
vehicle, including the trailer, crosses the painted line on the pavement and
proceeds through the intersection. We find no unfettered discretion in an
evaluation of a video to determine if such an easily observable event occurred.
Jimenez also contends unfettered discretion is involved in guideline 4.7,
which concerns vehicles running the red light and turning left in the circumstances
where no video clip exists. This guideline requires the Vendor to place the event in
the working database “if the A-shot and the B-shot provide sufficient evidence of
the violation.” Again, taken out of context, this language might appear to give the
19
Vendor the authority to decide whether a violation occurred. Understood in
context, however, this language does not do so. The sergeant in charge of City’s
program testified that “sufficient evidence of a violation” refers to whether
guidelines 4.1 and 4.2 are met. He testified this means “the A-shot was before the
stop bar and in the B-shot is already passed through the intersection.” The
determination whether the images reflect these characteristics involves no
discretion. Moreover, the sergeant testified that he had never encountered a
situation where this exception would apply because he had never seen an event
where the video failed.
Nine of the remaining guidelines concern certain easy-to-recognize
scenarios, for example, events involving police, fire, emergency, and municipal
vehicles. The guidelines direct the Vendor to always sort these images into the
working database for police review. Clearly, there is no unfettered discretion in
guidelines that require the Vendor to always sort these scenarios into the working
database.
Moreover, a representative of the Vendor involved in applying these
guidelines testified that the Vendor’s employees do not exercise discretion. They
simply follow the instructions as established by the guidelines. They are taught
“when in doubt, send it out,” meaning if there is any question, they put the images
in the working database for the police to review and decide. Regarding any near or
20
close calls, the representative testified, “We don’t make those determinations.
We’re just going to send it to the police.” Similarly, any images involving
situations not addressed by the guidelines are always put in the working database
for police review.
Not only do the bright-line standards promulgated by the City ensure the
Vendor’s tasks regarding images are purely ministerial and non-discretionary in
nature, but the record reflects that no notice or citation is issued unless and until an
individual officer of the City weighs the evidence in the images and determines in
his or her professional judgment that probable cause exists. The officers make
these decisions in the same manner they decide to issue a roadside citation.
The police officers assigned to red light camera enforcement access the
working data base by logging into the server using their own unique user
identification and password. If, after reviewing the photographs, video, and other
information, the officer decides to issue a citation, the officer clicks the “accept”
button on the screen. By doing so, the officer authorizes his or her electronic
signature and badge number to appear on the notice and citation. The officer’s
review and determination in this regard are far from a mere rubber stamp. As the
trial court expressly found, “[o]f the images reviewed by the City’s police officers,
only between sixty-five percent (65%) and seventy percent (70%) are approved as
a violation.” Officer Castro’s testimony of the manner in which she evaluated
21
Jimenez’s video and found probable cause dovetailed precisely with the other
evidence presented in this regard.
In making his arguments, Jimenez places primary reliance on the Fourth
District’s decision in Arem. In Arem, the court announced the principle of law that
a city’s red light program violates the statutory provision that allows the city to use
“agents” to “review” the information generated by the red light traffic program
“before issuance of the traffic citation by the traffic infraction enforcement officer”
if the vendor is given unfettered discretion to determine who will receive citations.
154 So. 3d at 364-65. We agree with the Fourth District’s statement of the
controlling principle of law.
In Arem, the Fourth District applied this principle to quash a citation issued
by the City of Hollywood expressly because, under the facts of that case, the
Vendor was given such unfettered discretion. While the vendor in Arem was the
same one involved in the instant case, any similarity between the facts of the two
cases ends there. In particular, Arem is distinguished from the instant case because
there was a different contract, there were no standards or guidelines promulgated
by the municipality, the Vendor determined probable cause, and the City officer
merely acquiesced in the Vendor’s determination.
Different Contract. The contract in Arem gave the Vendor broad discretion
to “make the initial determination that the image meets the requirements of the
22
Ordinance and this Agreement.” Id. at 365. The court in Arem expressly relied
upon this contract language when it held the Vendor was making decisions “in its
sole discretion.” Id. In fact, the ultimate holding in Arem is that the “process set
forth in the contract between the City and [the Vendor] does not comply with
Florida Statutes.” Id.
In contrast, unlike the contract language analyzed in Arem, the governing
contract here strictly limits the Vendor only to “an initial determination of whether
the recorded images should be forwarded to an Authorized Employee to determine
whether an infraction has occurred.” The contract in this case expressly provides
that the police officer, and only the police officer, determines probable cause:
THE DECISION TO ISSUE A NOTICE OF VIOLATION SHALL
BE THE SOLE, UNILATERAL AND EXCLUSIVE DECISION OF
THE AUTHORIZED EMPLOYEE AND SHALL BE MADE IN
SUCH AUTHORIZED EMPLOYEE’S SOLE DISCRETION (A
“NOTICE OF VIOLATION DECISION”), AND IN NO EVENT
SHALL VENDOR HAVE THE ABILITY OR AUTHORIZATION
TO MAKE A NOTICE OF VIOLATION DECISION.
No Standards. In the Fourth District’s Arem opinion, there is a total
absence of any consideration of guidelines promulgated by the City. In contrast,
the record in this case includes guidelines and extensive testimony regarding how
the specific City-established guidelines cabin the Vendor’s tasks and limit the
Vendor to purely ministerial, non-discretionary decisions.
23
Vendor’s Sole Discretion. According to the Fourth District’s opinion, the
facts in Arem reflected that “the vendor unilaterally determines in its own
discretion that either a violation did not occur or that the City would not be able to
sustain its burden of proof.” Id. at 365 n.2. The Fourth District repeatedly noted
that, in the record before it, the Vendor not only had the authority to make the
decision whether a violation occurred but that the Vendor had the authority to do
so “unilaterally,” based on “unfettered discretion,” “its own discretion,” and “in its
sole discretion.” Id. at 365.
In contrast, in the instant case, the Vendor was prohibited from deciding
whether a violation had occurred. Instead, the Vendor here was limited to
identifying whether the image contained specific and easy-to-identify features,
such as a red traffic light and front tires behind (meaning not having reached) a
painted line on the pavement, or whether a video shows that a vehicle pulling a
trailer had traveled through the intersection. Moreover, the Vendor in this case
operated under a protocol to sort into the working database any scenarios that were
unclear (“when in doubt, send it out”) and any scenarios not expressly addressed in
the guidelines. Thus, unlike the Vendor’s decisions in Arem which involved
“unfettered discretion” to decide whether a violation occurred, the Vendor’s
decisions here were ministerial and non-discretionary. As the trial court found, “the
24
sole, unilateral, and unfettered decision making found unacceptable in Arem does
not exist in this case.”
Officer “Merely Acquiesces.” Most importantly, in Arem, the police
officer did not conduct an independent review of whether probable cause existed to
issue a citation. Instead, as the Fourth District expressly determined, the officer
“merely acquiesces in the vendor’s decision to issue the citation.” Id. at 365. In
contrast, in the instant case, the Vendor has no authority to decide that a citation
will issue. Only the police officer, whose name and badge number appears on the
citation, decides if probable cause exists and if a notice and citation issues. This
decision is reached in the same manner that the police officer decides to issue a
roadside ticket. Unlike the officers in Arem, the officers in the instant case clearly
do not “merely acquiesce[] in the vendor’s decision to issue a citation.” To the
contrary, and as the trial court found below, “[o]f the images reviewed by the
City’s police officers, only between sixty-five percent (65%) and seventy percent
(70%) are approved as a violation.”
In summary, we agree Arem was properly decided given the record as
reflected in the Arem opinion. Because of the vastly different record in this case,
however, we find Arem clearly distinguishable. For all the reasons discussed
above, we answer the first certified question in the affirmative.
B. Certified Question Number 2: the Vendor’s Printing and Mailing of
Notices and Citations.
25
The trial court’s second certified question reads:
If the vendor is permitted to review and then forward images in
accordance with a municipality’s written guidelines, is it an illegal
delegation of police power for the vendor to print and mail the
[citation], through a totally automated process without human
involvement, after the law enforcement officer has affirmatively made
a probable cause determination and authorizes the prosecution of the
violation by selecting the “accept” button?
Jimenez argues that the statutory language requiring the “issuance” of the
notice and citation by an “officer” signifies that the officer who makes the probable
cause decision must also print and mail the citation. § 316.0083(1)(a), Fla. Stat.
Taken to its logical extreme, Jimenez’s argument would require the officer to affix
the stamps, seal the envelopes, and drop the items in the mailbox. The trial court
rejected Jimenez’s argument in this regard. In doing so, it found that, once the
officer decides the citation will issue, “a fully automated computer program is
triggered to print and mail the [notice and citation] based on the owner’s failure to
elect any of the options under the time frame contained in the statute. [The Vendor]
only acts as an electronic apparatus to print and mail [the notice and citation].”
We agree with the trial court. Jimenez’s argument conflates the non-
delegable discretionary power to make the decision to issue the citation with the
delegable clerical and ministerial task of delivering the citation. By way of
analogy, the Florida Constitution similarly authorizes individual justices of the
Florida Supreme Court, judges of the district courts, and judges of the circuit
26
courts to “issue” writs of habeas corpus. Art. V, §§ 3(b), 4(b), 5(b). Surely, an
otherwise lawful writ would not be rendered unlawful because the issuing jurist did
not personally print, seal, and mail the envelopes used to deliver the writ. Nor does
the law require the writ to be delivered by a person under the immediate
supervision or employ of the judge. See Fla. Bar v. Abreu, 833 So. 2d 752, 753
(Fla. 2002) (noting with approval that the Florida Supreme Court’s order to show
cause was served by a private process server). Likewise, we see nothing in the
statutory language mandating that a sworn police officer, with years of specialized
law enforcement training, must perform or directly supervise such clerical tasks.
Thus, we answer the second certified question in the negative. The statutory
language providing that only an officer can issue a citation means that only an
officer can make the discretionary decision that probable cause exists and the
citation issues. Once that discretionary decision is made, nothing in the statutory
language prohibits the police from delegating the clerical and ministerial task of
delivering the notice and citation to administrative staff, independent contractors,
or private vendors. See, e.g., Abreu, 833 So. 2d at 753.
C. Certified Question Number 3: Use of the Vendor’s Server to Provide
an Electronic Copy to the Clerk.
The third question certified by the trial court reads as follows:
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 Florida Statute
27
§316.650(3)(c) when it is the law enforcement officer who
affirmatively authorizes the transmission process by selecting the
“accept” button?
Jimenez contends that the language in the controlling statute stating that the
“officer shall provide by electronic transmission a replica of the traffic citation date
to the court having jurisdiction” means that the officer cannot use the clerical and
ministerial services of the Vendor to provide the electronic copy to the Court. The
trial court rejected this argument: “This Court finds that the process by which red
light camera E-citations are transmitted is no different than how other E-citations
are transmitted when an officer issues the [citation] roadside . . . therefore, the fact
that the computer program that actually sends the data is that of a vendor does not
violate the statute.” Again, we agree with the trial court.
We see nothing in the statutory language indicating any legislative intent to
bar law enforcement from using third-party software and servers to accomplish
these ministerial and clerical tasks. See generally Frazier v. State, 180 So. 3d 1067
(Fla. 5th DCA 2015) (recognizing the legality of the police making use of third
party vendor software to aggregate public information when the same task could
otherwise be performed manually by law enforcement, albeit at a slower and less
efficient pace). 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.
We therefore answer the question in the negative.
28
CERTIFICATION OF GREAT PUBLIC IMPORTANCE
Because the lawful use of cameras to enforce red lights has attracted the
attention of the public, local governments, and the Legislature, we certify the
following issues, which we have answered in this opinion, pursuant to Article V,
section 3(b)(4) of the Florida Constitution as having great public importance:
1. Does the review of red light camera images authorized by section
316.0083(1)(a), Florida Statutes (2014), 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?
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 section
316.650(3)(c), Florida Statutes (2014), when it is the law
enforcement officer who affirmatively authorizes the transmission
process?
Affirmed in part; reversed in part; questions of great public importance
certified; and remanded for further proceedings consistent with this opinion.
EMAS, J., concurs.
29
State of Florida, by and through the City of Aventura, et. al.,
v. Luis Torres Jimenez
Case Nos. 3D15-2303 & 3D15-2271
WELLS, Judge, (specially concurring).
I agree with the majority that the first of the three certified questions must be
answered in the affirmative and the remaining two questions must be answered in
the negative. I do so for the following reasons.
First, section 316.0083 of the Florida Statutes authorizes, and provides basic
procedures for local governments to utilize automated devices, that is, computer
operated cameras, to enforce laws regulating conduct at traffic lights. See §
316.0083, Fla. Stat. (2010) (authorizing use of cameras to enforce traffic light
violations; providing for notice of violations to be sent to vehicle owners;
providing for exemptions from liability; providing for challenges to purported
violations at an administrative hearing; and providing for appeals from adverse
administrative hearing determinations). As pertinent here, this law expressly
authorizes law enforcement agencies responsible for enforcing traffic laws to
30
utilize agents to screen images secured by automated devices before issuance of a
traffic violation citation by a traffic infraction enforcement officer:
For purposes of administering this section, the department, a
county, or a municipality may authorize a traffic infraction
enforcement officer under s. 316.640 to issue a traffic citation for a
violation of s. 316.074(1) or 316.075(1)(c)1. . . . This paragraph does
not prohibit a review of information from a traffic infraction detector
by an authorized employee or agent of the department, a county, or a
municipality before issuance of the traffic citation by the traffic
infraction enforcement officer.
§ 316.0083(1)(a), Fla. Stat. (2015). 4
In keeping with this provision, in 2010, Aventura amended its contract with
American Traffic Solutions, Inc., the agent selected to operate Aventura’s
computerized red-light camera system. That contract as amended accorded
American the limited authority to screen images of vehicles taken at designated
intersections in the city:
[American] shall act as City’s agent for the limited purpose of making
an initial determination of whether the recorded images should be
forwarded to an authorized [City] employee to determine whether an
infraction has occurred and shall not forward for processing those
4 See also § 316.074(1), Fla. Stat. (2105) (requiring drivers to obey the instructions
of any official traffic control device unless directed otherwise by a police officer);
§ 316.075(1), Fla. Stat. (2015) (requiring drivers generally to obey traffic control
devices “exhibiting different colored lights”); § 316.640(3), Fla. Stat. (2015)
(providing for traffic laws to be enforced in municipalities by local police and
sheriff’s department officers); § 316.640(5)(a), Fla. Stat. (2015) (expressly
authorizing municipal law enforcement agencies to employ “any individual who
successfully completes instruction in traffic enforcement procedures and court
presentation” to issue citations for traffic law infractions).
31
recorded images that clearly fail to establish the occurrence of an
infraction.
In conjunction with this agreement, Aventura adopted a number of guidelines
pursuant to which American was to screen images as authorized by the
Aventura/American contract.
With regard to the screening of images that might show a vehicle running a
red light for example, the guidelines promulgated by Aventura generally require
American to screen images of vehicles at electronically monitored intersections by
examining images of vehicles’ tires in relationship to lines demarking an
intersection. Specifically, under Aventura’s guidelines, American screeners are to
examine still images taken after a traffic light has turned red (“shot A”) which
depict the position of a vehicle’s front tires. If that image shows a vehicle’s front
tires either on or slightly over the line demarking an intersection, a video clip of
the same vehicle is examined to confirm that the front tires were either on or
slightly over the demarcation line when the light turned red. If so, American is not
to pass on the images to a traffic infraction enforcement officer as there is no
photographic support for the conclusion an infraction has occurred. However, if
video clip shows that the tires were behind the line when the light turned red, the
images are to be passed on to a traffic infraction enforcement officer to determine
whether a traffic infraction had occurred.5
5 This is but one example of the guidelines adopted by Aventura to address
32
In my opinion, this constitutes no more than the “screening” expressly
authorized by the law. That is especially so here because the testimony was that
Aventura’s traffic infraction enforcement officers do not simply rubber stamp
recommendations or determinations made by American. To the contrary, the
record is that Aventura’s traffic infraction enforcement officers historically have
determined that only sixty-five percent of the images forwarded by American
evidence an infraction warranting issuance of a traffic citation. For this reason
alone, I reject the notion advanced by our sister court in City of Hollywood v.
Arem, 154 So. 3d 359 (Fla. 4th DCA 2014), that by allowing a servicing agent to
forward pre-screened images to a traffic infraction enforcement officer that the
servicing agent “[f]or all practical purposes” determines who is subject to
prosecution for a red light violation.
The record in this case establishes that at most the servicing agent has been
accorded only the ministerial authority to screen and cull those images which,
pursuant to a rigid set of guidelines, clearly show no possible violation of the
traffic laws; it is the traffic infraction officer alone who determines from the
population of possible violators, those who will be subject to prosecution. This, in
my opinion, is neither a violation of the law nor a matter about which those cited
screening procedures with regard to a number of other potential traffic violations.
By way of example only, Aventura has adopted guidelines for screening images of
long vehicles and vehicles towing trailers and for screening images of vehicles
making right turns on red.
33
for a violation have authority to complain. Put another way, the real issue here is
that some individuals who may have violated traffic regulations may be screened
out of the process because the images of their vehicles were not sent to a traffic
infraction enforcement officer to determine if a violation has occurred. This
argument is no different than that made by an individual issued a speeding ticket
who complains that other speeders also were not ticketed. In short, the fact that
American determines certain images will not be forwarded—i.e., that some drivers
will not be ticketed—because images taken of their vehicles show that they have
not exceeded set guidelines, does not amount to determining whether those drivers
who potentially exceed those guidelines have violated the law. That determination,
as the record before us confirms, is left solely to traffic infraction enforcement
officers. I therefore agree with the majority that the answer to the first certified
question is “yes.”
I also agree with the majority that in today’s computerized world, the
answers to the second and third certified questions as to whether it is illegal for
American to print and mail a citation issued by a traffic infraction enforcement
officer, clearly is “no.” Pursuant to Aventura’s guidelines, after a traffic infraction
enforcement officer receives images from American, the officer independently
reviews the images to determine whether an infraction has occurred. If the officer
determines that the image depicts an infraction, the officer electronically indicates
34
that he or she accepts that an infraction has occurred and electronically issues the
notice of infraction by authorizing American to send a notice of violation bearing
the officer’s badge number and signature. American then uses a form approved by
the State of Florida. The clerk of the court is also notified electronically by
American or one of its subsidiaries or vendors. As the testimony adduced below
confirms, this is little different from what happens when an officer issues a
violation roadside:
Q. So can you explain how that information is sent
electronically, if you know?
A. It is sent electronically to [the clerk’s office].
Q. Is that any different than any other electronic citation
information that might be sent from roadside?
A. In the instance when it is sent from my computer roadside,
it would go through my station’s server and then to Miami-Dade
Clerk of Courts.
In the instance of these violations they – this officer approves
them, the server – [American’s] server in Arizona provides that
information to the Miami-Dade Clerk of Courts.
In my opinion, to conclude that such ministerial acts are unauthorized by
section 316.0083 would be akin to determining that a trial judge has no authority to
instruct a judicial assistant to prepare a computerized order which the judge
electronically signs and issues electronically to the parties and the clerk’s office.
Needless to say, this court determines and electronically transmits many matters
35
each day. It is the judges who decide the cases and issue their opinions, however it
is the clerk’s office which electronically sends those decisions on to the
appropriate parties.
I also find no violation of section 316.0083 when American electronically
“issues” a uniform traffic citation (as expressly authorized by Aventura with
automatic notification to the court) when the owner of a vehicle fails to respond to
a traffic citation as required by law. See § 316.0083(1)(b)1.a., Fla. Stat. (2015)
(providing that “to avoid the issuance of a traffic citation,” a vehicle owner notified
of a violation must either pay a penalty, submit an affidavit, or request a hearing
within 60 days of notification as provided in section 316.0083). Again, and at best,
this is a non-discretionary function which takes no more than a computer program
to perform.
In conclusion, because I agree that the first certified question as to whether
section 316.0083 allows a municipality vendor to segregate images for forwarding
to traffic infraction enforcement officers should be answered in the affirmative,
and because I agree that the second and third certified questions about utilizing
automated processes should be answered in the negative, I agree that the order
entered below must be reversed. I would not, however, certify this matter to the
Florida Supreme Court as a matter of exceptional importance as I do not believe
36
this matter is of such import as to warrant further review, but would certify this
decision as being in express and direct conflict with Arem.
37