Third District Court of Appeal
State of Florida
Opinion filed February 10, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0986
Lower Tribunal No. 19-10141
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American Towing of Miami, LLC,
Appellant,
vs.
Leonel Espinal,
Appellee.
An Appeal from a non-final order from the Circuit Court for Miami-Dade
County, Spencer Eig, Judge.
Herrera Law Firm, P.A., and Jose-Trelles Herrera, for appellant.
Ayala Law P.A., and Eduardo A. Maura and Luis F. Quesada;
Fulgencio Law, P.L.L.C., and Felipe B. Fulgencio and Courtney A. Umberger
(Tampa), for appellee.
Before LOGUE, LINDSEY, and LOBREE, JJ.
LINDSEY, J.
American Towing of Miami, LLC appeals from a non-final order1
granting class certification in an action for violating section 715.07(2)(a)(9),
Florida Statutes (2020), which prohibits requiring a release from liability for
damages as a condition of vehicle release. We reverse because section
715.07(2)(a)(9) does not create a civil cause of action.
I. BACKGROUND
In July 2018, Leonel Espinal brought an action against American
Towing in the small claims division of the county court alleging improper
towing of his vehicle in violation of section 715.07. In November 2018,
Espinal filed an amended complaint to certify a class against American
Towing for violating section 715.07(2)(a)(9), which provides, in pertinent part,
as follows:
When a vehicle . . . has been towed or removed
pursuant to this section, it must be released to its
owner . . . within 1 hour after requested. Any vehicle
. . . owner . . . has the right to inspect the vehicle . . .
before accepting its return, and no release or waiver
of any kind which would release the person or
firm towing the vehicle . . . from liability for
damages noted by the owner . . . at the time of
the redemption may be required from any vehicle
. . . owner . . . as a condition of release of the
vehicle . . . .
1
We have jurisdiction pursuant to Florida Rule of Appellate Procedure
9.130(a)(3)(C)(vi) (authorizing appeals of non-final orders that determine
“whether to certify a class”).
2
(Emphasis added).
According to the amended complaint, American Towing unlawfully
required Espinal and members of the putative class to sign towing receipts
containing an impermissible release as a condition for the release of their
vehicles. Because the claim for damages in the amended complaint
exceeded the jurisdictional limit of the county court, the case was transferred
to the circuit court, where Espinal filed a motion for class certification.
Following a hearing, the court entered an order granting Espinal’s motion for
class certification. American Towing timely appealed.
II. ANALYSIS
Orders granting class certification are generally reviewed for an abuse
of discretion; however, purely legal determinations are reviewed de novo.
Alderwoods Grp., Inc. v. Garcia,
119 So. 3d 497, 503 (Fla. 3d DCA 2013).
In Mallery v. Norman L. Bush Auto Sales & Services, Inc.,
301 So. 3d 361
(Fla. 2d DCA 2020), the Second District held that a towing company’s
noncompliance with section 715.07(2)(a)(9) does not create a civil cause of
action. Espinal concedes that if we were to affirm the order granting class
certification, we would be in conflict with Mallery. 2 For the reasons that
2
Moreover, this Court has already cited Mallery with approval. See Ives v.
Gettinger, 45 Fla. L. Weekly D2073 (Fla. 3d DCA Sept. 2, 2020).
3
follow, we agree with the statutory interpretation set forth in Mallery and
therefore conclude that class certification was improper as there is no civil
cause of action for violating section 715.07(2)(a)(9). 3
We begin with the text of section 715.07(2), which permits the towing
of vehicles parked on private property and requires substantial compliance
with certain conditions and restrictions:
(2) The owner or lessee of real property, or any
person authorized by the owner or lessee, which
person may be the designated representative of the
condominium association if the real property is a
condominium, may cause any vehicle or vessel
parked on such property without her or his
permission to be removed by a person regularly
engaged in the business of towing vehicles or
vessels, without liability for the costs of removal,
transportation, or storage or damages caused by
such removal, transportation, or storage, under any
of the following circumstances:
(a) The towing or removal of any vehicle or vessel
from private property without the consent of the
registered owner or other legally authorized
person in control of that vehicle or vessel is
subject to substantial compliance with the
following conditions and restrictions:
Applicable here is the restriction on requiring a release from liability for
damages, which is set forth in section 715.07(2)(a)(9). Because the text of
3
Although the issue in Mallery had to do with the failure to comply with the
one-hour return requirement in section 715.07(2)(a)(9), Mallery’s legal
analysis is equally applicable here.
4
the statute does not explicitly provide for a private cause of action, we
consider whether one will be judicially implied. See QBE Ins. Corp. v.
Chalfonte Condo. Apartment Ass’n, Inc.,
94 So. 3d 541, 550 (Fla. 2012).
This a question of legislative intent, which we discern from the actual
language in the statute. Mallery, 301 So. 3d at 364 (citing QBE,
94 So. 3d
at 550-51).
As the court explained in Mallery, a towing company’s violation of
section 715.07(2)(a)(9) is punishable as a third-degree felony. Id.: see also
§ 715.07(5)(b) (“Any person who violates subparagraph . . . (2)(a)9. commits
a felony of the third degree . . . .”). In other words, “the legislature, based on
the plain language of the statute, chose a criminal penalty—a felony for that
matter—to enforce a towing company’s noncompliance with subsection
(a)(9).” Mallery, 301 So. 3d at 364 -65.
Moreover, in the broader context of section 715.07(2)(a), seven of the
conditions and restrictions carry a criminal penalty. See id. at 365 (“[I]f a
towing company violates seven of the requirements arrayed in section
715.07(2)(a), the towing company faces a criminal penalty of either a
second-degree misdemeanor or a third-degree felony.”). However, section
715.07(2)(a)(8), unlike the other subsections, is excluded from criminal
punishment and instead explicitly mandates civil liability for noncompliance.
5
“In other words, by excluding section 715.07(2)(a)(8) from criminal penalty
for violating it, the legislature intended to impose civil liability for
noncompliance with it.” Mallery, 301 So. 3d at 365 (citing Boatright v. Philip
Morris USA Inc.,
218 So. 3d 962, 967 (Fla. 2d DCA 2017) (“Under the
principle of statutory construction, expressio unius est exclusio alterius, the
mention of one thing implies the exclusion of another.”)).
Therefore, because we agree with Mallery and discern no legislative
intent to create a private cause of action from the actual language used in
the statute, which imposes a criminal penalty as opposed to civil liability for
noncompliance with section 715.07(2)(a)(9), we reverse the order granting
class certification.
Reversed and remanded.
6
