WALLACE, Judge.
This case is before us for review of an order of the Pinellas County Court dismissing a citation for a red light camera violation. The primary issue that we are called upon to decide is whether a city has the authority under the Mark Wandall Traffic Safety Act
The City of Oldsmar (the City) and the Attorney General challenge the county court's order granting Tammy Vo Trinh's motion to dismiss a red light camera citation and certifying two questions of great public importance under section 34.017, Florida Statutes (2015), and Florida Rule of Appellate Procedure 9.160.
This court accepted jurisdiction from the county court in this matter.
We answer the first certified question in the affirmative and the second certified question in the negative. We also disagree with the Fourth District's decision in Arem to the extent it conflicts with our decision, and we certify conflict with Arem. Accordingly, we reverse the order dismissing Ms. Trinh's red light camera citation, remand for further proceedings, and certify conflict with Arem.
Effective July 1, 2010, the Florida legislature enacted the Mark Wandall Traffic Safety Act of the Florida Uniform Traffic Control Law. Ch. 2010-80, §§ 1-18 at 552-65, Laws of Fla.
"The [Act] expressly preempt[s] to the State the regulation of the use of cameras to enforce the provisions of chapter 316," and "[i]t authorize[s] the Department of Highway Safety and Motor Vehicles, counties, and municipalities to use cameras to enforce violations of sections 316.074(1) and 316.075(1)(c), Florida Statutes, for a driver's failure to stop at a red light traffic signal." City of Fort Lauderdale v. Dhar, 185 So.3d 1232, 1235 (Fla.2016)
The Act provides further, in pertinent part, as follows:
§ 316.0083 (emphasis added). A "traffic infraction detector" is defined as follows:
§ 316.003(87). In addition, a city
§ 316.640(5)(a) (emphasis added).
The parties stipulated that the City had entered into a contract with American Traffic Solutions, Inc. (ATS), to provide the City with camera equipment that records evidence of possible red light violations. ATS also provides the City with a software system, Axsis, to process the data that has been recorded and sent to the City for review. A copy of the Professional Services Agreement and an Amendment to Professional Services Agreement were entered into evidence at the hearing on Ms. Trinh's motion to dismiss and considered by the trial court. In addition, a copy of the Red Light & Speed Camera — Business Rules Questionnaire (BRQ) that was completed by the City for ATS was entered into evidence and considered by the trial court in rendering its decision. The City and ATS executed the contract in December 2011, after the effective date of the Act. They executed the amendment in July 2013.
The contract provides in pertinent part as follows:
. . . .
. . . .
(Underlined emphasis added.)
At the hearing on Ms. Trinh's motion to dismiss, Debbie Duff, a senior manager for operations at ATS, explained how the system works and how the parties perform under the contract. According to Ms. Duff, ATS's equipment records two still photographs and a video of each event. The first still photograph, the "A-shot," shows a vehicle behind the stop line while the light is red, and the second photograph, the "B-shot," shows the vehicle in the intersection while the light is red. The photographs also have a data bar that includes the time of day, the location, the speed of the vehicle, and "the red time of the light."
Before sending any data to the City, an ATS processor reviews the recordings using the Axsis software and ensures that the three recordings are of the same vehicle and that the vehicle's license plate was captured. The processor cannot alter the video, but the processor can zoom in or out of the photographs or lighten them. The processor reviews each event "according to the City['s] rules" and "then determine[s]... how [to] categorize them, to pass them to the [City] or to put them into a — different type of categor[y] based on what the rules state for them to do."
According to Ms. Duff, the City's business rules direct the processors about what information the City wants and how to sort the information into queues, including a working queue and a nonworking queue. Ms. Duff described this function as "administrative." She stated that the processors do not make any probable cause determination or recommendation about whether a notice of violation or a citation should issue for an event. In addition, the processors are trained that if they are ever in doubt about how to apply a business rule to an event, they should pass the event on for review by the City, i.e., to put the data into the working
Each city that contracts with ATS establishes its own business rules for ATS to follow. For example, the City's business rule 4.1 defines a red light violation as occurring when a vehicle passes under a red light and the A-shot shows the vehicle's tires behind the stop line when the light is red. Among other things, the City's rules further direct processors to pass for review, or to place into the working queue, any event in which a video clip shows that the front tires of the vehicle are on or slightly over the stop line when the light turns red. Videos that record emergency vehicles passing through a red light with their lights on should be rejected, meaning that they are placed into the nonworking queue. Similarly, videos that show a flagman waving a vehicle through a red light or a funeral procession passing through a red light should be rejected. Processors receive one week of training followed by eight weeks of one-on-one review of their work. Thereafter, ATS audits each processor thirty times per week to ensure compliance with the City's business rules.
Ms. Trinh's counsel questioned Ms. Duff about the fact that ATS's contract with the City does not specifically incorporate the City's business rules. Ms. Duff relied upon two provisions of the contract in asserting that the business rules were part of the parties' contract. In the definition section of the contract, "Project Business Process Work Flow" is defined to "mean[] initial schedules and timelines required to begin the implementation of City's project." Then, under exhibit B to the contract setting out ATS's scope of work concerning implementation, the contract provides at paragraph 1.2.8 that "
Defense counsel also questioned Ms. Duff about implementing the City's business rules and suggested that processors must exercise some discretion in determining whether a business rule has been met. Ms. Duff repeated that if there were any question about how a rule applied in a particular circumstance, processors, are trained, "[w]hen in doubt, send it out," meaning that the data should be placed into the working queue for review by the City.
Defense counsel also established that the meaning of the language in some business rules may be subject to interpretation. For example, the City's business rule 6.3 states that when an event involves an emergency vehicle passing through an intersection on a red light with its lights off, the event should be passed for review. The rule states that "Emergency Vehicles Include[]: Police, Fire & Ambulance." Counsel asked if the rule would apply to a sheriff's vehicle even though "sheriff" did not appear on the list. Ms. Duff replied that she did not consider the list to be exhaustive and stated that she would include a sheriff's vehicle under the category of "Emergency Vehicles." She also explained
After the City receives data from ATS, a Traffic Infraction Enforcement Officer (TIEO) logs into the Axsis system using his or her user ID and password and reviews the events. The TIEO's user ID and password are linked to the TIEO's name and badge number. The TIEO can review the data in both the working queue and in the nonworking queue. The TIEO determines whether probable cause exists to issue a citation for any event. If the TIEO determines that probable cause exists, the TIEO clicks an electronic accept button.
The TIEO's acceptance causes the Axsis software to generate a notice of violation to the registered owner, using the data obtained from the DMV. The registered owner has several options for responding to the notice, including paying a fine or not responding. After the requisite period has passed for the registered owner to act on the notice, the Axsis software creates an electronic uniform traffic citation (UTC) by populating data into a form that the City created. The software also generates an electronic signature for the TIEO who logged into the system and made the probable cause determination, including that TIEO's name and badge number, which is appended to the UTC. The electronic UTC is saved to a portable document format (PDF file) and is electronically transmitted to ATS's third-party print vendor. The print vendor prints and mails the UTC to the address on the UTC and sends an electronic copy to the clerk of the court. Under this procedure, no one can receive a notice of violation or a UTC unless a TIEO first logs into the system and makes a determination of probable cause that a violation has occurred. Stated differently, an ATS processor cannot direct that anyone receive a notice of violation or a UTC.
On April 17, 2014, the red light camera at the intersection of Forest Lakes Boulevard and Tampa Road in Oldsmar recorded a vehicle registered to Ms. Trinh passing through that intersection on a red light. It was undisputed that Ms. Trinh received a notice of violation, after which she did not pay the statutory fine or raise a statutory defense. On July 31, 2014, a UTC was issued to Ms. Trinh for a violation of section 316.075(1)(c)(1) as a result of her vehicle's "failure to stop at a red traffic signal." Deputy Jonathan Lopes signed the citation electronically with his computer-generated signature and badge number.
In March 2015, Ms. Trinh filed a motion to dismiss the citation. She argued that the City had impermissibly delegated its police power by allowing ATS to prescreen traffic infraction data before sending it to the City for review; that the City had improperly delegated to ATS the task of transmitting a replica of the traffic citation data to the clerk of the court; and that the county court was bound under the Fourth District's decision in Arem to dismiss the citation.
At the hearing, the county judge observed correctly that the Fourth District's decision in Arem was binding authority
Defense counsel argued that the contract between ATS and the City in this case was nearly identical to the contract at issue in Arem and that under the terms of the contract, the City had improperly delegated its police power to ATS. Counsel argued that there was no evidence in this case that the TIEO had any involvement in the decision to issue a notice of violation or a UTC other than clicking the accept button on the computer. Counsel further argued that the existence of business rules were irrelevant in determining whether the City had improperly delegated its police authority because the business rules were not, in fact, included in the contract between ATS and the City; the City's business rules required the exercise of discretion by ATS's processors; and the Arem court found the rules under review in that case to be irrelevant to its decision. Finally, counsel argued that the issue was not whether ATS's processors had unfettered discretion under the contract with the City, but rather that the contract permitted the processors to prescreen events to determine whether a violation had occurred. Counsel acknowledged that the Act permits "review" of traffic infraction data before the issuance of a UTC by a TIEO, but argued that the prescreening function performed by ATS's processors is not authorized by the Act.
The trial court entered an order granting Ms. Trinh's motion to dismiss and certifying questions of great public importance. In its order, the trial court made factual findings about ATS's functions under its contract with the City consistent with the testimony of ATS's representative. And although it disagreed with the Arem court's decision, the trial court decided that it was bound by that decision to rule in Ms. Trinh's favor. In so concluding, the trial court observed as follows:
The historical and procedural facts in the Fourth District's decision in Arem are similar to those in this case. As discussed later, there are some differences in the language in the City of Hollywood's contract with ATS and that in the City's contract with ATS in this case. Notably, it appears that the City of Hollywood entered into its contract with ATS either before the effective date of the Act, or, it entered into a contract that used language predating the Act.
As in this case, the City of Hollywood had entered into a contract with ATS for the provision of red light cameras and a computerized system to record images to determine the occurrence of potential red light violations. Under the City of Hollywood's red light camera program, a TIEO would review images forwarded by ATS. If the TIEO clicked a digital accept button, then ATS's computer program printed and mailed a notice of violation to the registered owner. If the registered owner failed to elect an option to avoid issuance of a traffic citation, ATS would then generate a UTC with the computer generated signature of the TIEO and the TIEO's badge number.
Upon his receipt of a UTC for a red light violation detected by and issued under the City of Hollywood's red light camera program with ATS, Eric Arem denied the violation and requested a trial. After hearing the testimony of the TIEO who issued the UTC, the county court found that the City of Hollywood's red light camera program did not comply with sections 316.0083(1)(a) and 316.650(3)(c)
On appeal,
Id. at 361 (emphasis added).
In reaching its conclusion, the Fourth District observed that "[i]n Florida, only law enforcement officers and traffic enforcement officers have the legal authority to issue citations for traffic infractions, which means only law enforcement officers and traffic enforcement officers are entitled to determine who gets prosecuted for a red light violation." Id. at 364. In addition, "[a]lthough the legislature in section 316.0083(1)(a) did permit cities to delegate the review of information obtained from a traffic infraction detector, it did not permit cities to delegate their authority to issue any resulting traffic citations anywhere in these statutes." Id.
Applying these principles to the case before it, the Fourth District noted the county court's finding "that according to the City's standard protocol and in accord with the terms of its contract, ATS first reviews the video-captured images, yet ATS does not furnish them all to the City — only those it deems to be suggestive of a violation." Id. at 364. The district court further observed that the contract between the City of Hollywood and ATS contained the following paragraph:
Id. at 364-65 (alterations in original). Thus, the district court found that
Id. at 365 (footnote omitted).
In concluding that the City of Hollywood had delegated its authority to issue citations for red light violations, the court reasoned as follows:
Id. at 365 (underlined emphasis added). Thus the Fourth District held that the City of Hollywood had "improperly delegated its police powers when it contractually outsourced its statutory obligations to a for-profit, non-governmental corporation" and that "[t]he process set forth in the contract between the City and ATS [did] not comply with Florida Statutes." Id. The court further held that because "the TIEO did not have authority to issue the citation," dismissal of the citation was the proper remedy. Id.
While this matter was pending, the Third District issued its decision in State ex rel. City of Aventura v. Jimenez, ___ So.3d ___, 41 Fla. L. Weekly D1753, 2016 WL 4016645 (Fla. 3d DCA Jul. 27, 2016), which reaches substantially the same result as the one we reach here on the issue of the alleged unauthorized delegation of a municipality's police power to issue citations for red light violations to a private vendor. ATS was also the private vendor that had contracted with the municipality in Jimenez. Id. at ___, at D1753. The Jimenez court noted that the heart of the dispute in the case before it was the "Act's express authorization for local governments to use `agents' to `review' images before the `officer' issues a citation." Id.
In resolving this issue, the Jimenez court reviewed the contract
Ultimately, the court held that the review completed by ATS was authorized under the Act, stating as follows:
Id. at ___, at D1753. In addition, the court certified the following questions of great public importance to the Florida Supreme Court:
Id. at ___, at D1758.
However, the Jimenez court split on the question of whether the Fourth District's decision in Arem was distinguishable on its facts from the case before it. Judge Logue and Judge Emas agreed that the Fourth District reached a correct result "given the record as reflected in the Arem opinion." Id. at ___, at D1757. But they found Arem to be distinguishable based on what they described as the "the vastly different record" in the case before the Third District. Id. On the other hand, Judge Wells would have certified the Third District's decision in Jimenez "as being in express and direct conflict with Arem." Id. at ___, at D1759 (Wells, J., specially concurring).
The legal issues in this case, although stated somewhat differently than in Arem, are substantially the same issues that were addressed in Arem. As in that case, we must determine whether section 316.0083(1)(a) authorized the City to contract with ATS to record and screen data of potential red light violations and then to process and mail a notice of violation and UTC to violators upon authorization by a TIEO.
On appeal, the City and the Attorney General argue that the pertinent facts in Arem can be distinguished from the facts of this case. Similarly, the Jimenez court found that the facts in Arem were distinguishable from the case before it because Arem involved "a different contract, there were no standards or guidelines promulgated by the municipality, the Vendor determined
Although the TIEO who issued the UTC in Arem testified, we note that the county and district courts in Arem apparently did not have the benefit of the testimony of a representative from ATS to explain how the City of Hollywood's red light camera program worked. Instead, it appears that the court's conclusions about ATS's review procedure in actual practice may have been drawn from certain language in the contract before it. The contractual language at issue in Arem provided as follows:
154 So.3d at 364-65 (alterations in original). From this language, the Arem court found:
Id. at 365 (footnote omitted). From these findings and facts about how a UTC is created and transmitted to the vehicle owner and the clerk of the court after the TIEO accepts an event as constituting a violation, the Arem court reasoned:
Id. (underlined emphasis added). Thus, the Arem court concluded that the TIEO "merely acquiesces in the vendor's decision to issue the citation." Id.
We find, however, that the contractual language at issue in Arem is not entirely inconsistent with the review procedure as explained by ATS's representative in this case nor with the existence of business rules, as "standards," which guide ATS's processers in determining how to sort data. Further, in distinguishing the facts in Arem, the Jimenez court found it important that "in Arem, the police officer did not conduct an independent review of whether probable cause existed to issue a citation. Instead, [the Jimenez court observed,] the Fourth District expressly determined, the officer `merely acquiesces in the vendor's decision to issue the citation.'" ___ So.3d at ___, 41 Fla. L. Weekly at D1757 (quoting Arem, 154 So.3d at 365). However, it is not entirely clear that the Arem court actually found as a
One significant difference in the screening process described in Arem and the one in the case before us appears to be that in Arem, screened events may not have been forwarded to the City of Hollywood. Here, the recorded events are placed into working and nonworking queues in accordance with the City's business rules and all of the data is forwarded to the City. However, because the Arem court found that the screening function performed by ATS constituted, "[f]or all practical purposes," a determination of who is subject to prosecution and therefore an unauthorized delegation of police power, we cannot fully distinguish the holding in Arem based upon the differences between the facts in Arem and those in this case. As the county court noted in this case, the Arem court found that the arrangement by which a city permits ATS to screen data of possible red light violations before the data is reviewed by a TIEO was an unauthorized delegation of the police power. The Arem court reached the same conclusion with regard to the arrangement with a city that allowed ATS to send out a notice of violation and UTC upon the TIEO's acceptance of such a screened event as constituting a violation. Even if the Arem court did not review the City of Hollywood's business rules in reaching its decision, it was aware that ATS's processors screened the data to determine "that certain standards [under the contract] ha[d] been met." 154 So.3d at 365. The Arem court found that this prescreening based on such standards was an unauthorized delegation of police power.
We simply disagree with this conclusion in Arem. We conclude that under the arrangement between the City and ATS, the power to determine whether a red light violation has occurred and the ultimate decision to issue a notice of violation and a UTC remains with the City. Thus, there has been no unauthorized delegation of police power. We explain our reasoning below.
The interpretation of a statute is an issue of law that we review de novo. Id. at 362 (citing Kasischke v. State, 991 So.2d 803, 807 (Fla.2008)).
Kasischke, 991 So.2d at 807 (citations omitted) (quoting Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006)). The City's power to punish red light violations through the use of red light cameras is limited to the authority granted under chapter 316, including that under the Act. See Masone v. City of Aventura, 147 So.3d 492, 495-97 (Fla.2014). Certainly, whether the City has the authority to "outsource" that authority must "be derived from the plain wording of the statutes." Arem, 154 So.3d at 363-64. In addition, we have no quarrel with the Arem court's conclusion that "[i]n Florida ... only law enforcement officers and [TIEOs] are entitled to
Undoubtedly, section 316.0083(1)(a) permits "a review of information from a traffic infraction detector by an authorized ... agent of ... a municipality before issuance of the traffic citation by the [TIEO]." And, like the Third District in Jimenez, we conclude that the screening function performed by the ATS processors falls within the "review" permitted by the statute. As noted in Jimenez,
___ So.3d at ___-___, 41 Fla. L. Weekly at D1755-56, see also St. John's Cty. v. Ne. Fla. Builders Ass'n, 583 So.2d 635, 642 (Fla.1991) (holding that a county ordinance imposing an impact fee on new residential construction to be used for new school facilities did not constitute an unauthorized delegation of power from the county to the school board because "the fundamental policy decisions [were] made by the county, and the discretion of the school board [was] sufficiently limited"); Citizens v. Wilson, 567 So.2d 889, 892 (Fla.1990) (holding that the Florida Public Service Commission did not improperly delegate to its staff "the authority to approve [a] revised supplemental service rider" when "the staff merely carried out the ministerial task of seeing whether [the] conditions [specified by the board] were met").
Although ATS processors initially screen the recorded events on behalf of the City, the screening function is circumscribed by the City's business rules. Naturally, the business rules are designed to avoid wasting the TIEO's time in reviewing events that cannot be prosecuted for one reason or another or that the City has determined it does not wish to review for possible red light violations. Here, as in Jimenez, "under the main guideline, guideline 4.1," ATS processors must "identify images in which the vehicle's front tires are behind ... the painted stop line." ___ So.3d at ___, 41 Fla. L. Weekly at D1756. We agree with the Jimenez court that "[w]hether a photograph shows that the front tires have reached a line painted on the pavement is a purely ministerial observation," and usually involves "a simple yes or no" answer. Id. Moreover, to the extent that the City's business rules address when the "front tires are on or slightly over the line of demarcation" in the A-shot, rule 4.2 requires the processor to pass the event for review "as long as there is a video clip which shows the tires were behind the line when the light turned red." Thus the City's business rule 4.2 serves to reduce any discretion in applying rule 4.1. See Jimenez, ___ So.3d at ___, 41 Fla. L. Weekly at D1756 (noting same). Furthermore, the processors' application of the City's business rules is made under the principle, "[w]hen in doubt, send it out," eliminating any discretion in resolving doubt under the rules. Accordingly, we find that the review completed by ATS processors is largely ministerial, and thus does not constitute an exercise of unfettered discretion.
Furthermore, as the county court noted, the TIEO "do[es] not merely `acquiesce' to the whims of the ATS processors." Rather, it is the TIEOs who determine whether a red light violation has occurred, and the evidence reflects that the TIEOs determine that no probable cause exists for approximately fifty percent of the events placed into the working queue. See Jimenez, ___ So.3d at ___, 41 Fla. L. Weekly at D1757 (observing that the TIEOs "do not `merely acquiesce[] in the vendor's decision to issue a citation' .... [when] only between sixty-five percent (65%) and seventy percent (70%) are approved as a violation" (first alteration in original) (quoting Arem, 154 So.3d at 365)). Because the TIEO makes the determination about whether probable cause for a violation exists and whether to issue a notice of violation, no unauthorized delegation of police power has occurred. See State v. State Road Dep't., 173 So.2d 693, 696 (Fla. 1965) (holding that an act creating a board of highway secondary funds trustees to review applications by counties for the financing of road projects and to make recommendations to the road department did not create an unlawful delegation of power because the board acted only in an advisory capacity); Cty. Collection Servs. Inc. v. Charnock, 789 So.2d 1109, 1112 (Fla. 4th DCA 2001) (rejecting the argument that the county's contract with a third party for the enforcement of lot clearing and code enforcement liens and the assignment of such liens to a private party constituted an improper delegation of the county's police power because the contract "retain[ed] in the [c]ounty (1) the power to decide which liens to assign; (2) the power to decide what collection techniques are permissible and to prohibit the use of any technique it finds objectionable; (3) the power to take back any assigned debt or lien; and (4) the power to terminate the contract for any or no reason").
As noted by Judge Wells in her specially concurring opinion in Jimenez:
___ So.3d at ___, 41 Fla. L. Weekly at D1759.
We also approve the county court's ruling that the acts of printing and mailing the notice of violation and the UTC are merely ministerial acts accomplished by the Axsis software. As noted in Jimenez, if the argument that the preparation of and the mailing of the notices and UTCs through ATS's software constitutes their legal "issuance" within the meaning of the statute, then the individual TIEOs would be required "to affix the stamps, seal the envelopes, and drop the items in the mailbox." Id. at ___, at D1757. This is an unreasonable proposition.
ATS cannot accomplish the tasks of preparing and mailing the notices and the UTCs unless a TIEO logs into the ATS system "with his personal log in and badge number, reviews the video, finds probable cause, and authorizes ATS to prepare the notice of violation by clicking `accept.'" The electronic preparation of the notice and the UTC that follows if the vehicle's registered owner does not reply to the notice do not constitute the power to decide whether those documents should issue. Rather, those tasks are merely part of the ministerial process of implementing the TIEO's decision to issue them. Accordingly, the completion of the tasks of preparing and mailing the notice and the UTC upon authorization by the TIEO does not constitute the unauthorized delegation of police power. Cf. Gard v. State, 521 So.2d 369, 370 (Fla. 2d DCA 1988) (rejecting the defendant's argument "that the trial court could not delegate to the prosecutor the task of writing the sentencing order pursuant to findings specifically made by the trial court."); Reid v. State, 673 So.2d 972, 973 (Fla. 1st DCA 1996) (holding that a trial court fulfilled its duties to pronounce sentence and to specify reasons for departure and did not improperly delegate its authority by directing "the prosecutor to perform the clerical task of preparing a written order consonant with the court's decision").
Based upon the foregoing discussion, we answer the first certified question in the affirmative and the second certified question in the negative. Accordingly, we reverse the order dismissing Ms. Trinh's red light camera citation and remand for further proceedings. We also disagree with the Fourth District's decision in Arem to the extent it conflicts with our decision, and we certify conflict with Arem.
Reversed and remanded; conflict certified.
CASANUEVA and CRENSHAW, JJ., concur.
Id. at 360. The Arem court answered "no" to the first question and "yes" to the third question.
