IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA CASE NO. SC CASE NO. SC

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1 Filing # Electronically Filed 07/08/ :04:29 PM RECEIVED, 7/8/ :08:49, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT OF FLORIDA TALLAHASSEE, FLORIDA RICHARD MASONE, Petitioner, -vs- CASE NO. SC CITY OF AVENTURA, Respondent. / CITY OF ORLANDO, Petitioner, -vs- CASE NO. SC MICHAEL UDOWYCHENKO, on behalf of himself and all other persons similarly situated and LASERCRAFT, INC., Respondent. / RESPONSE IN OPPOSITION TO CITY OF AVENTURA S MOTION FOR REHEARING Petitioner, RICHARD MASONE, by and through his undersigned counsel, hereby files this Response in opposition to City of Aventura s Motion for Rehearing, and as grounds therefor would state: 1

2 SUMMARY In these consolidated appeals, this Court ruled that municipalities lacked the legal or constitutional authority to enact their red-light traffic camera ordinances. See Masone v. City of Aventura; City of Orlando v. Udowychenko, Appendix More specifically, this Court held the Legislature had not given their express authority to municipalities to enact an enforcement regime different from that proscribed in provisions in Chapter 316 and 318 (A12). Additionally, this Court held the Legislature failed to give its (again, required) express authority to impose additional fines beyond as provided in , Fla. Stat. (A12). The City of Aventura, but not the City of Orlando, requested Rehearing of this Court s decision. The City of Aventura contends that: (1) the subsequent 2010 state legislation demonstrates pre-2010 municipal ordinance were authorized under state law; (2) these pre-2010 municipal orders necessarily could not have complied with provisions in state law governing Chapter 316 offenses, but this is why the Legislature actually gave its express authority for the City of Aventura s enforcement regime; and (3) this Court should have severed offending provisions, rather than hold the Ordinance is unlawful entirely. Each of the City s arguments is meritless. 1 The other municipality, Respondent, the City of Orlando in City of Orlando v. Udowychenko, did not seek rehearing. For sake of clarity, the undersigned notes that he represents Petitioner, Masone, in Masone v. City of Aventura, and also Respondent, Udowychenko, in City of Orlando v. Udowychenko. 2

3 I. The City of Aventura Continues to Improperly Attach Constitutional Significance to the 2010 Legislation The City of Aventura contends that if its enforcement regime was inherently at odds with the statutory scheme of Chapters 316 and 318, then one would have expected the Legislature, when it enacted the [2010 legislation], to have invalidated all local enforcement schemes and insisted upon compliance with Chapter 318 (Motion for Rehearing, at p. 4). The City of Aventura reaches badly in continuing to try and place importance on the 2010 legislation. The City of Aventura does not try to explain how this Court overlooked or misapprehended anything regarding the analysis of ,.007, and.008 (Motion for Rehearing, at pp. 4-6). Rather, the City of Aventura contends that the Legislature endorsed the vitality of already-existing municipal code enforcement regimes through the passage of the 2010 legislation (Motion for Rehearing, at p. 5). Whether or not the Legislature believed the ordinances already in existence were constitutional or statutorily valid is irrelevant to the judicial branch s assessment of constitutionality or validity. See also Masone IB40-41, This Court explained in its decision that the Legislature had failed to -- before this 2010 legislation -- give its (required) express authority to municipalities to utilize an enforcement regime markedly different from and outside the provisions of Chapters 316 and 318, for the identical driving conduct already enforced within 3

4 those chapters (A7-10, 12). Certainly, the 2010 Legislature could never be the arbiter on whether prior state legislation expressly approved code enforcement regimes, particularly those so markedly different than the enforcement regime within Chapters 316 and 318. II. The Fact the Municipalities Could Not Operate their Code Enforcement Regimes Demonstrates Precisely Why the Ordinances Were Invalid without Express Authority by the State The City of Aventura next contends that since it could not have followed enforcement requirements of Chapter 318, then this must actually mean that the Legislature gave the City express authority to utilize its own code enforcement regime (Motion for Rehearing, at pp. 6-8). This argument was not addressed in the Answer Brief and is accordingly inappropriate to be raised on Rehearing. In any event, the City of Aventura s argument simply demonstrates why its code enforcement regime was invalid. The Legislature had not given municipalities express authority to operate their code enforcement regimes that were so markedly different than already covered in Chapters 316 and 318. The City of Aventura correctly notes that provisions in Chapters 316 and 318 require that a traffic enforcement officer personally observe the commission of the traffic infraction of driving through a steady red traffic light (Motion for Rehearing, at p. 7). In turn, the City of Aventura also correctly notes that its red- 4

5 light camera ordinance allowed tickets to be issued through the use of unmanned cameras. Contrary to the City of Aventura s position, it does not follow that the City of Aventura could therefore avoid compliance with the provisions in Chapters in 316 and Chapter 318. At the heart of this Court s Opinion is that express authority was required, and never given by the Legislature, for the municipal code enforcement regimes. The City of Aventura s statement that its code enforcement regime was incompatible with Chapter 316 and 318 enforcement and punishment provisions is precisely why, inter alia, the ordinances are invalid. The Legislature failed to give the express, required authority for these code enforcement regimes. To take the City of Aventura s example, contemporaneous, personal observation was required under state law, and was still required if municipalities utilized red-light cameras. And, of course, as extensively covered in the Briefs, there are at least seven other ways in which the code enforcement regimes were markedly different -- and incompatible -- with the express authority previously given by the Legislature (Masone IB17-35). The City of Aventura again refers to a 72-year-old case from this Court providing a definition for regulate (Motion for Rehearing, at pp. 7-8). But as this Court explained in its Opinion in the instant case, the Legislature very well knew how to give express authority to municipalities enforce and punish in other 5

6 provisions of , beyond subsection (1)(w) addressing security devices (A10) ( But section (1)(w) is silent with respect to the punishment of violations ). The City of Aventura does not try to address this Court s discussion of this point. Additionally, the City of Aventura s argument is fatally undermined by the fact express authority was needed on any matter covered in Chapters 316 and 318. If the Legislature wanted to give municipalities the ability to establish code enforcement schemes so markedly different, the Legislature had to expressly state so. A seven-decades old definition of regulate is wholly insufficient. III. The Penalty Provision of the City of Aventura s Ordinance is Simply an Additional Reason for this Court s Decision, and Severance Could Not Occur When the Entire Code Enforcement Regime was Invalid Lastly, the City of Aventura argues that this Court should have gone no further than to sever the portion of its Ordinance imposing fines inconsistent with the statutory scheme of Chapters 316 and 318 (Motion for Rehearing, at pp. 8-10). The City of Aventura ignores that the imposition of fines was simply an additional reason why this Court held the municipal ordinances were invalid. Furthermore, severance of the penalty scheme is impossible when the entire code enforcement and punishment regime is invalid. The City of Aventura s fine structure doubled for a second offense from $125 to $250, and for third and all subsequent offenses to $500. Section

7 establishes a baseline fine for all offenses of $125. The City of Aventura apparently believes that this Court s decision to invalidate the traffic camera Ordinances was solely motivated because municipal fines were not uniformly at $125. The City of Orlando has not joined in the City of Aventura s argument (even though its municipal code also has an increased fine scheme, capped at $250.00). Beyond the telling absence of the City of Orlando to this rehearing, there is no indication in this Court s Opinion the result was dependent on the existence of $250 or $500 fines in the Cities of Aventura or Orlando. This Court ruled the code enforcement scheme was invalid in its enforcement and punishment scheme, and additionally held that the Legislature failed to give express authority to impose any fines other than the penalties imposed in chapter 318 (A12). Even in isolation looking at the money amount, severance would be impossible because the City of Aventura s first violation was impermissible. Under state law, accused parties were entitled to have their matters adjudicated by Article V, 1 judges or neutral hearing officers (if the accused waived their right to Article V judges). The judges and neutral hearing officers always had the discretion to reduce the $125 fine (IB27-31; RB1-2). But the City of Aventura hired its own hearing officers to adjudicate, all the while without any discretion to 7

8 reduce the allotted fine. Thus, on the monetary and punishment side alone, the City of Aventura s Ordinance lacked express authority under state law. Moreover, the City of Aventura does not articulate how its penalty scheme could be severed, but yet its code enforcement scheme otherwise saved from scrutiny. This Court s decision, again, was not dependent on the final element of the municipal code, the amount of the fine. Rather, this Court held, inter alia, the Legislature failed to give its express authority for the punishment of conduct that is already subject to punishment under the framework established by chapters 316 and 318 (A9); that local governments had not been given express authority to establish code enforcement regimes for the punishment of specific conduct that is already proscribed and subject to punishment under state law, (A11); that the prohibition and punishment of red light violations had not been expressly authorized (A11); and that municipalities had not been granted the authority to enact an enforcement regime different from the enforcement regime applicable under (4), Fla. Stat. (A12). In short, it is not credible for the City of Aventura to contend that its $250 or $500 fee structure could be severed from its Ordinance. The entire Ordinance as it concerns enforcement and punishment is invalid. Whether it be the absence of 8

9 contemporaneous personal observation, the imposition of strict liability, the elimination of an Article V judge, the elimination of the beyond a reasonable doubt burden of proof requirement under state law, and the other markedly different aspects of these Ordinances, the Legislature had not given its express authority for these Ordinances. In summary, the municipalities before this Court should have followed the lead of the overwhelming number of jurisdictions in this State and waited for legislative intervention. Instead, the municipalities before this Court jumped the gun, and this Court properly held their Ordinances were invalid. CONCLUSION Respectfully, for the reasons stated above, this Court should deny the City of Aventura s Motion for Rehearing. 9

10 I HEREBY CERTIFY that a true copy of the foregoing was furnished to all counsel on the attached service list, by , on July 8, Bret Lusskin, Esq. THE TICKET CRICKET 1001N. Federal Highway, Ste. 106 Hallandale, FL blusskin@theticketcricket.com and Jason D. Weisser, Esq. David M. Kerner, Esq. SCHULER, HALVORSON WEISSER & ZOELLER, P.A Forum Place, Suite 4-D West Palm Beach, FL jweisser@shw-law.com dkerner@shw-law.com and BURLINGTON & ROCKENBACH, P.A. Courthouse Commons/Suite West Railroad Avenue West Palm Beach, FL (561) Attorneys for Masone and Udowychenko aah@flappellatelaw.com jew@flappellatelaw.com By: /s/ Andrew A. Harris ANDREW A. HARRIS Florida Bar No /jw 10

11 SERVICE LIST Masone v. City of Aventura/City of Orlando v. Udowychenko Case Nos. SC and SC Edward G. Guedes, Esq. Michael S. Popok, Esq. John J. Quick, Esq. WEISS SEROTA HELFMAN PASTORIZA COLE & BONISKE, P.L Ponce de Leon Blvd., Ste. 700 Coral Gables, FL Counsel for City of Aventura Alan Rosenthal, Esq. Jack R. Reiter, Esq. CARLTON FIELDS JORDEN BURT, P.A. 100 S.E. Second St., Ste Miami, FL Counsel for Amicus Curiae (Florida League of Cities, Inc., American Traffic Solutions, Inc., and Xerox State & Local Solutions, Inc.) Sam J. Salario, Jr. Esq. Joseph Hagedorn Lang, Jr., Esq. CARLTON FIELDS JORDEN BURT, P.A West Boy Scout Blvd., Ste Tampa, FL Counsel for Amicus Curiae (Florida League of Cities, Inc., American Traffic Solutions, Inc., and Xerox State & Local Solutions, Inc.) 11 Harry Chip Morrison, Jr. Florida League of Cities, Inc. 301 S. Bronough St., Ste. 300 Tallahassee, FL Counsel for Amicus Curiae (Florida League of Cities, Inc., American Traffic Solutions, Inc., and Xerox State & Local Solutions, Inc.) Nancy G. Linnan, Esq. CARLTON FIELDS JORDEN BURT, P.A. 215 South Monroe St., Ste. 500 Tallahassee, FL CFJBLaw.com Counsel for Amicus Curiae (Florida League of Cities, Inc., American Traffic Solutions, Inc., and Xerox State & Local Solutions, Inc.) Erin J. O Leary, Esq. Usher L. Brown, Esq. Anthony Garganese, Esq. BROWN, GARGANESE, WEISS, & D AGRESTA, P.A. P.O. Box 2873 Orlando, FL eoleary@orlandolaw.net ulbrown@orlandolaw.net agarganese@orlandolaw.net taustin@orlandolaw.net Counsel for Amicus Curiae (Cities of Casselberry, Palm Bay, and Palm Coast)

12 David B. King, Esq. Thomas Zehnder, Esq. Vincent Falcone, III, Esq. KING, BLACKWELL, ZEHNDER & WERMUTH, P.A. Post Office Box 1631 Orlando, FL Counsel for City of Orlando Charles T. Wells, Esq. Richard E. Mitchell, Esq. GRAY ROBINSON, P.A. P.O. Box 3068 Orlando, FL Counsel for Lasercraft, Inc. 12