IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,

IN AND FOR ORANGE COUNTY, FLORIDA

Case No.: 2016-CV-29-A-O

NOV No.: 0821500476683

STEPHEN VINCENT FACELLA,

Appellant,

v.

ORANGE COUNTY, FLORIDA,

Appellee.

__________________________________/

APPELLEE’S ANSWER BRIEF

GEORGIANA HOLMES

Assistant County Attorney

Florida Bar No. 490393

ANDREA AZUKA ADIBE

Assistant County Attorney

Florida Bar No. 74125

Orange County Attorney’s Office

Orange County Administration Center

201 S. Rosalind Avenue, Third Floor

P.O. Box 1393

Orlando, Florida 32802-1393

Counsel for Orange County, Florida

Filing # 45712573 E-Filed 08/25/2016 07:08:28 PM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ............................................................................................ i

TABLE OF CITATIONS ......................................................................................... ii

ABBREVIATIONS AND CITATIONS ................................................................... 1

I. STATEMENT OF CASE AND OF THE FACTS ............................................. 2

II. SUMMARY OF THE ARGUMENT ............................................................... 13

III. STANDARD OF REVIEW .............................................................................. 13

IV. LEGAL ARGUMENT ...................................................................................... 14

A. APPELLANT WAS AFFORDED PROCEDURAL DUE

PROCESS BY THE LOCAL HEARING OFFICER AT

THE NOV HEARING. ............................................................................. 14

B. THE LOCAL HEARING OFFICER DID NOT DEPART

FROM THE ESSENTIAL REQUIREMENTS OF LAW

PURSUANT TO SECTION 316.0083(5), FLORIDA

STATUTES. ............................................................................................. 22

V. CONCLUSION ................................................................................................. 34

CERTIFICATE OF SERVICE ................................................................................ 36

CERTIFICATE OF COMPLIANCE ....................................................................... 36

ii

TABLE OF CITATIONS

Page

Cases

Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, (Fla. 2003) ..................................30

Barrett v. City of Margate, 743 So. 2d 1160 (Fla. 4th DCA 1999) .........................29

Board of County Commissioners of Pinellas County v. City of Clearwater,

440 So. 2d 497, 499 (Fla. 2nd DCA 1983) ......................................................27

Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 845 (Fla. 2001) ..................27

Bush v. City of Mexico Beach, 71 So. 3d 147, 150 (Fla. 1st DCA 2011) ................16

Carillon Cmty. Residential v. Seminole County, 45 So. 3d 7, 9 (Fla. 5th DCA

2010) .................................................................................................... 14, 15, 24

City of Aventura v. Jimenez, 2016 WL 4016645 (Fla. 3rd DCA 2016) ........... 31, 32

City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982) ........ 13, 22, 29

City of Deland v. Benline Process Color Co., 493 So. 2d 26, 28 (Fla. 5th

DCA 1986) ................................................................................................ 13, 27

City of Hollywood v. Arem, 154 So. 3d 359, 36 (Fla. 4th DCA 2015) 11, 23, 27, 28,

……………………………… .................................... 29, 30, 31, 32, 33, 34, 35

Department of Highway Safety & Motor Vehicles v. Hofer, 5 So. 3d 766, 771

(Fla. 2d DCA 2009) ................................................................................... 18, 24

iii

Department of Highway Safety & Motor Vehicles, v. Allen, 539 So. 2d 20,

21 (Fla. 5th DCA 1989)....................................................................................25

Dept. of Financial Services v. Brank Banking & Trust Co. 40 So. 3d 829,

833 (Fla. 1st DCA 2010) ..................................................................................17

Dept. of Highway Safety and Motor Vehicles v. Stenmark, 941 So. 2d 1247,

1249 (Fla. 2nd DCA 2006) ...............................................................................27

Dumorange v. Florida Unemployment Appeals, 947 So. 2d 472, 475 (Fla. 3d

DCA 2006) .......................................................................................................21

Faretta v. California, 422 U.S. 806 (1975) .............................................................28

Gulf Oil Realty Co. v. Windhover Ass’n, 403 So.2d 476 (Fla. 5th DCA 1981) ......35

Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995) .... 14, 22, 25, 30

Hastings v. City of Orlando (Ninth Judicial Circuit Case No. 2015-CV-

000049-A-O) ......................................................... 11, 23, 24, 27, 29, 30, 33, 34

Homestead Land Group v. City of Homestead, 165 So. 3d. 62, 65 (Fla. 3d

DCA 2015) .......................................................................................................15

Housing Authority of City of Tampa v. Burton, 874 So. 2d 6, 8 (Fla. 2nd

DCA 2004) .......................................................................................................30

Ivey v. Allstate Ins. Co., 774 So. 2d 679 (Fla. 2000) ...............................................30

James v. Crews, 132 So. 3d 896 (Fla. 1st DCA 2014) ............................................29

Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991)..................15

iv

Key Citizens for Responsible Gov’t, Inc., v. Fla. Keys Aqueduct Auth., 795

So. 2d 940, 948 (Fla. 2001) ....................................................................... 15, 20

Kupke v. Orange County, 838 So.2d 598, 599 (Fla. 5th DCA 2003) ......................15

Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So.2d 996 (Fla. 2d

DCA 1993) .......................................................................................................15

Malloy v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 850 So. 2d 578,

581 (Fla. 2d DCA 2003) ...................................................................................30

Seminole Entertainment, Inc. v. City of Casselberry, 811 So.2d 693, 696

(Fla. 5th DCA 2001) .........................................................................................15

State v. Devine, 2015 WL 10943646 (Polk Co. 2015) ............................................31

State v. Langham, 2015 WL 10943644, (Duval Co. 2015) .....................................31

State v. Meador, 2015 WL 10943643 (Polk Co. 2015) ...........................................31

Tamiami Trail Tours, Inc. v. Railroad Commission, 128 Fla. 25 (Fla. 1937) .........35

Verdi v. Metropolitan Dade County, 684 So. 2d 870, 873-874 (Fla. 3d DCA

1996) .................................................................................................................14

Statutes

Chapter 318 ................................................................................................................ 4

Section 162.11 ................................................................................... 6, 12, 13, 14, 32

Section 316.003(87) ................................................................................................... 2

Section 316.003(91) .............................................................................................4, 22

v

Section 316.0083 ............................................................................. 2, 4, 6, 10, 25, 31

Section 316.0083(1)(a) .............................................................................................. 2

Section 316.0083(1)(b)1.a. ....................................................................................3, 4

Section 316.0083(1)(b)1.b. ........................................................................................ 3

section 316.0083(1)(c)1.a. ......................................................................................... 3

Section 316.0083(1)(d)1. ........................................................................................... 3

Section 316.0083(1)(d)1.a. ............................................................................... 16, 23

Section 316.0083(5) .............................................................................. 18, 23, 24, 33

Section 316.0083(5)(b) .............................................................................................. 5

Section 316.0083(5)(c) .............................................................................................. 5

Section 316.0083(5)(d) ................................................................................. 5, 16, 22

Section 316.0083(5)(e) ................................................................................. 5, 13, 22

Section 316.074(1) .................................................................................................2, 6

Section 316.075(1)(c)1...........................................................................................2, 6

Section 316.640(5)(a)................................................................................................. 2

Section 316.650(3)(c)................................................................................................. 4

Section 318.14 ............................................................................................................ 4

Section 318.14(5) .....................................................................................................26

Section 318.18 ..........................................................................................................26

vi

Other Authorities

Art. V, Fla. Const. ....................................................................................................33

Chapter 2010-80, Laws of Florida ............................................................................. 2

Chapter 2013-160, Laws of Florida .......................................................................4, 5

House Bill No. 325 ..................................................................................................... 2

House Bill No. 7125................................................................................................... 4

Rules

Fla. R. App. P. 9.020(a)(3) .......................................................................................14

Fla. R. App. P. 9.030(c) ...........................................................................................22

Fla. R. App. P. 9.030(c)(1)(C) .......................................................................... 13, 14

Fla. R. App. P. 9.030(c)(3) .......................................................................................14

Fla. R. App. P. 9.190 ................................................................................................12

Fla. R. App. P. 9.190(b)(3) ......................................................................................14

Fla. R. App. P. 9.210(a)(2) .......................................................................................36

Fla. R. App. P. 9.210(c) ............................................................................................. 2

Fla. R. Traf. Ct. R. 6.630 ........................................................................................... 4

Regulations

Orange County Code Chapter 35, Article V .............................................................. 5

Orange County Ordinance 2013-17 ........................................................................... 5

vii

Resolution 2013-M-18 ............................................................................................... 5

Section 35-76, Orange County Code .......................................................................22

1

ABBREVIATIONS AND CITATIONS

For clarity and ease of reference, the following abbreviations and citations

will be used:

Abbreviation Description

Act Mark Wandall Traffic Safety Program

Appellant Appellant Stephen Vincent Facella

County Appellee Orange County, Florida

R [page number]. Citation page in the Appendix to the Answer Brief

TIEO Traffic Infraction Enforcement Officer

2

I. STATEMENT OF CASE AND OF THE FACTS

Pursuant to Fla. R. App. P. 9.210(c), and also considering that Appellant’s

Statement of the Case and Facts contains argument, Appellee provides its own

Statement of Case and of the Facts below.

In 2010, House Bill 325 created the Mark Wandall Traffic Safety Program,

or Section 316.0083, Fla. Stat., (2010), which authorized a county or municipality

to use a “traffic infraction enforcement officer” (“TIEO”) to issue traffic citations

for violations of sections 316.074(1) or 316.075(1)(c)1, Fla. Stat. (collectively

herein referred to as a “red light signal violation”). See Ch. 2010-80, Laws of Fla.

Pursuant to section 316.640(5)(a), Fla. Stat., once instructed in traffic enforcement

procedures and court presentation through the Selective Traffic Enforcement

Program, a TIEO is authorized to issue Notices of Violations (“NOVs”) and

Uniform Traffic Citations (“UTCs”) consistent with the act.

Pursuant to sections 316.0083(1)(a) and 316.003(87), Fla. Stat. (2010),

camera-recorded photographic or electronic images or streaming video footage of

an anticipated red light signal violation are captured by an automated computerized

system and electronically transmitted to a certified TIEO to review. The

Legislature anticipated and authorized a “pre-review” of the images and video in

section 316.0083(1)(a), Fla. Stat. (2010), which states “[t]his paragraph does not

prohibit a review of information from a traffic infraction detector by an authorized

3

employee or agent of the department, a county, or a municipality before issuance

of the traffic citation by the traffic infraction enforcement officer.” (Emphasis

added.)

After review of the recorded images and video evidencing a red light signal

violation, the TIEO issues a NOV to the registered owner of the motor vehicle

(“owner”) identified by its state license tag number. § 316.0083(1)(b)1.a., Fla. Stat.

(2010). Upon receipt of the NOV, section 316.0083(1)(b)1.a., Fla. Stat. (2010)

gives the owner the option to (1) pay a penalty of $158.00, (2) furnish an affidavit

establishing non-liability1 to avoid the issuance of a UTC, or (3) of course, the do

nothing at all. Section 316.0083(1)(b)1.b., Fla. Stat. (2010) requires the NOV to

include notice to the owner of the right to review the photographic or electronic

images or streaming video evidence reviewed by the TIEO that constituted the

probable cause that a red light signal violation occurred.

Without an election of one of the remedies specified in the NOV within 30

days, section 316.0083(1)(c)1.a., Fla. Stat. (2010) mandates a UTC be issued to the

1 Section 316.0083(1)(d)1., Fla. Stat. (2010) allows the registered owner cited in an

NOV to furnish an affidavit establishing: (1) the vehicle passed through the

intersection in order to yield right-of-way to an emergency vehicle or as part of a

funeral procession; (2) the vehicle passed through the intersection at the direction

of a law enforcement officer; (3) the vehicle was, at the time of the violation, in the

care custody, or control of another person; or (4) a uniform traffic citation was

issued by a law enforcement officer to the driver of the vehicle for the same

alleged offense.

4

owner for the red light signal violation. Upon issuance of the UTC, section

316.650(3)(c), Fla. Stat. (2010) requires the TIEO to provide an electronic replica

of the UTC to the court having jurisdiction over the alleged offense. Once filed

with the court, and consistent with chapter 318, Fla. Stat., and the Florida Rules of

Traffic Court, an owner could contest the UTC at a hearing before a Civil Traffic

Infraction Hearing Officer or request assignment to a County Judge. See generally

§ 318.14, Fla. Stat. and Fla. R. Traf. Ct. R. 6.630.

Most important for this appeal’s purpose, in 2013, with House Bill No.

7125, the Legislature modified section 316.0083, Fla. Stat. by creating a new

option allowing a registered owner issued a NOV to contest it at a local

government administrative hearing. See Ch. 2013-160, Laws of Fla. Under the

statutory revision, the remedies previously available to an owner upon receipt of an

NOV remained (i.e., pay penalty, furnish affidavit, do nothing), but section

316.0083(1)(b)1.a., Fla. Stat. (2013) added the option of requesting a hearing2 in

order to avoid the issuance of a UTC. Along with adding section 316.003(91), Fla.

Stat. (2013), the Legislature authorized a county or municipality to designate a

“local hearing officer” to conduct hearings related to NOVs, or use its currently

2 Additionally, upon issuance of a NOV, the prescribed time period to elect a

remedy to avoid the issuance of a UTC was lengthened from 30 to 60 days.

5

appointed code enforcement board or special magistrate to serve as the local

hearing officer.

On July 2, 2013, with Ordinance 2013-17, the Orange County Board of

County Commissioners revised Orange County Code Chapter 35, Article V. Red

Light Running, consistent with Chapter 2013-160, Laws of Florida to include the

new NOV hearing procedure and allowable costs. R. 100-107. Concurrent with the

Ordinance adoption, and in compliance with section 316.0083(5)(b), Fla. Stat.

(2013), the County adopted Resolution 2013-M-18 and designated a Traffic

Engineering Division employee to provide administrative support and serve as

“clerk” to the local hearing officer. R. 108-109.

Now, under section 316.0083(5)(c), Fla. Stat. (2013), once a hearing is

requested challenging a NOV, the registered owner, referred to as “petitioner”,

shall be notified by the clerk to the local hearing officer of the scheduled date, time

and location to appear. Section 316.0083(5)(d), Fla. Stat. (2013) requires the local

hearing officer to take recorded testimony under oath from the TIEO and petitioner

and to review the photographic or video evidence that constituted the rebuttable

presumption that a red light signal violation occurred. It is worth noting that

“[f]ormal rules of evidence do not apply, but due process shall be observed and

govern the proceedings.” § 316.0083(5)(d), Fla. Stat. (2013). Upon the

conclusion of the NOV hearing, section 316.0083(5)(e), Fla. Stat. (2013) requires

6

the local hearing officer to determine whether a red light signal violation occurred,

and either uphold or dismiss the NOV and issue a final administrative order

including the determination. If the NOV is upheld, the order requires the petitioner

to pay the penalty previously assessed and county costs. The final administrative

order may be appealed pursuant to section 162.11, Fla. Stat., within 30 days. Since

the 2013 revision, the Legislature has not amended section 316.0083, Fla. Stat.

On August 30, 2015 at 11:37 am, an automated traffic infraction detector at

the intersection of CR 535/Winter Garden Vineland Road and Overstreet Road, in

Orange County, captured photographic and video evidence of a vehicle registered

to the Appellant in violation of sections 316.0083, 316.074(1) and 316.075(1)(c)1.,

Fla. Stat. R. 1-2. Following review of the evidence, on September 9, 2015,

certified TIEO Ellene Cardenas (“TIEO Cardenas”) issued Appellant an NOV. R.

1-2. The two-sided NOV contained options for Appellant to pay the statutory

penalty of $158.00, request a hearing, or furnish an affidavit establishing non-

liability on or before the due date of November 8, 2015 to avoid the issuance of a

UTC. R. 1-2. The NOV contained a unique notice and pin number, with

instruction that Appellant could view the photo and video evidence of the red light

signal violation online at a designated website address. R. 2. Specifically, the

reverse side of the NOV provided detailed instruction on how to request a hearing.

R. 2. It also advised:

7

If you fail to respond as outlined above, postmarked

by the due date, a UTC will be issued to you. Upon

issuance of a UTC, you shall have the remedies specified

in Florida Statutes §§ 316.0083 and 318.14, which

include (a) the right to pay the civil penalty in the amount

of $262.00; (b) the right to submit an affidavit; or (c) the

right to have a hearing before a designated official, who

shall determine whether an infraction has been

committed. If the official concludes that no infraction

has been committed, the UTC will be dismissed and no

costs or penalties shall be imposed. If the official

concludes an infraction has been committed, the official

will uphold the UTC and may impose an additional civil

penalty not to exceed $500.00 and court fees and costs.

Failure to pay, submit an affidavit, or request a hearing

on the UTC could result in your driving privileges being

suspended.

(Emphasis in original.) R. 2. On or about November 8, 2015, Appellant

submitted to Orange County’s Red Light/Intersection Safety Program a written

Request for Local Hearing. R. 9-10. On or about November 18, 2015, Appellant

was notified of the scheduled hearing for February 12, 2016 at 2:00 pm. R. 11.

At the hearing on February 12, 2016 TIEO Cardenas testified and submitted

to the local hearing officer an electronic copy of the photographs and video

depicting the red light signal violation detailed in the NOV (R. 1-8, 14), and a

certified copy of the Florida vehicle registration of the identified tag as belonging

to Appellant. R. 19-20. The local hearing officer accepted the evidence without

objection from Appellant, however he queried whether the submitted video

contained audio. R. 20.

8

Once given the opportunity to respond, Appellant testified that his children

were traveling with him in his vehicle on August 30, 2015 and he remembered

hearing screaming and/or a fire engine siren “[s]o when they sounded their alarm, I

kept going [through the intersection].” R. 21-24. Appellant provided the local

hearing officer an aerial depiction of the intersection showing its proximity to a

nearby fire station. R. 15, 22-23. Appellant indicated that he tried to find public

records online but was unable to find any specific records of sirens for that date.

R. 24-25. TIEO Cardenas indicated to the local hearing officer that she could aid

in a request for public records through the sheriff’s office to determine whether a

record of a siren test or emergency call existed. R. 24-25. Accordingly, the local

hearing officer continued the hearing until March 11, 2016 to give her an

opportunity to request any available public records. R. 25-26. The local hearing

officer required her to share any public records obtained with Appellant before the

next hearing date in March 2016. R. 26. On February 16, 2016, Appellant was

notified in writing of the second scheduled hearing for March 11, 2016, at 11:00

am. R. 30.

On March 11, 2016, the hearing resumed. TIEO Cardenas provided the

local hearing officer with email responses from Orange County Fire Rescue which

were the product of her internal public records request. R. 31-51. Said email

responses were admitted into evidence by the local hearing officer. R. 56-57.

9

According to the email exchanges, Orange County Fire Rescue responded to TIEO

Cardenas with the following statement:

“We do not departmentally conduct annual siren testing

on the units. The crews should perform a short test of the

siren system … each morning during their Daily Check-

out of the unit. After a review of our service records,

there were no work orders for any repair on 8/27, 8/28,

8/29, 8/30 or 8/31.” R. 34.

Appellant emphasized “[t]hey do shift testing” and “[t]here’s no

documentation for that.” R. 61. Appellant requested the video be played again and

stated:

“When we were approaching the intersection, there was a

siren sound. I turned around, and I didn’t know whether

it was my – my one-year-old son screaming in his car

seat, or one of the fire trucks that were out there … out

on the driveway, if you will.” R. 64.

After additional testimony by Appellant related to the siren and Orange

County Fire Rescue’s email records, Appellant turned to question TIEO Cardenas

about the images and video she reviewed to determine whether probable cause

supported a violation of the red light signal. R. 67.

APPELLANT: All right. So your name is the one that’s on my

ticket?

TIEO CARDENAS: Yes, sir.

APPELLANT: Okay. So you reviewed my image?

TIEO CARDENAS: I reviewed your images.

APPELLANT: My image –

10

TIEO CARDENAS: And the video.

APPELLANT: My images and video was [sic] presented to you

by ATS [American Traffic Solutions]?

TIEO CARDENAS: It was on our queue as a violation to be reviewed.

APPELLANT: From ATS?

TIEO CARDENAS: From ATS, who is the vendor.

APPELLANT: Okay. So does ATS send you every video, or just

the videos that they ---

R. 67-68.

At this point, during the Appellant’s cross examination of TIEO Cardenas,

Assistant Orange County Attorney Georgiana Holmes, also present at the hearing,

objected. R. 68. For the record, Ms. Holmes stated the jurisdiction of the NOV

hearing and local hearing officer was limited to that given by section 316.0083,

Fla. Stat. R. 68-69. The local hearing officer sustained the objection but after back

and forth with Appellant advised:

HEARING OFFICER: … You’re allowed to ask questions.

APPELLANT: I was just told I wasn’t allowed to ask questions.

HEARING OFFICER: You can ask questions. You just can’t go – within

the guidelines.

************************

HEARING OFFICER: You can go ahead and ask questions. If she

objects, I have to make a decision.

APPELLANT: That’s fine.

11

R. 70-72. Ms. Holmes had also explained for the record and Appellant:

“I want to allow him the opportunity to – to question the

officer [because] … due process is what matters here. …

But if your line of questioning deals with a contract, or

the constitutionality of the statute, then I would like a

standing objection that those – that line of question is not

proper here.” R. 70.

Appellant then cited two cases for the local hearing officer; Hastings v. City

of Orlando (Ninth Judicial Circuit Case No. 2015-CV-000049-A-O) and City of

Hollywood v. Arem (Fourth District Court Appeal Case No. 4D12-1312) and

argued the red light camera system was invalid because the County used the same

vendor, American Traffic Solution (“ATS”), who he claimed “makes the initial

judgment as to whether a violation occurs, and presents it to the traffic

enforcement officer” and “delegat[ed] [the County’s] policing powers to a private

for-profit corporation in Arizona.” R. 73-75. Appellant further questioned TIEO

Cardenas about the placement of her badge number and electronic signature on the

NOV he received. R. 74-75. When asked for a response by the local hearing

officer, Ms. Holmes stated that the administration of Orange County’s Red

Light/Intersection Safety Program is different from the City of Orlando’s program

(at issue in Hastings) and that of the City of Hollywood (at issue in Arem), despite

the commonality of using the same vendor and conclusions stated by Appellant. R.

75. Appellant reiterated that the “circumstances were identical”. R. 76.

12

Upon conclusion of the hearing, the local hearing officer upheld the NOV as

properly issued to Appellant based on the evidence presented and imposed the

statutory fine of $158.00 for committing the red light signal violation. R. 77-78.

Appellant inquired about his right to appeal and whether he would receive

documentation of the local hearing officer’s decision. R. 77-78. A written Final

Administrative Order was sent to Appellant on or about March 11, 2016. R. 52.

On or about March 23, 2016, legal counsel in this appeal for Appellant filed with

Orange County’s Red Light/Intersection Safety Program a Motion for Rehearing or

Relief from Judgment. R. 87-92. On or about April 6, 2016, counsel was notified

by the clerk that another hearing was scheduled for Appellant before the local

hearing officer for August 12, 2016 at 10:00 am. R. 93. The clerk also informed

counsel that an Administrative Hearing Notification Letter would be sent directly

to Appellant at his record address. R 93-94. Before the August hearing date

arrived, on or about April 8, 2016, Appellant filed this appeal pursuant to section

162.11, Fla. Stat. and Fla. R. App. P. 9.190, with a copy sent to the clerk for

Orange County’s Red Light/Intersection Safety Program. R. 95-98. Accordingly,

on or about April 26, 2016, the clerk notified counsel for Appellant that as she

assumed/requested, the August 12, 2016 hearing was cancelled. R. 99.

13

II. SUMMARY OF THE ARGUMENT

The local hearing officer’s determination to uphold the NOV was proper

because Appellant was afforded adequate due process, the local hearing officer did

not depart from the essential requirements of law, and the administrative judgment

was supported by competent substantial evidence. Alternatively, the legal

challenges raised by Appellant that the per se application of the Mark Wandall

Traffic Safety Program are invalid as administered by Orange County’s Red

Light/Traffic Safety Program are incorrect.

III. STANDARD OF REVIEW

The standard for judicial review of a local government administrative

decision rendered pursuant to section 316.0083(5)(e), Fla. Stat., shall not be de

novo and is limited to the record created before the enforcement board [lower

tribunal]. § 162.11, Fla. Stat. When given to a party as a matter of right, judicial

review must determine “whether procedural due process [was] accorded, whether

the essential requirements of the law have been observed, and whether the

administrative findings and judgment are supported by competent substantial

evidence.” City of Deerfield Beach v. Vaillant, 419 So. 2d 624, 626 (Fla. 1982);

see also City of Deland v. Benline Process Color Co., 493 So. 2d 26, 28 (Fla. 5th

DCA 1986); Fla. R. App. P. 9.030(c)(1)(C). While in the instant appeal, Appellant

does not contest the administrative factual findings by the local hearing officer,

14

(Initial Brief at p.10) it would nevertheless be improper to reweigh or reevaluate

the evidence that was presented before the lower tribunal and/or substitute this

Court’s judgment for that of the local hearing officer below. Id.

IV. LEGAL ARGUMENT

A. APPELLANT WAS AFFORDED PROCEDURAL DUE PROCESS BY THE LOCAL HEARING OFFICER AT THE

NOV HEARING.

The “‘core’ of due process is the right to notice and an opportunity to be

heard. Carillon Cmty. Residential v. Seminole County, 45 So. 3d 7, 9 (Fla. 5th

DCA 2010). These core elements are particularly essential to the concept of

procedural due process. However, the “extent of procedural due process afforded

to a party in a quasi-judicial hearing3 is not as great as that afforded to a party in a

3 This Court has jurisdiction over this appeal pursuant to Rules 9.020(a)(3),

9.030(c)(1)(C) and 9.190(b)(3) of the Florida Rules of Appellate Procedure and as

provided by general law in Section 162.11 of the Florida Statutes; however, such

jurisdiction “shall be limited to appellate review of the record created before the

enforcement board.” §162.11, Fl. Stat. (2016) (emphasis added). Such “code

enforcement proceedings are quasi-judicial” in nature and are not subject to the

Administrative Procedure Act. Verdi v. Metropolitan Dade County, 684 So. 2d

870, 873-874 (Fla. 3d DCA 1996). Also, “[c]ommon-law certiorari has been made

available to review quasi-judicial orders of local agencies and boards not made

subject to the Administrative Procedure Act when no other method of review is

provided. . . . However, certiorari in circuit court to review local administrative

action under Florida Rule of Appellate Procedure 9.030(c)(3) is not truly

discretionary common-law certiorari, because the review is of right.” Haines City

Cmty. Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

15

full judicial hearing.” Id. at 9-10. (quoting Seminole Entertainment, Inc. v. City of

Casselberry, 811 So.2d 693, 696 (Fla. 5th DCA 2001)). Unlike administrative

hearings which are governed by the Administrative Procedure Act, “quasi-judicial

proceedings are not controlled by strict rules of evidence and procedure.” Jennings

v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991). However, “a party to

a quasi-judicial hearing, by virtue of its direct interest that will be affected by

official action, ‘must be able to present evidence, cross-examine witnesses, and be

informed of all the facts upon which the commission acts.’” Id. (quoting Kupke v.

Orange County, 838 So. 2d 598, 599 (Fla. 5th DCA 2003) (citing Lee County v.

Sunbelt Equities, II, Ltd. Partnership, 619 So. 2d 996 (Fla. 2d DCA 1993))).

In the instant case, Appellant’s fundamental due process rights were not

violated by the local hearing officer. Even a cursory examination of the

administrative procedural record here shows that Appellant had ample notice of the

scheduled hearings, and also had a meaning opportunity to participate in both of

them. See generally Key Citizens for Responsible Gov’t, Inc., v. Fla. Keys

Aqueduct Auth., 795 So. 2d 940, 948 (Fla. 2001) (“Procedural due process requires

both fair notice and a real opportunity to be heard.”); Homestead Land Group v.

City of Homestead, 165 So. 3d. 62, 65 (Fla. 3d DCA 2015) (Due process requires,

16

at a minimum, that a party in interest to a governmental proceeding be given

reasonable notice and a meaningful opportunity to be heard.); Bush v. City of

Mexico Beach, 71 So. 3d 147, 150 (Fla. 1st DCA 2011) (“A quasi-judicial hearing

generally meets basic due process requirements if the parties are provided notice of

the hearing and an opportunity to be heard.”).

Appellant requested a hearing on November 8, 2015 and shortly thereafter

received notice of its scheduling almost three months later. R. 9-11. With the time

between the notice and the hearing, Appellant could prepare for the hearing,

request that it be rescheduled if the date/time was inconvenient or unacceptable, or

cancel it altogether. R. 11. Section 316.0083(5)(d), Fla. Stat., allows Appellant to

testify and present evidence to the local hearing officer in an informal environment

and without an understanding of the formal rules of evidence (which would apply

had Appellant elected a hearing on an issued UTC). Appellant came prepared to

the first hearing with an aerial photograph of the intersection and its proximity to a

fire station as evidence to support his argument that an emergency vehicle was

possibly heard at the relevant time and to rebut the presumption that he was liable

for the red light signal violation. R. 15.

When presented, Appellant’s argument on the presence of an emergency

vehicle drew particular attention from the local hearing officer because consistent

with section 316.0083(1)(d)1.a., Fla. Stat., if such emergency event were

17

established by the Appellant, it would have negated Appellant’s liability for the red

light signal violation and necessitated a dismissal of the issued NOV. After

continuing the NOV hearing, the local hearing officer provided notice of a new

date and time to Appellant in person at the February 2016 hearing and the clerk

subsequently provided additional notice in writing to his confirmed address. R.

26-27, 30. Furthermore, public record emails exchanged between TIEO Cardenas

and Orange County Fire Rescue were provided to Appellant, allowing him

opportunity to return for the second hearing with the same information as the TIEO

on siren testing or emergency call records. R. 31-51, 57. This allowed Appellant

to return in March 2016 prepared to argue his position relative to any information

uncovered, or absent, from the public records provided to TIEO Cardenas. Hence,

the record establishes Appellant was afforded ample notice as required by

procedural due process and upon review, this Court should conclude the same.

It seems that the crux of Appellant’s complaint to this Court hinges on the

“meaningful participation” component of due process, rather than any lack of or

defect in notice provided. At its essence, Appellant’s right to procedural due

process includes the right to have an administrative hearing before the local

hearing officer regarding his issued NOV and the right to introduce evidence at a

meaningful time and in a meaningful manner. See Dept. of Financial Services v.

Brank Banking & Trust Co. 40 So. 3d 829, 833 (Fla. 1st DCA 2010). Furthermore,

18

the right to a fair and real opportunity to be heard depends on the nature of the

private interest at stake and that of the government function involved. See

Department of Highway Safety & Motor Vehicles v. Hofer, 5 So. 3d 766, 771 (Fla.

2d DCA 2009). When examined, the “amount” of due process varies based on the

particular factual context at issue in the administrative proceeding. Id.

Nevertheless, despite Appellant’s inflammatory accusations that “he was not

allowed to proceed with questioning”, he was “thwarted from eliciting pertinent

testimony”, and he was “blocked from creating an appellate record”; see Initial

Brief at p. 14, a careful review of the record establishes he was afforded a

meaningful opportunity to be heard and that his participation in the NOV hearings

was both full and fair.

It seems evident Appellant exercised his right to review the photo and video

evidence online because at two different hearings, Appellant came prepared to

rebut the commission of the offense by arguing a circumstance he believed would

excuse any liability. In fact, upon his claim regarding an emergency vehicle and

inability to locate relevant public records, it was TIEO Cardenas who offered aid in

getting records beyond those accessible online. R. 24-25. This perfectly

demonstrates the informal and flexible environment envisioned by section

316.0083(5), Fla. Stat., afforded to those who challenge their NOV by electing an

administrative proceeding where the rules of evidence, civil and traffic procedure

19

are inapplicable, yet due process governs. By agreeing and ordering the

continuation, both the TIEO and local hearing officer considered the additional

investigation beyond the photographic images and video potentially helpful in light

of Appellant’s affirmative defense and the absence of audio or other vehicles

present in the video submitted. R. 24-25. Appellant was not only afforded

meaning opportunity to be heard on his “excuse” from liability, but received free

assistance from the issuing TIEO in its presentation to the local hearing officer.

Appellant never objected to the assistance by TIEO Cardenas, or the continuance

of the hearing for another month to allow her time to make a public records request

on his behalf.

At the second hearing, Appellant pivoted his argument from audible sirens

and possible emergency vehicles present, to the County’s use of its vendor and

TIEO Cardenas’ review of the images and video collected by their automated

cameras. R. 65-68. Appellant claims a sustained objection by the local hearing

officer “blocked” his further opportunity to be heard, offending his guarantee of

due process, and that the County “refused” to allow further meaningful

participation in the proceeding. See Initial Brief at p. 13-14. The County believes

this mischaracterizes the record at best, and misleads the Court at its worst.

Appellant was not denied continued participation following the County’s

objection, despite it being sustained; and in fact, to clarify any confusion possibly

20

created, he was specifically advised he could continue. R. 70-72. Both the

Assistant County Attorney who objected, and the local hearing officer presiding

over the hearing, advised Appellant he could continue with questions. R. 70-72.

Even if the Appellant did not understand the legal vernacular of “standing

objection” or “sustained”, words routinely heard in a courtroom, he was

specifically advised that he could continue to ask questions of TIEO Cardenas. R.

70-72. Furthermore, Appellant did in fact continue to ask additional questions of

the TIEO, and continued to make argument to the local hearing officer in the

proceeding below. R. 72-78. To conclude that the County’s objection either

“blocked”, “refused” or “thwarted” Appellant’s continued participation or

presentation of argument is disingenuous and not supported by the record at all.

Additionally, in evaluating whether at the administrative hearing Appellant

was afforded adequate and proper due process, this Court should not ignore the

relaxed procedure or jurisdictional limitations of the NOV proceeding. See Key

Citizens 795 So. 2d at 948 (“The specific parameters of the notice and the

opportunity to be heard required by procedural due process are not evaluated by

fixed rules of law, but rather by the requirements of the particular proceeding.”)

An administrative NOV hearing is designed to be informal and encourage pro se

representation. Without a crystal ball, the County cannot know what a petitioner

will present at a NOV hearing to rebut the allegation that a red light signal

21

violation occurred as there is no requirement for motion practice or discovery. To

suggest the County has no right to object for the record to something as

fundamental as a jurisdictional limitation without offending a petitioner’s due

process ignores the due process that is equally afforded to the County. See

Dumorange v. Florida Unemployment Appeals, 947 So. 2d 472, 475 (Fla. 3d DCA

2006) (“[a]n elementary and fundamental requirement of due process in any

proceeding which is to be accorded finality is notice reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency of the action

and afford them an opportunity to present their objections.” (emphasis added.)).

Identical to Appellant, the County has the right to present testimony and argument,

object to argument presented, respond to the local hearing officer when asked, and

appeal the final decision as an “aggrieved party”. The mandate an Appellant

receive a “meaningful opportunity to be heard” before the local hearing officer

does not require the County to remain silent when a jurisdictional objection is

appropriate or refrain from responding to an inapplicable argument or avoid

distinguishing critical points of arguments offered for the record.

This Court should affirm the local hearing officer’s decision to uphold the

NOV because Appellant was afforded due process through both notice and a

meaningful opportunity to be heard throughout the NOV proceeding.

22

B. THE LOCAL HEARING OFFICER DID NOT DEPART FROM THE ESSENTIAL REQUIREMENTS OF LAW

PURSUANT TO SECTION 316.0083(5), FLORIDA

STATUTES.

In Haines City Community Dev. v. Heggs, the Florida Supreme Court

concluded that when a circuit court functions as an appellate court for review of an

administrative action under Fla. R. App. P. 9.030(c), that review is governed by

whether procedural due process was accorded; whether the essential requirements

of law have been observed; and whether the administrative judgment is supported

by competent substantial evidence.4 658 So. 2d 523, 530 (Fla. 1995).

Additionally, this Court is not permitted to reweigh evidence or substitute its

judgment for that of the lower tribunal. See id.; see also Vaillant, 419 So. 2d 624,

(Fla. 1982). The local hearing officer did not depart from the essential

requirements of law and her decision was supported by competent substantial

evidence and upon review this Court should agree.

By definition in section 316.003(91), Fla. Stat., a “local hearing officer” is

empowered only under section 316.0083, Fla. Stat., to conduct hearings related to a

notice of violation issued consistent with the Mark Wandall Traffic Safety

4 Appellant does not contest per se whether the administrative factual findings of

the local hearing officer were supported by evidence, accordingly the County does

not provide a separate response to address the third prong of this Court’s review,

but nevertheless will demonstrate that it was met in addressing the second prong.

23

Program. Section 35-76, Orange County Code and sections 316.0083(5)(d) & (e),

Fla. Stat., provide that the local hearing officer shall: 1) hear testimony of the

TIEO, the petitioner or others; 2) review the photographic or electronic images or

the streaming video; 3) determine whether a red light signal violation has occurred;

and 4) based on whether the violation is supported by the evidence collected,

uphold or dismiss the violation; and 5) issue a final administrative order of its

determination.

The instant record is brimming with support that the local hearing officer

complied with the essential requirements of section 316.0083(5), Fla. Stat. Over

the course of two different hearing, she took testimony and evidence in support of

upholding the red light signal violation and in support of its dismissal consistent

with section 316.0083(1)(d)1.a., Fla. Stat. R. 19-24, 31-51, 56-65. In addition,

Appellant raised a challenge to the entire Orange County Red Light/Intersection

Safety Program using the Arem and Hastings decisions, and claimed that because

the County used the vendor ATS to “make[] the initial judgment as to whether a

violation occur[ed], and present[ed] it to the traffic enforcement officer” it was an

improper delegation of policing powers. R. 73-75. The County responded with

argument to the local hearing officer that its program operated differently from

both programs at issue in the cases provided. R. 75. The local hearing officer

upheld the red light signal violation and issued a Final Administrative Order

24

determining “that there was substantial competent evidence to support a violation”

and Appellant was ordered to pay $158.00 for the civil penalty, along with $125.00

in administrative County costs, for a total of $283.00 within 90 days. R. 52, 77.

Because the local hearing officer complied with the essential requirements of law

this Court should affirm the determination upholding the NOV.

While the local hearing officer’s role and responsibilities at the NOV

hearing are both governed by, and restricted to, section 316.0083(5), Fla. Stat.,

again, what seems to be at the heart of Appellant’s grievance to this Court is

something outside of an error in application of procedural law to his case.

Appellant’s chief complaint is that the local hearing officer ignored his substantive

legal challenge to the County’s whole Red Light/Intersection Safety Program as

impermissible in light of the holding of Arem and its application by this Court in

Hastings. But again, this Court has to evaluate due process and the substantive

nature of Appellant’s argument presented consistent with the jurisdictional

limitations of an NOV administrative proceeding. See Hofer, 5 So. 3d 766, 771

(Fla. 2d DCA 2009); Carillon Cmty. Residential v. Seminole County, 45 So. 3d 7,

9–10 (Fla. 5th DCA 2010) (“The extent of procedural due process protection varies

with the character of the interest and nature of the proceeding involved. There is,

therefore, no single unchanging test which may be applied to determine whether

the requirements of procedural due process have been met. Courts instead consider

25

the facts of the particular case to determine whether the parties have been accorded

that which the state and federal constitutions demand.”). In fact, “[i]t is neither the

function nor the prerogative of [this Court] to reweigh evidence and make findings

when [it] undertakes a review of a decision of an administrative forum.”

Department of Highway Safety & Motor Vehicles, v. Allen, 539 So. 2d 20, 21 (Fla.

5th DCA 1989) (holding that the circuit court judge exceeded the limitations of his

certiorari review by improperly reweighing the evidence in the case and coming to

a different factual conclusion than that of the administrative body). Essentially, as

the first tier certiorari review of this quasi-judicial proceeding, the court “functions

as an appellate court, and, among other things, is not entitled to reweigh the

evidence or substitute its judgment for that of the agency.” Haines City Cmty. Dev.

v. Heggs, 658 So. 2d 523, 530 (Fla. 1995).

Under the statutory scheme of section 316.0083, Fla. Stat., it is the registered

owner or driver of the vehicle issued a red light signal violation that selects the

forum for its challenge (i.e., NOV local government hearing, UTC hearing before a

civil traffic infraction hearing officer, or UTC hearing before a county court

judge), if at all. Once challenged, the issuing authority carries the initial burden to

establish the violation consistent with the rules and procedures of the venue

selected. Unlike other civil traffic infraction citations, the issuing authority for a

red light camera violation is without any power to control whether one challenges

26

the liability upon receipt of the NOV, or awaits the issuance of a UTC to exercise

that right. Each of the remedies available come with pros and cons to consider, but

once one is selected by the driver or owner, they accept the pros and cons of that

forum.

Appellant elected to challenge his NOV in the less formal local government

hearing forum, and with it he chose its relaxed procedure, an informality allowed

in the presentation of evidence, a fixed civil fine5 should the NOV be upheld and

the jurisdictional and substantive limitations of the proceedings. Appellant claims

that “no where on the face of the [NOV] is it made clear that petitioner has a

choice of forum”; that “it appears that the only viable choices” are to either pay the

NOV or request a hearing; and that even if the choice was apparent, a litigant

“would be unaware of any potential jurisdictional benefit to doing so.” Initial

Brief at p. 2-3. In fact, the NOV does contain both instruction on how to request a

NOV hearing and notice that failure to respond will result in a UTC being issued,

for which “you shall have the … right to have a hearing before a designated

official, who shall determine whether the infraction has been committed.” R. 1-2.

Any ignorance to the differences between the two forums does not erase their

5 Pursuant to section 318.14(5), Fla. Stat. when electing to challenge a UTC issued

for a red light signal violation, the civil penalty provision of section 318.18, Fla.

Stat., is waived and if the infraction is proven the official may impose a civil

penalty not to exceed $500.00. There is no such waiver for electing to challenge

an NOV and the civil penalty provision of section 318.18, Fla. Stat. is fixed.

27

existence, nor does it change the difference in rules, procedure, or laws that govern

them. Similarly, the sophistication or lack thereof of a litigant can no more grant

extra jurisdictional capacity to a local hearing officer than it could strip authority

vested with a county traffic infraction hearing officer or judge.

The local hearing officer was presented testimony that the County’s program

was similar to the one reviewed by the Fourth District Court of Appeal in Arem

(and applied in Hastings), and testimony that it was not. R. 73-76. This Court

cannot sit as an appellate reviewer of those conflicting positions and reweigh or

reevaluate them to reach a different conclusion, and therefore declare the local

hearing officer offended due process with a departure from the essential

requirements of law. See Dept. of Highway Safety and Motor Vehicles v.

Stenmark, 941 So. 2d 1247, 1249 (Fla. 2nd DCA 2006) (“If the circuit court

reweighs the evidence, it has applied an improper standard of review, which ‘is

tantamount to departing from the essential requirements of law[.]’”) quoting

Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 845 (Fla. 2001); City of

Deland v. Benline Process Color Co., 493 So. 2d 26, 28 (Fla. 5th DCA 1986) (“A

circuit court acting in its appellate capacity which reevaluates the credibility of

evidence or reweighs conflicting evidence before the lower tribunal departs from

the essential requirements of law.”); Board of County Commissioners of Pinellas

County v. City of Clearwater, 440 So. 2d 497, 499 (Fla. 2nd DCA 1983) (“A

28

circuit court acting in such a capacity departs from the essential requirements of

law if, in determining whether the administrative action is supported by substantial

competent evidence, it reevaluates the credibility of evidence or reweighs

conflicting evidence.”)

Nevertheless, Appellant argues he was “prevented” or “blocked” from

creating a record of additional support for his position that the County’s Red

Light/Intersection Safety Program was similar enough to the one held invalid as an

improper delegation of a police power by the Arem court. For the sake of this

argument let’s ignore the County’s response to the Appellant, which distinguished

its program from that of the City of Hollywood and the City of Orlando, and also

ignore that the County is better qualified to testify about the administration of its

own program. To operate as Appellant suggests in his brief could require the local

hearing officer to entertain Appellant’s argument ad infinitum under an umbrella of

“building the record”. This potentially unlimited stream of one-sided, possibly

irrelevant information, would improperly and unnecessarily expand the subject

matter of a local government’s administrative hearing well beyond the collection of

relevant testimony from the TIEO, petitioner (and others) and review of the video

and electronic images. Such reasoning could also severely limit a local hearing

officer’s ability to control the very proceeding she presides over. See Faretta v.

California, 422 U.S. 806, 834 (1975) (“The right of self-representation is not a

29

license to abuse the dignity of the courtroom. Neither is it a license not to comply

with relevant rules of procedural and substantive law.); Barrett v. City of Margate,

743 So. 2d 1160, 1162 (Fla. 4th DCA 1999) (“Notwithstanding the fundamental

principle of allowing pro se litigants procedural latitude, a practice effected to

ensure access to the courts for all citizens, pro se litigants are not immune from the

rules of procedure. . . An individual is entitled to represent himself or herself in a

civil proceeding but he or she must not proceed without regard for the rules of

procedure. . . . the court cannot assist the pro se litigant to the detriment of the

opposing party or to the point that the impartiality of the tribunal can be called into

question.”); James v. Crews, 132 So. 3d 896, 899 (Fla. 1st DCA 2014)

(“Compassion for a pro se litigant and justice under law are entirely different

concepts that should not be confused. Further, we should avoid the temptation to

require governmental entities to defend because they seemingly have an

inexhaustible supply of legal talent available. To do so would penalize the public

who ultimately pays the bill.”).

Alternatively, Appellant claims that even if the local hearing officer ignored

the application of Arem and Hastings because the proceeding was without the

jurisdictional power to hear it – this Court can, and should, even with the very

limited record before it. Initial Brief at p. 17-18. As part of this Court’s review of

the three prong review standard outlined in Vaillant, this Court must determine

30

whether the Appellant has established “that the trial court departed from the

essential requirements of the law.” Malloy v. Gunster, Yoakley, Valdes-Fauli &

Stewart, P.A., 850 So. 2d 578, 581 (Fla. 2d DCA 2003) (quoting Allstate Ins. Co. v.

Kaklamanos, 843 So. 2d 885, 889 (Fla. 2003)). “The departure from the essential

requirements of the law necessary for the issuance of a writ of certiorari is

something more than a simple legal error. There must be a violation of a clearly

established principle of law resulting in a miscarriage of justice. See Ivey v.

Allstate Ins. Co., 774 So. 2d 679, 682 (Fla. 2000). A failure to observe ‘the

essential requirements of law’ has been held synonymous with a failure to apply

‘the correct law.’” Heggs, 658 So.2d at 528.” Housing Authority of City of Tampa

v. Burton, 874 So. 2d 6, 8 (Fla. 2nd DCA 2004).

Appellant continues to assert that the County’s procedure related to the use

of its vendor is “strikingly similar” to Arem based on the “ample evidence” in the

instant appeal’s record. Initial Brief at p. 20-21. However, all the record really

establishes about the County’s Red Light/Intersection Safety Program is that it uses

the same vendor as the jurisdictions in Arem and Hastings, that TIEO Cardenas

reviewed photo and video images of Appellant’s red light signal violation sent to

her from the vendor, and that her electronic signature and badge number were put

on the issued NOV by the vendor. R. 67-68, 74-75. And nevertheless Appellant

asks this Court to conclude the County’s program is so materially “identical” to the

31

one examined in Arem that a reversal of the local hearing officer’s ruling is

warranted due to a misapplication of law and miscarriage of justice.

Following Arem, many jurisdictions changed the operations of their red light

camera enforcement programs and counties and municipalities continue to argue in

various legal challenges that reliance on Arem is misplaced if a program’s

procedures specific to its use of a private camera vendor do not give the

“unfettered discretion” found impermissible in Arem. See generally State v.

Meador, 2015 WL 10943643 (Polk Co. 2015) (denying a motion to dismiss raising

Arem); State v. Langham, 2015 WL 10943644, (Duval Co. 2015) (denying a

motion to dismiss raising Arem); State v. Devine, 2015 WL 10943646 (Polk Co.

2015) (denying a motion to dismiss raising Arem); City of Aventura v. Jimenez,

2016 WL 4016645 (Fla. 3rd DCA 2016).

Most recently, the Third District Court of Appeal, concluded that it saw

“nothing in the statutory language [of section 316.0083] indicating any legislative

intent to bar law enforcement from using third-party software and servers to

accomplish these ministerial and clerical tasks. 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.” (emphasis added) City of Aventura v.

Jimenez, 2016 WL 4016645 (Fla. 3rd DCA 2016). Jimenez was issued a NOV for

a red light signal violation by the City of Aventura, but unlike Appellant, Jimenez

32

did not respond to any of the remedies afforded by the statute and accordingly a

UTC was issued for the infraction. Id. Jimenez challenged the UTC, arguing the

City of Aventura impermissibly delegated its police power to ATS. Id.

Ultimately, upon reviewing a record that included: (1) the City’s ordinance; (2) the

contract and its amendments between the City and ATS; (3) the applicable

business records with detailed directives that establish the procedure for the

vendor’s review process; and (4) the testimony of employees from city, the county

clerk’s office and ATS, the district court ruled that due to the circumstances at

issue in the City of Aventura’s program, “we distinguish City of Hollywood v.

Arem [citation omitted], 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.” Id.

In the instant case, while the Appellant keeps insisting that the County’s

program is “substantially similar” or even “identical” to the City of Orlando and

City of Hollywood programs the County’s program is not. While Appellant’s

repetition of his claim makes it no more or less true than the County’s – this

Court’s review pursuant to section 162.11, Fla. Stat. is limited to the record created

below which does not support a conclusion that the County’s program is identical,

or substantially similar beyond the commonality of the vendor.

33

TIEO Cardenas testified she reviewed the Appellant’s photo and video

images and she had her badge number and electronic signature filed in the vendor’s

system to cause it to be placed on the issued NOV. R. 68, 74. When applying

Arem in Hastings, this Court questioned whether the City of Orlando TIEO issued

the NOV – but in the instant case there is support in the record that TIEO Cardenas

issued Appellant’s NOV. R. 1-2, 68, 74. At issue in Arem was the automated

function of ATS relative to the issuance of a UTC. The defendant in Arem was

issued an NOV, but he did not respond. After noting the defendant’s failure to

respond, and in accordance with the standard procedure employed at that time in

the City of Hollywood’s program, “ATS generated a [UTC], sent it to him by

certified mail, and electronically transmitted a replica of the citation data to the

county court clerk.” Arem, 154 So. 3d 359, 36 (Fla. 4th DCA 2015). In the instant

case, Appellant was issued an NOV, not a UTC. And while the jurisprudence that

has developed after Arem has come to include the question of whether a “pre-

review” of photographic images or video by a vendor is acceptable, in the instant

case, TIEO Cardenas testified that she reviewed the electronic images and video of

Appellant’s red light signal violation and issued the NOV. R. 67-68. Whether she

reviewed other videos, all videos, or just the video depicting Appellant’s red light

signal violation is irrelevant to the limited purpose of the local government

administrative proceeding created by section 316.0083(5), Fla. Stat.

34

An NOV hearing is a venue with relaxed procedure and operates outside the

requirements of the rules of evidence, traffic and civil procedure, and the authority

vested with courts under Art. 5 of the Florida Constitution. The County’s response

to Appellant and the local hearing officer was appropriate, simple and true: its

program is distinguishable from that at issue in Arem and applied in Hastings. To

expect the County to defend the application of its Red Light/Intersection Safety

Program related to all drivers or owners in a hearing without the protections and

guarantee afforded in an evidentiary proceeding before a court vested with power

to hear arguments in equity is simply legal fiction.

The local hearing officer did not depart from the essential requirements of

section 316.0083(5), Fla. Stat., and the determination to uphold the NOV was

proper as supported by competent substantial evidence provided by the testimony

of the TIEO, Appellant, and the photos and video depicting.

V. CONCLUSION

Because the administrative proceeding was conducted compliant with due

process and the local hearing officer’s conclusion did not depart from the essential

requirements of law and was supported by competent substantial evidence, this

Court should affirm the ruling. This Court should not engage in reweighing

evidence or substituting its judgment for that of the local hearing officer to reach a

different conclusion, even if it believes the local hearing officer’s consideration of

35

evidence presented by Appellant and County should have resulted differently.

While the County ardently disagrees with Appellant’s assertion that it was

“prevented” from building a record – there was enough presented to the local

hearing officer to concluded Arem was distinguishable because the County’s

program operated differently.

Finally, it is improper to remand this case for further proceedings, as

requested by Appellant. Even if this Court were to agree that error was committed

by not applying Arem, the remedy is to vacate the order, not to remand the case.

See Nat’l Advert. Co. v. Broward County, 491 So. 2d 1262, 1263 (Fla. 4th DCA

1986) (“A court’s certiorari review power does not extend to directing that any

particular action be taken, but is limited to denying the writ of certiorari or

quashing the order reviewed.”); Tamiami Trail Tours, Inc. v. Railroad

Commission, 128 Fla. 25, 31 (Fla. 1937) (“On certiorari the appellate court only

determines whether or not the tribunal or administrative authority whose order or

judgment is to be reviewed has in the rendition of such order or judgment departed

from the essential requirements of the law and upon that determination either to

quash the writ of certiorari or to quash the order reviewed.”); Gulf Oil Realty Co. v.

Windhover Ass’n, 403 So.2d 476, 478 (Fla. 5th DCA 1981) (“[A]fter review by

certiorari, an appellate court can only quash the lower court order; it has no

authority to direct the lower court to enter contrary orders.”).

36

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August 25, 2016, the foregoing was

electronically filed with the Clerk of the Court using the Florida Courts eFiling

Portal, which will send electronic notice of filing to Appellant and Intervenor at

primary email addresses on record.

CERTIFICATE OF COMPLIANCE

I HEREBY CERTIFY that this Brief is written in Times New Roman, 14-

point font, and therefore complies with the font requirement as set forth in Florida

Rule of Appellate Procedure 9.210(a)(2).

/s/ Georgiana Holmes /

Georgiana Holmes

Assistant County Attorney

Florida Bar No. 490393