STEPHEN VINCENT FACELLA

v.

ORANGE COUNTY

Before MURPHY, THORPE, and MYERS, J.J.

PER CURIAM.

Appellant, Stephen Vincent Facella (“Facella”), appeals the Final Administrative Order, rendered on March 11, 2016, upholding a Notice of Violation issued to him based upon images and video capturing his vehicle entering an intersection despite a red light traffic signal. This Court has jurisdiction under section 316.0083(5)(f), Florida Statutes (2016), and Florida Rule of Appellate Procedure 9.030(c)(1)(C). We dispense with oral argument and affirm. Fla. R. App. P. 9.320.

FACTS On August 30, 2015, an automated traffic infraction detector, located at the intersection of Winter Garden Road and Overstreet Road in Orange County, captured photographs and video footage of Facella’s vehicle crossing the intersection after the traffic light turned red, in violation of sections 316.0083, 316.074(1), and 316.075(1)(c)1., Florida Statutes. Shortly following the incident, Facella received a Notice of Violation in the mail. The Notice advised Facella of his options in detail: This Notice has been issued by the Orange County.

You have the following three options:

a) Pay this violation in the amount of $158.00 on or before the due date specified on the front of this Notice; or b) Submit an affidavit by following the instructions below; or c) Request a hearing by logging into www.ViolationInfo.com. Print and mail “Request for Hearing” to 5200 S John Young Py Orlando, FL 32839. . . .

* * *

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. . . .

(emphasis in original).

Facella responded to the Notice by submitting a “Request for Hearing.” In accordance with section 316.0083, the hearing was conducted before a local hearing officer.

At the hearing, Traffic Infraction Enforcement Officer (“TIEO”), Ellene Cardenas, submitted photographs and video footage of the incident. Facella, proceeding pro se, agreed that his vehicle crossed the intersection after the traffic light turned red. Facella advanced, however, that he proceeded through the intersection despite the red light because he heard what he thought might have been an emergency siren sounding from the firehouse located near the intersection, Station 36. Facella was unsure, however, whether the sounds he heard were the result of his children screaming in the backseat or one of the fire trucks parked outside Station 36 sounding a siren. The relevant video footage did not contain audio, and in an effort to determine whether Facella’s violation should be excused on the basis that he was reacting to emergency personnel, the local hearing officer continued the proceeding for approximately one month.¹ In the interim, TIEO Cardenas offered to submit a public records information request to Orange County Fire Rescue to determine whether there were any emergency calls at the time of the violation.

At the second hearing, TIEO Cardenas submitted email exchanges between herself and Orange County Fire Rescue. The emails revealed that there were no calls to which emergency personnel at Station 36 were responding at the time Facella passed through the intersection. According to the emails, however, Orange County Fire Rescue does not keep records of shiftchange siren testing. Facella proffered that perhaps it was siren testing that he heard, but he also testified that it could have been a child screaming in the backseat of his car rather than an emergency siren.

Despite conceding that he did indeed run the red light, Facella attempted to inquire of TIEO Cardenas regarding her extent of involvement with the issuance of the Notice of Violation. In response to Facella’s questions, TIEO Cardenas testified that she received the images and video footage from, private vendor, American Traffic Solutions, Inc. (“ATS”) and reviewed them herself to determine whether a violation had taken place. In Facella’s case, TIEO Cardenas concluded that there had been a violation and “pressed some button” to trigger ATS to physically mail the Notice of Violation to Facella.

He maintained that such cases established that “the red light system is invalid, because ATS makes the initial judgment as to whether the violation occurs, and presents it to the traffic enforcement officer.” Facella continued, “I just don’t agree [with] the fact that our traffic enforcement officers are only reviewing videos that ATS gives them, and aren’t reviewing all videos.” Turning to TIEO Cardenas, Facella then asked whether TIEO Cardenas placed her name and badge number on the Notice of Violation. TIEO Cardenas “responded that she “had it electronically filed on the system” and “pressed some button” in order to signal ATS to mail the citation to Facella. Upon finding that the Notice of Violation was properly issued, the local hearing officer mentioned that the Arem and Hastings cases concerned the programs of other municipalities and not Orange County. She noted that such cases are not dispositive on the issue of whether the County’s program complies with the statute and that there was no evidence presented as to the details of Orange County’s program. Facella subsequently received the Final Administrative Order upholding the violation and instructing him to pay the statutory penalty along with administrative fees, which sparked this appeal. ARGUMENTS ON APPEAL On appeal, Facella presents two arguments to this Court.

First, he maintains that his due process rights were violated because he was not permitted to present evidence and testimony regarding the County’s red light program.

Second, he contends that despite his inability to present evidence to fully expose the County’s program, the record before this Court is sufficient to demonstrate that the County’s arrangement with ATS violates of section 316.0083 such that the local hearing officer’s ruling departs from the essential requirements of law and should be reversed. The County responds that the local hearing officer’s decision to uphold the Notice of Violation was proper because Facella was afforded adequate due process; the local hearing officer did not depart from the essential requirements of the law; and the administrative judgment was supported by competent, substantial evidence. Alternatively, the County maintains that Facella’s arguments regarding the validity of the County’s red light program are incorrect.

Furthermore, with leave of this Court, the Attorney General submitted an amicus curiae brief. In the brief, the Attorney General agrees with the County; emphasizes the limited jurisdiction of the local hearing officer; and adds that, by electing the administrative hearing before issuance of a Uniform Traffic Citation, Facella effectively waived his ability to raise an Arem defense, that is, to contend that the County’s red light program, as administered, improperly delegates police power to an outside vendor.

We agree with Orange County and with the Attorney General that, given the statutorily limited authority and the nature of the local hearing officer position, the local hearing officer was not required to rule upon the legality of the County’s red light program and as such, did not depart from the essential requirements of the law or deprive Facella of his due process rights when sustaining the County’s objection to evidence relating to the contract between the County and ATS.

Furthermore, on this record, there is no evidence that the County unlawfully delegated its police powers to ATS when issuing Facella’s Notice of Violation.

STANDARD OF REVIEW Our review of the local hearing officer’s decision is limited to the record created before the lower tribunal and generally involves three inquiries: “(1) whether procedural due process was afforded, (2) whether the essential requirements of the law were observed, and (3) whether the administrative findings and judgment are supported by competent, substantial evidence.” Bencivenga v. Osceola Cnty., 140 So. 3d 1035, 1036 (Fla. 5th DCA 2014).

See also § 162.11, Fla. Stat. (2016).

Here, however, Facella concedes that there was competent, substantial evidence supporting the judgment, therefore, limiting our review to whether procedural due process was afforded and whether the essential requirements of the law were observed. See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 200 (Fla. 2003) (noting that addressing on review an unraised issue is unnecessary).

ANALYSIS The Florida Uniform Traffic Control Law authorizes counties and municipalities to utilize traffic infraction detectors to enforce drivers’ compliance with traffic signals. §§ 316.001, 316.008(8)(a) (2016).

Specifically, the Mark Wandall Traffic Safety Program (“Wandall Act”) permits traffic infraction enforcement officers, or TIEOs, to issue Uniform Traffic Citations (“UTCs”) to those who violate traffic signals. § 316.0083, Fla. Stat. (2016).

The statute also permits at least some involvement of local government agents, such as private vendors, in the process: “This paragraph does not prohibit a review of information from a traffic infraction detector by an authorized employee or agent of the department, a county, or a municipality before issuance of the traffic citation by the traffic infraction enforcement officer.” § 316.0083(1)(a).

Due Process Facella first presents a due process challenge. He claims that the local hearing officer’s refusal to permit questioning regarding the contractual arrangement between ATS and the County deprived him of due process.

We disagree. “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). “Due process is a flexible concept” that provides more or less protection depending upon the nature of the proceeding involved. Id. It “requires only that the proceeding be ‘essentially fair.’” Id. The Limited Nature of Notice of Violation Hearings In the context of quasi-judicial proceedings, such as the notice of violation hearing in this case, the extent of procedural due process afforded to a party “is not as great as that afforded to a party in a full judicial hearing.” Carillon Cmty. Residential, 45 So. 3d at 10. Indeed, such hearings are not subject to strict rules of evidence and procedure. See id.

With respect to notice of violation hearings, although a petitioner must be permitted to “‘present evidence, cross-examine witnesses, and be informed of all the facts upon which the [County] acts,’” local hearing officers are not required to take testimony from witnesses aside from the petitioner who requested the hearing and the TIEO. See id. (quoting Kupke v. Orange County, 838 So. 2d 598, 599 (Fla. 5th DCA 2003)). See also § 316.0083(5)(d).

The limited authority of local hearing officers also factors into the extent of due process owed a petitioner. This is because local hearing officers conducting notice of violation hearings are generally not judges (and may not even necessarily be attorneys), and therefore, their authority is strictly confined to that explicitly imposed by statute. 2 See Canney v. Bd. of Pub. Instruction of Alachua County, 278 So. 2d 260, 262 (Fla. 1973) (noting that, “[a]s a general rule administrative agencies have no general judicial powers, notwithstanding they may perform some quasi-judicial duties, and the Legislature may not authorize officers or bodies to exercise powers which are essentially judicial in their nature.”).

Section 316.0083(5)(e) explicitly provides that a local hearing officer “shall determine whether a violation . . . has occurred,” and depending upon that determination, shall either “uphold or dismiss the violation” in the form of a final administrative order. Notice of violation hearings are preliminary in the sense that they occur prior to issuance of, and in an effort of avoiding, a UTC. See § 316.0083; Florida House of Representatives Staff Analysis, CS/CS/H.B. 7125 (May 14, 2013).

Indeed, the legislature added such proceedings to the Wandall Act in 2013 as an elective remedy for those seeking to challenge alleged violations without the risk of incurring the large administrative fees associated with hearings in the county courts following the issuance of a UTC. See Motor Vehicles – Rules and Regulations, 2013 Fla. 2 Section 316.003(35) defines a local hearing officer as: The person, designated by a department, county, or municipality that elects to authorize traffic infraction enforcement officers to issue traffic citations under s. 316.0083(1)(a), who is authorized to conduct hearings related to a notice of violation issued pursuant to s. 316.0083. The charter county, noncharter county, or municipality may use its currently appointed code enforcement board or special magistrate to serve as the local hearing officer. The department may enter into an interlocal agreement to use the local hearing officer of a county or municipality. Sess. Law Serv. Ch. 2013-160 (C.S.C.S.H.B. 7125) (West); Florida House of Representatives Staff Analysis, CS/CS/H.B. 7125 (May 14, 2013).

Here, Facella elected to pursue a notice of violation hearing before a local hearing officer rather than waiting to receive a UTC and pursuing a hearing before a county court judge. See §§ 316. 0083(1)(b), 318.14(5); Florida House of Representatives Staff Analysis, CS/CS/H.B. 7125 (May 14, 2013).

Unlike a notice of violation hearing, the hearing following issuance of a UTC takes place before a county court judge, who would have jurisdiction to hear evidence and argument surrounding the County’s utilization of ATS in effectuating the red light program.³ See id.; Nettleton v. Doughtie, 373 So. 2d 667, 668 (Fla. 1979) (noting that—in the context of discussing the legislature’s decriminalization of certain traffic infractions—the “clear intent of the legislature is that the county courts would remain vested with jurisdiction of these matters,” and the scope of their jurisdiction would not change).

Accordingly, in electing the preliminary, notice of violation hearing, Facella effectively waived his ability to challenge the legality of the County’s red light program in exchange for pursuing a faster and less financially risky proceeding.⁴ Dep’t of Bus. and Prof’l Regulation, 705 So. 2d 652, 654-55 (Fla. 5th DCA 1998) (acknowledging a professional’s waiver of formal disciplinary proceedings when not objecting to informal disciplinary proceedings). Facella’s contention that he was unaware of the jurisdictional constraints of a local hearing officer or of his option to pursue a hearing before a county court judge following the

L. Weekly D2435, (Fla. 2d DCA Oct. 28, 2016); State ex rel. City of Aventura v. Jimenez, 41 Fla.

L. Weekly D1753 (Fla. 3d DCA 2016); City of Hollywood v. Arem, 154 So. 3d 359 (Fla. 4th DCA 2014). 4 Section 316.0083 provides that, in response to a notice of violation, a violator may pay a statutory penalty of $158.00. Following a notice of violation hearing, there are added administrative fees not to exceed $250.00. Following the issuance of a UTC and subsequent hearing, however, the petitioner is responsible for a penalty of $500.00, plus costs. See § 318.14(5). issuance of a UTC does not support his due process argument nor excuse his failure to elect such remedy. See Davis v. State, 928 So. 2d 442, 448 (Fla. 5th DCA 2006) (noting that individuals are presumed to know the law and are not excused from compliance based on ignorance).

To be sure, as transcribed above, Facella’s options were clearly indicated on the Notice itself.

Moreover, Facella maintains that, regardless of any jurisdictional limitations of the local hearing officer, he should have been permitted to solicit testimony regarding the arrangement between ATS and the County in order to build an adequate appellate record. He points to cases wherein the First District Court of Appeal acknowledged the ability of litigants to discover and subsequently admit evidence relevant to a constitutional challenge despite an administrative agency or tribunal’s inability to rule upon constitutional challenges. See Punsky v. Clay County Bd. of County Com’rs, 60 So. 3d 1088, 1092 (2011); Anderson Columbia v. Brown, 902 So. 2d 838, 841 (2005). This argument is unconvincing for several reasons.

First, Facella admits that he does not pose a constitutional challenge to the Wandall Act, but instead maintains that the County’s program affords ATS, a private vendor and agent of the County, more discretion than permissible under the Act and in accordance with the Arem, 154 So. 3d 359 decision. To force a local hearing officer to hear evidence of this nature, however, does not guarantee Facella due process as he suggests; rather, it potentially deprives the government of its due process rights. Such process would provide petitioner’s like Facella the opportunity to litigate challenges to their notices of violation beyond that authorized by the Wandall Act and without providing a county, municipality, or agency, the opportunity to prepare for, and respond appropriately to, such contentions. This is because, unlike proceedings in the county court or other more formalized and judicial proceedings, there are no evidentiary rules, discovery procedures, or motions practices in notice of violation hearings.

Secondly, it would effectively deprive the presiding local hearing officer of the ability to control the proceeding. The Act affords the local hearing officer the discretion whether to hear testimony from anyone other than the TIEO and the petitioner. § 316.0083(d) (providing that the “local hearing officer shall take testimony from a traffic infraction enforcement officer and the petitioner, and may take testimony from others”) (emphasis added).

It follows that, if the local hearing officer were required to permit petitioners such as Facella to inquire of the TIEO regarding a vendor’s involvement, the local hearing officer would be forced to choose whether to permit the government to present testimony of other witnesses to explain the vendor’s involvement and admit the actual contract between the government and the vendor—which would greatly extend the proceedings and would amount to a full-fledged evidentiary hearing—or not permit the County to present such evidence, which potentially diminishes the County’s due process rights. Lastly, and perhaps most importantly, is the possibility that a local hearing officer may not be a licensed attorney, and neither the legislature nor this Court can authorize a non-attorney to interpret and apply the Wandall Act. See § 316.003(35); Canney, 278 So. 2d at 262. The Local Hearing Officer Afforded Facella Due Process

Facella received the opportunity to challenge the notice of violation at two, separate hearings. At his initial hearing, when he claimed that he potentially heard emergency sirens causing him to run the red light, the local hearing officer afforded him the opportunity to retrieve evidence of emergency calls in the area. TIEO Cardenas assisted Facella in obtaining public records from Orange County Fire Rescue prior to the second hearing, at which Facella could not prove that a siren sounded. Notably, Facella never denied that he ran the red light and acknowledged that, rather than a siren, the sound he heard could have been from a child in the backseat of his car. Facella received the opportunity to present evidence, to question TIEO Cardenas regarding the violation itself, and to make argument. Given the nature of notice of violation hearings, this opportunity—which included additional time for Facella to prepare, and assistance the voluntary assistance of TIEO Cardenas with obtaining public records—Facella was clearly afforded notice and a meaningful opportunity to be heard, and thus, adequate due process. See Carillon Cmty. Residential, 45 So. 3d at 9. The Essential Requirements of Law Next, Facella maintains that, given the Fourth District Court of Appeal’s decision in Arem, 154 So. 3d 359 (Fla. 4th DCA 2014) and this Court’s decision in Hastings v. City of Orlando, No. 2015-CV-49-A-O (Fla. 9th Cir. Ct. Feb. 16, 2016), which held that the red light programs implemented by the cities of Hollywood and Orlando violated the Wandall Act, the local hearing officer departed from the essential requirements of law.

We disagree. “A ruling constitutes a departure from the essential requirements of law when it amounts to ‘a violation of a clearly established principle of law resulting in a miscarriage of justice.’” Miami-Dade County v. Omnipoint Holdings, Inc., 863 So. 2d 195, 199 (Fla. 2003) (quoting Tedder v. Florida Parole Comm’n, 842 So. 2d 1022, 1024 (Fla. 1st DCA 2003)).

Here, Facella maintains that the local hearing officer erred in upholding the notice of violation because the County’s program violates the Wandall Act. He relies upon the 2014, Fourth District Court of Appeal’s decision in, City of Hollywood v. Arem, 154 So. 3d 359, holding that the City of Hollywood’s arrangement with ATS constituted an unlawful delegation of police power, rendering the citation issued to Arem “void at its inception” and requiring dismissal. Id. at 361.

In that case, however, the Fourth District was reviewing a county court’s dismissal of a UTC (not a local hearing officer’s decision on a notice of violation) and was interpreting language from the City of Hollywood’s 2008 contract with ATS, which was drafted and effectuated prior to the 2010 enactment of the Wandall Act and provided for red light infraction devices on the authority of a local ordinance rather than on a state statute. See id. See also City of Oldsmar v. Trinh, 41 Fla.

L. Weekly D2435, *7 (Fla. 2d DCA Oct. 28, 2016) (noting that, in the Arem case, “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”); State ex rel. City of Aventura v. Jimenez, 41 Fla.

L. Weekly D1753, *3 (Fla. 3d DCA July 27, 2016) (noting that the Arem decision interpreted 2008 contractual language, and at the time the contract was signed, “no statute authorized local governments to enforce red lights with cameras.”).

Moreover, the pertinent contractual language in the Arem case provided ATS “unfettered discretion” in determining whether a violation had taken place: “The vendor shall make the initial determination that the image meets the requirements of the Ordinance and this Agreement. . .” 154 So. 3d at 364-65. The Arem Court took issue with the fact that the vendor was determining, without any input or guidance from the City of Hollywood, whether a violation of the applicable ordinance occurred and whether to issue a citation. Id.

Since the Fourth District rendered its decision in Arem, two other District Courts of Appeal have upheld local government red light camera programs implemented under the Wandall Act and using the same private vendor, ATS. See City of Oldsmar v. Trinh, 41 Fla.

L. Weekly D2435 (Fla. 2d DCA Oct. 28, 2016); State ex rel. City of Aventura v. Jimenez, 41 Fla.

L. Weekly D1753 (Fla. 3d DCA 2016). The Trinh Court disagreed with Arem to the extent that it conflicted with the decision and certified conflict. 41 Fla.

L. Weekly D2435, *16. The Jimenez Court distinguished Arem on the basis that, in Arem, “there was a different contract, there were no standards or guidelines promulgated by the municipality, the Vendor determined probable cause, and the City officer merely acquiesced in the Vendor’s determination.” 41 Fla.

L. Weekly D1753, *9. In the City of Aventura’s program, however, the governing contract “strictly limit[ed] the Vendor only to ‘an initial determination of whether the recorded images should be forwarded to an Authorized Employee to determine whether an infraction has occurred.’” Id. Unlike in Arem, there were “bright-line standards promulgated by the City” to ensure that “the Vendor’s tasks regarding images [were] purely ministerial and non-discretionary in nature.” Id. Despite the differences in opinion among the three District Courts of Appeal that have heard Arem arguments, there is one underlying commonality between those cases that is lacking here: those appeals generated from a county court’s ruling on a motion to dismiss at a hearing following the issuance of a UTC, as opposed to a local hearing officer’s decision to uphold a violation at a preliminary, notice of violation hearing. Because the local hearing officer had limited, statutory authority, and based on the nature of the proceeding, was not required to hear evidence regarding and determine the legality of the County’s utilization of private vendor, ATS, it did not depart from the essential requirements of law in failing to permit evidence concerning the arrangement with ATS. Although this Court determined in Hastings v. City of Orlando, No. 2015-CV-49-A-O (Fla. 9th Cir. Ct. Feb. 16, 2016), that on those facts, the City of Orlando’s program violated the Wandall Act, in that case, the record contained evidence of the arrangement between ATS and the City; the Court was without the benefit of the subsequently decided Trinh and Jimenez decisions; and the jurisdiction of the local hearing officer was not challenged.⁵ Without any evidence concerning the County’s arrangement with ATS, this Court cannot say that the program violated the Wandall Act;

/S/

MICHAEL MURPHY

Presiding Circuit Judge THORPE and MYERS, J.J., concur. 6 The only evidence presented on this subject concerned the electronic nature of the Facella’s Notice of Violation and that TIEO Cardenas’s signature was electronically generated. However, as indicated earlier in this opinion, TIEO Cardenas testified that she reviewed the relevant images and video footage and determined that a violation had occurred. Only after she did this, did she electronically sign the Notice, triggering ATS to physically mail the Notice of Violation to Facella. There was no evidence regarding the actual contractual arrangement between the County and ATS. CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on this 18th day of January, 2017, a true and correct copy of the foregoing Order has been furnished to:

Kelli Biferie Hastings Law Office of Kelli B. Hastings, PLLC 4005 North Orange Blossom Trail Orlando, Florida 32804 Counsel for Appellant

Georgiana Holmes Andrea Azuka Adibe Orange County Attorney’s Office Orange County Administration Center 201 S. Rosalind Avenue, Third Floor P.O. Box 1393 Orlando, Florida 32802-1393

/S/

Breean Greene, Judicial Assistant