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Florida Supreme Court to Hear Red Light Camera Cases, Could Refund Millions of Dollars

November 12, 2012 - 6:00pm

The Florida Supreme Court announced Nov. 6 that it would hear appeals by two motorists who are contesting the legality of red-light camera citations issued before July 2010; if everything goes their clients' way, attorneys say thousands of citizens could collectively receive millions in refunds.

The court has yet to set a date for the hearing.

The two drivers bringing their appeal before the state high court are Richard Masone of Aventura and Michael Udowychenko of Kissimmee. Both received their citations in 2009; Masone cannot recall whether he was driving his car at the time it was photographed running a red light; Udowychenko does not dispute his culpability. Both agree, and argue, that their citations violated Florida law.

Between 2007 and July 2010, a handful of cities in the Sunshine State installed red-light cameras at several traffic stops. The devices, which are operated by private corporations, contain special sensors which are supposed to videotape and snap photographs of the license plates of drivers who run red lights. Employees of the corporation review the videos taken, and submit those of apparent traffic offenses to city police officers, who in turn make the final determination into whether a driver receives a code violation (not a traffic citation).

It was only in July 2010 that the Florida Legislature passed a law the Mark Wandall Traffic Safety Act expressly authorizing and regulating red-light cameras; the plaintiffs in the instant lawsuits insist that local governments were constitutionally and statutorily preempted from installing the controversial devices before the Act went into effect.

Since July 10, well over a hundred cities have installed red-light cameras and now issue code violations based on their recordings.

Bret Lusskin, Marones attorney, tells Sunshine State News his case rests principally on Section 316 of the Florida Statutes, the State Uniform Traffic Control Law. The section states that its purpose is to make uniform traffic laws to apply throughout the state, and that the provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized.

Lusskin says this language expressly prohibited local governments from issuing red-light camera traffic code citations while Florida law did not provide for such. The city of Aventura disagreed, citing two subsections of the statute which read, in relevant part:

The Legislature recognizes that there are conditions which require municipalities to pass certain other traffic ordinances in regulation of municipal traffic that are not required to regulate movement of traffic outside of such municipalities. ... The provisions of this chapter shall not be deemed to prevent local authorities ... from ... regulating, restricting, or monitoring traffic by security devices or personnel on public streets and highways, whether by public or private parties.

Lusskins suit counters that this legislative exception was only intended to allow local governments to respond to special conditions that do not exist beyond the city limits; the running of red lights is not such a condition.

The suit also argues that, before 2010, the red-light camera system did more than simply regulate traffic: it completely replaced the provisions of the State Traffic Control Law which regulated the amount of fines a violator could be assessed as well as the proper judicial venue for contesting citations. Under state law, traffic violations are heard by county courts; the city of Aventura had set up a special tribunal operated out of city hall.

Lusskin suggests theres more to this arrangement than a simple good-faith dispute over how to interpret state law.

This companys [i.e., American Traffic Solutions] plan was to come in and install all of these cameras for all of these cities knowing that they were illegal, knowing they would run into legal problems, and prepared to defend them, Lusskin tells the News. Once the big legal fight started, the company working together with its army of lobbyists would get the law changed, and once the law changed, the company would already have the infrastructure in place in all these municipalities and counties so that it would be too late for any of their competitors to come in and get contracts, and they would have sort of a monopoly. Its worked. Theyre responsible for almost every county and city that has red-light cameras.

Udowychenkos attorney, Jason Weisser, tells the News that a favorable ruling by the Supreme Court might enable his client to file a class-action suit, and the refund-payouts by the surveillance companies and local governments could number in the millions of dollars.

Weissers own legal arguments mirror Lusskins, though he places more emphasis on the constitutional aspects; he says the cameras, as employed before July 2010, violated Articles V and VIII of the Florida Constitution. The former provides that the county courts are the proper forum to deal with traffic violations, while the latter provides that city codes cannot preempt state law.

Ive been an opponent of red-light cameras from the beginning, for both legal and philosophical reasons, Lusskin says.

The burden of proof anytime a person is accused of breaking the law -- including a traffic law -- is beyond a reasonable doubt, he says. But thats not the case here. Nowhere in this process was the state ever able to prove who was driving the vehicle. You were guilty until proven innocent. This turned the most important legal principle we have in America on its head.

Not only that, he continues, but having government cameras on every street corner is an Orwellian nightmare.

The 2010 Traffic Safety Act has clarified that local governments carry the burden of proving beyond a reasonable doubt that vehicle owners are in fact driving their vehicles at the time a violation occurs. The Act also provides that a driver will not be cited for making a right-hand turn at a red light, so long as he acts safely and reasonably. Finally, it prohibits cities and counties from paying surveillance corporations on a per-violation basis.

Essentially everything what we were alleging in our [2009] complaint has already been addressed by state law, Weisser tells the News.

Lusskin says it isnt just private corporate greed that led to the violation of his clients and thousands of other drivers civil liberties.

[Local government officials] have gone through all of these mental and linguistic gymnastics to make what they were doing look legal, and theyve given us sound bites about how its all about safety on the road, he says. But the reality is just money: cities and counties were strapped for cash, and they found another way to take money from the people.

Reach Eric Giunta at or at (954) 235-9116.

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