THE NEXT CASE ON THIS MORNING'S CALENDAR IS CITY OF HOLLYWOOD VERSUS MULLIGAN. WE FINISHED A A LITTLE EARLY. MAKE SURE THAT JUSTICE BELL IS READY. THANK YOU. YOU KNOW, WE'LL JUST TAKE A MINUTE BREAK AND WE WILL BE RIGHT BACK OUT. THANK YOU.

THE MARSHAL: PLEASE RISE. .

THE MARSHAL: LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATED.

CHIEF JUSTICE: HOPEFULLY THAT MAY HAVE BEEN MORE THAN A MINUTE OR TWO, BUT WE HAVE JUSTICE BELL WITH US NOW WHICH IS THE MOST IMPORTANT. THIS CASE IS THE CITY OF HOLLYWOOD VERSUS MULLIGAN. ARE THE PARTIES READY? ALL RIGHT. MR.^ABBOTT?

THANK YOU.

CHIEF JUSTICE: SWITCHING GEARS IN THIS CASE.

SWITCHING GEARS FROM THE LAST ONE. MY NAME IS DANIEL ABBOTT. I'M A CITY ATTORNEY FOR THE CITY OF HOLLYWOOD AND I'M REPRESENTING THE PETITIONER, THE CITY OF HOLLYWOOD IN THIS ACTION. THIS IS A CASE IN WHICH MR.^MULLIGAN AND A CLASS HAS CHALLENGED THE CITY OF HOLLYWOOD VEHICLE IMPOUNDMENT ORDINANCE. IT IS AN ORDINANCE THAT IS IDENTICAL IN ALL MATERIAL RESPECTS TO TO LOCAL ORDINANCES THAT APPEAR IN MORE THAN A DOZEN LOCAL GOVERNMENTS HERE IN THE CITY OF HOLLYWOOD. IT PROVIDES FOR THE BRIEF IMPOUNDMENT OF VEHICLES THAT ARE USED IN THE COMMISSION OF CERTAIN MISDEMEANOR OFFENSES SUCH AS THE SOLICITATION OF PROSTITUTION WHERE THE USE OF CONTROLLED SUBSTANCES SUCH AS MARIJUANA. IT IS AN ORDINANCE WHICH EXPRESSLY DOES NOT APPLY IN ANY MANNER IN WHICH THE FLORIDA CONTRABAND FORFEITURE ACT MAY APPLY. THAT IS ANOTHER ACT THAT DEALS WITH POTENTIAL PERMANENT FORFEITURE OF ASSETS.

ARE THERE TWO ISSUES OR THREE ISSUES? IF WE DECIDE THAT IN THE STATUTE THAT THE FORFEITURE STATUTE DID NOT PREEMPT ANY OTHER STATUTE, I MEAN, THAT A MUNICIPALITY WOULD HAVE THAT WAS NOT IN CONFLICT THEN THAT WOULD REALLY SOLVE YOUR PROBLEM?

I THINK IT WOULD. THERE IS --.

CHIEF JUSTICE: THAT WAS WHAT JUDGE MAY STATED.

THERE WAS AN ALTERNATIVE FINDING BY THE DISTRICT COURT OF APPEAL THAT EVEN IF THE ORDINANCE IS NOT PREEMPTED IT DOES THEN CONFLICT WITH THE FLORIDA CONTRABAND FORFEITURE ACT. THAT IS A CONCLUSION WITH WHICH WE DISPUTE AS WELL BUT I SUPPOSE IF THAT CONCLUSION IS CORRECT IT WOULD PROVIDE AN INDEPENDENT BASIS FOR THE AFFIRMANCE OF THE DISTRICT COURT'S OPINION SO WE DO HAVE TWO ISSUES TO DEAL WITH ON THE APPEAL. LET ME MOVE ON TO THE -- FIRST TO THE PREEMPTION ISSUE.

CAN I ASK YOU A QUESTION ABOUT THE ORDINANCE? DOES THE ORDINANCE APPLY SPECIFICALLY ONLY TO MISDEMEANORS?

YES, AND ONLY TO SPECIFICALLY ENUMERATED MISDEMEANORS SUCH AS THE SOLICITATION OF PROSTITUTION AND THE POSSESSION OF CONTROLLED SUBSTANCES. AND IN ADDITION THERE IS EXPRESS LANGUAGE IN THE ORDINANCE THAT ANY CRIMINAL OFFENSE THAT MIGHT TRIGGER THE FLORIDA STATE STATUTE ON CONTRABAND FORFEITURE THEN THE ORDINANCE DOES NOT APPLY.

CHIEF JUSTICE: AND JUST ONE OTHER THING BEFORE YOU GET INTO THE MERITS AND AGAIN AS YOU SAY THIS IS SIMILAR TO STATUTES, ORDINANCES AND OTHER MUNICIPALITIES. IS THE IDEA THAT, AGAIN IF THEY ARE USING THE VEHICLE FOR PROSTITUTION BECAUSE YOU TAKE THE VEHICLE, BUT IF THEY PAY WHAT A $500?

ADMINISTRATIVE FEE, YES, MA'AM.

CHIEF JUSTICE: FEE AND THE FEE IS BECAUSE YOU TOOK THE VEHICLE?

THE FEE OR THE ADMINISTRATIVE OFFENSES THAT ARE ARE INCURRED IN THE ENFORCEMENT OF THE ORDINANCE.

CHIEF JUSTICE: BUT IT IS A PUNITIVE STATUTE. IT IS INTENDED TO, BECAUSE IF YOU ARE JUST COVERING THE COSTS OF IMPOUNDMENT, WHAT DID YOU NEED TO IMPOUND IN THE FIRST PLACE?

I THINK IT IS TO REMOVE THE VEHICLE FROM BEING USED FOR A CONTINUING PATTERN OF CRIMINAL ENTERPRISE.

CHIEF JUSTICE: BUT ONLY UNTIL THEY GIVE YOU $500.

YES, WELL, THE VEHICLE WILL BE RETURNED TO THE OWNER AFTER A FEW DAYS. I THINK THAT THE THOUGHT IS THAT PEOPLE WHO WERE IN POSSESSION OF CONTROLLED SUBSTANCES, OBVIOUSLY WILL NOT BE IN POSSESSION OF THOSE CONTROLLED SUBSTANCES ANY LONGER. THOSE THINGS WILL BE TAKEN AWAY, AND AS TO THE PROSTITUTION, IT HAS BEEN OUR LEGISLATIVE FINDINGS THAT THOSE THINGS USUALLY HAPPEN IN A CONTINUING ENTERPRISE OFTENTIMES THE PERPETRATOR IS INTOXICATED. OBVIOUSLY WE HOPE THAT THOSE CONDITIONS ARE REMOVED AFTER A TEMPORAL SEPARATION FROM THE PERSON AND THE VEHICLE.

CHIEF JUSTICE: ARE YOU ALSO GETTING INTO THE FACT THAT THIS IS DONE BY AN ADMINISTRATIVE OFFICER VERSUS A JUDICIAL OFFICER?

I DIDN'T PLAN ON DOING THAT. THAT WAS AN ARGUMENT BEFORE THE FOURTH DISTRICT COURT OF APPEALS. IT WAS NOT THE BASIS OF THE FOURTH DISTRICT'S CONCLUSION AND IT HASN'T BEEN SUGGESTED BY THIS RESPONDENT THAT YOU SHOULD AFFIRM THE DECISION OF THE DISTRICT COURT BASED UPON ANOTHER GROUNDS. UNLESS THERE ARE QUESTIONS FROM THE JUSTICES I HAD NOT PLANNED ON SPENDING A LOT OF TIME ON THE ADMINISTRATIVE VERSUS THE JUDICIAL ASPECTS.

CAN I ASK ONE OTHER QUESTION ON THIS ORDINANCE BEFORE WE GET THERE AND THAT IS YOU KNOW IN A NORMAL PROCEEDING, WHEN A CAR IS IMPOUNDED OR EVEN IF YOU, YOU KNOW, HAVE A LOT OF OVERDUE PARKING TICKETS OR SOMETHING LIKE THAT AND YOUR CAR IS IMPOUNDED. YOU PAY A CERTAIN FEE TO GET IT BACK. NOW, IS THE $500 THAT YOU HAVE UNDER THIS CORD NANCE IN ADDITION TO NORMAL IMPOUND FEES OR TOWING FEES?

IT IS IN ADDITION TO THE TOWING FEES, YES. WE DON'T COLLECT THE TOWING FEES. OBVIOUSLY THE TOWS COMPANY THAT PROVIDED THE THE SERVICE NEEDS TO BE COMPENSATED BUT THE ADMINISTRATIVE OFFENSE THAT COMES TO THE CITY OF HOLLYWOOD IS $500. MOST VIOLATIONS --

IT REALLY LOOKS LIKE THIS IS MORE OF A FINE THAT'S IMPOSED PRIOR TO ANY ADJUDICATION, RATHER THAN ANYTHING THAT REALLY HAS TO DO WITH AN IMPACT?

I WOULD RESPECTFULLY DISAGREE. THE FINE, AS YOU PUT IT, IS THE COST OF THE PROGRAM. OBVIOUSLY IT IS NOT A REVENUE GENERATOR FOR THE CITY AND THE CITY'S LEGISLATIVE FINDINGS SPECIFICALLY INDICATE THAT THE BASIS FOR THE ORDINANCE IS TO STOP A VEHICLE FROM BEING USED IN A CONTINUING PATTERN OF CRIME.

WHERE DOES THE MONEY GO? DOES THE MONEY JUST GO INTO THE CITY TREASURY?

NO, THE ORDINANCE PROVIDES THAT IT PROVIDES FOR THE ADMINISTRATIVE OFFENSES IN ENFORCING THE ORDINANCE. PRACTICALLY SPEAKING THAT MEANS THE SPECIAL MASTER THAT HEARS THE ADJUDICATION OF THE CASE AND A LOT OF THE MONEY ALSO GOES TO THE POLICE OFFICERS FOR THEIR OVERTIME DUTIES. WE DON'T REALLY HAVE THE MANPOWER TO HAVE CONSISTENT PROSECUTORS.

IS THIS SET OUT IN A SEPARATE FUND?

THE ORDINANCE SPECIFICALLY CALLS FOR THE MONEY TO BE REDEDICATED TO THE ADMINISTRATIVE COSTS OF ADMINISTERING THE PROGRAM. I THINK THERE IS A PROVISION THAT SAYS IF THERE ARE EXCESS FUNDS THAT THOSE FUNDS WILL EVENTUALLY BE DELIVERED TO THE GENERAL FUND OF THE CITY BUT AGAIN THE THOUGHT IS --

DOES THE RECORD INDICATE WHAT THE HISTORY OF THAT IS, WHETHER THERE HAVE BEEN, IN FACT, EXCESS FUNDS?

I DON'T KNOW IF THE RECORD BELOW INDICATES THAT BUT IT IS MY UNDERSTANDING THAT THE ADMINISTRATIVE EXPENSES, THE AMOUNT THAT WAS SET WAS TARGETED TO COMPENSATE FOR THE ADMINISTRATIVE EXPENSES. IT IS NOT DESIGNED TO BE A REVENUE GENERATOR FOR THE CITY.

CHIEF JUSTICE: WE BETTER GET TO YOUR -- YOU ARE GOING TO GET OUT OF TIME HERE. LET'S GET TO THE SPECIFIC ARGUMENTS ALTHOUGH AS YOU CAN SEE THE COURT HAS SOME CONSIDERABLE AT LEAST QUESTIONS ABOUT HOW THIS IS REALLY ADMINISTERED AND IT MAY COME UP IN TERMS OF THE PREEMPTION.

THANK YOU, I APPRECIATE THAT. ON THE PREEMPTION ISSUE, OF COURSE THE CITY OF HOLLYWOOD AS ALL MUNICIPALITIES HAS LOCAL HOME RULE POWERS WHICH MEANS WE CAN ENACT LEGISLATION ON ANY SUBJECT WE WANT PURSUANT TO OUR POLICE POWERS UNLESS WE ARE EXPRESSLY PREEMPTED FROM DOING SO BY GENERAL LAW. THIS COURT HAS MADE THAT CLEAR ON A NUMBER EVER INDICATIONS WHEN THE CONSTITUTION AND WHEN THE MUNICIPAL HOME RULE POWERS ACT SAYS WE CAN LEDGES LATE ON ANY ISSUE THAT HAS NOT BEEN EXPRESSLY PREEMPTED. THAT MEANS IT HAS TO BE EXPRESSLY PREEMPTED. THERE IS NO CONCEPT OF IMPLIED PREEMPTION OR FIELD PREEMPTION IN THE CITY OF HOLLYWOOD. I'M SORRY IN THE STATE OF FLORIDA. SO IF THE LEGISLATURE DOESN'T SPECIFICALLY SAY THAT LOCAL GOVERNMENTS CAN'T LEGISLATE ON A SUBJECT THEY CAN AND I THINK THIS COURT MADE THAT CLEAR BOTH IN THE TRIBUNE COMPANY VERSUS CANELLA CASE AND THE DAYTONA BEACH VERSUS DELPERSIO CASES IN 1985.

YOU AGREE YOU WOULD NOT BE ABLE TO LEGISLATE IN THE AREA IMPOUNDMENT OF VEHICLES FOR FELONY VIOLATIONS, DO YOU AGREE WITH THAT?

NO, I'M NOT SO SURE I WOULD. WE COULDN'T LEGISLATE INCONSISTENTLY WITH THE STATUTE. WE MIGHT CONFLICT BUT I THINK IN THIS CASE THERE IS NOT PREEMPTION LANGUAGE AT ALL.

I UNDERSTAND BUT I JUST WANT TO GET YOUR POSITION ON WHAT IF THIS ORDINANCE SAID FOR FELONIES WE ARE GOING TO IMPOUND THE VEHICLE AND THE STATUTE SAYS THAT FOR FELONIES THESE ARE FORFEITED SO NOW YOU HAVE A BATTLE OF JURISDICTIONS AS TO WHO GETS THE CAR.

WELL, OBVIOUSLY THERE IS NEVER A BATTLE OF JURISDICTIONS. THE STATE STATUTE WILL ALWAYS PREVAIL OVER A MUNICIPAL ORDINANCE TO THE EXTENT THEY HAVE INCONSISTENT PENALTY PROVISIONS IT WOULD BE THE STATE STATUTE THAT WOULD PREVAIL BUT IT IS NOT AT ALL UNUSUAL FOR A MUNICIPALITY TO ESSENTIALLY ECHO A STATE STATUTE TO ENACT THE STATE STATUTE ALSO AS AN ORDINANCE. THOSE THINGS ARE VALID IF THEY DON'T CONFLICT WITH EACH OTHER. IT PROVIDES ANOTHER FORUM IN WHICH TO LITIGATE CASES AND THOSE SORTS OF THINGS ARE ROUTINELY UPHELD. WHAT'S THE EXPRESS PREEMPTION LANGUAGE HERE THAT IS ARGUED BY RESPONDENT AND BY THE COURT BELOW? IT IS LANGUAGE THAT SAYS LAW ENFORCEMENT AGENCIES SHALL UTILIZE THE PROVISIONS OF THE FLORIDA CONTRABAND FORFEITURE ACT. THAT'S ALL IT SAYS. IT DICTATES WE USE THE ACT, USE THE STATUTE AND WE DO USE THE STATUTE WHEN THE STATUTE APPLIES WE BEGIN PROCEEDINGS UNDER THAT FORFEITURE STATUTE AND WE FORFEIT ASSETS THAT WERE USED FOR CRIMINAL ENTERPRISES. BUT WE DON'T USE THE STATUTE WHEN IT DIDN'T APPLY AND THE STATUTE JUST SIMPLY DOES NOT APPLY TO MISDEMEANOR OFFENSES TO PROVIDE FOR IMPOUNDMENT AND THAT'S WHY WE HAVE THE ORDINANCE.

CHIEF JUSTICE: THAT'S WHY I'M NOT SURE I UNDERSTAND YOUR ANSWER TO JUSTICE CANTERO'S QUESTION WHICH WAS IF THIS WAS A FELONY WOULDN'T IT THEN CONFLICT IF YOU WERE GOING TO BE USING THESE PROCEDURES VERSUS THE PROCEDURES UNDER THE FORFEITURE ACT?

IT MIGHT VERY WELL CONFLICT. IT WOULD NOT BE PREEMPTED. I UNDERSTOOD THE QUESTION TO TALK ABOUT PREEMPTION. WE CAN ENACT LEGISLATION THAT IS SIMILAR TO STATUTE AND WE ARE NOT PREEMPTED FROM DOING SO. WE CAN'T PROVIDE FOR DIFFERENT PROCEDURES BECAUSE THAT WOULD CONFLICT THEN WITH THE STATUTE. IN ANY EVENT IT DOESN'T SEEM TO BE DIRECTLY RELEVANT IN THIS CASE BECAUSE THERE IS NO OVERLAP BETWEEN THE STATUTE AND IN THE ORDINANCE. AS SUGGESTED IN OUR INITIAL BRIEF, THE FLORIDA LEGISLATURE KNOWS VERY WELL ABOUT THE STANDARDS FOR PREEMPTION AND THEY ARE GOOD AT IT. WHEN THE FLORIDA LEGISLATURE WANTS TO PREEMPT, LOCAL ACTION IN A FIELD IN WHICH THE STATE HAS REGULATED THEY PROVIDE EXPRESS PREEMPTION AND THEY SAY IT VERY CLEARLY. THEY SAY WE EXPRESSLY PREEMPT LOCAL LEGISLATION ON THE ISSUE. THAT SORT OF LANGUAGE IS NOT PRESENT HERE. WE GAVE SOME EXAMPLES IN THE BRIEF FOR THE LEGISLATURE IN A CRYSTAL CLEAR MANNER SHOWS THEY KNOW HOW TO PREEMPT WHEN THEY INTEND TO PREEMPT. THIS MORE SORT OF GENERAL LANGUAGE THAT SAYS YOU SHALL UTILIZE THE PROVISION OF THE ACT IS MUCH MORE COMPARABLE TO THINGS LIKE THE CONDOMINIUM STATUTE AND OTHERS THAT WE HAVE CITED THAT HAVE NOT BEEN HELD TO PROVIDE FOR PREEMPTION. SO I THINK THERE IS NO EXPRESS PREEMPTION HERE. BUT LET'S GO ON. LET'S ASSUME EVEN IF THERE IS PREEMPTION, THE ISSUE IS WHAT ARE WE PREEMPTED FROM DOING AND I THINK THIS GOES TO JUSTICE CANTERO'S QUESTION. EVEN IF THERE IS PREEMPTION, WHAT IS IT SUGGESTED THAT WE ARE PREEMPTED FROM DOING? OBVIOUSLY IF IT IS SOMETHING MORE THAN WE ARE PREEMPTED FROM FORFEITING VEHICLES THAT ARE USED FOR FELONIES BECAUSE OF COURSE THAT'S NOT WHAT THE ORDINANCE IS DOING HERE SO WHAT IS IT SUGGESTED THAT THE STATE FORFEITURE STATUTE FOR FELONIES PROHIBITS US FROM DOING IN A PREEMPTIVE CONTEXT? NOW, REMEMBER, LOCAL GOVERNMENTS IMPOUND VEHICLES FOR A NUMBER OF CIRCUMSTANCES, AND I THINK WE'VE PROBABLY CITED A DOZEN STATUTES OR SO IN OUR VARIOUS BRIEFS, THAT STATUTORILY LOCAL GOVERNMENTS CAN IMPOUND VEHICLES USED IN THE VIOLATION OF A NUMBER OF STATUTES AND AS THIS COURT MADE CLEAR IN MILLER VERSUS STATE THERE ARE EVEN NONSTATUTORY FACTORS FOR YOU -- FOR A LOCAL GOVERNMENT TO IMPOUND VEHICLES. WE CAN IMPOUND EVEN IF IT IS NOT SPECIFICALLY STATUTORILY RECOGNIZED. LET'S TALK ABOUT JUST THE PRACTICAL IMPACT HERE. MR.^MULLIGAN WAS ARRESTED FOR THE SOLICITATION OF PROSTITUTION. IN CONNECTION WITH THAT CUSTODIAL ARREST WE COULD HAVE IMPOUNDED THE VEHICLE NOTWITHSTANDING THE EXISTENCE OF THE IMPOUNDMENTS AT ALL BECAUSE THE VEHICLE WAS LOCATED IN THE RIGHT-OF-WAY. IT WOULD HAVE BEEN SAFE FOR NEITHER THE VEHICLE NOR FOR CARS PASSING THROUGH THE RIGHT-OF-WAY TO LEAVE THE VEHICLE THERE. GOVERNMENTS ROUTINELY WILL IMPOUND THE VEHICLE AND HAVE IT TOWED TO THE TOW YARD WHEN A CUSTODIAL ARREST IS MADE. NOW, IF MR.^MULLIGAN THEN WOULD HAVE HAD TO PAY TOWING FEES TO GET HIS VEHICLE BACK, AND IF HE COULDN'T HAVE PAID HIS TOWING FEES THAT CAR WOULD HAVE BEEN SOLD TO PAY FOR THE TOWING FEES. SO THIS CONCEPT THAT MR.^MULLIGAN AND OTHERS ARE --

DID HE HAVE THE SAME ADMINISTRATIVE FEE?

NO.

SPECIAL ADMINISTRATIVE FEE FOR THIS PARTICULAR ORDINANCE THEN?

THERE IS AN ADDITIONAL ADMINISTRATIVE FEE BUT THE POINT I WAS TRYING TO MAKE WAS TO SUGGEST THAT THIS CONCEPT THAT WE HAVE PUT SOMEBODY AT RISK OF LOSING THEIR VEHICLE IF THEY ARE FINANCIALLY UNABLE TO RECOVER THE VEHICLE IS CERTAINLY NOTHING NEW AND NOTHING THAT IS IMPOSED UNIQUELY BY THIS ORDINANCE. IT IS THE NATURE OF THE BEAST.

BUT IN THIS CASE YOU REALLY WOULD END UP FORFEITING THE VEHICLE IF YOU CAN'T PAY THE $500 AND THERE IS SOMETHING IN THE ORDINANCE ABOUT A BOND, YOU WOULD FORFEIT THE BOND. IF SOMEONE COULD NOT POST THE BOND AND THEY DIDN'T HAVE THE $500, THEN WHEN YOU END UP WITH A FORFEITURE OF A VEHICLE?

WELL, EVENTUALLY ONE COULD LOSE POSSESSION OF ONE'S VEHICLE BUT AGAIN THAT'S NOT NECESSARILY THE RESULT OF THE ORDINANCE THAT AGAIN IS THE POINT I TRIED TO MAKE BEFORE. THAT'S EXACTLY WHAT WOULD HAPPEN IF MR.^MULLIGAN COULDN'T AFFORD THE TOWING FEES WHICH I THINK IT IS CONCEDED THAT WE COULD IMPOSE. I THINK THE MERE FACT THAT ONE MIGHT LOSE POSSESSION OF AN ITEM ULTIMATELY THROUGH A PROCESS DOES NOT MEAN THAT YOU HAVE A FORFEITURE SCHEME AT WORK. WHEN I WANT TO GO INTO CITY HALL IN HOLLYWOOD I NEED TO GIVE MY DRIVER'S LICENSE TO SHOW THAT I AM ALLOWED TO BE THERE AND IF I DON'T PICK UP THE DRIVER'S LICENSE, WELL, EVENTUALLY THAT DRIVER'S LICENSE WILL BE DISCARDED AS SURPLUS PROPERTY. THE MERE FACT THAT SOMETHING MAY BE LOST IF YOU DON'T --

IN ORDER TO GO IN TO THE CITY HALL YOU HAVE TO GIVE YOUR DRIVER'S LICENSE UP?

JUST FOR SECURITY, YES, SIR.

HAS THAT BEEN TESTED BY ANY COURT?

NO, SIR.

TO ME THAT'S A RATHER POOR EXAMPLE FOR THE CITY OF HOLLYWOOD TO BE USING AS A BASIS UPON WHICH THEY ARE GOING TO IMPOSE RESTRICTIONS ON CITIZENS. IT IS THE CITIZENS' BUILDING. IT IS NOT THE CITY OFFICIALS' BUILDING THERE.

PERHAPS IT WAS A POOR ANALOGY. THERE ARE A NUMBER OF OTHER EXAMPLES I COULD HAVE USED WHERE ITEMS OF PERSONAL PROPERTY CAN BE LOST IF YOU DON'T RECLAIM THEM, AND THAT DOES NOT MEAN THAT ALL OF THOSE THINGS ARE FORFEITURE SCHEMES AND IT CERTAINLY DOESN'T MEAN THAT ALL OF THOSE --

IF THE AMOUNT OF THE FEE WERE FIXED AT $20,000, DOES THAT CONVERT THIS THEN INTO A, YOU KNOW, I DON'T HAVE THE MONEY TO DO THIS SO YOU CAN TAKE MY VEHICLE?

I DON'T KNOW IF IT WOULD OR NOT. AS A LOCAL GOVERNMENT WE COULDN'T IMPOSE A FEE TO THAT EXTENT. WE ARE STATUTORILY LIMITED TO THE $500. COULD IT EVENTUALLY BE A FORFEITURE. I THINK IT MIGHT VERY WELL BE, BUT WOULD THAT BE A FORFEITURE CONTRARY AND PREEMPTED BY THE VEHICLE? FORFEITURE, I DON'T THINK THAT IT WOULD BE.

WAS THE ARGUMENT THAT WAS MADE BEFORE THE COURT, THE LOWER COURT, I GUESS WOULD HAVE BEEN, DID IT START IN TRIAL IN THE CIRCUIT COURT?

IT STARTED IN THE CIRCUIT COURT AND WENT TO THE 4TH DISTRICT COURT OF APPEALS.

CHIEF JUSTICE: THE ARGUMENT WAS THE PREEMPTION ARGUMENT OR WAS THERE A DUE PROCESS ARGUMENT ALSO MADE?

AT BOTH THE TRIAL COURT AND THE APPELLATE COURT THERE WERE A NUMBER OF CHALLENGES TO THE ORDINANCE. THERE MUST HAVE BEEN A DOZEN OR SO. OF COURSE THE CITY OF HOLLYWOOD PREVAILED ON SUMMARY JUDGMENT AT THE CIRCUIT COURT LEVEL SO ALL CHALLENGES WERE REJECTED. THE 4TH DISTRICT HUNG THEIR HAT ON THE PREEMPTION.

CHIEF JUSTICE: SO WE HAVE CONCERNS IN TERMS OF HOW THIS IS OPERATING IN REAL LIFE? I MEAN ASIDE FROM THE PREEMPTION, BUT THE BEST THING WOULD THEN BE TO REMAND IT TO THE 4TH DISTRICT FOR THEM TO ADDRESS THOSE OTHER ISSUES THAT WERE RAISED?

WELL, IT MIGHT BE. I DEFER THOSE SORTS OF PROCEDURAL QUESTIONS TO --.

CHIEF JUSTICE: I JUST WANTED TO KNOW IF THE TRIAL COURT RECORD WAS NOT FULLY DEVELOPED BECAUSE THE SUMMARY JUDGMENT WAS ENTERED IN YOUR FAVOR?

WELL, THERE WERE CROSS MOTIONS FILED SO NEITHER PARTY SUGGESTED THAT THE RECORD WAS INCOMPLETE TO FORM THE BASIS OF AN OPINION. MY --.

CHIEF JUSTICE: SO THINGS LIKE WHERE THE MONEY GOES AND HOW MUCH IS THE ACTUAL, IS THIS REVENUE GENERATOR IS ALL IN THE RECORD?

I DON'T KNOW IF IT WAS OR NOT, BUT IT WAS NOT SUGGESTED THAT IT IS ABSENCE FROM THE RECORD WAS PREVENTED CONSIDERATION OF THE MATTER FOR SUMMARY JUDGMENT.

THAT'S NOT THE STANDARD FOR SUMMARY JUDGMENT. THE STANDARD FOR SUMMARY JUDGMENT IT MAY BE FOR ONE PARTY AND IT IS NOT A SUFFICIENT RECORD BUT FOR THE OTHER PARTY IT IS. THE MERE FACT THAT SOMEONE SAYS I WOULD LIKE TO SUMMARY JUDGMENT DOESN'T MEAN THAT THE OTHER PARTY IS AUTOMATICALLY ENTITLED THAT THERE ARE NO FACTS?

UNDERSTOOD, SIR, BUT IN THIS CASE THERE WERE CROSS MOTIONS FOR SUMMARY JUDGMENT AND NEITHER PARTY SUGGESTED THAT THE OTHER PARTY'S MOTION WAS NOT RIGHT BECAUSE OF THE ABSENCE OF EVIDENCE IN THE RECORD.

CHIEF JUSTICE: MR.^ABBOTT, YOU ARE -- YOU'VE GOT ABOUT TWO AND A HALF MINUTES OF YOUR TOTAL TIME LEFT.

LET ME TAKE MY SEAT THEN. THANK YOU.

OKAY. MAY IT PLEASE THE COURT, MY NAME IS RON GURALNICK AND I REPRESENT THE RESPONDENTS IN THIS CASE. THE FIRST ISSUE IS IS THE FLORIDA IMPOUNDMENT ORDINANCE ACT, IS IT A FORFEITURE OR IS IT AN IMPOUNDMENT? COUNSEL REFERRED TO IT AS A BRIEF IMPOUNDMENT. THAT IS NOT THE CASE. THIS IS STRICTLY A FORFEITURE ACT, AND A READING OF THIS ACT SHOWS THAT IT IS. READING THE ORDINANCE ITSELF, I SHOULD SAY.

HOW WOULD YOU DEFINE -- OVER HERE, HOW WOULD YOU DEFINE THE WORD FORFEITURE?

I WOULD DEFINE IT IN THIS FASHION. IF PERSONAL PROPERTY IS TAKEN OR YOUR RIGHTS THEREIN TO IT AS A RESULT OF THE COMMISSION OF A CRIME AND IT IS TAKEN PERMANENTLY THEN THAT WOULD BE FORFEITURE. ON THE OTHER HAND, IF IT IS AN IMPOUNDMENT IT WOULD BE A TEMPORARY TAKING.

SO YOU AGREE THEN THAT THE FORFEITURE INCLUDES THE CONCEPT OF A PERMANENT TAKING?

YES, I DO.

SO EXPLAIN HOW THIS ORDINANCE, AS DESIGNED, IS LIKE THE FORFEITURE ACT ITSELF, A PERMANENT TAKING?

I WAS GETTING INTO THAT. IF A PERSON CANNOT PAY THE ADMINISTRATIVE FEE, OR IF THAT PERSON CANNOT PAY THE BOND, HE LOSES HIS VEHICLE. ONCE THEY FIND THAT HE IS RESPONSIBLE FOR WHATEVER MISDEMEANOR THAT HE WAS CHARGED WITH, HE LOSES THE VEHICLE. NOW, THAT'S NOT TEMPORARY. IT IS PERMANENT.

CHIEF JUSTICE: AGAIN, LET'S JUST ASSUME THE VEHICLE WAS IMPROPERLY PARKED AND IT WAS TOWED. AND THE PERSON CANNOT PAY THE TOWING FEES, IT IS GOING TO BE A PERMANENT -- IS THE VEHICLE GOING TO BE RETURNED IF THEY CAN'T PAY THE TOWING FEES?

WELL, THEY --.

CHIEF JUSTICE: IN OTHER WORDS, ANY POTENTIAL WHERE THE VEHICLE IS TAKEN HAS A POTENTIAL FOR A PERMANENT DEPRIVATION.

IT HAS THE POTENTIAL. IT COULD BE, IT COULD BE, BUT UNDER THIS PARTICULAR ORDINANCE WHICH IS THE ONE WE ARE ARGUING COUNSEL IS SAYING THAT THIS IS A TEMPORARY TAKING WHEN, IN FACT, IT IS NOT. IT IS A PERMANENT TAKING OF THE MOTOR VEHICLE.

CHIEF JUSTICE: THAT'S NOT THEIR INTENT. THEIR INTENT IS THAT IT BE A TEMPORARY TAKING AND ISN'T THAT CORRECT?

WELL, IT MAY BE THAT WHAT THEIR INTENT IS BUT IN ACTUALITY IN REALISM THE MAN IS LOSING OR THE WOMAN IS LOSING THEIR MOTOR VEHICLE.

THE LANGUAGE DOESN'T SAY THAT IF YOU ARE FOUND IN THESE CIRCUMSTANCES, THAT YOUR VEHICLE WILL BE FORFEITED, THAT IS THAT THE CITY WILL BECOME THE OWNER OF THE VEHICLE. IT DOESN'T DO THAT, DOES IT?

NO, IT DOESN'T.

SO ISN'T THAT A CLEAR DISTINCTION BETWEEN FLORIDA'S FORFEITURE STATUTE, WHICH CONTEMPLATES THE CITY OR SOME LAW ENFORCEMENT AGENCY TAKING THE PROPERTY PERMANENTLY AND BECOMING THE OWNER OF IT, AS OPPOSED TO THE POTENTIAL ANY TIME THERE MAY BE A CHARGE OR A LIEN APPLIED TO PROPERTY THAT EVENTUALLY THAT PROPERTY CAN BE SOLD TO SATISFY THAT LIEN IF THE PERSON RESPONSIBLE DOESN'T PAY AT ALL. SO I'M HAVING TROUBLE WITH YOUR ARTICULATION THAT THIS IS A FORFEITURE ORDINANCE. WOULD YOU ARTICULATE THAT TO US AGAIN? WHAT BASIS DO YOU HAVE FOR CLAIMING THAT THIS IS A FORFEITURE, THE PERMANENT TAKING OF PROPERTY BY THE CITY GOVERNMENT?

WELL, I THINK WE HAVE TO LOOK AT THIS. WHAT IS THE REALISTIC CONCLUSION. IF THE PERSON CANNOT PAY THE ALLEGED ADMINISTRATIVE FEE --

IF THEY CAN'T PAY YOU JUST AGREED THAT IF THEY CAN'T PAY THE FEE FOR TOWING THEN THEY ARE GOING TO END UP WITH THE VEHICLE BEING SOLD TO ENFORCE THE TOWING LIEN, AND THAT'S NOT A FORFEITURE, YOU AGREE, RIGHT?

YES, IF I MAY, I'M TRYING TO DIRECT MY ANSWER TO YOUR QUESTION SPECIFICALLY. LET'S SAY HE CAN'T PAY THE TOWING, AND SO AND THE WHO HAS THE VEHICLE NOW? IT IS THE TOWING COMPANY. WELL, THEY HAVE A LIEN ON THAT VEHICLE, AND SO THAT'S WHY THE VEHICLE COULD BE LOST PERMANENTLY IF THE PERSON COULDN'T PAY. BUT UNDER THIS PARTICULAR ORDINANCE, IF YOU CAN'T PAY THE FEE TO THE CITY, NOT TO THE TOWING COMPANY, IF YOU CAN'T PAY IT TO THE CITY YOU LOSE YOUR VEHICLE. THAT'S NOT TEMPORARY. THAT'S PERMANENT.

WELL, IF THE CITY HAD ITS OWN TOW TRUCKS, THE SAME THING WOULD OCCUR, WOULD IT NOT? IF THE CITY WAS THE ONE DOING THE TOWING?

BUT THAT'S NOT THE CASE. THAT'S NOT THE CASE. THEY ARE DEALING WITH THE TOWING COMPANY. SO IT IS NOT -- IT IS THE CITY THAT IS CAUSING THE PERMANENT LOSS OF THE VEHICLE. NOT THE TOWING COMPANY. THE ORDINANCE SAYS THAT YOU MUST PAY AND IF YOU DON'T THEY KEEP THE CAR.

IS IT YOUR POSITION THAT AFTER THIS OCCURS THAT THE CITY HAS NO RIGHT TO TAKE POSSESSION OF THE VEHICLE IN ANY WAY, EVEN THOUGH THEY HAVE FOUND THAT IT HAS BEEN USED AS THE SITE OF THE PROSTITUTION OR THE SITE OF THE DRUG OFFENSE? THEY HAVE NO RIGHT TO DO ANYTHING WITH THE VEHICLE?

WELL, OF COURSE THIS IS WHERE THE PREEMPTION ARGUMENT WOULD COME IN. RIGHT NOW I'M ADDRESSING MYSELF TO THE ARRESTED NO ONE'S ITSELF WHETHER IT IS AN IMPOUNDMENT, TEMPORARY, OR WHETHER IT IS -- UNDER THIS ORDINANCE, THERE ARE ONLY TWO PARTIES THAT ARE ARE NOTIFIED THAT THEY ARE ENTITLED TO A HEARING. ONE IS THE OPERATOR OF THE VEHICLE AND THE OTHER IS THE OWNER OF THE VEHICLE. THERE ARE OTHER OWNERS, THERE ARE OTHER PARTIES OR COMPANIES THAT HAVE INTEREST IN THESE VEHICLES SUCH AS A RENTER, A LESSOR OR A JOINT OWNER IF THEY DON'T GET NOTICE OF THIS HEARING THEY LOSE THE VEHICLE NOT BECAUSE THEY CAN'T PAY FOR IT BUT BECAUSE THEY SIMPLY ARE NOT NOTIFIED AND DON'T KNOW THERE IS A HEARING AND THEREFORE NOT DEFENDING AT THE HEARING THEY LOSE THE VEHICLE.

CHIEF JUSTICE: IT SEEMS TO ME AND I THINK WE'VE GOT TO BE SORT OF SEPARATE BETWEEN WHAT ARE THE POTENTIAL PROBLEMS THAT COULD ARISE IN THIS CASE AND YOU ARE HERE AS A CLASS ACTION AND I UNDERSTAND AN ISSUE WAS THAT THERE WASN'T SUFFICIENT NOTICE THAT MIGHT EXIST IF IT WAS A FINANCE COMPANY. SO I THINK WE OUGHT TO RESTRICT OURSELVES TO THE ISSUES THAT ARE BEFORE US. DID YOU RAISE THAT ISSUE IN THE TRIAL COURT, THAT IS THAT THE NOTICE PROVISIONS OF THE STATUTE WERE DEFECTIVE, CONSTITUTIONALLY DEFECTIVE?

ALL OF THESE ISSUES WERE ADDRESSED BEFORE THE TRIAL COURT.

CHIEF JUSTICE: DO YOU REPRESENT ANYONE IN YOUR CLASS THAT SAYS THAT THEY DIDN'T GET PROPER NOTICE? WAS THAT A CLASS ACTION?

IT IS A CLASS ACTION. ONE PARTY IS REPRESENTATIVE OF THE CLASS. HE COULDN'T HAVE SUFFERED ALL OF THOSE PARTICULAR --

CHIEF JUSTICE: MY QUESTION IS WHETHER IT IS CONSTITUTIONAL ON ITS FACE OR RATHER THAN IMPLIED. WHY DON'T YOU GO TO THE PREEMPTION ARGUMENT AS TO WHAT YOUR BEST -- BECAUSE IF JUDGE MAY IS CORRECT THAT IS THAT THE FORFEITURE STATUTE APPLIES ONLY TO FELONIES AND DOES NOT PREVENT THE MUNICIPALITY FROM ACTING WHEN IT IS A MISDEMEANOR THEN YOU WOULD NOT PREVAIL, CORRECT?

RIGHT.

CHIEF JUSTICE: OKAY.

IT IS OUR POSITION UNDER THE FORFEITURE ACT WHICH STATES THAT IT IS APPLICABLE TO ALL LAW ENFORCEMENT AGENCIES OF WHICH THE HOLLYWOOD POLICE DEPARTMENT IS ONE OF, THEY MUST COMPLY WITH ALL OF THE PREREQUISITES OF THE FLORIDA CONTRABAND FORFEITURE ACT.

CAN YOU FORFEIT A VEHICLE, INITIATE FORFEITURE PROCEDURES FOR A MISDEMEANOR IN THE STATE OF FLORIDA?

IT IS OUR CONTENTION THAT YOU CANNOT, NOT AT ALL.

CHIEF JUSTICE: SO HOW DOES IT PRECLUDE THEN IF IT DOESN'T APPLY TO MISDEMEANORS HOW DOES IT PRECLUDE A MUNICIPALITY FROM ACTING IF IT ACTS APPROPRIATELY FROM IMPOUNDING A VEHICLE THAT IS USED IN A MISDEMEANOR ON A TEMPORARY BASIS?

SORRY. BECAUSE BY APPLICATION OF THE ACT THAT THEY MUST FOLLO