       Third District Court of Appeal
                                State of Florida

                             Opinion filed July 27, 2016.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                         Nos. 3D15-2303 & 3D15-2271
                        Lower Tribunal No. 14-A369OZE
                              ________________


    State of Florida, by and through the City of Aventura, et al.,
                                    Appellants,

                                         vs.

                             Luis Torres Jimenez,
                                     Appellee.


     Appeals pursuant to Florida Rule of Appellate Procedure 9.160 from the
County Court for Miami-Dade County, Steven Leifman, Judge.

      Pamela Jo Bondi, Attorney General, and Robert Dietz (Tampa), Assistant
Attorney General, as Intervener for appellant; Weiss Serota Helfman Cole &
Bierman, and Edward G. Guedes and Samuel I. Zeskind, for appellant City of
Aventura.

      Louis C. Arslanian (Hollywood); Wites & Kapetan, P.A., and Marc A. Wites
(Lighthouse Point), for appellee.

       Carlton Fields Jorden Burt, and Joseph H. Lang, Jr. and Kevin P. McCoy;
Hamilton, Miller & Birthisel, and Jerry D. Hamilton and Ashlee A. Pouncy; Baker
& Hostetler and Krista A. Sivick, for American Traffic Solutions, Inc., and Xerox
State and Local Solutions, Inc., as amici curiae.

                                         1
       Johnson, Anselmo, Murdoch, Burke, Piper & Hochman and Christopher J.
Stearns, for Bal Harbour Village, Town of Campbellton, City of Clermont, City of
Cocoa Beach, City of Coral Springs, Town of Cutler Bay, City of Doral, Village of
El Portal, City of Green Cove Springs, City of Hialeah Gardens, City of Holly
Hills, Town of Juno Beach, Village of Key Biscayne, City of Lauderdale Lakes,
Manatee County, City of Miami Gardens, City of Miami Springs, City of Milton,
City of North Bay Village, City of Oldsmar, City of Opa Locka, City of Orange
Park, City of Palatka, City of Palm Coast, Village of Palm Springs, City of
Pembroke Pines, City of Sunrise, City of Surfside, City of Sweetwater, City of
Tamarac, City of West Miami, City of West Park, City of Fort Lauderdale, New
Port Richey, Port Richey, City of Cocoa Beach, Town of Davie, City of Coral
Gables, North Miami Beach, Hillsborough County, City of Groveland, City of
Hallandale Beach, City of Apopka, and Orange County (“Local Governments”), as
amici curiae.


Before WELLS, EMAS, and LOGUE, JJ.

      LOGUE, J.

      The City of Aventura and the Attorney General of Florida appeal a decision

of the county court dismissing a traffic citation that charged Luis Torres Jimenez

with running a red light by turning right at an intersection marked no-turn-on-red.

Probable cause for the citation was based on photographs and a video from the

City’s red light camera program which is serviced by American Traffic Solutions,

Inc., a City vendor.

      Jimenez challenged his ticket based on a claim that the City’s red light

camera program was illegal because (1) the Vendor was given unfettered discretion

that exceeded the City’s statutory authority to use an agent to “review” images,

section 316.0083(1)(a), Fla. Stat. (2014); (2) the Vendor had unfettered discretion


                                        2
in printing and mailing notices and citations in violation of a statutory requirement

that only an officer can “issue” citations, id.; and (3) the Vendor had unfettered

discretion to send an electronic copy of the citation to the Clerk of Courts in

violation of the statutory requirement that only an officer “shall provide” an

electronic copy to the Clerk, section 316.650(3)(c), Fla. Stat. (2014).

      For the reasons explained below, we reject Jimenez’s arguments. In

particular, we hold that the review of red light camera images authorized by

section 316.0083(1)(a) allows a municipality’s vendor, as its agent, to review and

sort images to forward to a police officer where, as here, (1) the vendor’s decisions

in this regard are strictly circumscribed by contract language, guidelines

promulgated by the municipality, and actual practices, such that the vendor’s

decisions are essentially ministerial and non-discretionary; (2) these ministerial

decisions are further limited by an overarching policy of automatically passing all

close calls to the police for their review; (3) it is the police officer that makes the

actual decision whether probable cause exists and whether a notice and citation

should issue; and (4) the officer’s decision that probable cause exists and a citation

issues consists of a full, professional review by an identified officer who is

responsible for that decision and does not merely acquiesce in any determination

made by the vendor.




                                          3
      Due to these circumstances, we distinguish City of Hollywood v. Arem, 154

So. 3d 359 (Fla. 4th DCA 2014), 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. Because of the broad public and institutional

interest in red light cameras, we certify three issues to the Florida Supreme Court

as having great public importance.

                         BACKGROUND AND FACTS

      A. The Mark Wandall Traffic Safety Act.

      On July 1, 2010, the Legislature enacted the Mark Wandall Traffic Safety

Act, which authorized local governments to use cameras to enforce traffic lights.

Ch. 2010-80, Laws of Fla., partially codified at § 316.0083, Fla. Stat. (2010). The

Wandall Act was named in honor of Mark Wandall, whose wife was nine months

pregnant when he was killed by a driver who ran a red light. City of Orlando v.

Udowychenko, 98 So. 3d 589, 596 n.10 (Fla. 5th DCA. 2012). According to the

accompanying committee report, seventy-six people were killed in 2008 in Florida

by drivers running red lights. See House of Representatives Staff Analysis, at p. 2,

CS/CS/HB 325 (Mar. 9, 2010).

      At the heart of the dispute in this case is the Wandall Act’s express

authorization for local governments to use “agents” to “review” images before the

“officer” issues a citation. On this point, the Wandall Act reads, “[t]his paragraph



                                         4
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), Fla. Stat.

      B. The Vendor’s Sorting of Images.

      The City and the Vendor entered into a contract whereby the Vendor is

responsible for installing, maintaining, monitoring, and assisting in administering a

“digital photo red light enforcement system” which includes a network of

computers, sensors, speed detectors, timers, cameras, printers, and mailing

capabilities, all supported by software owned by or licensed to the Vendor.

      Under the contract and its various amendments, the Vendor sorts the

information and images generated by the system into two databases: a “working”

database that the City police review to decide whether to issue a citation and a

“non-working” database that the City police do not review for that purpose. Each

image placed in the non-working database is reported, and the reason for placing

the image in the non-working database is explained by the Vendor on a report

screen. The report screen is periodically reviewed by the sergeant in charge of the

City’s review. The non-working database remains available and is occasionally

accessed by the police for other investigations.




                                          5
      Each month, approximately 5,000 images are sorted into the working

database and 3,000 are sorted into the non-working database. The police sergeant

who oversees the City’s review testified that the City would be overwhelmed if it

was required to review all images generated by the system.

      To sort images, the Vendor conducts a review that includes (1) confirming

workable images exist (and the camera did not simply misfire); (2) examining the

images to verify the license plate of the subject vehicle is legible; (3) using the

license plate number in an automated process to obtain the identifying information

of the registered owner from the Florida Department of Motor Vehicles; (4)

confirming the capture of date, time-of-day, speed, and timing-of-light data; (5)

checking the “A” shot, which is a still photograph showing the vehicle approaching

the intersection; (6) checking the “B” shot, which shows the vehicle in the

intersection; and (7) checking the twelve-second video clip that shows the vehicle

approaching and traveling through the intersection. The Vendor can pause the

video and view it frame by frame.

      A representative of the Vendor testified that the Vendor’s task when

reviewing images was to filter out images that were “useless.” A clear example,

she explained, is where a camera simply misfired and failed to record an image.

Other examples are where the light displays green or where images fail to capture a

vehicle’s license plate number. These images were useless, she testified, because



                                        6
“the police cannot do anything with them.” But other images are determined to be

useless based on the specific and detailed contract language and City guidelines.

      C. Sorting Under the Prior 2008 Contract.

      The Vendor’s responsibility and authority to sort images was first

established in the 2008 Contract, where the Vendor’s authority to review images

was stated in a broad manner:

      The vendor shall make the initial determination that the image meets
      the requirements of the Ordinance and this Agreement, and is
      otherwise sufficient to enable the City [to] meet its burden of
      demonstrating a violation of the Ordinance. If the Vendor determines
      that the standards are not met, the image shall not be processed any
      further.

As discussed below, it is this 2008 Contract language that was quoted, analyzed,

and relied upon by the Fourth District in the Arem decision cited by Jimenez.

When this 2008 Contract was signed, no statute authorized local governments to

enforce red lights with cameras.1 On July 19, 2010, immediately after the effective

date of the Wandall Act, the City and the Vendor amended the 2008 Contract and

removed this language.

      D. Sorting Under the Current Amended Contract.




1 The Florida Supreme Court subsequently held that local governments required
statutory authorization to use automatic cameras to enforce red light laws. Masone
v. City of Aventura, 147 So. 3d 492 (Fla. 2014). While the Masone case was
pending, the Legislature enacted the Wandall Act.

                                         7
      Among other things, the 2010 amendment expressly deleted the language

from the 2008 Contract quoted above. Importantly, the deleted language was

replaced with new language substantially narrowing the nature and scope of the

Vendor’s role in the process. The Amended Contract reads:

      Vendor shall act as City’s agent for the limited purpose of making an
      initial determination of whether the recorded images should be
      forwarded to an Authorized Employee to determine whether an
      infraction has occurred and shall not forward for processing those
      recorded images that clearly fail to establish the occurrence of an
      infraction.
(emphasis added).

      Significantly, the Amended Contract also expressly recognized that the

Vendor had no authority to decide that a citation would issue. Instead, it provided

that the decision to issue a citation can be made only by a police officer. The

Amended Contract states:

       VENDOR HEREBY ACKNOWLEDGES AND AGREES THAT
       THE DECISION TO ISSUE A NOTICE OF VIOLATION SHALL
       BE THE SOLE, UNILATERAL AND EXCLUSIVE DECISION
       OF THE AUTHORIZED EMPLOYEE AND SHALL BE MADE
       IN SUCH AUTHORIZED EMPLOYEE’S SOLE DISCRETION (A
       “NOTICE OF VIOLATION DECISION”), AND IN NO EVENT
       SHALL VENDOR HAVE THE ABILITY OR AUTHORIZATION
       TO MAKE A NOTICE OF VIOLATION DECISION.
      E. Creation of City’s Standards for Sorting Images.

      Central to the issue of unfettered discretion in this case are certain

guidelines, which the City and Vendor call the “Business Rules Questionnaire.”



                                        8
The guidelines govern the Vendor’s task of checking the “A” and “B” shots and

the video clip. The guidelines were created by a process in which the Vendor

identified scenarios or decision points and suggested alternative solutions to the

City. For the most part, the City selected one of the alternative solutions suggested

by the Vendor, but in several instances, the City created its own solutions.

      For example, guideline 4.1 concerns the line of demarcation, which means

the boundary of the intersection. This is the line used to evaluate the “A” shot,

which is the photograph that shows the vehicle approaching the intersection. In

reviewing this guideline, one must keep in mind that if the front tires of a vehicle

crossed the boundary and entered the intersection when the light is still displaying

green, the vehicle obviously is not running a red light. Conversely, if the front tires

had not yet reached this line when the light displays red, the vehicle would appear

to be running a red light (assuming the vehicle does not immediately stop within

the edge of the intersection and wait for a green light). All of the City intersections

containing red light cameras have painted stop lines. The Vendor provided four

alternative suggestions for the line of demarcation: (1) the stop line; (2) the

prolongation of the curb; (3) the crosswalk; and (4) whichever line the tires will hit

first. The City adopted the first suggestion: the line of demarcation is the painted

stop line. A similar process was followed for the other guidelines.

      F. Police Decision to Issue Citation.



                                          9
      The police officers assigned to red light camera enforcement access the

working database by logging into the server using their own unique user

identification and password. The officers decide to issue a citation based on the

images in the same manner they decide to issue a roadside citation. If, after

reviewing the photographs, video, and other information, the officer decides to

issue a citation, the officer clicks the “accept” button on the screen. By doing so,

the officer authorizes his or her electronic signature and badge number to appear

on the notice and citation. The officer’s review and determination in this regard is

far from a mere rubber stamp. As the trial court expressly found, “[o]f the images

reviewed by the City’s police officers, only between sixty-five percent (65%) and

seventy percent (70%) are approved as a violation.”

      G. Probable Cause in Jimenez’s case.

      An example of the nature and extent of the police officer’s review is

provided by the issuance of Jimenez’s citation for turning right on red at an

intersection marked no-turns-on-red. Jimenez’s ticket was issued by Officer

Jeanette Castro, a thirteen-year veteran of the City Police Department who has

issued thousands of traffic citations roadside, and hundreds as part of the red light

camera program. Her badge number and electronic signature appear on the notice

and citation. Officer Castro explained her thought process in deciding why

probable cause was demonstrated by the images in Jimenez’s case:



                                         10
      Q.    Can we see the video again and walk us through what
you see as you watch the video?

       OFFICER CASTRO:          You see again the vehicle approaches
the right turn. At this point, the light is—like I stated, it’s already
been red for 5.7 seconds. He proceeds to—the vehicle proceeds to
make a right-hand turn, and that oncoming traffic is moving.

     Q.    Was that the same video that you watched when you
made your probable cause determination in this case?

      OFFICER CASTRO:           Yes.

      Q.    Again, you determined that there was probable cause
that Mr. Jimenez had committed a red light infraction?

      OFFICER CASTRO:           Yes.

      Q.    Did anyone else make that determination?

      OFFICER CASTRO:           No.

      Q.    Can you describe again the factors that you
considered in making that determination?

       OFFICER CASTRO:          The fact that the light was indeed red,
that it was a no turn on red intersection, that the vehicle proceeds to
make the right-hand turn through the intersection while the light is
red.

      Q.    You considered that to be a violation of the red light
statutes?

      OFFICER CASTRO:           Yes, I do.

       Q.   You made that determination as a law enforcement
officer based on your interpretation of those red light statutes?

      OFFICER CASTRO:           Yes.



                                  11
      Officer Castro testified that her decision to issue a citation to Jimenez was

based on the same factors and criteria she uses when she issues a citation for a

similar roadside violation.

      H. Vendor’s Involvement in Printing, Mailing, and Processing Notices
         and Citations.

      The record reflects the Vendor plays an important role in administering the

printing, mailing, and electronic delivery of the notice and citation. The officer

records in the City’s computers his or her determination that probable cause exists

and that a notice and citation will issue. That decision is immediately

communicated to the Vendor’s computers and triggers a pre-programed, automated

process of printing and mailing the notice. If the required payments or affidavits

are not received within the statutory deadlines, the Vendor’s system then

automatically prints and mails the citation. The Vendor’s system also automatically

delivers an electronic copy of the citation to the Clerk of the Courts, who creates a

court file. The forms of the notice and citation are provided by the City. The

information on the notice and citation are approved by the officer when she or he

authorizes the issuance. Once triggered by the police officer, the officer does not

view the notice or citation again before it is sent out. Also, once triggered by the

police officer, this process involves no exercise of judgment or discretion on the

part of the Vendor.




                                         12
      I. Trial Court’s Decision and Certification of Questions of Great Public
         Importance.

      After an evidentiary hearing, the trial court issued an opinion that made

extensive and detailed findings of fact which neither side challenged on appeal.

Citing to Arem, 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, the trial court quashed Jimenez’s traffic citation. The trial court,

however, determined that the Vendor’s actions in printing and mailing the notice

and citation to Jimenez, and in delivering an electronic copy of the citation to the

clerk, did not involve unfettered discretion. The trial court certified to this court the

following issues:

      1. Does the review of red light camera images authorized by Florida
         Statute 316.0083(1)(a) allow a municipality’s vendor, as its agent,
         to review and then select which images to forward to the law
         enforcement officer, where the municipality has provided the
         vendor with specific written guidelines for determining which
         images to forward or not to forward?

      2. If the vendor is permitted to review and then forward images in
         accordance with a municipality’s written guidelines, is it an illegal
         delegation of police power for the vendor to print and mail the
         [citation], through a totally automated process without human
         involvement, after the law enforcement officer has affirmatively
         made a probable cause determination and authorizes the
         prosecution of the violation by selecting the “accept” button?

      3. Does the fact that the [citation] data is electronically transmitted to
         the Clerk of the Court from the vendor’s server via a totally
         automated process without human involvement violate Florida
         Statute §316.650(3)(c) when it is the law enforcement officer who


                                           13
          affirmatively authorizes the transmission process by selecting the
          “accept” button?

The City and the Attorney General appealed. We accepted the questions for review

and therefore have jurisdiction. Art. V, § 6, Fla. Const.; § 34.017(1) & (2), Fla.

Stat. (2015).

                                     ANALYSIS

      A. Certified Question Number 1: the Vendor’s Sorting of Images.

      The trial court’s first certified question reads:

      Does the review of red light camera images authorized by Florida
      Statute 316.0083(1)(a) allow a municipality’s vendor, as its agent, to
      review and then select which images to forward to the law
      enforcement officer, where the municipality has provided the vendor
      with specific written guidelines for determining which images to
      forward or not to forward?

      In regards to this certified question, Jimenez’s main argument is that the

guidelines allow the Vendor unfettered discretion to place items into the non-

working database where they are never reviewed by the police for purposes of

issuing citations.2 The starting point for this argument is the language in the

2  Jimenez also argues that the creation of the guidelines reflects unfettered
discretion by the Vendor. The Vendor’s suggestion of a range of options that
included solutions diametrically opposed to one another falls far short of
establishing as a matter of law that the Vendor exercised unfettered discretion in
the creation of the standards. In fact, in at least two guidelines (4.3 and 4.4), the
City added requirements to the guidelines without Vendor input. There is nothing
illegal in government obtaining input from private parties in these circumstances.
See generally, Walker v. Trump, 549 So. 2d 1098, 1102 (Fla. 4th DCA 1989)
(“[T]he supreme court has held that there is no prohibition on the use of outside
appraisers to assist the property appraiser in fulfilling her function, since such

                                          14
Wandall Act authorizing the City to use “agents” to “review” the information

generated by the red light traffic program “before issuance of the traffic citation by

the traffic infraction enforcement officer.” § 316.0083(1)(a), Fla. Stat.

      In his brief, Jimenez acknowledged that “it makes perfect sense for the

Legislature to have allowed the private entity to ‘review’ this evidence [generated

by the red light camera program] to ensure that it is usable.” Jimenez therefore

essentially conceded that the term “review” as used in the statutes, connotes not

just viewing, but also some modicum of assessment. To be sure, it is hard to deny

that the legal term “review” indicates some level of evaluation: the Florida

Constitution, after all, uses the term “review” when establishing the jurisdiction of

the Supreme Court and district courts. Art. V, §§ 3(b) & 4(b).

      Nevertheless, behind the statutory term “review” is the principle of law that

a city’s legislative body cannot delegate its legislative function by investing

unbridled discretion in an administrative agency, government official, or private

party. See, e.g, Arem, 154 So. 3d 359; Cty. of Volusia v. City of Deltona, 925 So.

2d 340, 345 (Fla. 5th DCA 2006); City of Belleview v. Belleview Fire Fighters,

Inc., 367 So. 2d 1086, 1088 (Fla. 1st DCA 1979); Amara v. Town of Daytona

Beach Shores, 181 So. 2d 722, 724 (Fla. 1st DCA 1966) (“Licensing ordinances

must prescribe definite rules and conditions which the applicant shall meet and

appraisals produced by outside firms are not binding upon the property appraiser
but may serve as a guide.”).

                                          15
may not leave the determination of the applicant’s fitness or suitability to the

undirected and uncontrolled discretion of even the licensing authority.”).

      At the same time, a government entity can outsource services and use private

vendors, provided the essential decisions regarding the exercise of government

power are retained by the government or controlled by that body through the

promulgation of standards that prevent the private party from having unfettered

discretion in the exercise of governmental power. See St. Johns Cty. v. N.E. Fla.

Builders Ass’n, Inc., 583 So. 2d 635, 642 (Fla. 1991) (upholding a county impact

fee for school infrastructure that authorized the School Board to spend the fees

collected “because the fundamental policy decisions have been made by the

county, and the discretion of the school board has been sufficiently limited”); Cty.

Collection Servs., Inc. v. Charnock, 789 So. 2d 1109, 1112 (Fla. 4th DCA 2001)

(upholding a contract in which a county hired a private entity to collect code

enforcement liens because the private entity was not given unfettered discretion).

See generally Citizens of State of Fla. v. Wilson, 567 So. 2d 889, 892 (Fla. 1990)

(upholding a delegation of the authority to grant a rate increase to its staff because

“[t]he Commission specified the conditions for approval, and the staff merely

carried out the ministerial task of seeing whether these conditions were met”).

      The question thus becomes whether the Vendor’s review in this case

involves the exercise of unfettered discretion. We hold that it does not. The record



                                         16
reflects that the type of evaluation exercised in the Vendor’s decisions is clerical

and ministerial. When sorting images into the working and non-working databases,

the Vendor separates the images that are usable because they contain certain easy-

to-ascertain information, from those that are not usable because they fail to contain

that information. For example, the Vendor exercises no unfettered discretion when

it determines the camera misfired, the traffic light in the image displays green, or

the vehicle license plate number in the image is illegible.

      Nor is unfettered discretion involved when the Vendor sorts images under

the main guideline, guideline 4.1.3 This guideline requires the Vendor to identify

images in which the vehicle’s front tires are behind (have not reached) the painted

stop line and the light displays red. Whether a photograph shows that the front tires

have reached a line painted on the pavement is a purely ministerial observation. In

the overwhelming majority of the cases, the answer is a simple yes or no. In the

few instances where there might be a close call, for example, where the front tires

are barely touching, on, or over the painted line, guideline 4.2 further eliminates

any discretion by directing that those images must always be placed in the working

database for police review. Moreover, this guideline, like the others, is interpreted

3 We note that although Jimenez’s violation squarely falls under guideline 4.5,
which deals with right turns on red at intersections marked no-turns-on-red by
giving the address of those intersections, he challenges the validity of the City’s
entire red light camera program and all guidelines. As no party raised the issue of
whether Jimenez has standing to challenge the other guidelines, we do not address
this issue.

                                          17
under the principle, “when in doubt, send it out.” In other words, if there is any

doubt, the Vendor will send it to the police for review. We find no unfettered

discretion in the Vendor’s sorting in this regard.

      Similarly, it is hard to imagine a more ministerial act than deciding whether

a traffic light in a photograph is displaying red. Determining whether a picture of a

traffic light shows red involves no discretionary judgment. The answer is either

yes, the traffic light in the photograph is displaying red, or no, the traffic light in

the image is not displaying red. In the few instances where there might be close

calls, involving traffic lights with strobes or incandescent bulbs, guidelines 4.6 and

4.7 require those events always to be placed in the working database for police

review. Again, the Vendor’s decision involves no exercise of unfettered discretion.

      Guideline 4.4 governing right turns on red also directs the Vendor to sort

into the working database for police review images demonstrating the following

events: (1) traffic light displays red; (2) vehicle turns right without stopping; and

(3) speed over 15 mph. Determining speed involves no judgment because the

Vendor merely documents the figure recorded on a sensor in the pavement. The

task of following these bright-line instructions involves no unfettered discretion.

      Jimenez contends that unfettered discretion is involved in guideline 4.3,

which concerns the “B” shot for vehicles allegedly running a red light while

turning left and towing a trailer. The first part of guideline 4.3 is straightforward.



                                          18
The City directs the Vendor to place into the working database only events where

the “B” shot shows the entire vehicle crossed the painted stop line. That decision

involves no unfettered discretion.

      But the City also created an exception for vehicles pulling trailers. In this

situation, even if the “B” shot does not show the entire trailer over the painted stop

line, the City directed the Vendor to process the plates (which means obtain

identification from the Department of Motor Vehicles) and place the event in the

working database for police review “if the video supports violation.” Taken out of

context, this language might appear to give the Vendor the authority to decide

whether a violation occurred. Understood in context, however, this language does

no such thing. A supervisor of the Vendor testified that this language means that

the event is to be placed in the working database, if the video shows the entire

vehicle, including the trailer, crosses the painted line on the pavement and

proceeds through the intersection. We find no unfettered discretion in an

evaluation of a video to determine if such an easily observable event occurred.

      Jimenez also contends unfettered discretion is involved in guideline 4.7,

which concerns vehicles running the red light and turning left in the circumstances

where no video clip exists. This guideline requires the Vendor to place the event in

the working database “if the A-shot and the B-shot provide sufficient evidence of

the violation.” Again, taken out of context, this language might appear to give the



                                         19
Vendor the authority to decide whether a violation occurred. Understood in

context, however, this language does not do so. The sergeant in charge of City’s

program testified that “sufficient evidence of a violation” refers to whether

guidelines 4.1 and 4.2 are met. He testified this means “the A-shot was before the

stop bar and in the B-shot is already passed through the intersection.” The

determination whether the images reflect these characteristics involves no

discretion. Moreover, the sergeant testified that he had never encountered a

situation where this exception would apply because he had never seen an event

where the video failed.

      Nine of the remaining guidelines concern certain easy-to-recognize

scenarios, for example, events involving police, fire, emergency, and municipal

vehicles. The guidelines direct the Vendor to always sort these images into the

working database for police review. Clearly, there is no unfettered discretion in

guidelines that require the Vendor to always sort these scenarios into the working

database.

      Moreover, a representative of the Vendor involved in applying these

guidelines testified that the Vendor’s employees do not exercise discretion. They

simply follow the instructions as established by the guidelines. They are taught

“when in doubt, send it out,” meaning if there is any question, they put the images

in the working database for the police to review and decide. Regarding any near or



                                        20
close calls, the representative testified, “We don’t make those determinations.

We’re just going to send it to the police.” Similarly, any images involving

situations not addressed by the guidelines are always put in the working database

for police review.

      Not only do the bright-line standards promulgated by the City ensure the

Vendor’s tasks regarding images are purely ministerial and non-discretionary in

nature, but the record reflects that no notice or citation is issued unless and until an

individual officer of the City weighs the evidence in the images and determines in

his or her professional judgment that probable cause exists. The officers make

these decisions in the same manner they decide to issue a roadside citation.

      The police officers assigned to red light camera enforcement access the

working data base by logging into the server using their own unique user

identification and password. If, after reviewing the photographs, video, and other

information, the officer decides to issue a citation, the officer clicks the “accept”

button on the screen. By doing so, the officer authorizes his or her electronic

signature and badge number to appear on the notice and citation. The officer’s

review and determination in this regard are far from a mere rubber stamp. As the

trial court expressly found, “[o]f the images reviewed by the City’s police officers,

only between sixty-five percent (65%) and seventy percent (70%) are approved as

a violation.” Officer Castro’s testimony of the manner in which she evaluated



                                          21
Jimenez’s video and found probable cause dovetailed precisely with the other

evidence presented in this regard.

      In making his arguments, Jimenez places primary reliance on the Fourth

District’s decision in Arem. In Arem, the court announced the principle of law that

a city’s red light program violates the statutory provision that allows the city to use

“agents” to “review” the information generated by the red light traffic program

“before issuance of the traffic citation by the traffic infraction enforcement officer”

if the vendor is given unfettered discretion to determine who will receive citations.

154 So. 3d at 364-65. We agree with the Fourth District’s statement of the

controlling principle of law.

      In Arem, the Fourth District applied this principle to quash a citation issued

by the City of Hollywood expressly because, under the facts of that case, the

Vendor was given such unfettered discretion. While the vendor in Arem was the

same one involved in the instant case, any similarity between the facts of the two

cases ends there. In particular, Arem is distinguished from the instant case because

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.

      Different Contract. The contract in Arem gave the Vendor broad discretion

to “make the initial determination that the image meets the requirements of the



                                          22
Ordinance and this Agreement.” Id. at 365. The court in Arem expressly relied

upon this contract language when it held the Vendor was making decisions “in its

sole discretion.” Id. In fact, the ultimate holding in Arem is that the “process set

forth in the contract between the City and [the Vendor] does not comply with

Florida Statutes.” Id.

      In contrast, unlike the contract language analyzed in Arem, the governing

contract here strictly limits 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.” The contract in this case expressly provides

that the police officer, and only the police officer, determines probable cause:

      THE DECISION TO ISSUE A NOTICE OF VIOLATION SHALL
      BE THE SOLE, UNILATERAL AND EXCLUSIVE DECISION OF
      THE AUTHORIZED EMPLOYEE AND SHALL BE MADE IN
      SUCH AUTHORIZED EMPLOYEE’S SOLE DISCRETION (A
      “NOTICE OF VIOLATION DECISION”), AND IN NO EVENT
      SHALL VENDOR HAVE THE ABILITY OR AUTHORIZATION
      TO MAKE A NOTICE OF VIOLATION DECISION.

      No Standards. In the Fourth District’s Arem opinion, there is a total

absence of any consideration of guidelines promulgated by the City. In contrast,

the record in this case includes guidelines and extensive testimony regarding how

the specific City-established guidelines cabin the Vendor’s tasks and limit the

Vendor to purely ministerial, non-discretionary decisions.




                                         23
      Vendor’s Sole Discretion. According to the Fourth District’s opinion, the

facts in Arem reflected that “the vendor unilaterally determines in its own

discretion that either a violation did not occur or that the City would not be able to

sustain its burden of proof.” Id. at 365 n.2. The Fourth District repeatedly noted

that, in the record before it, the Vendor not only had the authority to make the

decision whether a violation occurred but that the Vendor had the authority to do

so “unilaterally,” based on “unfettered discretion,” “its own discretion,” and “in its

sole discretion.” Id. at 365.

      In contrast, in the instant case, the Vendor was prohibited from deciding

whether a violation had occurred. Instead, the Vendor here was limited to

identifying whether the image contained specific and easy-to-identify features,

such as a red traffic light and front tires behind (meaning not having reached) a

painted line on the pavement, or whether a video shows that a vehicle pulling a

trailer had traveled through the intersection. Moreover, the Vendor in this case

operated under a protocol to sort into the working database any scenarios that were

unclear (“when in doubt, send it out”) and any scenarios not expressly addressed in

the guidelines. Thus, unlike the Vendor’s decisions in Arem which involved

“unfettered discretion” to decide whether a violation occurred, the Vendor’s

decisions here were ministerial and non-discretionary. As the trial court found, “the




                                         24
sole, unilateral, and unfettered decision making found unacceptable in Arem does

not exist in this case.”

       Officer “Merely Acquiesces.” Most importantly, in Arem, the police

officer did not conduct an independent review of whether probable cause existed to

issue a citation. Instead, as the Fourth District expressly determined, the officer

“merely acquiesces in the vendor’s decision to issue the citation.” Id. at 365. In

contrast, in the instant case, the Vendor has no authority to decide that a citation

will issue. Only the police officer, whose name and badge number appears on the

citation, decides if probable cause exists and if a notice and citation issues. This

decision is reached in the same manner that the police officer decides to issue a

roadside ticket. Unlike the officers in Arem, the officers in the instant case clearly

do not “merely acquiesce[] in the vendor’s decision to issue a citation.” To the

contrary, and as the trial court found below, “[o]f the images reviewed by the

City’s police officers, only between sixty-five percent (65%) and seventy percent

(70%) are approved as a violation.”

       In summary, we agree Arem was properly decided given the record as

reflected in the Arem opinion. Because of the vastly different record in this case,

however, we find Arem clearly distinguishable. For all the reasons discussed

above, we answer the first certified question in the affirmative.

       B. Certified Question Number 2: the Vendor’s Printing and Mailing of
          Notices and Citations.

                                         25
      The trial court’s second certified question reads:

      If the vendor is permitted to review and then forward images in
      accordance with a municipality’s written guidelines, is it an illegal
      delegation of police power for the vendor to print and mail the
      [citation], through a totally automated process without human
      involvement, after the law enforcement officer has affirmatively made
      a probable cause determination and authorizes the prosecution of the
      violation by selecting the “accept” button?

      Jimenez argues that the statutory language requiring the “issuance” of the

notice and citation by an “officer” signifies that the officer who makes the probable

cause decision must also print and mail the citation. § 316.0083(1)(a), Fla. Stat.

Taken to its logical extreme, Jimenez’s argument would require the officer to affix

the stamps, seal the envelopes, and drop the items in the mailbox. The trial court

rejected Jimenez’s argument in this regard. In doing so, it found that, once the

officer decides the citation will issue, “a fully automated computer program is

triggered to print and mail the [notice and citation] based on the owner’s failure to

elect any of the options under the time frame contained in the statute. [The Vendor]

only acts as an electronic apparatus to print and mail [the notice and citation].”

       We agree with the trial court. Jimenez’s argument conflates the non-

delegable discretionary power to make the decision to issue the citation with the

delegable clerical and ministerial task of delivering the citation. By way of

analogy, the Florida Constitution similarly authorizes individual justices of the

Florida Supreme Court, judges of the district courts, and judges of the circuit


                                          26
courts to “issue” writs of habeas corpus. Art. V, §§ 3(b), 4(b), 5(b). Surely, an

otherwise lawful writ would not be rendered unlawful because the issuing jurist did

not personally print, seal, and mail the envelopes used to deliver the writ. Nor does

the law require the writ to be delivered by a person under the immediate

supervision or employ of the judge. See Fla. Bar v. Abreu, 833 So. 2d 752, 753

(Fla. 2002) (noting with approval that the Florida Supreme Court’s order to show

cause was served by a private process server). Likewise, we see nothing in the

statutory language mandating that a sworn police officer, with years of specialized

law enforcement training, must perform or directly supervise such clerical tasks.

      Thus, we answer the second certified question in the negative. The statutory

language providing that only an officer can issue a citation means that only an

officer can make the discretionary decision that probable cause exists and the

citation issues. Once that discretionary decision is made, nothing in the statutory

language prohibits the police from delegating the clerical and ministerial task of

delivering the notice and citation to administrative staff, independent contractors,

or private vendors. See, e.g., Abreu, 833 So. 2d at 753.

      C. Certified Question Number 3: Use of the Vendor’s Server to Provide
         an Electronic Copy to the Clerk.

      The third question certified by the trial court reads as follows:

      Does the fact that the [citation] data is electronically transmitted to the
      Clerk of the Court from the vendor’s server via a totally automated
      process without human involvement violate Florida Statute

                                          27
      §316.650(3)(c) when it is the law enforcement officer who
      affirmatively authorizes the transmission process by selecting the
      “accept” button?

      Jimenez contends that the language in the controlling statute stating that the

“officer shall provide by electronic transmission a replica of the traffic citation date

to the court having jurisdiction” means that the officer cannot use the clerical and

ministerial services of the Vendor to provide the electronic copy to the Court. The

trial court rejected this argument: “This Court finds that the process by which red

light camera E-citations are transmitted is no different than how other E-citations

are transmitted when an officer issues the [citation] roadside . . . therefore, the fact

that the computer program that actually sends the data is that of a vendor does not

violate the statute.” Again, we agree with the trial court.

      We see nothing in the statutory language indicating any legislative intent to

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

these ministerial and clerical tasks. See generally Frazier v. State, 180 So. 3d 1067

(Fla. 5th DCA 2015) (recognizing the legality of the police making use of third

party vendor software to aggregate public information when the same task could

otherwise be performed manually by law enforcement, albeit at a slower and less

efficient pace). 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.

We therefore answer the question in the negative.



                                          28
          CERTIFICATION OF GREAT PUBLIC IMPORTANCE

      Because the lawful use of cameras to enforce red lights has attracted the

attention of the public, local governments, and the Legislature, we certify the

following issues, which we have answered in this opinion, pursuant to Article V,

section 3(b)(4) of the Florida Constitution as having great public importance:

      1. Does the review of red light camera images authorized by section
         316.0083(1)(a), Florida Statutes (2014), allow a municipality’s
         vendor, as its agent, to sort images to forward to the law
         enforcement officer, where the controlling contract and City
         guidelines limit the Vendor to deciding whether the images contain
         certain easy-to-identify characteristics and where only the law
         enforcement officer makes the determinations whether probable
         cause exists and whether to issue a notice of violation and citation?

      2. Is it an illegal delegation of police power for the vendor to print
         and mail the notices and citation, through a totally automated
         process without human involvement, after the law enforcement
         officer makes the determinations that probable cause exists and to
         issue a notice of violation and citation?

      3. Does the fact that the citation data is electronically transmitted to
         the Clerk of the Court from the vendor’s server via a totally
         automated process without human involvement violate section
         316.650(3)(c), Florida Statutes (2014), when it is the law
         enforcement officer who affirmatively authorizes the transmission
         process?

      Affirmed in part; reversed in part; questions of great public importance

certified; and remanded for further proceedings consistent with this opinion.

      EMAS, J., concurs.




                                        29
                       State of Florida, by and through the City of Aventura, et. al.,
                                                             v. Luis Torres Jimenez
                                               Case Nos. 3D15-2303 & 3D15-2271


WELLS, Judge, (specially concurring).
      I agree with the majority that the first of the three certified questions must be

answered in the affirmative and the remaining two questions must be answered in

the negative. I do so for the following reasons.

      First, section 316.0083 of the Florida Statutes authorizes, and provides basic

procedures for local governments to utilize automated devices, that is, computer

operated cameras, to enforce laws regulating conduct at traffic lights.         See §

316.0083, Fla. Stat. (2010) (authorizing use of cameras to enforce traffic light

violations; providing for notice of violations to be sent to vehicle owners;

providing for exemptions from liability; providing for challenges to purported

violations at an administrative hearing; and providing for appeals from adverse

administrative hearing determinations).       As pertinent here, this law expressly

authorizes law enforcement agencies responsible for enforcing traffic laws to

                                         30
utilize agents to screen images secured by automated devices before issuance of a

traffic violation citation by a traffic infraction enforcement officer:

             For purposes of administering this section, the department, a
      county, or a municipality may authorize a traffic infraction
      enforcement officer under s. 316.640 to issue a traffic citation for a
      violation of s. 316.074(1) or 316.075(1)(c)1. . . . 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), Fla. Stat. (2015). 4

      In keeping with this provision, in 2010, Aventura amended its contract with

American Traffic Solutions, Inc., the agent selected to operate Aventura’s

computerized red-light camera system.           That contract as amended accorded

American the limited authority to screen images of vehicles taken at designated

intersections in the city:

      [American] shall act as City’s agent for the limited purpose of making
      an initial determination of whether the recorded images should be
      forwarded to an authorized [City] employee to determine whether an
      infraction has occurred and shall not forward for processing those



4 See also § 316.074(1), Fla. Stat. (2105) (requiring drivers to obey the instructions
of any official traffic control device unless directed otherwise by a police officer);
§ 316.075(1), Fla. Stat. (2015) (requiring drivers generally to obey traffic control
devices “exhibiting different colored lights”); § 316.640(3), Fla. Stat. (2015)
(providing for traffic laws to be enforced in municipalities by local police and
sheriff’s department officers); § 316.640(5)(a), Fla. Stat. (2015) (expressly
authorizing municipal law enforcement agencies to employ “any individual who
successfully completes instruction in traffic enforcement procedures and court
presentation” to issue citations for traffic law infractions).

                                           31
       recorded images that clearly fail to establish the occurrence of an
       infraction.

In conjunction with this agreement, Aventura adopted a number of guidelines

pursuant to which American was to screen images as authorized by the

Aventura/American contract.

       With regard to the screening of images that might show a vehicle running a

red light for example, the guidelines promulgated by Aventura generally require

American to screen images of vehicles at electronically monitored intersections by

examining images of vehicles’ tires in relationship to lines demarking an

intersection. Specifically, under Aventura’s guidelines, American screeners are to

examine still images taken after a traffic light has turned red (“shot A”) which

depict the position of a vehicle’s front tires. If that image shows a vehicle’s front

tires either on or slightly over the line demarking an intersection, a video clip of

the same vehicle is examined to confirm that the front tires were either on or

slightly over the demarcation line when the light turned red. If so, American is not

to pass on the images to a traffic infraction enforcement officer as there is no

photographic support for the conclusion an infraction has occurred. However, if

video clip shows that the tires were behind the line when the light turned red, the

images are to be passed on to a traffic infraction enforcement officer to determine

whether a traffic infraction had occurred.5

5   This is but one example of the guidelines adopted by Aventura to address

                                         32
      In my opinion, this constitutes no more than the “screening” expressly

authorized by the law. That is especially so here because the testimony was that

Aventura’s traffic infraction enforcement officers do not simply rubber stamp

recommendations or determinations made by American.           To the contrary, the

record is that Aventura’s traffic infraction enforcement officers historically have

determined that only sixty-five percent of the images forwarded by American

evidence an infraction warranting issuance of a traffic citation. For this reason

alone, I reject the notion advanced by our sister court in City of Hollywood v.

Arem, 154 So. 3d 359 (Fla. 4th DCA 2014), that by allowing a servicing agent to

forward pre-screened images to a traffic infraction enforcement officer that the

servicing agent “[f]or all practical purposes” determines who is subject to

prosecution for a red light violation.

      The record in this case establishes that at most the servicing agent has been

accorded only the ministerial authority to screen and cull those images which,

pursuant to a rigid set of guidelines, clearly show no possible violation of the

traffic laws; it is the traffic infraction officer alone who determines from the

population of possible violators, those who will be subject to prosecution. This, in

my opinion, is neither a violation of the law nor a matter about which those cited

screening procedures with regard to a number of other potential traffic violations.
By way of example only, Aventura has adopted guidelines for screening images of
long vehicles and vehicles towing trailers and for screening images of vehicles
making right turns on red.

                                         33
for a violation have authority to complain. Put another way, the real issue here is

that some individuals who may have violated traffic regulations may be screened

out of the process because the images of their vehicles were not sent to a traffic

infraction enforcement officer to determine if a violation has occurred.          This

argument is no different than that made by an individual issued a speeding ticket

who complains that other speeders also were not ticketed. In short, the fact that

American determines certain images will not be forwarded—i.e., that some drivers

will not be ticketed—because images taken of their vehicles show that they have

not exceeded set guidelines, does not amount to determining whether those drivers

who potentially exceed those guidelines have violated the law. That determination,

as the record before us confirms, is left solely to traffic infraction enforcement

officers. I therefore agree with the majority that the answer to the first certified

question is “yes.”

      I also agree with the majority that in today’s computerized world, the

answers to the second and third certified questions as to whether it is illegal for

American to print and mail a citation issued by a traffic infraction enforcement

officer, clearly is “no.” Pursuant to Aventura’s guidelines, after a traffic infraction

enforcement officer receives images from American, the officer independently

reviews the images to determine whether an infraction has occurred. If the officer

determines that the image depicts an infraction, the officer electronically indicates



                                          34
that he or she accepts that an infraction has occurred and electronically issues the

notice of infraction by authorizing American to send a notice of violation bearing

the officer’s badge number and signature. American then uses a form approved by

the State of Florida. The clerk of the court is also notified electronically by

American or one of its subsidiaries or vendors. As the testimony adduced below

confirms, this is little different from what happens when an officer issues a

violation roadside:

            Q. So can you explain how that information is sent
      electronically, if you know?

             A. It is sent electronically to [the clerk’s office].

            Q. Is that any different than any other electronic citation
      information that might be sent from roadside?

            A. In the instance when it is sent from my computer roadside,
      it would go through my station’s server and then to Miami-Dade
      Clerk of Courts.

            In the instance of these violations they – this officer approves
      them, the server – [American’s] server in Arizona provides that
      information to the Miami-Dade Clerk of Courts.

      In my opinion, to conclude that such ministerial acts are unauthorized by

section 316.0083 would be akin to determining that a trial judge has no authority to

instruct a judicial assistant to prepare a computerized order which the judge

electronically signs and issues electronically to the parties and the clerk’s office.

Needless to say, this court determines and electronically transmits many matters



                                           35
each day. It is the judges who decide the cases and issue their opinions, however it

is the clerk’s office which electronically sends those decisions on to the

appropriate parties.

      I also find no violation of section 316.0083 when American electronically

“issues” a uniform traffic citation (as expressly authorized by Aventura with

automatic notification to the court) when the owner of a vehicle fails to respond to

a traffic citation as required by law. See § 316.0083(1)(b)1.a., Fla. Stat. (2015)

(providing that “to avoid the issuance of a traffic citation,” a vehicle owner notified

of a violation must either pay a penalty, submit an affidavit, or request a hearing

within 60 days of notification as provided in section 316.0083). Again, and at best,

this is a non-discretionary function which takes no more than a computer program

to perform.

      In conclusion, because I agree that the first certified question as to whether

section 316.0083 allows a municipality vendor to segregate images for forwarding

to traffic infraction enforcement officers should be answered in the affirmative,

and because I agree that the second and third certified questions about utilizing

automated processes should be answered in the negative, I agree that the order

entered below must be reversed. I would not, however, certify this matter to the

Florida Supreme Court as a matter of exceptional importance as I do not believe




                                          36
this matter is of such import as to warrant further review, but would certify this

decision as being in express and direct conflict with Arem.




                                        37
