Arguments over a potential class-action lawsuit over a so-called “convenience fee” drivers can be charged by a major red-light camera company will go before the Florida Supreme Court on Tuesday.
The hearing comes eight months after the 11th Circuit Court of Appeals asked the Florida Supreme Court to help resolve “questions that may have sweeping implications for dozens of municipal traffic enforcement regimes across Florida and for the development of Florida’s common law.”
Those questions stem from a lawsuit motorist Steven Pincus filed after a camera operated by red-light camera company American Traffic Solutions captured him running a North Miami Beach red light in 2018.
The company tacked on a 5% fee to the $158 penalty Pincus was required to pay for running the light when he paid online with a credit card. Pincus had the option to avoid the $7.90 fee had he paid by mail using a check or money order.
Pincus’ lawsuit alleges the fee involved “unjust enrichment” under state law. According to a brief Pincus’ attorney Brett Lusskin filed March 25, North Miami Beach executed a second amendment to its agreement with American Traffic Solutions allowing the company to “charge, collect and retain a convenience fee of up to 5% of the total dollar amount of each electronic payment processed,” with the fee “paid by the violator.”
“It is this provision that is at the heart of this case,” Lusskin wrote. “Despite what the City and ATS contend, neither is ‘authorized’ to charge, collect or retain any additional fines, fees, surcharges, or costs other than those fixed by state law. In flouting this rule, ATS has fashioned itself into a ‘private traffic ticket factory,’ inflating almost every single civil penalty by 5% for its own profit, in addition to its contractual renumeration for operating the City’s camera program. This is a gross violation of every Floridian’s civil rights.”
Joseph Lang Jr., Kevin McCoy and David Wright of the law firm Carlton Fields, which represents the company in the case, countered in a May 12 brief that the fee was an avoidable option Pincus chose of his own volition.
“He chose not to write a check or send a money order, options that do not include a convenience fee,” they wrote. “(The) convenience fee is not ‘added’ to the penalty to increase the penalty amount. Nobody has to pay the convenience fee as part of the penalty. That is, the violator does not incur the convenience fee because the violator is issued a (notice of violation). The violator chooses to pay the convenience fee in order to obtain the convenience of using a credit card. It is not compulsory.”
A federal district judge initially dismissed the case, but a three-judge appellate panel in February requested that the Florida Supreme Court resolve questions it raised about how state laws concerning the issue should be interpreted. Their 31-page decision cited an “absence of guiding precedent on these questions…”
More than 8 million notices have been issued for red light camera violations in Florida, including more than 1 million between July 2018 and June 2019, Judges Jill Pryor, Robin Rosenbaum and Elizabeth Branch of the 11th Circuit Court of Appeals wrote.
“In that period, at least 46 jurisdictions in Florida operated red light camera(s), all of which contracted with (American Traffic Solution) or (a) similar vendor,” they wrote. “So, the statutory issues raised by this case — which will determine whether a vendor may add a surcharge to red light camera penalties in exchange for permitting individuals to pay their penalties by credit card — may affect million of Floridians and dozens of Florida’s municipal traffic enforcement regimes. Resolution of the common law issues may also reverberate throughout Florida, affecting Florida’s unjust enrichment law across diverse contexts.”
The hearing is scheduled for 9 a.m., with a maximum 20 minutes of argument allowed per side.
“(But) counsel is expected to use only so much of that time as is necessary,” said a memo from Supreme Court Clerk John Tomasino, which stressed that no continuances will be granted to either side except upon a showing of “extreme hardship.”