EMELDA O. ALEMAN

v.

CITY OF OPA-LOCKA

Before: TRAWICK, WALSH and REBULL, JJ.

REBULL, J.

We affirm the Final Administrative Order upholding the red light camera violation. Ms. Aleman contends on appeal that she failed to receive the notice of final hearing in this case, despite the fact that she received every other paper from [*2] the City delivered in the same way, and to the same address. We affirm because even assuming Ms. Aleman failed to receive the notice, such failure is moot as Ms. Aleman's defense to the violation was legally insufficient on its face.

Ms. Aleman tried to avail herself of the defense that someone else was driving her car when it received the red light violation. The statute provides that:

(d) 1. The owner of the motor vehicle involved in the violation is responsible and liable for paying the uniform traffic citation issued for a violation of s. 316.074(1) or s. 316.075(1)(c) 1. when the driver failed to stop at a traffic signal, unless the owner can establish that:

c. The motor vehicle was, at the time of the violation, in the care, custody, or control of another person;

2. In order to establish such facts, the owner of the motor vehicle shall, within 30 days after the date of issuance of the traffic citation, furnish to the appropriate governmental entity an affidavit setting forth detailed information supporting an exemption as provided in this paragraph.

a. An affidavit supporting an exemption under sub-subparagraph 1.c. must include the name, address, date of birth, and, if known, the driver license number of the person who leased, rented, or otherwise had care, custody, or control of the motor vehicle at the time of the alleged violation.

3. Upon receipt of an affidavit, the person designated as having care, custody, or control of the motor vehicle at the time of the violation may be issued a notice of violation pursuant to paragraph (b) for a violation of s. 316.074(1) or s. 316.075(1)(c) 1. when the driver failed to stop at a traffic signal.

4. Paragraphs (b) and (c) apply to the person identified on the affidavit, except that the notification under sub-subparagraph (b)1.a. must be sent to the person identified on the affidavit within 30 days after receipt of an affidavit.

§ 316.0083(1)(d), Fla. Stat. (2019)(emphasis added). [*3] Ms. Aleman submitted the following affidavit to the City:

City of Opa-locka Traffic Safety Camera Program 780 Fisherman Street, 4th Floor Opa-locka, FL 33054 DECLARATION/AFFIDAVIT Document Number: 1551800033970 Date Created: 1/1/0001 12:00:00 I have received a notice (the "Notice") informing me that a motor vehicle registered in my name was observed violating Florida Statutes §§ 316.074(1) and 316.075(1)(c)1 by failing to obey a steady red traffic signal. The Notice bears the following 13 digit number:

2. Under Florida Statute § 316.0083(1)(d), I am exempt from the payment of the statutory penalty described in the UTC because (check all that apply):

Al the time of the violation described in the Notice, my vehicle passed through the intersection in order to yield the right-of-way to an emergency vehicle.

At the time of the violation described in the Notice, my vehicle passed through the intersection as a part of a funeral procession.

At the time of the violation described in the Notice, my vehicle passed through the intersection at the direction of a law enforcement officer. Al the time of the violation described in the Notice, the vehicle was in the care, custody, or control of another person. That person's name, address, phone number and date of birth are:

Name: Mechanic Shop Address: 2620 alibaba av. City, State, Zip: opulok fr Date of Birth: 5/30/2004 Phone Number: 33154679 I do not know the driver's license number of this person

Driver's License Number:

In violation of the mandatory plain language of the statute, Ms. Aleman did not set forth the name and date of birth of the person who she claimed had control of her vehicle at the time of the violation. Her writing "Mechanic Shop" is simply legally insufficient. The plain language of the statute contemplates designating another human being as being in control of the vehicle, so that the municipality can issue that person a notice of violation. Barring that, Ms. Aleman as the owner of the motor vehicle involved in the violation - "is responsible and liable for paying the uniform traffic citation...." § 316.0083(1)(d)1., Fla. Stat. (2019).¹ ¹ It occurs to us that as between Ms. Aleman and the City of Opa-Locka - Ms. Aleman was in a much better position to find out from her own mechanic shop the [*4] For these reasons, we affirm.

WALSH, J., concurs TRAWICK, J. concurring I am in agreement with the result here as I believe it is compelled by the plain language of the statute. I write to ask the Legislature to consider a revision to the statute to address a potential inequity raised by this statute's enforcement. Aleman contends that her vehicle was in the custody of a mechanic shop at the time the car was driven through the red-light traffic signal. Since the statute provides no practical recourse when a vehicle is in the hands of a bailee, Aleman will be required to pay for a violation that she may not be responsible for. It is foreseeable that this situation will occur again and again with others similarly situated.

I pose this example. The owner of a vehicle leaves her car with a valet while going in to eat at a restaurant. While the owner is enjoying her meal, one of the valet drivers takes the vehicle on a joy ride and makes a right turn through a redlight traffic signal without stopping and subsequently returns to the restaurant. Oblivious to what has occurred, the owner later returns to the valet and retrieves her car. It is not until several weeks later that she receives a traffic citation thanks [*5] to the valet driver's actions. Given the passage of time, it is unlikely that the owner would have retained the valet parking ticket. When she goes back to the restaurant, what are the chances that anyone will know of, or own up to knowing, who took the owner's vehicle out of the valet parking area on the evening in question? Remote at best.

§ 316.0083(1)(d) requires an affidavit from the driver that must include the name, address, date of birth, and if known the driver license number of the person who had custody of the vehicle at the time of the violation. In the circumstance that I have posed, practically speaking, the owner would not be able to provide this information. This would be unfair to her and others, such as Aleman, whose vehicles are in the hands of third parties at the time of the violation and who would be unable to obtain the required information. In the interest of fairness, I suggest that a revision of the statute to take into account this type of circumstance is appropriate.

Copies furnished to all parties of record