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Home My WebLink About2009 05 26 Regular 605 City Services in Gated CommunitiesCOMMISSION AGENDA SPECIAL MEETING ITEM 605 Mav 26, 2009 Meeting CONSENT INFORMATIONAL PUBLIC HEARING REGULAR X MGR ~ /DEPT uthorization REQUEST: The Police Department requests to discuss with the commission how a community can contract for city services within a neighborhood that has chosen to erect gates at their entrances or exits. PURPOSE: The Police Department requests to discuss with the commission how a community can contract for city services within a neighborhood that has chosen to~ erect gates at their entrances or exits. This will allow the city to take decisive action on how to best serve the residents who live in a gated community and desire city services within their neighborhoods. CONSIDERATIONS: The police department was faced with certain legal challenges as it related to the enforcement of civil traffic and parking laws and ordinances within the confines of a gated community. In 2007, the city attorney, Mr. Garganese, issued a legal opinion on this matter as it dealt with the enforcement of laws and ordinances within gated communities. In short, his information provided the following guidelines: • The governing body of the neighborhood controlling those roadways (i.e. the HOA) must enter into a written contract with the City for requested services. • Compensation for those services must be a~`reasonable" amount as not to conflict with the Florida Attorney General's opinion' ~ dealing with a constitutional prohibition of using public funds for a private purpose. Ultimately, a City Commission can determine (outside a clear abuse of discretion) whether an activity serves a public purpose and can determine that reimbursement by the affected community would not be required. • Contracts of this type would need to be drafted between the respective HOA and the city attorney's office for review. • Activities permitted in the agreement are discretionary between the two governing bodies. You may allow traffic law enforcement but not other types of activity, etc. ~t r or more than one type of activity could be permitted depending on the mutual • agreement. • Terms and duration of the agreement need to be outlined in the contract. This will eliminate the potential for other issues to arise in the future. • The police department may still and does enforce violations of the law which are deemed a "health/safety" violation or any offense of DUI that occur within gated communities. FUNDING: N/A RECOMMENDATION: At the commission's discretion, to enter or not enter into contractual agreements for law enforcement within gated communities. IMPLEMENTATION SCHEDULE: As dictated by commission direction and applicable contracts. • ATTACHMENTS: Copy of legal opinion by city attorney Mr. Garganese dated December 14, 2007 COMMISSION ACTION: • ~ ~~~~`~ ~~ c:T1~x.c~1l~Tr~s~,, ti~~r~s ~ v~~c:a-~r~5l~~.,1~.~~. . ~'itto~ ~re~fJ' rat I..cr~a~ Debra S. Babb-Nutcner (.7ffice~ irr Orhtrrcio, KJsyirnrnce, (;;acrxar> Tara L. Barrett Joseph E. 8litch I°r. l..,aradrrd:rle 8: ':Caartpsr Vivian P. Cacotas usher L, Brown' Scott J. f~ornskeir7 Suzanne t)'Agresla` Robin Gibscin Drage Anthony A. Garganese Mitchell B. Haller J.V~.'. Taylor Katherine 1N. Latnrre Jeffrey S.'!deiss Terri E. Oster ""_ Amy J. Pitsch 'F3narrt i:ert;red C>~.~I Tra" t.a~x~~,~~ Erin J~ O`ireary` Boacd Cert3f~d Cih,. Cour~i ~, [ <,ca+t Uu t~ .,,e=u ~aev Caiherrne D. Reischmann 'Bcr~rd C;Arti(iEtl A(?~011i3te. ;="-~<i r n 1rYitrsam G. Reischmanrt, Jr. Of Cota~tset February 26, 2008 Lt. Chris Deisler C?peration~ Commander City of Winter Springs Police Department 300 North Mass f~oad Winter Springs, FL 3270£3 • RE: Enforcement of Local Traffic Regulations on Private Roads Dear Chris: As we discussed yesterday, enclosed is a copy of my legal opinion that I issued on December 14, 2007 regarding the enforcement of local traffic regulations on private roads. It addresses the ciuestion that you raised yesterday by telephone regarding moving violations. r ~ _ :`• ! rr i~lc'~,i 'y'v:.. C^w ~r° ~'o~~r!~tn~ the eilf CC'P, t rir ialr~iriivir, i`~-j';'vc nrr~c rJ (71ef? of ri?QVInC) violations, I also wish to note that the First District Court of Appeal held that section 316.193, Florida Statutes, which prohibits a driving a motor vehicle while under the influence of alcohol or drugs, may be enforced on all roads "within. the state," regardless of whether said roads are public ar private. Zink v. State, 448 So. 2d 1196 (Fla. 1~` DCA 1984). The Flarir#a Attorney Genera! interpreted Zink, and opined that the holding in Zink "applies to all public; roads within the state, including those within a private planned unit development (PUD) 4vhere the public does not have a right to travel and the PtJD has not entered into an agreement with the local government for traffic control jurisdiction." 0p Att'y Gen. 2004-29. The Attorney General added: "The court's decision, however, related only to the enforcement of section 316.193, Florida Statutes." Id. Thus, irnportantiy, na agreement between the municipality and a private property owner is necessary for law enforcerrier~t authorities to enter private property to enforce Florida's DUI statute, section • 316.193, Florida Stagrtes. 225 East rlobinson Street, Suite 660 • P,O. Box 2873.Orlando, Florida 32802-2873 Orlando 1407} •t25.95?36 Fax (a(??) ~i25.9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale {954} 00"70-1879 ~~/ebsite: ~wrv.~.arlandolaw.nei • Email rrm(a~orlandolaw.hei • February 26, 2008 Page 2 If you have any questions regarding this matter, please do not hesitate to contacf me. Very. yours, Anthony A. Garganese City A.tt;;rr.ey AAG/jf Enclosure cc: Ron McLemore, City Manager Daniel Kerr, Police Chief • • • ~~c~~~~ > c_l ~~.RCT~.~t,s~, ~JEISS & D'AGR.ES"r.~, P.A. ~~a~,l~s ~r~~~ Debra S. Babb-Nutchar" C)ffices in C)rtando, kissunmee, Cocoa, Tara l.. Barrett. Joseph E. Glitch Ft. Lauderdale ~ Tampa Vivian P. Corsotas Usher t. Brown' Scott J. Domstein Suzanne D'Agresta' Mitch68 B. Ha4ter Anihony A. Gargar~s~' Katherine W. Latarre J.W. Tayiar , Terri E: t7ster Jeffrey S. Weiss Amy 3. Pitsch •8oard GettifiCd Civil LsB Lav;rer "'Surd ^eni tCt1 C;r,~. . 1 ~ ~~a~~r ~.~rr ~r3oarG CerUired Appe:~e;e ~ r&s:3;~e Deeetnher I ~, ?007 .Erin J.0`Leary' Catherine D..Reisehmann William. E. Reischmann, Jr. OC Caurraet Ronald t,~;~. ~°Icl..eni~,~-, City I~~Iana~~~e.r City of «'int~;r ~prin_°s 112G E~}st S'~ate Rci ~+>-l Winter Springs, l~L 3??U8 • Re: Local °t~r<~fEic he;ulations on :Private Roads Dear R;l1: "Phis letter rriemurializes my recent verbal opinion that I provided to the City Commission on December 10, 3C1(~ ; , During the Commission meeting I opined on whether the City may enforce local. traffic regulations in private subdivisions where streets are controlled by homeowners' associations. F semi ll~ . I stated that the answer hinges an whether the roads are open to-the general public fo: *ra.-el, E>I.4=.°ir~~t?rer the general public does net have access to such roads, for. instance, in a gate:l ~~,,;7r,~titir.~ , l u tine extent the rr.;ads ~vithr~ %~ private development. are apes ta'the general public for travel, the Cite can enE'~~rcr' ?e>~:al traffic regulations. 90-6$ Fla. Qp. Att'y Gen. (I990). However, where the ra~~c!:; ~tre. clt}:~•<;c1(~..;. gated), the Cit}t may exercise jurisdiction if the City-and the homeowners' associ att:>iz, oi• tl:e re~rirctive party controlling the read, provide far City traffic: control by written agreer=lent ar~nro~°ed i~~' file City Commission. See § 3I ~i.006(2~(b}, Fla. Stet. (2007}. In rele~°ant part, s:~tio:~ w t E~.OQ6('')(b), Florida Statutes, provides: :~ mrtnicipalit~° may exercise jurisdiction over any private road ar ro:~cis. or o~~cr env limited access road or roads otivned ar controlled ~~s a special district. located ~*~ithin its boundaries if the municipality aid l~a•}~ or parties awning or controlling such road or roads provide, _~~~ ~'~ricten agreement approved by the governing body of the nntnicipality, for municipal traffic control jurisdiction over the road or roads ~ncampassed by such agreement. Pursuant thereto: 2G5 iasi Robinson Street: Suite 660 • P:a. Box 2873. Orlando, Florida 328022873 arlandc ;qr;7~ 425_g ~, Fax {»07, 425.9596 • Kissimmee (321) 402-0144 • Cocoa {866) 425.9566 • Ft. t.auderdaia (954} 670.1979 '1~lebs"ste =rn+.~E.orlandolaw.net • Email: firm@oriandolaw.net • December 1 ~. "?~?+.)> Page 2 l . Pray ision far reimbursement for actual casts of trafftc control. and et~ff~r~em~nt and for liability insurance and indernnifieation by the party or parties, and such other tei.tns as are mutually agreeable, may be included. in such an agreement. § 316.~O1~(?}(bbl, 1•'la. Stat. (2QQ7}. ~t~hile sectiart ~ 1 G.006(2)(b)I, Florida Statutes, provides that the agreement may contain a reimburserl~er~t pre~,•i:~ion to the Giry, the I~lorida Attorney General has apinecl otherwise. On several occasion>, the l~'ic~ri~~ :-lttorney General has opines{ that the as cement .must provide for 'the reimbursement of ~E~~a actual cost of traffic control services. $8-OS Fla. Op. Att'y Gen. (19$8); 9Q-68 Fla, Cep ~.:tt`~~ Cs~n. ( ~)~?'t j. The rationale offered by the Florida Attorney General een€ers around the cansticut~c~:aa i~+9iii~ ititi~n aga~i~7st using public funds for a private purpose, and whether the enforcerr~?{~t of Ic~cGrl tr%~1xic: regulations in a private gated community can be considered a valid munic~ipa.l purpose. .S<~G 1?la.~ Coast. ~1rt. VIT, ~ l0. As such, there appears to be a conflict between section : •`?.•'.1~1ta~ ~', ,•~ ~ i ~1.1d tl~e opinion of the Florida Attorney General regarding whether the City must regi~irG reir~;l?.~~•=>ement for expenditures incurred by the City in enforcing local traffic regulation,., .~~it.~~.iA; ~x z~ i~.=~~te gate community by ~~ritten agreement. ti~'hile I dt~ ::~ t ~=~es~tian the applicability of~rticle VII, Section TA ofthe Florida Constitution relative toy determining whether the City should be reimbursed, I question, given both the nanmandatc?:~ lanr,~ua`~t; adapted by the Florida Legislature and the City Commission's broad authority to de-c:iar~;: <: public purpose, whether payment should be required in all instances. See Giry of Bout l'ctrr~rt 3. t•lr'lr~~rr:r~, ~~Q So.2d l?77,1280 (F[a. 1983) (A city corrrmission has the authority to determine «~hether am activity serves a public purpose, and a court will not interfere with. such determi,7atian absent ~:r clear abuse. of discretion.j. Therefore;. in Borne extraordinar}= instances, the. City Cc~n~nlissio~~. rrra~• be able to declare that the enforcement of local traffic regulations within a privaF ~,;~t.c:~ ~ ;:,~,° ,,,~~cnt, ~~~itixc~ut reimbursement, does indeed sezve a public purpose, and reimbtrserrr~ nt is nt~t re~uirzd. "T'he l;olding in Gictmcrn seems to support That thepubIic purpose and reimix~r~~r~r~ra r~let~.r~nina.tion rests with the City Commission on a case-by-case basis absent aelear abuse t7'~i:li54i"`.'.ti0i:. i,~ s~rrn. tale ~ ,t~ c~i7 enforce local traffic regulations on private ro~ids that are open Co the ge.ner~:i l:,t:blic. Ho;ti'e~er, enforcement of local traffic regulations on private roads v~=ithin gated corrtt.uirtitiefi regz~irea c, 'iv!°itten agreement ~.vith the entity that controls the :roads: Whip there appears t~ he ~:c~r,1=: i~cti~rav on the reimbursement issue, it appears that the City should follow the Florida ,=~ ttc~i-nc:y CJenvral's advice aztd require reimbursement for expenditures incurred by the City in enii~~ e~~ local t:•rrftc regulations within a private gated community., unless a court of competent jtuisclictiv,i clerlar-vs o#herwise. • __ , • December 1 ~. '?{J07 Page 3 . if ~~ou Dave any' questions, please dcS rlat l"iesitate to contact my office. Sin er ~....-~' Anthony A. Ciar~anese c~~y ,attorney CC: a~l <~ ~~~ t'k. ~ :;1"ill ;::iiOl ~L'lIl I:12zall} Pc~Eic°°~ ~.'tliei i~~: <1 email) C'~t Ci~;'Ic i, °. i ~r,lail for archives} • .7