HomeMy WebLinkAbout12-14-2007 Local Traffic Regulations on Private RoadsBROWN, GARGANESE, WEISS & UAGRESTA, P.A.
Attorneys at Lazy
Debra S. Babb-Nutcher"
Offices in Orlando, Kissimmee, Cocoa, Tara L. Barrett
Ft. Lauderdale & Tampa Vivian P. Cocotas
Joseph E. Blitch
Scott J. Dornstein
Usher L. Brown'
Mitchell B. Haller
Suzanne D'Agresta"
Katherine W. Latorre
Anthony A. Garganese"
Terri E. Oster
J.W. Taylor
Amy J. Pitsch
Jeffrey S. Weiss
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'Board Certified Civil Trial Lawyer
`Board Certified City, County 8 Local Government Law
'Board Certified Appellate Practice
Ronald W. McLemore
City Manager
City of Winter Springs
1126 East State Rd 434
Winter Springs, FL 32708
December 14, 2007
Re: Local Traffic Regulations on Private Roads
Dear Ron:
Erin J. O'Leary'
Catherine D. Reischmann`�
William E. Reischmann, Jr.
Of Counsel
This letter memorializes my recent verbal opinion that I provided to the City Commission
on December 10, 2007. 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. Essentially, I stated that the answer hinges on whether the roads are open to the general
public for travel, or whether the general public does not have access to such roads, for instance, in
a gated community.
To the extent the roads within a private development are open to the general public for travel,
the City can enforce local traffic regulations. 90-68 Fla. Op. Att'y Gen. (1990). However, where
the roads are closed (e.g. gated), the City may exercise jurisdiction if the City and the homeowners'
association, or the respective party controlling the road, provide for City traffic control by written
agreement approved by the City Commission. See § 316.006(2)(b), Fla. Stat. (2007). In relevant
part, section 316.006(2)(b), Florida Statutes, provides:
A municipality may exercise jurisdiction over any private road or
roads, or over any limited access road or roads owned or controlled
by a special district, located within its boundaries if the municipality
and party or parties owning or controlling such road or roads provide,
by written agreement approved by the governing body of the
municipality, for municipal traffic control jurisdiction over the road
or roads encompassed by such agreement. Pursuant thereto:
225 East Robinson Street, Suite 660 • P.O. Box 2873. Orlando, Florida 32802-2873
Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979
Website: www,orlandolaw.net • Email: firm@orlandolaw.net
December 14, 2007
Page 2
1. Provision for reimbursement for actual costs of traffic control and
enforcement and for liability insurance and indemnification by the
party or parties, and such other terms as are mutually agreeable, may
be included in such an agreement.
§ 316.006(2)(b)1, Fla. Stat. (2007).
While section 316.006(2)(b)l, Florida Statutes, provides that the agreement May contain a
reimbursement provision to the City, the Florida Attorney General has opined otherwise. On several
occasions, the Florida Attorney General has opined that the agreement must provide for the
reimbursement of the actual cost of traffic control services. 88-05 Fla. Op. Att'y Gen. (1988); 90-68
Fla. Op. Att'y Gen. (1990). The rationale offered by the Florida Attorney General centers around the
constitutional prohibition against using public funds for a private purpose, and whether the
enforcement of local traffic regulations in a private gated community can be considered a valid
municipal purpose. See Fla. Const. Art. VII, § 10. As such, there appears to be a conflict between
section 316.006(2)(b) I and the opinion of the Florida Attorney General regarding whether the City
must require reimbursement for expenditures incurred by the City in enforcing local traffic
regulations within a private gate community by written agreement.
While I do not question the applicability of Article VII, Section 10 of the Florida Constitution
relative to determining whether the City should be reimbursed, I question, given both the
nonmandatory language adopted by the Florida Legislature and the City Commission's broad
authority to declare a public purpose, whether payment should be required in all instances. See City
of Boca Raton v. Gidman, 440 So.2d 1277, 1280 (Fla. 1983) (A city commission has the authority
to determine whether an activity serves a public purpose, and a court will not interfere with such
determination absent a clear abuse of discretion.). Therefore, in some extraordinary instances, the.
City Commission may be able to declare that the enforcement of local traffic regulations within a
private gated development, without reimbursement, does indeed serve a public purpose, and
reimbursement is not required. The holding in Gidman seems to support that the public purpose and
reimbursement determination rests with the City Commission on a case -by -case basis absent a clear
abuse of discretion.
In sum, the City can enforce local traffic regulations on private roads that are open to the
general public. However, enforcement of local traffic regulations on private roads within gated
communities requires a written agreement with the entity that controls the roads. While there
appears to be some leeway on the reimbursement issue, it appears that the City should follow the
Florida Attorney General's advice and require reimbursement for expenditures incurred by the City
in enforcing local traffic regulations within a private gated community, unless a court of competent
jurisdiction declares otherwise.
December 14, 2007
Page 3
If you have any questions, please do not hesitate to contact my office.
Sin er 4,
Anthony A. Garganese
City Attorney
cc: Mayor & Commission (via email)
Police Chief (via email)
City Clerk (via email for archives)