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Home My WebLink About02-26-2008 Enforcement of Local Traffic Regulations on Private Roads, D ANESE, WEISS & UAGRESTA, P.A. BROWN, G Atto� neys at Law Offices in Orlando, Kissimmee, Cocoa, Tara L. Barrett Debra S. Babb-Nutcher' Ft. Lauderdale & Tampa Vivian P. Cocotas Joseph E. Blitch Scott J. Dornstein Usher L. Brown' Robin Gibson Drage Suzanne D'Agresta' Mitchell B. Haller Anthony A. Garganese" Katherine W. Latorre J.W. Taylor Terri E. Oster Jeffrey S. Weiss Amy J. Pitsch 'Board Certified Civil Trial Lawyer Board Certified City, County & Local Government Law 'Board Certified Appellate Practice February 26, 2008 Lt. Chris Deisler Operations Commander City of Winter Springs Police Department 300 North Moss Road Winter Springs, FL 32708 Erin J. O'Leary' Catherine D. Reischmann'' William E. Reischmann, Jr. Of Counsel 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 question that you raised yesterday by telephone regarding moving violations. In addition, given that your concerns are regarding the enforcement of moving 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 or private. Zink v. State, 448 So. 2d 1196 (Fla. I" DCA 1984). The Florida Attorney General 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) where the public does not have a right to travel and the PUD has not entered into an agreement with the local government for traffic control jurisdiction." Op. 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, importantly, no agreement between the municipality and a private property owner is necessary for law enforcement authorities to enter private property to enforce Florida's DUI statute, section 316.193, Florida Statutes. 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 February 26, 2008 Page 2 If you have any questions regarding this matter, please do not hesitate to contact me. Very yours, Anthony A. Garganese City Attorney AAG/jf Enclosure cc: Ron McLemore, City Manager Daniel Kerr, Police Chief BROWN, GARGANESE, WEISS & UAGRESTA, P.A. Attorneys at Lazy Debra S. Babb-Nutchery Joseph E. Blitch Usher L. Brown' Suzanne D'Agresta" Anthony A. Garganese J.W. Taylor Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer 'Board Certified City. County & 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 Offices in Orlando, Kissimmee, Cocoa, Ft. Lauderdale & Tampa December 14, 2007 Re: Local Traffic Regulations on Private Roads Tara L. Barrett Vivian P. Cocotas Scott J. Dornstein Mitchell B. Haller Katherine W. Latorre Terri E. Oster Amy J. Pitsch Erin J. O'Leary' Catherine D. Reischmann William E. Reischmann, Jr. Of Counsel Dear Ron: 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' r hinges on whether the roads are open to the general associations. Essentially, I stated that the answe does not have access to such roads, for instance, in public for travel, or whether the general public 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.oriandoiaw.net - Email: firmaiorlandolaw.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 otherleims as are mutually agreeable, may be included in such an agreement. § 316.006(2)(b)l, Fla. Stat. (2007). While section 316.006(2)(b)1, 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, e consde considered aev the enforcement of local traffic regulations in a private gated community 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 AttorneyGeneral 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 ory language adopted by the Florida Legislature and the City Commission's broad nonmandat authority declare a public purpose, whether payment should be required in all instances. See City of Boca Raton v. Gidrnan, 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 as private gated development, without reimbursement, does indeed serve a public pure reimbursement is not required. The holding in Gidrnan 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 J If you have any questions, please dd_ nost hesitate to contact my office. Sin er , �'r Anthony A. Garganese City Attorney cc: Mayor & Commission (via email) Police Chief (via email) City Clerk (via email for archives)