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Friday, August 08, 2003

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The Courts
A fine(s) mess
Cities face prospect of paying $200-plus to have courts help collect $50 fine

August 08, 2003 By: Tony Doris

Edward Fine

Photo by
Fred Mullane

he ability of Florida’s cities to enforce their local ordinances in the courts may be severely hindered by a new state law that requires them to pay the bills for prosecuting drunks, zoning violators and even graffiti artists.

A $200 courthouse filing fee and requirements that cities pay for attorneys’ fees are among the provisions that cities across the state insist will threaten their access to the courts as they seek to enforce some of their most common ordinances.

Thus, a city seeking to fine a drunken bar patron $50 for public intoxication might well face a bill for the $200 filing fee, as well as additional costs for a special prosecutor and even a public defender for indigents.

“The law as written would have a devastating effect on the way municipalities enforce their ordinances,” said Keith Poliakoff, a lawyer with Becker & Poliakoff in Fort Lauderdale.

Currently, the counties pick up much of the costs for the statewide court system. Under a massive restructuring to be fully implemented next year, the state would take most of the bills but would levy a series of fees on counties and cities to cover its added financial burden.

County officials in South Florida say the legislative rebalancing act — an effort to apportion costs as mandated by a 1998 revision in Florida’s constitution — also threatens to hurt them. They say it may spell the end of innovative programs designed to reduce crime and take pressure off the court system. The impact, they say, would be especially severe in South Florida’s fast-growing urban counties, which rely on teen courts and other pro-active programs more heavily than rural counterparts elsewhere in the state.

At issue are provisions in HB113A, a 208-page bill approved overwhelmingly by the state House and Senate on May 27 and signed into law by Gov. Bush on June 25. The state, while picking up the cost of what the Legislature considers core functions of the court system, is offsetting that burden through increased fees and by leaving it to the counties to pay for what it considers nonessential programs.

Sponsors say they intended the bill, a massive restructuring of finances of the judicial branch, to be “a wash,” in which Florida’s 67 counties get back as much in savings as the state charges through fees and other measures for taking over financial responsibilities that previously fell to the counties. The sponsors say that in any undertaking this ambitious, glitches are bound to arise and that they’re open to rewriting problematic sections to head off any undue hardship before the provisions take effect on July 1, 2004.

But South Florida officials and lawyers who represent them say it’s not clear a balance has been struck or that quick fixes are inevitable. They’re lobbying, through the Florida League of Cities and Florida Association of Counties, to undo what they see as provisions that put an unfair burden on local taxpayers.

“Right now, as it stands, July 1, 2004, that law goes into effect,” said Poliakoff, who serves as deputy town attorney for Southwest Ranches in Broward County.

Kenneth C. Hebert, Orlando city prosecutor, estimates that the $200 per case fee would cost Orlando $300,000 a year to seek $88,000 in fines.

“Is a city going to pay a $200 fee for something it might get $30 for?” asked Doug Gonzales, an associate at Weiss Serota Helfman Pastoriza Guedes Cole & Boniske in Fort Lauderdale, who serves as prosecutor for Weston.

He noted that the $200 comes in addition to new expenses, such as a city having to hire a full-time prosecutor, and having to pay for a public defender for indigent defendants that face jail time. And when a court awards a city a fine, the court first takes out a series of fees before handing what’s left back to the city, Gonzales added. From citations for parking in handicapped-only zones to loitering and public consumption of alcohol, he said, “it will have a horrible effect on the enforcement of code.”

Cities can pass the extra fees and charges on to guilty defendants, but that’s unrealistic, Gonzales said. In practical terms, he said, many defendants won’t pay, or won’t be able to, putting the burden back on the city. “They just walk out of the courthouse.”

The changes stem from the Legislature’s effort to implement Revision 7 to Article V of the Florida Constitution, as approved by voters in November 1998. The idea was to have the state take overall financial responsibility for its court system, absorbing as much as $320 million in annual court costs. The implementation has been taking place gradually, through a series of laws passed in 2000, 2001, 2002 and 2003, as the final 2004 deadline approaches.

Sen. Rod Smith, a Democrat from Gainesville, chairs the Appropriations Subcommittee on Article V Implementation and Judiciary. He said he’s proud that, considering the amount of ground that this year’s bill covered, criticisms have been small and the problems cited appear to be fixable, from the $200 fee to teen court funding.

But he cautioned that the money has to come from somewhere and said that voters never intended Revision 7 as a windfall for counties. As he traveled the state seeking input on the bill in recent months, he said, some county officials had in their minds that the state was going to take over court system expenses but continue paying the counties the same amount of money they’d been getting. My answer was, ‘We’re not going to take away the debt from you and send the money back to you. State taxpayers hope I’m smarter than that.’ ”

“We didn’t hear from the Florida League of Cities during the course of the session,” said Rep. Holly Benson, a Pensacola Republican who sponsored the bill in the House. She added that she’s meeting with representatives of the city and county statewide associations this week to talk about alternatives to fees and other concerns.

Some question whether the fees are being dumped on cities by state lawmakers unwilling to take responsibility for needed services. “It’s another way of increasing taxes by a Republican, conservative Legislature, disguised as a fee,” Hialeah Mayor Raul Martinez said in an interview Tuesday.

But sponsors like Benson and Smith deny that party politics played a role in enacting the bill, which passed by a vote of 110-6 in the House and 40-0 in the Senate, in May.

“Really, what we were looking for in the way we structured the reorganization in the Legislature was a way to make sure funding responsibilities were allocated logically between the state, counties and system users,” Benson said. “In the rush to get through a 60-day session, there are going to be things you don’t anticipate. Our staffs are working together to compile a list of these questions, to make sure next year’s bill fills in some of these gaps.”

It’s the conciliatory sentiment of Smith, Benson and other sponsors, and the year-off effective date, that have representatives of the associations of Florida cities and counties sounding concerned rather than alarmed thus far.

The Florida League of Cities is in the process of informing its members about the potential impact and soliciting input. The league has been sending out a three-page analysis by Orlando prosecutor Hebert. In addition to the ramifications of the $200 fee, the analysis points out provisions that would prohibit cities from hiring state attorney’s offices to handle municipal prosecutions. In cases where alleged city code violators are indigent, the cities will have to pick up the cost of private defense counsel to serve as public defenders.

“I guess you’re going to have to get your own municipal court system,” Hebert concluded in an interview. “It appears as though, from a larger perspective, that the Legislature is going backward,” he added. “We used to say, ‘All these multiple court systems are not good, not economical, there’s a different kind of justice being done in different kinds of courts, so why not put all this together under one court system?’ ”

As a result of those concerns, the Legislature moved toward a statewide court system, he said. “We did well under that system for 20 years now. The Legislature is in effect dismantling that system, because it’s saying, ‘Cities can no longer use the state attorney and public defender, and if you want to use the court system you’re going to have to pay $200 a case.’ ”

What he’s referring to is a move by the Legislature in the early 1970s that replaced a hodgepodge of local courts, with state courts. “The state system came into place, but state funding did not,” said John Ricco, lobbyist for the Florida Association of Counties in Tallahassee. By the mid-’80s, he added, the counties were funding more of the costs of the state system than the state.

Sen. Smith, for his part, said Hebert “raises a good point” and that his subcommittee will have to restudy the issue of allowing cities and counties to contract with state attorneys for code enforcement.

Broward County, for one, would have to stop contracting with the state attorney’s office to prosecute county ordinance violations. The most common violations they currently handle for Broward: drinking near a licensed establishment, such as in a bar parking lot; disorderly conduct, particularly in buses or bus terminals; and operating a commercial vehicle without descriptive lettering.

Under the new rules, Broward would have to hire its own prosecutor and not use the state attorney, said Monica Hofheinz, assistant state attorney and executive director of the Broward state attorney’s office. There could be a constitutional problem with that, she said: The state constitution doesn’t say anything about counties having a right to employ their own prosecuting attorneys, though cities can. “This is one of the reasons why we’ve absorbed this function” for the county, she said. “I think this is a simple correction.”

Other looming problems cause greater concern for county officials. The Article V revisions threaten the loss of effective, innovative programs, said veteran Palm Beach County State Attorney Barry Krischer.

Krischer said the potentially rocky transition is a major reason he has decided to run for one more term. He said he didn’t want there to be a transition in the state attorney’s office at the same time as a transition in funding.

The constitutional amendment that instructed the state to take over the court system didn’t specify that funding levels should remain unchanged, he said. “The end result is, the state, with all due respect, is trying to do it on the cheap and they’re not expending the same dollars that the counties are.”

Accurate dollar figures are hard to come by, as far as how much financial burden the state is lifting from counties for court system operations, and how much it’s adding back in fees and reductions in revenue sharing. Rep. Benson noted that HB113A calls for a comprehensive, six-month-long audit of court costs around the state, to ensure a fair restructuring. That audit is in the works, she said.

But South Florida county officials say that several progressive programs they’ve implemented in recent years will be left without state funding, because they go beyond what the state considers essential court services. Palm Beach County, for example could come out as much as $3 million short for such local option programs, said Chief Judge Edward Fine. “It’s like ordering a car with no equipment,” he said. “You want to add anything, you have to pay for it yourself.”

Among these programs: the county has a Teen Court, which keeps many from going to harsher Juvenile Court. The program was funded by a $3 charge tacked on to all traffic tickets in the county; now that money will go toward funding court clerks’ offices instead.

The county also has a drug court, which also is like a “pre-court,” as Fine describes it; it lowers the repeater rate and seeks to help people with drug problems without their having to be dragged into Juvenile Court. Another court-system program, called Tips, picks up truant high school students and takes them to a central location where school authorities can get them. The program enforces truancy laws, keeps kids in school and keeps the crime rate down by preventing daytime burglaries, Judge Fine said.

Shortfalls in state funding put pressure on these programs and throughout the system, he said. Palm Beach has 51 judges, about 10 fewer than it needs. As the county grows, without diversion programs the county will need more prosecutors and more judges, he said. When push comes to shove, busy civil court judges must be shifted to cover the heavier criminal load instead, causing the civil system to bog down, Fine said.

Karen Marcus, chair of the Palm Beach County Commission and a past chair of the Florida Association of Counties, said her county and the association intends to press its legislators to roll back the $200 fees and get funding for important programs. Past efforts didn’t help, she said. “We tried to express to them [the bill sponsors], when they wanted to take away Teen Court programs, that they really needed the programs because they helped the state in the long run to not have to hire judges. They see it as a frill.”

Tony Doris can be reached at tdoris@floridabiz.com or at (305) 347-6657.

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