Flagler County Circuit Court Judge Dennis Craig last Sept. 12 got cited for a red-light camera violation at Palm Coast Parkway and Florida Park Drive. On Thursday, he challenged the city’s enforcement of its red-light camera system and got his citation dismissed. He was in court at the time of the violation. But that was almost beside the point.
Craig, in a remarkable and rare legal argument before Palm Coast’s attorney, the hearing officer and the city’s code enforcement officer—the trio that usually blunts most efforts to challenge the city’s detested red-light camera network—showed that Palm Coast’s protocol is based on “bad faith,” that it is at odds with his reading of state law, and that it turns even innocent vehicle owners into unwilling informants. Craig also ridiculed the Palm Coast City government’s repeated allegation that red light cameras are in place for safety, saying there was “no correlation” between that allegation and fining car owners who were not at the wheel of their vehicle.
“So I’m glad to see that Palm Coast’s position is that not only are you guilty until you prove yourself innocent, but that’s not even good enough,” Craig said. “You have to be guilty until you prove yourself innocent, and then, you have to inform on somebody else. And that would be regardless as to whether or not someone has personal knowledge as to who was driving the vehicle. Including the owner.”
In the end, after Craig demolished the city’s punishing method in a performance that saw a city unquestionably outmatched, Jennifer Barrington-Nix, the hearing officer, had no choice. She dismissed his ticket.
But she did not do so based on Craig’s contentions, as that would have immediately invalidated thousands of tickets issued by the city. Rather, she invented a reason neither Craig nor the code enforcement officer had even placed on the table: that the vehicle had “slowed down quite a bit prior to taking that turn.” That, of course, was demonstrably false, according to the city’s own evidence: the vehicle made the turn at 16 miles per hour, as recorded by the camera’s radar, and Craig himself conceded that the vehicle violated the red light.
For any other vehicle owner, that would have been incontestable evidence to enforce a $158 ticket. Yet Barrington-Nix declared, by fiat, that the vehicle had made a “prudent” turn and “dismissed the violation on that basis.”
It was an astounding way for the city to get out of the untenable position the judge had placed it in—and no less of an arbitrary way to do so. It was also another example of the city’s arbitrary enforcement of red-light cameras.
When Craig asked Barrington-Nix whether the ticket was being dismissed while still assuming that he was the driver, she skirted the question. There would be no hearing or comment on who the driver was. And while the citation was dismissed, the contradictory and “bad faith” system Craig described very much remains in place.
It was the first time that a judge has contested a red-light violation, and the first time that Palm Coast’s enforcement system gave an individual so much latitude to contest the citation. It is not about to happen again. But Craig’s arguments are not likely to be soon forgotten, either, as Palm Coast and American Traffic Solutions, the Arizona-based company that runs the camera system in town, continue to face increasingly damaging criticism over the system.
Joe Festa, a code enforcement officer for Palm Coast, first presented the case once the video system got going. (The video system was initially malfunctioning.) The alleged violation took place at Palm Coast Parkway and Florida Park Drive.
“I’m the joint owner,” Craig said of the car when asked about the license plate. “I’ll stipulate that that’s the car that I own jointly,” he added, immediately using the courtroom language he is most comfortable with. “I’ll stipulate that the vehicle violated the red-light stop,” he also said.
“I would actually like to ask Mr. Festa some questions,” Craig said as soon as the review of the video was over, and himself virtually taking command of the proceedings: “Have you been placed under oath already?” the judge asked the code enforcement officer.
“Yes, sir,” Festa replied.
“OK. All right, Mr. Festa,” Craig asked, “Who was driving that vehicle?”
“I’ve no idea,” Festa said. Cameras usually don’t. Nor do the operators behind them, whether it’s ATS–which takes about $1 million a year in revenue from the cameras from local drivers—or Palm Coast’s code enforcement division, which administers the system. (Palm Coast’s revenue is a guaranteed $400,000 a year from the cameras, assuming all 47 cameras are running. That number is diminishing temporarily as the city widens Palm Coast Parkway.)
Craig: “What investigation was done by Palm Coast to determine who was driving that vehicle?”
Craig: “OK. And, would you agree, I have a copy of the citation, or I guess the notice of violation,” the judge continued, ensuring that all sides had a copy, “first can you tell me, whose signature is that, under ‘police department’?”
Festa: “That is mine.”
Craig: “Now, do you allege in this notice of violation that Dennis Patrick Craig did unlawfully operate or drive that particular vehicle and did then and there commit the following offense, failure to comply with a steady red signal?”
Craig: “OK. Well tell me if it says, ‘did unlawfully,’ is that box blackened? It says did operate and drive.” The judge showed Festa the box and repeated what he’d just said.
Festa, hesitating, said, “It is blackened out, but I did not do that.”
Craig: “OK, but you signed off on it.”
Craig: “Was that under oath?”
Festa: “When I signed off on it?”
Craig: “Right. Are you swearing to that?”
Festa skirted the question. “What I, what I put my signature on,” he said, “was the vehicle going through the light, with the, from the registration, it has nothing to do with who was driving the vehicle because we have no idea who was driving the vehicle.”
That exposed one of the fundamental flaws of a system ATS and Palm Coast have been exploiting with little resistance from drivers caught in the same snare of assumptions as Craig was. But most drivers don’t battle the snare. They submit and pay the $158 fine.
“OK,” Craig continued, “so you admit who was driving the vehicle, but your form effectively accuses—me in this particular circumstance, of operating or driving the vehicle. Is that correct?”
Festa—or, in essence, the city’s assumption—was boxed in. Festa tried to wriggle out. Craig wouldn’t let him. “I’d really have to look into that,” Festa said, “because I had nothing to do with filling out this form.”
Craig: “Well, there’s nothing to look into, it’s right in front of you. Why don’t you take a closer look.”
Festa: “I do, but I don’t fill out the form, I just review the vehicles.”
Craig: “So you just sign things you don’t, you don’t fill out, or know what it says? Are you saying you don’t know what it says, what you’re signing?”
Festa: “It says ‘did unlawfully operate slash drive,’ and that box is already darkened out.”
Craig: “So, aren’t you alleging in this form that I was the operator of that vehicle?”
Festa continued to to circle around the judge’s central question: “No I’m not, I’m alleging that that vehicle went through the light. I don’t know who was operating the vehicle.”
“OK, but that’s not what that form says,” Craig tried again, repeating what the form categorically states, contrary to what Festa was maintaining to the judge’s face, as he normally would to any complainant’s face. But complainants aren’t usually sitting judges whose line of inquiry, out of deference, will not be stopped by the hearing officer, or derailed by the code enforcement officer.
“I really have to look into that,” Festa said again.
Craig wasn’t done. He was about to push his line of inquiry to the heart of the system’s flaw, exposing it as a formalized, routine dishonesty—under oath.
“Is this the form that you’ve been using for Palm Coast?” Craig asked.
Festa: “I believe so, yes.”
Craig: “OK. And how many hundreds of thousands of these citations have gone out in which you’re blackening the box that says, these people are the operator or drivers when in fact you don’t have a clue?”
Festa: “I have no idea.”
Again, no hearing officer or code enforcement official for Palm Coast would have tolerated such a line of inquiry from an ordinary resident: such hearings are usually heavily stacked against complainants. But no mere hearing officer was going to do any less than defer to a circuit judge’s approach, up to a point. Craig likely knew that going in, and as if on behalf of those who would have more readily been silenced, he took full advantage of his circumstance.
“OK, is it in the hundreds? Or is it in the thousands?” Craig asked, referring to the number of tickets issued in circumstances similar to his.
Only then did Robin McKinney, the attorney representing Palm Coast, intervene, saying—remarkably–that the question was not relevant to that particular hearing.
Craig did not concede, raising his citation and saying that was the accusation that had brought him to the hearing today. “I can cross-examine on it,” he said.
“We just object to anything that doesn’t pertain to this individual’s case,” McKinney said.
Craig paused, waiting for the hearing officer’s stance. She remained silent. “It goes to the good faith or bad faith of Palm Coast in issuing these tickets in the first place,” the judge said, “and I would submit that sending out a notice claiming that someone was the driver knowing that they don’t know who the driver was, is bad faith.”
The attorney said the city follows the process set out in law, a process that does, in fact, require that notice of a violation be sent to the driver of the vehicle, with a provision that the owner may sign an affidavit saying that he or she was not driving at the time of the violation. The law declares the owner guilty until proven innocent, in other words—another fundamental breach of basic rights. McKinney blamed the legislature for that distinction, “not Palm Coast.” But Palm Coast chose to install the 47 cameras, and to draft with ATS the sort of citation Craig had in hand.
Craig conceded that the city was sending out notices to actual drivers of cars owned by someone else at the time of the violation. But the attorney had skirted Craig’s point—that the process Palm Coast has in place entails a “bad faith” dishonesty, and that state law does not actually compel Palm Cost to draft the falsely presumptive wording in its citations.
“First of all the statute sets forth a presumption, a rebuttable presumption. But that rebuttable presumption is not a presumption that the owner is the driver,” he said, distributing a copy of the law and parsing it for the lawyer, the hearing officer and the code enforcement officer. With highlighted text. “There is nowhere in this statute that indicates that the presumption is that the owner is the driver,” Craig said.
The presumption is defined in the law, but it stops at the vehicle’s involvement. “Nowhere does it say that there is a presumption that the owner is the driver,” Craig said. “Granted, the statute allows you to send a notice to the owner of the vehicle for that violation. It doesn’t allow you to accuse the driver of being the driver or the operator. Second, it also does not allow that at a hearing that the accused has to inform anyone who actually was the driver.”
By then, Craig had unraveled as essentially improper two of the premises on which Palm Coast bases its enforcement of red-light camera citations: the assumption that the owner of a car is the driver, and the manner in which Palm Coast interprets a vehicle owner’s responsibility, when the owner is not at the wheel of a cited vehicle.
“So I chose in this case not to be an informer, and to come to a hearing,” Craig said. “Now that I know Palm Coast has no evidence as to who the driver was of that vehicle, I’m going to ask you to dismiss the case, without further testimony.”
McKinney said the law is precise in placing the responsibility of the payment of the citation on the owner, absent the owner filing an affidavit showing that a different driver was at the wheel. “And Palm Coast does notify the owners of the affidavit process,” McKinney said. She disputed Craig’s version of the law regarding the affidavit requirement.
Not so, Craig said, citing the two sections of law under which his vehicle was cited. “And under those sections, the only person that can be liable for those violations is the driver,” he said. That’s when he sarcastically referred to the city’s position as declaring all alleged violators guilty until proven innocent, and requiring them to turn informant to clear themselves.
When Craig spoke of his being in court at the time of the violation, he said he had no knowledge as to who was driving the car, “just like Palm Coast has no knowledge as to who was driving.”
The city attorney said that by law, the first vehicle owner’s responsibility is to submit an affidavit to “transfer” the violation to another driver, if the owner wants out of paying.
Again, Craig turned on the wryness: “I’m glad to see that it’s Palm Coast’s position that they don’t care who the driver was. They just want somebody to pay the fine, and quite frankly that goes to the good faith and the bad faith of Palm Coast as well. Now, knowing at this point that the only evidence is that I’m not the driver, they’re still seeking to fine me.”
“We’re mandated to follow this process,” the lawyer said, again.
“Well, quite frankly,” Craig concluded, “if the real purpose as I’ve heard published by Palm Coast officials is that they’re worried about safety, and that’s why they want to enforce these red-light tickets, I would submit that there’s absolutely no correlation between driving safely and trying to ticket non-drivers for a violation. I’m glad to see that’s what Palm Coast’s position is and so frankly set forth that that was the case.”