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Subject: Question About Speeding in Gated Community (FL)
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DavidL36
(Florida)

Posts:3


04/24/2018 1:55 PM  
I have faced an issue with regards to speeding and could use some advice from the members of this community. A few months ago, the HOA Board agreed to use radar enforcement of speeding (20 mph) in our gated community with private roads at an open meeting. This was a well-received option from many of the members in attendance, including myself. Subsequent to the meeting, the HOA Board sent several notices via email to the community that speeding would be enforced by radar. After their initial enforcement was complete, the HOA Board sent a notice to the community that violation notices were sent after the security company captured drivers going over the speed limit with radar enforcement (i.e. that maximum speed was recorded). All communications indicated that speeding is being enforced with radar.

After the initial enforcement period ended, we received a notice that one of our vendors was observed speeding but the violation did not have a speed attached to it. I reached out to the management company representative who confirmed that radar was not used for this violation. We contested the violation with the covenants committee, and it was upheld. After reaching out to a member of the covenants committee, no further information was provided and it was confirmed that they did not have radar backup for the violation. The only response I have received was that someone observed the vehicle speeding. This is a subjective method to issuing violations, and unofficially, the reason why speeding had not been enforced up to this point. There is nothing in our CC&R that discusses speeding, but we do have a code of conduct document which references a fine schedule (including speeding). However, there is no mention of HOW they will enforce speeding in any of these documents.

My next step is to request a Dispute Resolution under our CC&R to get an understanding from the HOA Board as to how the method of capturing speeding could be applied inconsistently. I do not want to take this to mediation or court; however, the HOA Board typically is unresponsive to questions and refers most requests to the management company. Before I go through this process, I wanted to see if anyone on here (either on an HOA Board or part of an HOA) has experience with this process.

Thank you in advance for any help.
RichardP13
(California)

Posts:3534


04/24/2018 2:50 PM  
If the Board approved using radar during a open meeting and they are writing violations based on eye balling the speed, they are SOL if challenged in a court of law. The same standard that apply to police departments must also apply to HOA that use this type of technology.

Been there, Done that
AugustinD


Posts:1594


04/24/2018 2:52 PM  
My experience with Boards like yours is it will take a threat of legal action to get the violation removed. I'd send a letter to the Board, certified mail, and state I was considering hiring an attorney, for xyz reasons, citing the covenants and all you posted here.

How much is your vendor (or you?) being fined?
DavidL36
(Florida)

Posts:3


04/24/2018 3:51 PM  
Posted By RichardP13 on 04/24/2018 2:50 PM
If the Board approved using radar during a open meeting and they are writing violations based on eye balling the speed, they are SOL if challenged in a court of law. The same standard that apply to police departments must also apply to HOA that use this type of technology.



They did use radar for other residents. I saw copies of their violation letters and a maximum speed was included. They just didn’t use radar for my violation. I live across the street from a board member and my assumption is they presumed the vendor was speeding and called the gate.
DavidL36
(Florida)

Posts:3


04/24/2018 3:54 PM  
Posted By AugustinD on 04/24/2018 2:52 PM
My experience with Boards like yours is it will take a threat of legal action to get the violation removed. I'd send a letter to the Board, certified mail, and state I was considering hiring an attorney, for xyz reasons, citing the covenants and all you posted here.

How much is your vendor (or you?) being fined?



I am writing a letter now. I’d hate to claim legal action because they will refer it to their attorney and threaten a special assessment for unbudgeted legal expenses. It’s a $100 violation and I haven’t lost site that mediation, court, and/or legal fees would be exponentially higher. I want them to explain how they can issue a violation in this manner.
BenA2
(Texas)

Posts:531


04/24/2018 8:47 PM  
I agree with you that your first step should be to get an explanation of how they knew the vendor was speeding. I would also be concerned that they are holding you responsible for something you have no control over. I realize that some CC&Rs hold owners responsible for actions of guests and vendors but it is ridiculous for something you cannot control and I doubt a court would uphold it.

I would also be concerned about using radar unless operators have been trained. Radar units are easy to use, you just point them down the road, but there are many factors that can affect the reading. That is why law enforcement officers have to be trained. The units also have to be calibrated periodically and the calibration checked. Every state is different but as a police officer in Virginia we had to check the calibration using a calibrated vehicle and a tuning fork before and after every operation and you had to keep records of the calibrations and checks. You should be concerned because if your security are not trained and following established protocols, your HOA may end up losing in court which will cost all of the owners.
BenA2
(Texas)

Posts:531


04/24/2018 8:47 PM  
I agree with you that your first step should be to get an explanation of how they knew the vendor was speeding. I would also be concerned that they are holding you responsible for something you have no control over. I realize that some CC&Rs hold owners responsible for actions of guests and vendors but it is ridiculous for something you cannot control and I doubt a court would uphold it.

I would also be concerned about using radar unless operators have been trained. Radar units are easy to use, you just point them down the road, but there are many factors that can affect the reading. That is why law enforcement officers have to be trained. The units also have to be calibrated periodically and the calibration checked. Every state is different but as a police officer in Virginia we had to check the calibration using a calibrated vehicle and a tuning fork before and after every operation and you had to keep records of the calibrations and checks. You should be concerned because if your security are not trained and following established protocols, your HOA may end up losing in court which will cost all of the owners.
MarkM31
(Washington)

Posts:446


04/24/2018 9:50 PM  
Posted By BenA2 on 04/24/2018 8:47 PM
I agree with you that your first step should be to get an explanation of how they knew the vendor was speeding. I would also be concerned that they are holding you responsible for something you have no control over. I realize that some CC&Rs hold owners responsible for actions of guests and vendors but it is ridiculous for something you cannot control and I doubt a court would uphold it.

I would also be concerned about using radar unless operators have been trained. Radar units are easy to use, you just point them down the road, but there are many factors that can affect the reading. That is why law enforcement officers have to be trained. The units also have to be calibrated periodically and the calibration checked. Every state is different but as a police officer in Virginia we had to check the calibration using a calibrated vehicle and a tuning fork before and after every operation and you had to keep records of the calibrations and checks. You should be concerned because if your security are not trained and following established protocols, your HOA may end up losing in court which will cost all of the owners.




Agree with all of that, especially the points about training and calibration.
GaryL10
(Florida)

Posts:2


05/07/2019 2:35 PM  
A decision by the Florida Supreme Court regarding "Red Light Cameras," Supreme Court of Florida ____________ No. SC16-1976 ____________ LUIS TORRES JIMENEZ, Petitioner, vs. STATE OF FLORIDA, etc., et al., Respondents. May 3, 2018, I believe may control the issue that you have raised.

The homeowners association probably believes that it can issue “speeding” tickets based on Florida Homeowners’ Association Statute 720.305(2) which says the Association can levy reasonable fines for failure to comply with any provision of the Declaration, Bylaws, or Reasonable Rules of the Association. Statute in full says:

720.305(2) The association may levy reasonable fines. A fine may not exceed $100 per violation against any member or any member’s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association unless otherwise provided in the governing documents. A fine may be levied by the board for each day of a continuing violation, with a single notice and opportunity for hearing, except that the fine may not exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine of less than $1,000 may not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to reasonable attorney fees and costs from the nonprevailing party as determined by the court.

This argument is standard for Homeowners Association attorneys.

However, Florida Statute Chapter 316, State Uniform Traffic Control should control over the homeowners association statute. The purpose of this Chapter is set out in F.S. 316.002, which says that UNIFORM traffic laws ARE TO APPLY throughout the state, it’s counties, and municipalities. It also says that it is unlawful for any “local authority” to pass any ordinance in conflict with this Chapter. The question is whether a Homeowner’s Association is a “local authority” in the context of Chapter 316. Section 316.002 in full says:

316.002 Purpose.—It is the legislative intent in the adoption of this chapter to make uniform traffic laws to apply throughout the state and its several counties and uniform traffic ordinances to apply in all municipalities. The Legislature recognizes that there are conditions which require municipalities to pass certain other traffic ordinances in regulation of municipal traffic that are not required to regulate the movement of traffic outside of such municipalities. Section 316.008 enumerates the area within which municipalities may control certain traffic movement or parking in their respective jurisdictions. This section shall be supplemental to the other laws or ordinances of this chapter and not in conflict therewith. It is unlawful for any local authority to pass or to attempt to enforce any ordinance in conflict with the provisions of this chapter.

See also F.S. 316.007, which says:

316.007 Provisions uniform throughout state.—The provisions of this chapter shall be applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance on a matter covered by this chapter unless expressly authorized. However, this section shall not prevent any local authority from enacting an ordinance when such enactment is necessary to vest jurisdiction of violation of this chapter in the local court.

While a “local authority” ordinarily may mean a government entity, I think that a Homeowners’ Association is a “local authority” with respect to traffic law enforcement despite it being a Florida “not for profit corporation,” not a government entity. This is because the Florida Legislature has provided in F.S. 316.006(2) and (3) that “the board of directors of a homeowners’ association . . . may, by majority vote, elect to have state traffic laws enforced by local law enforcement agencies on private roads that are controlled by the association.” I believe this makes the homeowners association a “local authority” for purposes of the Traffic Enforcement statute. Moreover, the statute says that municipalities and counties “have original jurisdiction over ALL STREETS AND HIGHWAYS located within their boundaries. In addition, the municipalities and counties may “place and maintain . . . traffic control devices” such as the cameras used in gated communities. Thus, by entering into a written agreement with a local law enforcement agency the police can issue tickets for speeding etc.

Why can’t the homeowners association enforce its traffic laws re speeding etc? The Florida Supreme Court’s decision in Jimenez v. Florida repeatedly emphasizes that only “traffic enforcement officers” may issue citations such as speeding tickets. Also, for the homeowners association to issue speeding tickets it would constitute a violation of the above statute 316.002 and 316.007 and the Jimenez decision. If the homeowners association issues a speeding ticket, no “points” are issued to the driver and the driver cannot contest the ticket in a court of law, but can appeal the ticket to a homeowners association board that may not have a lawyer making a decision regarding the ticket. If the police issue the speeding ticket, points may be imposed on the driver and the driver can contest the ticket in a court of law, where the judge must be a lawyer.

316.006 Jurisdiction.—Jurisdiction to control traffic is vested as follows:

(1) STATE.—The Department of Transportation shall have all original jurisdiction over all state roads throughout this state, including those within the grounds of all state institutions and the boundaries of all dedicated state parks, and may place and maintain such traffic control devices which conform to its manual and specifications upon all such highways as it shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn, or guide traffic.

(2) MUNICIPALITIES.—

(a) Chartered municipalities shall have original jurisdiction over all streets and highways located within their boundaries, except state roads, and may place and maintain such traffic control devices which conform to the manual and specifications of the Department of Transportation upon all streets and highways under their original jurisdiction as they shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn, or guide traffic.

Note paragraph 4 and 5 below provide that Homeowners Association Boards can have traffic laws enforced by traffic enforcement agencies. Presumably, if an agreement with the traffic control is not entered into, the Association can tell you that you were speeding, but it may not issue a ticket for speeding.

(b) 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:

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.

2. The exercise of jurisdiction provided for herein shall be in addition to jurisdictional authority presently exercised by municipalities under law, and nothing in this paragraph shall be construed to limit or remove any such jurisdictional authority. Such jurisdiction includes regulation of access to such road or roads by security devices or personnel.

3. Any such agreement may provide for the installation of multiparty stop signs by the parties controlling the roads covered by the agreement if a determination is made by such parties that the signage will enhance traffic safety. Multiparty stop signs must conform to the manual and specifications of the Department of Transportation; however, minimum traffic volumes may not be required for the installation of such signage. Enforcement for the signs shall be as provided in s.316.123.

4. The board of directors of a homeowners’ association as defined in chapter 720 may, by majority vote, elect to have state traffic laws enforced by local law enforcement agencies on private roads that are controlled by the association.

(c) Notwithstanding any other provisions of law to the contrary, a municipality may, by interlocal agreement with a county, agree to transfer traffic regulatory authority over areas within the municipality to the county.

This subsection shall not limit those counties which have the charter powers to provide and regulate arterial, toll, and other roads, bridges, tunnels, and related facilities from the proper exercise of those powers by the placement and maintenance of traffic control devices which conform to the manual and specifications of the Department of Transportation on streets and highways located within municipal boundaries.

(3) COUNTIES.—

(a) Counties shall have original jurisdiction over all streets and highways located within their boundaries, except all state roads and those streets and highways specified in subsection (2), and may place and maintain such traffic control devices which conform to the manual and specifications of the Department of Transportation upon all streets and highways under their original jurisdiction as they shall deem necessary to indicate and to carry out the provisions of this chapter or to regulate, warn, or guide traffic.

(b) A county 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 in the unincorporated area within its boundaries if the county and party or parties owning or controlling such road or roads provide, by written agreement approved by the governing body of the county, for county traffic control jurisdiction over the road or roads encompassed by such agreement. Pursuant thereto:

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.

2. Prior to entering into an agreement which provides for enforcement of the traffic laws of the state over a private road or roads, or over any limited access road or roads owned or controlled by a special district, the governing body of the county shall consult with the sheriff. No such agreement shall take effect prior to October 1, the beginning of the county fiscal year, unless this requirement is waived in writing by the sheriff.

3. The exercise of jurisdiction provided for herein shall be in addition to jurisdictional authority presently exercised by counties under law, and nothing in this paragraph shall be construed to limit or remove any such jurisdictional authority.

4. Any such agreement may provide for the installation of multiparty stop signs by the parties controlling the roads covered by the agreement if a determination is made by such parties that the signage will enhance traffic safety. Multiparty stop signs must conform to the manual and specifications of the Department of Transportation; however, minimum traffic volumes may not be required for the installation of such signage. Enforcement for the signs shall be as provided in s.316.123.

5. The board of directors of a homeowners’ association as defined in chapter 720 may, by majority vote, elect to have state traffic laws enforced by local law enforcement agencies on private roads that are controlled by the association.

(c) If the governing body of a county abandons the roads and rights-of-way dedicated in a recorded residential subdivision, and simultaneously conveys the county’s interest therein to a homeowners’ association for the subdivision in the manner prescribed in s. 336.125, that county’s traffic control jurisdiction over the abandoned and conveyed roads ceases unless the requirements of paragraph (b) are met.Notwithstanding the provisions of subsection (2), each county shall have original jurisdiction to regulate parking, by resolution of the board of county commissioners and the erection of signs conforming to the manual and specifications of the Department of Transportation, in parking areas located on property owned or leased by the county, whether or not such areas are located within the boundaries of chartered municipalities.

(4) LEGISLATIVE DECLARATION.—The Legislature hereby finds and declares that the exercise by an authority of the powers conferred by written agreement pursuant to the provisions of chapter 87-88, Laws of Florida, serves a valid public purpose and function for which public credit may be pledged and public money may be expended.



The Florida Supreme Court has said in its Jimenez decision how statutes are interpreted:

“In matters of statutory construction, we have repeatedly recognized that legislative intent is the polestar that guides the Court.” Sch. Bd. of Palm Beach Cty. v. Survivors Charter Schs., Inc., 3 So. 3d 1220, 1232 (Fla. 2009). “The plain meaning of the statute is always the starting point in statutory interpretation.” GTC, Inc. v. Edgar, 967 So. 2d 781, 785 (Fla. 2007). “[I]f the meaning of the statute is clear then this Court’s task goes no further than applying the plain language of the statute.” Id. “However, if the language is unclear or ambiguous, then the Court applies rules of statutory construction to discern legislative intent.” Polite v. State, 973 So. 2d 1107, 1111 (Fla. 2007). “In addition, examining the history of the legislation is a helpful tool in determining legislative intent.” Raymond James Fin. Servs., Inc. v. Phillips, 126 So. 3d 186, 192 (Fla. 2013).



If cameras are used to support speeding, it should also be noted that F.S. 316.0076 regarding the regulation of use of cameras for enforcing the provisions of this statute provide that the “regulation and use of cameras” for enforcing this chapter are “expressly preempted to the state.” “Preemption” means that “state” law controls over any other laws, ordinances, rules, etc. In other words, the law of the Jimenez Supreme Court decision applies to the MCA homeowners’ association. Or put another way, no written agreement with the local law enforcement agency - - no tickets can be issued for traffic violations in Mediterra. Only a law enforcement officer can issue tickets for violations of Florida Traffic Laws.

316.0076 Regulation and use of cameras.—Regulation of the use of cameras for enforcing the provisions of this chapter is expressly preempted to the state. The regulation of the use of cameras for enforcing the provisions of this chapter is not required to comply with provisions of chapter 493.

GenoS
(Florida)

Posts:2907


05/07/2019 9:29 PM  
Gary, I don't think any of that applies to private property such as a gated community where an HOA owns the roads.

This 1988 opinion from the Florida Attorney General says "the provisions of Ch. 316, F.S., are enforceable on private property only when the public has a right to travel by motor vehicle on such property."

In any case, this thread is over a year old. Some may still be interested. Welcome to the forum!
RoyalP
(South Carolina)

Posts:737


05/08/2019 4:26 AM  
vendors are members of the public

SamE2
(New Jersey)

Posts:92


05/08/2019 6:46 AM  
Posted By GenoS on 05/07/2019 9:29 PM
Gary, I don't think any of that applies to private property such as a gated community where an HOA owns the roads.

This 1988 opinion from the Florida Attorney General says "the provisions of Ch. 316, F.S., are enforceable on private property only when the public has a right to travel by motor vehicle on such property."

In any case, this thread is over a year old. Some may still be interested. Welcome to the forum!





I don't know about Florida but it would in New Jersey. State law trumps county, city, and HOA laws. HOAs must follow state law and federal law.
GaryL10
(Florida)

Posts:2


05/08/2019 7:14 AM  
Thanks for the welcome to the forum. Unfortunately, I wasn't aware of the forum in the past. While the post is over a year old, the post was done before the Jiminez decision by the Florida Supreme Court. That decision lays out how the Florida Supreme Court is thinking. Also, since there are over 500 HOA's in Florida, it is very important that all HOA's follow Florida's laws.

I couldn't find the Attorney General's Office opinion that you referred to on the AGO's searchable site, and your link did not work for me. It would be helpful if you would print it out on the forum web page or provide the "name" of the AGO's opinion.

I believe that your reference to "private" roads owned by the HOA would better apply to, for example, "farm" roads or roads where it would be considered "trespassing" to drive on those roads, i.e., they are not open to the public. HOA's roads merely "control" access to its roads.

If someone, or some group, want's to file suit regarding HOA's issuing speeding tickets, I think they should meet with an attorney who specializes in Florid'a traffic laws to get a knowledgeable opinion on the issue. That's not me! But I think based on my instincts there would be a high probability that a court would rule against the HOA issuing traffic tickets.
GenoS
(Florida)

Posts:2907


05/09/2019 1:42 PM  
Posted By RoyalP on 05/08/2019 4:26 AM
vendors are members of the public


They are but they do not have "the right to travel" on our roads. They come in only when invited and have permission to do so. Any vendor who wanted to bring a tractor-trailer onto the property would be refused permission to do so.
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Forums > Homeowner Association > HOA Discussions > Question About Speeding in Gated Community (FL)



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