Opinion
No. 4D02-3626.
January 28, 2009.
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Thomas M. Lynch IV, Judge; L.T. Case No. 00-1887 CACE 11.
Ronald S. Guralnick, Miami, for appellant.
Alan Fallik, Interim City Attorney, and Robert Oldershaw, Chief Litigation Counsel, Hollywood, for appellee.
ON MOTION FOR REHEARING AFTER REMAND
We grant rehearing, withdraw our opinion on remand, and substitute the following in its place. We adopt the analysis and reasoning of the Third District in City of Miami v. Wellman, 976 So.2d 22 (Fla. 3d DCA 2008).
See Mulligan v. City of Hollywood, 2008 WL 723843, 33 Fla. L. Weekly D783 (Fla. 4th DCA Mar. 19, 2008).
Initially, th e Third District found the notice provision in the comparable vehicle impoundment ordinance insufficient because it failed to require notice to owners of the seized vehicle who are not on the scene at the time of arrest. Wellman, 976 So.2d at 26. We agree with the Third District's analysis and find the indistinguishable Hollywood ordinance constitutionally deficient for the same failing. See Art. I, § 9, Fla. Const., and Dep't Law Enforcement v. Real Property, 588 So.2d 957, 966 (Fla. 1991) (holding that due process requires notice must be given to all persons who the forfeiting authority with reasonable investigation knows may have a legal interest in the subject property).
Next the Third District found the comparable ordinance deficient in regard to the standard of proof. Wellman, 976 So.2d at 27. We agree that the correct constitutional standard is clear and convincing evidence. See Dep't of Law Enforcement, 588 So.2d at 968.
Finally, the Third District held the ordinance constitutionally deficient because it failed to allow for an innocent owner defense. Wellman, 976 So.2d at 27-8. We agree. The due process clause requires an immunity from impoundment in favor of an owner innocent of any misuse of the property otherwise justifying the impoundment. See Dep't of Law Enforcement, 588 So.2d at 968 (holding that "[l]ack of knowledge of the holder of an interest in the property that the property was being employed in criminal activity is a defense to forfeiture, which, if established by a preponderance of the evidence, defeats the forfeiture action as to that property interest").
In so doing we expressly vacate our holding that the adequacy of the hearing provided by the ordinance in question is unconstitutional under Broward County v. LaRosa, 505 So.2d 422, 423-24 (Fla. 1987), and align ourselves with the Third District as to this issue also.
Reversed and remanded for consistent proceedings.
POLEN, FARMER and MAY, JJ., concur.
Final upon disposition; no further motion for rehearing will be considered.