Fort Lauderdale false alarm ordinance unconstitutional?

$450k overcharged in '08 could spark closer ordinance scrutiny nationwide, lawsuits
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Thursday, August 20, 2009

FORT LAUDERDALE, Fla.—According to an August 18 story in the South Florida Times, city officials here are more than a little nervous about the prospect of repaying residents and business owners who were allegedly overcharged for false alarms to the tune of more than $450,000 in 2008 alone. Further, some argue the city’s practice of allegedly overcharging on false alarm citations goes back to at least 2004, and possibly constitutes a breach of the Florida State Constitution.

Scott W. Leeds, senior managing partner of the Miami office of The Cochran Firm says the situation in Fort Lauderdale will almost certainly spur lawsuits looking for refunds, and could set a precedent of greater ordinance scrutiny. “Municipalities and corporations—municipalities are just a larger corporation—often times will take liberties that they’re not entitled to … and I would imagine this is going to be examined both by people within the fold—that is the auditors of the various municipalities—and the very creative attorneys around the state, if not the country,” Leeds said.

The real issue in Fort Lauderdale lies in the difference between a fee and a fine. Industry consultant Les Gold of law firm Mitchell Silberberg & Knupp explained Fort Lauderdale is obviously imposing either a fee or a fine; if a fee, it is exorbitant and therefore illegal, and if a fine, it is illegal because there is no due process. “The fee cannot exceed the cost to the city … The escalating fee exceeded the cost of providing the service and has turned the amount collected into a fine,” Gold said in an email interview. “Under the Constitution, if a fine, I assume the constituent must have a right to challenge.” Fort Lauderdale has no such office to ensure citizens get their right to appeal, which means any citizen fined is being denied constitutional rights, according to this interpretation. Additionally, the city’s false alarm fee schedule tops out at nearly three times the actual cost—according to the South Florida Times article—to the city for response to an alarm.

City auditor John Herbst said he has been trying without success for over a year to get the ordinance reexamined by city commissioners. “About a year ago, they wanted to adjust the fee schedule, and I asked them where their cost analysis was and that’s what started the dialogue about what those costs actually look like,” Herbst said. “The police department did a study and the numbers that were in there didn’t reflect what they were proposing, and I said, ‘You need to adjust your fees.’ We’re still waiting for that.”

SIAC director Ron Walters feels the situation in Fort Lauderdale is out of hand. “Fort Lauderdale has been an issue for years. For many years they charged a flat $25 response fee, which did nothing to reduce dispatches and didn't cover the cost to respond,” Walters said in an email interview. “We proposed a full ordinance review and were turned down.” SIAC executive director Stan Martin agreed and said the situation could have been avoided. “Thousands of cities get it legally done right,” Martin said in an email interview. “This should not be an issue if city officials are paying attention.”

Devcon director of operations Roy Pollack who is past president of the Alarm Association of Florida said the industry should not be affected by the false alarm flap in Fort Lauderdale. “It’s a big deal for the city as far as the fines go,” Pollack said. “It’s just a matter of them going back and reexamining it to be sure that they’re in compliance.”

City spokesperson Jeff Modarelli said the city is aware of the problem and plans are in place to reevaluate the ordinance. “We’re looking into the matter and the City Attorney’s Office is looking into the matter, as well,” Modarelli said. “We plan to bring it back to the commission some time in the fall.”