today the usual time restraints are still in place and stephanie will go ahead and let you know when you have two minutes left and then she will announce one time as of course if we have asked you a question then we would want you to answer that question even if it takes you over the time others in math no we would ask that you please comply with the time es that are set in addition since we are doing this by telephone if you would get your name before you speak when you when you make your argument and we will miami beach assigning powers to american traffic solution that the city never had to begin with now before turning to the district court's opinion you're wrong it's important to point out that american traffic solution is not merely a private company in this conflict rather it is an arm of government the city hired american traffic solutions to carry out government functions receiving civil traffic penalty payments in connection with red light camera cases among other things and the city outsourced that function to american traffic solutions exclusively the city does not perform this function internally at all you cannot pay your fine to them you must deal with american traffic solutions and only american solution the point being that american traffic solutions is not operating as a private company in this context it is an extension of the city where english cities close performing a city function so in carrying out that government function american traffic solutions cannot do anything that the city can do it is forbidden from doing anything that the city is forbidden from doing as the florida supreme court stated in thomas p state  bid what the legislature has expressly licensed authorized or required norm it authorized what the legislature has expressly forbid so the city cannot authorize american traffic solutions to do something that the legislature fact this statute contains an exception for red light camera cases in florida one expressed exception for red lights camera cases specifically appears right in the text of the statute the statute read officer may also order the payments of county or municipal costs not to exceed two hundred and fifty dollars so there it is that's the one exception for red light camera cases specifically a two hundred and fifty dollars hearing see an american traffic solutions extra charge which is just an arbitrary profit driven charge doesn't satisfy that exception so it is prohibited so looking back three hundred and eighteen dollars generally this exception is literally the the statute in three hundred and sixteen point three i guess subsection for an individual may not receive a commission from any revenue collected from violations detected through the use of a traffic infraction detector it uses the term individual and then later in that same provision that uses the term manufacturer vendor you're you have argued definitions in the statutes there is no definition for individual so i would think it would just sort of be the usual meaning of individual which seems to me to be a person not a company history doesn't define the word individual as it's used here and the word individual has it's meaning is can textural in some cases the word individual is used to distinguish individual natural person from other types of entities in this case as opposed to your honor that the purpose of the statute is also at least to protect drivers from getting ripped all that see this is what this is about it's to prevent kickbacks to companies that have inserted themselves companies individuals anyone who has been certain themselves between the city and the driver to extract extra money that's what this is for is to protect tribals from getting ripped off and that's what happened this is a protection paradigm of preventing additional charges that we've discussed earlier i hope that answers your question your honor i know that i'm just about out of time so if you have any additional questions that might try to get them yes there's the this is lisa grants can you explain what is your best argument for why does would be a commission when it is not a percentage of the traffic fine when it could be avoided if you paid by check for example how does this fall under what would be sort of the traditional notion of a commission well i'm glad you asked that your honor because the word commission is actually math narrowly defined in everyday usage and i think that's you can see that in the dictionary definition from the total pace of the agent responsible for the business and i think that the commission satisfies in this case the payment satisfies even that definition but notwithstanding that the word commission as i said is not narrowly defined in everyday usage agent for completion of a path and that's what the charges here is an additional song that gets paid to american traffic solutions which is the city's agency that they get paid upon completion of the task of receiving an electronic penalty pa and so since the everyday use of that word is quite broad i think we should give it a broad application here and and as a final point the definition of commission would be the letter of the law so if american traffic solutions violated the spirit of the law and the letter of the law is absent from the statute how can it possibly be said that they're in compliance with it the answer is that they are not and the extra charges is a prohibited commission under any reasonable definition of that wor it please the court this is joseph lang from carleton fields for the apple easy american traffic solutions i will start today by making sure that we understand the truly distinguishing fact in this case which is that this convenien and that fee would be completely optional i think that would be ok if the violator has the option to pay i think it would be completely ineffectual i don't think anybody would pay it and if that was the only way to pay your honor that obviously would have problems too but this is not a mandatory way to pay everybody has the option to not pay the convenience fee they can drop a check in the mail for one hundred and fifty eight dollars and they will not have to pay the convenience fee people opt to pay this fee if they don't have a savings account or a checking account that's actually part of the benefit of the bargain your honor for being able to use the credit card is they get the i believe they would still be able to pay by cash is not an option buy believe possibly a money order is an option i have not honestly looked at that particular situation but i don't know that that person has a credit card either but that's a different question right i mean we're looking at the hypothetical right to hypothetical of no checking account right check then in that particular hypothetical i don't see that there's a way to avoid the convenience of a my grant your honor that hypothetical i don't know that that hypothetical exists in the real world and let me ask you something assuming that just rip up is a hypothetical and you may well be right that it doesn't but assuming that it does exist is that then a problem under the analysis that you've set forth where you just conceded a moment ago that if the fi if the five percent surcharge applied across the board it would be a problem no we still don't believe that this i'll get into arguments now for all the reasons a district court decided that this does not violate the statute itself i think it's important that it's completely optional but three hundred and sixteen this is not a commission in any event and i need to emphasize that under the three hundred and sixteen eighty three this is not a commission whether it's mandatory or optional because it doesn't come from the one hundred and fifty eight dollars what this is aimed at is a percentage of the one hundred and fifty eight dollars what the legislature is trying to do here is protect the one hundred and fifty eight dollars fee because the statute set out exactly how that has to be divvied up and the legislature doesn't want that one hundred and fifty eight dollars to be divvied up and paid out as a percentage of value commission for instance to a traffic and a traffic infraction enforcement officer as i'm sorry to interrupt but i just want to make sure i understand the argument my understanding and maybe i have this wrong of the plaintiffs argument is that subsection twenty two that he says proves his point that subsection actually says that the penalty is prescribed under chapter three hundred and sixteen eighty three so that actually confirms the chapter that the penalty is prescribed under but as far as the cross referencing of chapter three hundred and sixteen thousand three hundred and eighteen throughout the scheme that he is referring to three hundred and eighteen has existed for years and years on the books the legislature enacted the mark one dollar two cents to endorse these types of programs and in acted as a supplemental statute in chapter three dollars naturally there is a little bit of cross referencing and the subsection twenty two dollars is to protect the city's ability to charge the two hundred and fifty dollars fee at a hearing as an additional mandatory fee this as i said is not even a mandatory foetuses a convenience fee but there is some cross referencing between chapter three hundred and eighteen dollars and chapter three hundred and sixteen but even the subsection he refers to prior mr luskin points out that the sketches the deals the commission says any revenue rather than simply referring to the fee and that every any revenue would include the fee the penalty plus the convening see what your response to that argument is what it actually says is any revenue collected from violations and the revenue that is collected from the violation the imposition of any kind of additional fees by a c s or whoever might be in the position for any reason whatsoever just because they wanted to impose the additional fee if they are mandatory fees and they turn on the number of violations detected the nd clause of this section on the set right to the that's the problem right let's say that they just that let's say a yes just decided that you have to pay twenty dollars along with your payment and they just that because that's what we require they didn't say it was because of the number of violations or anything of that nature i mean wouldn't that be a problem under your interpretation i mean there's nothing that would prevent that is there and that would be a mandatory fee that everybody would have to pay could even be for if it's everybody has to pay an extra twenty dollars then that arguably turns upon the number of violations detected which is what the vendor why habited why does that turn on the number of violations detected because it would go up in direct correlation with the number of violations detected if everybody has to pay a twenty dollars extra fee like that think there would be a direct relationship there i do need to point out that that provision in this case has been waived below the district court made that point in the order that that provision which is and so it goes to understand richmond the very causes of action for all three counts here and that is that all of these counts can really be resolved under the bab t stuff from this court about keester line of reasoning that when you get the benefit of the bargain for a fee paid you don't have an unjust enrichment claim as a matter of theory and that is followed on by we unjust enrichment when you get the benefit of your bargain when you have the ability to pay a convenience fee and you get a direct benefit back as a matter of theory that doesn't give  unjust enrichment claim and so we would argue that across the board the baptist senshi o reasoning is an alternative basis not reached by the district court but for affirming  this order and therefore we would argue that there is an alternative basis not reached by the district court district court did not need to reach it but this is not  theoretically correct on just enrichment claim in the st instance on any of the three counts i'm happy to take any other questions and if not i would ask that the court affirm the order on appeal explaining that american traffic solutions is not a private company in this context you have to remember that there isn't a voluntary relationship here it's city versus drug which means in this case it's american traffic solution versus driving when an accused driver talks to american traffic solution it's not you can pay us if you want if you have to pay us or else so these payments are not voluntary arm's length transaction it's not a bar debts public and private except read my camera case it was american traffic solutions that unilaterally decided to foreclose on site pain you can't make these payments in city hall you have to deal with them out of state so they went up the rules  scoffers based on payment methodology that's a false distinction they don't get to decide what money is good and what money is that and i don't think that they get to describe this as a bargain it's not a bar have to deal with american traffic solutions just like american traffic solution pass the carry out the city government function of collecting civil penalties just as the city would i think your honor maybe it was a good example when your honor said what if the what if the convenience fee with a thousand dollars if you can see the abuse becomes evident when you start taking numbers like that and i think it goes to the point why is it only five percent why is it called a convenience all of  alaskan can you focus for me though i mean you've made the argument that the city couldn't go ahead and charge five percent to make you pay by credit card and that may well be understand the preemption argument what i'm saying is you're saying that a c s stands in the shoes of the city right and and so and there's and the state has preempted a thing i think i understand your let me try to explain the american traffic solutions right to impose the surcharge is supposedly comes under color of law based upon their can track with the city of north miami that contract purports to authorize them to do that there's a language in there that says that they're authorized to impose this five percent charge collect it and keep it and that it's paid by the violator and the problem is that the best thing i can give you as i sit here for that