[CTRL] [2] Traffic in Florida

[Kris Millegan]

 -Caveat Lector-

from:
http://ddi.digital.net/~kenaston/Patr/Traffic.html
<A HREF="http://ddi.digital.net/~kenaston/Patr/Traffic.html">Traffic in
Florida
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--[2]--

Nature of Public Highways

"The right of occupancy of the street by the public is a mere easement
or right of passage." (State ex rel. Harkow v. McCarthy (1936), 171 So.
314, 316 quoting Lutterloh v. Mayor, etc. of Cedar Keys, 15 Fla. 306,
308)

"It is said that a common-law dedication does not operate as a grant but
by way of estoppel in pais. A dedication is regarded not as a
transferring a right, but as operating to preclude the owner from
resuming his right of private property or from any use inconsistent with
the public use. (23 Am Jur 2d, Dedication, s. 56) Under a common-law
dedication, the fee does not pass from the grantor, as the public
acquires only a right of easement in trust, so long as the dedicated
land is used for the purposes of the dedication. (Florida State Turnpike
Authority v Anhoco Corp. (1958), Fla App D3 107 So 2d 51)" (Fla Jur 2d,
Dedication, s. 24)

"The right to use a special facility * * * is not an inherent right in
the public". "[T]he right of the citizens to travel the public highways
(when not exercised as a means of conducting private business thereon)
is subject only to the police power and of the power of taxation, and is
an inherent right which, in its very essence, is quite a difference from
the right to use a special facility * * * erected under a franchise."
(Day v. City of St. Augustine (1932), 139 So. 880, 882)) [***]

"There are certain methods by which the public acquires the right to
pass and repass over a way thus establishing a highway. Those methods
are by prescription or long user as such; by statute or statutory
proceedings in the exercise of the right of eminent domain; or by
dedication to the public by the owner of the soil with the sanction of
the public authorities." * * * "The mere expenditure of public money
upon the road under the agreement is not in itself sufficient to
establish the highway." (Couture v. Dade County (1927), 112 So. 75, 79)
[***]

Extensive discussion of the rights of the public in public streets.
McHarge v. Newcomer, 9 L.R.A.(N.S.) 298, 117 Tenn. 595, 100 S. W. 700.
(L.R.A. Digest 1888-1918, Highways and Streets, 28.)

There is no substantial difference between streets in which legal title
is in private individuals and those in which it is in the public as to
the rights of the public therein. Montgomery v. Santa Ana & W. R. Co. 25
L.R.A. 654, 104 Cal. 186, 37 Pac. 786. (L.R.A. Digest 1888-1918,
Highways and Streets, 28.)

The rights of the public in a street are precisely the same, whether the
fee to the land is in the public or in the abutting landowner. Kellogg
v. Cincinnati Traction Co. 23 L.R.A.(N.S.) 158, 80 Ohio 331, 88 N.E.
882. (L.R.A. Digest 1888-1918, Highways and Streets, 28.)

The public holds the title to streets and alleys in trust for the use to
which they are dedicated when the fee simple vests in the public on the
platting of an addition to a city. Jaynes v. Omaha Street R. Co., 39
L.R.A. 751, 53 Neb. 631, 74 N. W. 67. (L.R.A. Digest 1888-1918, Highways
and Streets, 28.)

The rights of a municipality to the ownership of the fee of the streets
are subject to the paramount right of the general public to the use of
the streets and their control and improvement as the public interests
may require in the discretion of the local municipal authorities.
Chicago & N. W. R. Co. v. West Chicago Park, 25 L.R.A. 300, 151 Ill.
204, 37 N. E. 1079. (L.R.A. Digest 1888-1918, Highways and Streets, 28.)

A city holds its streets in trust for the benefit of the public, and
cannot authorize their use for the sole and exclusive benefit of private
individuals or corporations, to the detriment of the superior right of
the public. People ex rel. Mather v. Marshall Field & Co., L.R.A. 1915F,
937, 266 Ill. 609, 107 N. E. 864. (L.R.A. Digest 1888-1918, Highways and
Streets, 28.)

A municipality may determine the extent and manner of the public use of
streets and may regulate the use by owners of the soil; but it cannot
arbitrarily take away the property rights of such owners. Colegrove
Water Co. v. Hollywood, 13 L.R.A. (N.S.) 904, 151 Cal. 425, 90 Pac.
1053. (L.R.A. Digest 1888-1918, Highways and Streets, 28.)



FS 95.361 Roads presumed dedicated.--
(1) When a road, constructed by a county, a municipality, or the
Department of Transportation, has been maintained or repaired
continuously and uninterruptedly for 4 years by the county,
municipality, or the Department of Transportation, jointly or severally,
the road shall be deemed to be dedicated to the public to the extent in
width that has been actually maintained for the prescribed period,
whether or not the road has been formally established as a public
highway. […]

FS 335.01 Designation and systemization of public roads.--
(1) All roads which are open and available for use by the public and
dedicated to the public use, according to law or by prescription, are
hereby declared to be, and are established as, public roads.
(2) Public roads shall be divided into four systems:
(a) The State Highway System;
(b) The State Park Road System;
(c) The county road system; and
(d) The city street system.



Notes on Word Definitions

Applicant: The common definition of "applicant" denotes "one who
applies" for something, while the technical and legal meaning denotes -
for driver licensing purposes - only those who are entitled to and who
have applied for letters of administration. When the common man reads a
technical use of the word "applicant" in a law or statute, he may
inappropriately apply the common definition thereby misunderstanding the
law or statute as applying to him.
Letters of administration are "authority granted by a court to the
personal representative to act on behalf of the estate of the decedent".
(FS 731.201(22)) [Fla Jur 2d, Decedents' Property, s. 527] Such personal
representative must file an oath that such person will faithfully
administer the estate of the decedent. (Fla Prob R 5.320) [Fla Jur 2d,
Decedents' Property, s. 525] Said personal representative also "must
file a designation of place of residence, post-office address, and the
name, place of residence, and post-office address of a resident in the
county where the proceedings are pending as the personal
representative's agent for the service of process or notice, together
with the written acceptance of the person so appointed. The designation
by the personal representative and acceptance by the resident agent
constitute the consent of the personal represenative filing it that
service of process or notice upon the designated agent will be
sufficient to bind the personal representative in any action against the
representative, either in the personal representative's representative
capacity, or personally, if the personal action accrues in the
administration of the estate." (Fla Jur 2d, Decedents' Property, s. 526)

Automobile: 'An "automobile" is a motor vehicle.' Jernigan v. Hanover
Fire Ins. Co. of N.Y., 60 S.E.2d 847, 848, 235 N.C. 334. [Words &
Phrases, Automobiles, pg. 640] 'The word "automobile" in Motor Vehicle
Act * * * requiring highest degree of care in operation * * *; such
requirement being in derogation of common law, and therefore to be
strictly construed…' Walinitz v. Werner, Mo.App., 241 S.W. 668, 669.
[Words & Phrases, Automobiles, pg. 645] 'The term "automobile" is the
general name which has been adopted by popular use and approval, for all
forms of self-propelling vehicles for use on hghways and streets for
general freight and passenger service.' Life & Casualty Service ins. Co.
of Tennessee v. Roland, 165 S.E. 293, 294, 45 Ga.App. 467. [Words &
Phrases, Automobiles, pg. 648]

Driver: The common definition of "driver" denotes anyone who is driving
(in control of) a vehicle (conveyence). The technical meaning applies
only to those who drive a vehicle used for transporting persons or
property for hire. The common understanding of "driver" is not the
technical one, so the common man may call himself a driver when in law
he is not. See Davis v. Petrinovich, 21 So. 344.

Traffic: By all modern legal definitions "traffic" concerns the subjects
of "transportation". It does not include one simply on a public highway
travelling. Black's 3rd gives one definition of traffic as "Traffic
includes the ordinary uses of the streets and highways by travelers."
But this definition was a departure from the commercial definition and
was removed from Black's 4th edition on and replaced with a commercial
interpretation. Apparently the common definition had made its way into
the legal dictionaries and needed to be removed to keep the legal
definitions in accordance with original legal intent. The common, in
contrast with the legal, definition includes all manners of
[non-technical] vehicles (conveyences) on the highways and streets; thus
the common man may consider himself to be under "traffic" laws when he
is not.

Transportation: Transportation in the sense of "taking up of persons or
property at some point and putting them down at another" (Caton v.
Winslow Bros. & Smith Co., 34 N.E.2d 638, 642, 309 Mass. 150) is
apparently of recent invention as Bouvier's 1856 edition Law Dictionary
only presents a meaning relating to punishment for crime. The commercial
and criminal definitions are presented in Black's 3rd, but only the
commercial definition remains in Black's 4th and later editions. The
common man's understanding that transportation is simply the "means of
conveyance used", while not strictly at odds with the legal definition,
tricks people into thinking that they own a means of "transportation"
when they in fact own a "household good". ** TBD

Deliver distinguished from Transportation: "According to Webster's
International Dict., Century Dict., vol. 2, and Black's Law Dict. 1184,
there is a distinction between the words "transport" and "deliver"; the
words being of entirely different origin and signification. To transport
an article it must be received and retained by the person charged with
the duty, while to deliver an article the person instrusted with the
possession must part with it. The word "deliver" is compounded of "de"
and "liverare," "to set free; to set at liberty; to give over." Revisal
1905 provides that any railroad, failing to transport within a
reasonable time goods received, shall pay a penalty, and declares that
it shall be considered that a railroad has transported freight within a
reasonable time if it has done so within the ordinary time required. It
is evident that the Legislature had in mind the distinction between duty
to "transport" and to "deliver," since to transport is the act of the
carrier without the intervention or aid of the consignee, while delivery
cannot be accomplished without the concurrence of the consignee, and the
effect of the statute is to impose the penalty on a railroad for failing
to reasonably "transport" goods, as distinguished from a failure to
transport and deliver goods to consignee, and for a failure to perform
the first the penalty is imposed, while for a failure to perform the
second the consignee may sue for damages. Alexandre v. Atlantic Coast
Line R. Co., 56 S.E. 697, 698, 144 N.C. 93, citing Bellows v. Folsom, 27
N.Y.Super.Ct. 43; United States v. McCready, 11 F. 225; Walker Bros. V.
Southern R. Co., 49 S.E. 84, 127 N.C. 163; Gloucester Ferry Co. v.
Pennsylvania, 5 S.Ct. 828, 114 U.S. 388; Hilliard v. Wilmington & W. R.
Co., 51 N.C. 343; Chalk v. Charlotte, C. & A. R. Co., 85 N.C. 423; Coble
v. Shoffner, 75 N.C. 42." [Emphasis added.] [Words & Phrases (under
"Transport; Transportation")]



Nature & Scope of Traffic Laws

Various motor vehicle laws were passed by the State of Florida starting
in 1921 and before.

On August 20, 1926, the first version of the Uniform Vehicle Code
(U.V.C.) was published by the U. S. Department of Transportation,
National Highway Traffic Safety Administration. This was an attempt (by
the U.S. D.O.T.) to set federal standards for the regulation of motor
vehicles and drivers for interstate commerce. By examining the Statutes
At Large, Volume 44, one finds the prior session (first) ran from
December 7th, 1925 to July 3rd 1926, the last act of that session being
aproved July 13th. The next (second) session started December 6th 1926
and ran to March 4th 1927, with acts being enacted as early as December
8th. Since Congress was not in session to pass the UVC, and also, being
that an examination of the table of laws of the first sesion does not
reveal the UVC, it appears it was published under authority of the U.S.
D.O.T. It is therefore strictly United States (only, not U.S.A.)
commercial law. Since that time it has been revised thirteen times. The
states have adopted the U.V.C. into their statutes as a comparison
between it and your State's Traffic resgulation statutes will reveal,
and as is claimed by the U.V.C. itself. (See Driver Licensing Laws
Annotated.)

Chapter 13700, Laws of Florida, effctive July 1st, 1929, regulated the
use of the public highways for compensation.

AN ACT Providing for the Supervision and Regulation of Persons, Firms,
Corporations and Associations Owning, Controlling, Operating or Managing
Motor Vehicles Used in the Business of Transporting Persons or Property
for Compensation Over the Public Highways of the State; Defining Auto
Transportation Companies and Providing Supervision and Regulation
Thereof by the Railroad Commission of the State of Florida and Providing
for the Enforcement of the Provisions of This Act and for the Punishment
of Violations Thereof and Imposing a Mileage Tax and Provising for the
Disposition of the Revenue Raised by the Same; and Repealing All Acts
Inconsistent with the Provisions of This Act.


"Chapter 13700, Laws of Florida, contemplates: (1) The conservation of
the highways constructed by taxation and other public funds in the state
for the use of the public for transportation purposes; (2) the safety of
persons and property in the use of the highways; (3) a limited and
regulated use of motor vehicles on the highways by persons and
corporations engaged in the business of transportation for compensation
on such highways only as the public convenience and necessity may
require." (Florida Motor Lines, Inc. v. State Railroad Commission, 132
So. 851, hn. 5)

"An intent of chapter 13700, Laws of Florida, is the permissive limited
and not unjustly discriminating use of the highways in the business of
transportation for hire, only as the public necessity and convenience
may require, and only as such use does not duly impair the roads or the
safety or their use by the public." (Florida Motor Lines, Inc. v. State
Railroad Commission, 132 So. 851, hn. 6)

Another law in 1931 regulated motor carriers using the public highways
for compensation through the Railroad Commission.

Laws of Florida 1931, Chapter 14764 - AN ACT Providing for the
Supervision and Regulation of Persons, Firms, Corporations and
Associations Owning, Controlling, Operating or Managing Motor Vehicles
Used in the Business of Transporting Persons or Property for
Compensation Over the Public Highways of the State; Providing for
Regulations of Safety and Proper Operation Affecting the Use of Said
Highways and the Preservation Thereof; Defining Auto Transportation
Companies and Providing Supervision and Regulation Thereof by the
Railroad Commission of the State of Florida, and Providing for the
Enforcement of the Provisions of This Act and for the Punishment of
Violations Thereof and Imposing a Mileage Tax and Providing for the
Disposition of the Revenue Raised by the Same; and Providing Certain
Exemptions; and Repealing All Acts Inconsistent With the Provisions of
This Act.

Section 1. Definitions:
(a) The word "Commission" means the Railroad Commission of this State.
(b) The term "Corporation" when used in the Act means a corporation, a
company, association, or joint stock association.
(c) The term "Person" means an individual firm or copartnership. [Notice
the term "individual firm".]
(d) The word "Certificate" means the Certificate of Public Convenience
and Necessity authorized to be issued un[d]er the provisions of this
Act.
(e) The word "Permit" means the permissive permit authorized to be
issued under the provisions of this Act to those carriers operating over
public highways with "for hire" tags in transporting persons or property
for compensation other than those holding Certificates of Public
Convenience and Necessity under the provisions of this Act.
(f) The term "Public Highway" means every public street, road, or
highway in this State.
(g) The term "Motor Vehicle" shall include all vehicles or machines
propelled by any power other than muscular usedupon the public highways
(but not over fixed rails) for the transportation of persons or property
for compensation either as common carriers, private contract carriers or
for hire carriers.
[…]




In 1939, Chapter 19551 (not shown) was passed to replace existing law
regarding regulation of traffic through the Department of Highway Safety
and Motor Vehicles and the Florida Highway Patrol. This law was repealed
and reenacted by Chapter 20541 (below) with almost the same text, but -
importantly - with the addition of "Applicants" to the title, bringing
those entities into the scope of the law. It is apparent that while some
of the definitions were changed in form, the same substance was
intended, being the licensing and regulation of vehicles "for hire".
This is especially apparent when one observes that the Act did not show
itself to expand the scope of previously licensed activity.

Laws of Florida 1941, Chapter 20451 - AN ACT to Provide State Public
Safety; To That End To Create the State Department of Public Safety; To
Prescribe Its Membership, Duties, Powers and Authority; To Provide for
the Divisions of Such Department, For the Employees Thereof, and Duties
and Compensation; To Provide for the Licensing of Chauffeurs and Other
Operators of Motor Vehicles as Herein Defined; To Provide for the
Supervision, Cancellation and Revocation of Such Licenses; To Provide
for Certain Liabilities, Penalties and Punishment For Violations of This
Act; to Provide for the Selection and Compensation of the Personnel of
the Division of State Highway Patrol of Said Department and Their
Duties; To Provide For Other Matters in Connection With Public Safety;
and Making Certain Funds Available For the Purpose of Carrying Out the
Provisions Hereof; and Repeal Chapter 19551, Laws of Florida, Acts of
1939, Relating to The State Department of Public Safety; To Provide for
the Examination of Applicants.

Section 1. There is hereby created a Department of the State Government
which shall be known and designated as the Department of Public Safety,
under the control and administration of an executive Board composed of
the Governor, the Secretary of State, the Attorney General, the
Comptroller, the Treasurer, the Superintendent of Public Instruction,
and the Commissioner of Agriculture. The headquarters of said Department
shall be in the City of Tallahassee and the secretary of State is hereby
directed to assign the Department suitable office room in the State
Captiol or other State Building in Tallahassee.

Section 2. The Department of Public Safety shall consist of two
Divisions as follows: (1) Division of the Florida Highway Patrol and (2)
Division of State Motor Vehicle Driver's Licenses.

[…]

Section 13. DEFINITIONS.--* * *
(a) VEHICLE: Every device in , upon, or by which any person or property
is or may be transported or drawn upon a public highway, excepting
devices moved by human power or used exclusively upon stationary rails
or tracks.
(b) MOTOR VEHCILES: Every vehicle which is self-propelled and every
vehicle which is propelled by electric power obtained from overhead
trolley wires, but not operated upon rails.
[…]
(e) PERSON: Every natural person, firm, co-partnership, association or
corporation.
(f) OPERATOR: Every person, other than a chauffeur, who is in actual
physical control of a motor vehicle upon a highway.
(g) CHAUFFEUR: Every person who is employed for the principal purpose of
operating a motor vehicle, and every person who drives a motor vehicle
when in use as a public or common carrier of persons or property.
[…]
(k) DEPARTMENT: Any reference herein to Department shall be construed as
referring to the Department of Public Safety, consisting of the Governor
and the Members of the Cabinet, acting directly or through its duly
authorized officers and agents.
[…]
Section 14. ADMINISTRATION.--The Department of Public Safety and its
executive Board, which are otherwise created by the Act, are hereby
charged with the administration and function of enforcement of the
provisions of this Article. […]


This 1941 law created the Department of Highway Safety and Motor
Vehicles (DHSMV) within the Executive branch which transferred the
responsibility for licensing motor carriers and drivers to the DHSMV but
did not alter the nature of the law - regulating the use of the public
highways for hire. Chapter 20541 remains today as the basis for F.S.
322, Driver Licenses. The definitions from (section 13 of) the act are
essentially in effect today in FS 322.01. Of noteworthiness, is that
while the DHSMV was given authority in section 26 (not shown) to issue
licenses, judges could also issue licenses as mentioned in section 33,
which has not been repealed.

Additionally, the title of the 1941 law includes the phrase "To Provide
for the Examination of Applicants" which brought "applicants", that is,
those who are entitled to letters of administration and who file a
petition asking that letters be granted, under the motor vehicle laws.
"Applicants", being those acting under authority of a court who go about
tending to an estate, can be properly included with motor carriers in
that they are are agents operating under the authority of a court and
use the highways for that business. (See F.S. 320.0104(1).)

But the phrase "Examination of Applicants" is deceptive in that it is
"so worded as to mislead an ordinary mind as to the real purpose and
scope of the enactment. (Butler v. Perry, 66 So. 150, 240 US 328) The
test of whether a title misleads is whether it would deceive the mind of
an ordinary person used to the common meaning of language, not the mind
of a precisionist used to technical refinements of terms. (Ison v.
Zimmerman, 372 So. 2d 431)" [Fla. Jur. 2d, Statutes, s. 63] The common
meaning of the word "applicants" is radically different from the legal,
technical meaning, so while the law and its title technically
interpreted embrace the proper subject matter, the common man is
deceived into thinking he is within the laws when he is not. This
violates the spirit of protecting the public from deception caused by
the technical use of words; it therefore appears be unconstitutional.

The governmental reorganization act of 1969 (Ch. 69-106, Laws of
Florida) created the DHSMV under the executive branch of government
under the 1968 Florida constitution. It reads in part:

AN ACT relating to the executive branch of government; restructuring the
executive branch of government and consolidating and reorganizing
existing agencies into named departments pusuant to article IV of the
state constitution; * * *

Section 2. Declaration of policy.--
1.The state constitution contemplates the separation of powers within
state government among the legislative, the executive and the judicial
branches of the government. The legislative branch has the broad purpose
of determining policies and programs and reviewing program performance.
The executive branch has the purpose of executing the programs and
policies adopted by the legislature and of making policy recommendations
to the legislature. The judicial branch has the purpose of determining
the constitutional propriety of the policies and programs and of
adjudicating any conflicts arising from the interpretation or
application of the laws.
2.Within constitutional limitations, the agencies which comprise the
executive branch should be consolidated into a reasonable number of
departments consistent with executive capacity to administer effectively
at all levels. The agencies in the executive branch should be integrated
into one of the departments of the executive branch to achieve maximum
efficiency and effectiveness as intended by section 6 of article IV of
the state constitution.

[…]


Section 3. Definitions.--To provide uniform nomenclature throughout the
structure of the executive branch, the following definitions shall apply
in this and all future acts.
[…]
(2) "Department" means the principal administrative unit within the
executive branch of state government.
[…]

Section 24. Department of highway safety and motor vehicles.--There is
created a department of highway safety and motor vehicles.
1.The head of the department of highway safety and motor vehicles is the
governor and cabinet.
2.The following divisions of the department of highway safety and motor
vehicles are established:
a.Division of the Florida highway patrol.
b.Division of driver licenses.
c.Division of motor vehicles.
1.The department of motor vehicles, created under chapter 318, Florida
Statutes, is transferred by a type three (3) transfer to the department
of highway safety and motor vehicles.
2.The depertment of public safety, created under chapter 321, Florida
Statutes, is transferred by a type three (3) transfer to the department
of highway safety and motor vehicles.


This shows that the DHSMV was continued under the executive branch under
the 1968 constitution, and that the separation of powers within state
government is retained and affirmed. Also note that the department of
motor vehicles, created by old Chapter 318, and the department of public
safety, were merged into the DHSMV. (Also see FS 20.24, and FAC
15-1001.)

Today, Title XXIII of the Florida Statutes governs Motor Vehciles,
within which are chapters: State uniform traffic control (Ch. 316),
Disposition of traffic infractions (Ch. 318), Title certificates (Ch.
320), Highway patrol (Ch. 321), Drivers' licenses (Ch. 322), Financial
responsibility (Ch. 324), and Vehicle safety equipment and inspections
(Ch. 325). The scope of Chapter 316, Florida Statutes, is clearly still
limited to commercial use of the public highways.

F.S. 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.[…] [Emphasis added.]


There is no doubt that the term "traffic" refers to commerce and the
subjects of transportation, and not to the mere use of the public
highways for travel. Therefore, Chapter 316 of the Florida Statutes
applies only to the use of the public highways for compensation. So also
must all of Title XXIII, Florida Statutes.

The Uniform Classified Commercial Driver's License Act, enacted in 1988,
which defines the classes of driver licenses A through E (F.S. 322.54),
governs 'commercial' drivers. (See Fla Jur 2d, Autos., s. 105.)

F.S. 322.51 Short title.--This act may be cited as the 'Uniform
Classified Commercial Driver's License Act.'

F.S. 322.52 Conflict with other laws.--This act is a remedial law and
should be liberally construed to promote the public health, safety, and
welfare. To the extent that this act conflicts with the general driver's
licensing provisions, this act prevails. Where this act is silent, the
general driver's licensing provisions apply.

F.S. 322.53 License required; exemptions.--
1.Except as provided in subsection (2), every person who drives a
commercial motor vehicle in this state is required to possess a valid
commercial driver's license issued in accordance with the requirements
of this chapter.
2.The following persons are exempt from the requirement to obtain a
commercial driver's license:
a.Drivers of authorized emergency vehicles;
b.Military personnel driving military vehicles;
c.Farmers transporting farm supplies or farm machinery within 150 miles
of their farm, or transporting agricultural products to or from the
first place of storage or processing or directly to or from market,
within 150 miles of their farm;
d.Drivers of recreational vehicles, as defined in s. 320.01; and
e.Drivers who operate straight trucks, as defined in s. 316.003, that
are exclusively transporting their own tangible personal property which
is not for sale. [See Fohl v Karel.]
1.Notwithstanding subsection (2), all drivers of for-hire commercial
motor vehicles are required to possess a valid commercial driver's
license issued in accordance with the requirements of this chapter.
2.[omitted]
3.A resident who is exempt from obtaining a commercial driver's license
pursuant to paragraph (b), paragraph (d), or paragraph (e) of subsection
(2) may drive a commercial motor vehicle pursuant to the exemption
granted in paragraph (b), paragraph (d), or paragraph (e) if he
possesses a valid Class D or Class E driver's license or a military
license.
4.[omitted]

F.S. 322.54 Classification.--

[Contains driver license classifications A through E.]


Since the Act (s. 322.51 et seq) is for commercial driver's licenses,
all license, class D and class E included, must be commercial.
Interpreting the Class D or Class E licenses as non-commercial would
require that the Act, in addition to defining commercial driver's
licenses, also defined non-commercial one's - a violation of Florida
Constitution, Art. 3, s. 16, that "each law enacted in the Legislature
shall embrace but one subject and matter properly connected therewith,
which subject shall be briefly expressed in the title".]

Motor vehicles are instrumentalities which are used to transport persons
or property. (see Sherman v. Reserve Insurance Company, 350 So.2d 349,
hn.2) [Fla. Jur 2d, Autos., s. 15] The dissenting opinion in Sherman
expressed persuasion by Tapscott v. State Farm Mutual Automobile Ins.
Co., 330 So.2d 475. However, the opinion in Tapscott, at 477, noted
there was no claim in that case that the appellant "had abandoned her
automobile as a means of transportation on the public streets and
highways." [Emphasis added.] This statement is obviously directed not at
the common use of the highways but at privileged, commercial use.

In Proctor v. City of Coral Spring, 396 So.2d 771, at 772, the court
held a zoning ordinance applicable to commercial vehicles as
"unreasonable and unconstitutional as applied to pickup trucks. It
restricts drivers of pickup trucks * * * even though the vehicle in
question is not truly a commercial vehicle; i. e., without commercial
markings of any nature and not used for commercial purposes." The
dissenting opinion cites City of Coral Gables v. Wood, 305 So.2d 261,
and Henley v. City of Cape Coral, 292 So.2d 410 as authorities. But Wood
was a duly licensed Florida attorney and therefore under the commercial
regulations. And while the court in Henley v. City of Cape Coral upheld
a parking ordinance applied to a commercial vehicle, it admitted "[w]e
can readily imagine circumstances in which this ordinance may be
unconstitutionally applied as for example to a station wagon which gives
no outward appearance of being used in business". There is therefore
seen a distinction between vehicles used in commerce and those used for
private purposes.



Requirement for Driver's License

There are many cases which uphold the requirement to have a driver
license in order to drive a motor vehicle over the public highways, but
it is already settled that the privilege involved is that of using the
public highways for commercial purposes, not simply using the roads
incidentally in the course of one's private business or affairs.

"The requirement for obtaining a driver's license for the exercise of
the privilege of driving over the public highways, together with the
correlative loss of the privilege under certain conditions, is a
reasonable regulation of an individual right in the interest of the
public good." (Miami v. Aronovitz (1959, Fla) 114 So 2d 784; Smith v
Gainsville (1957, Fla) 93 So 2d 105) [Fla Jur 2d, Autos., s. 106]

"We judicially know that as originally contemplated the drivers' license
requirement was enacted primarily as a source of revenue to finance the
maintenance of the State Department of Public Safety." (Miami v.
Aronovitz, supra, at 787)

"There can be no doubt that in the regulation of the use of automobiles
on the public highways the State has ample power to require motor
vehicle operators to obtain drivers' licenses. It likewise has the
correlative power to impose reasonable restrictions on the use and
enjoyment of the license." (Smith v Gainsville (1957, Fla) 93 So 2d 105)

"The statutes of Florida provide for licensing automobiles in the name
of the owner, or their operation only by the owner or under his
authority in the case of nonresidents, and …** cite??

"[A]n employee who receives compensation principally for services other
than the operation of motor vehicles is not required to obtain a
chauffuer's license, although in performing such services the employee
may incidentally operate a motor vehicle." (Des Moines Rug Cleaning Co.
v. Automobile Underwriters, 215 Iowa 246, 245 N.W. 215 (1932)) [Am Jur
2d, Autos., S. 116, "Chauffeurs"]

It is a nonmoving violation to drive a commercial motor vehicle on the
highways of this state with a driver license expired thirty days or
less. (F.S. 322.03(3)(c))

"A resident of Florida who is required to possess a commercial driver's
license and who operates a commercial motor [vehicle] in the state
without such license, is guilty of a misdemeanor of the first degree". (
FS 322.03(3)(b)) [Fla Jur 2d, Autos., s. 105]

It is a violation of F.S. 322.03 to drive a motor vehicle on the
highways of this state with a driver license expired more than four
months. (F.S. 322.03(4)) [No penalty given.] [First act in history is c.
19551 (1939) was repealed; reenacted by c. 20451 (1941)]

It is an infraction punishable under s. 318.18 to drive a motor vehicle
with a driver license expired for four months or less. F.S. 322.065(1)

"Driving without a valid operator's license is a violation of section
322.34 [driving while license suspended, revoked, canceled, or
disqualified], Florida Statutes (1989), and justifies an arrest." (State
v Jordan (1991) 590 So 2d 1118) [**] [revoked per s. 322.264 (habitual
offender), **]

No commercial driver license is required to operate a recreational
vehicle or a "straight truck" used to transport ones own property which
is not for sale. (F.S. 322.53(2)(d) and (e)) And because all
classifications of driver's licenses (A through E, defined in F.S.
322.54) are commercial (just as the act's title says), F.S. 322.53(5)
must operate to clarify an exception to the provisions of traffic
enforcement for commercial drivers licensed for class D or class E while
driving recreational vehicles for private use, or while operating
straight trucks transporting their own property which is not for sale.
Interpreting F.S. 322.53(5) as requiring a Class D or Class E licenses
to drive recreational vehicles or straight trucks for private use would
strain against the plain intent of the Act, and violate the inherent
right of citizens to travel on the public highways moving their own g
oods in the course of their private or business affairs as illuminated
by Florida Motor Lines, Inc. v. Ward (137 So. 163), State ex rel. Fohl
v. Karel, Sherrif (180 So. 3); and Seaboard Air Line Ry. Co. et al. V.
Wells et al., Railroad Comrs (130 So. 587), and thus be
unconstitutional.



** It is obvious that the licensed activity of "driving an
automobile/motor vehicle" is the privilege of using the highways for
commerce, not their incidental use in one's mercantile or private
business or affairs which is every citizen's right.



The MSO/MCO and the Security Interest

The manufacturer's statement of origin (MSO), also called the
manufacturer's certificate of origin, is the best proof of ownership.
(** cites?)

It appears the State Department of Revenue takes a security interest
when it pledges to a Personal Guaranty by putting its stamp over that
part of the Retail Installment Sale Contract - Security Agreement to buy
the automobile, on the bottom of the reverse side (which section is only
on the original of that form and not on the copies). The
'signature/seal' of an artificial person being its stamp. (** cites?)
The State then acquires a "security interest" in your 'motor vehicle' -
that you pay the Retail Installment Sale Contract for which it has just
given its personal guaranty.

Chapter 679 of the Florida Statutes provide definitions relating to a
"security interest":

FS 679.105 Definitions and index of definitions.--

(1) In this chapter unless the context otherwise requires:

(a) "Account debtor" means the person who is obligated on an account,
chattel paper, or general intangible;

(b) "Chattel paper" means a writing or writings which evidence both a
monetary obligation and a security interest in or a lease of specific
goods, but a charter or other contract involving the use or hire of a
vessel is not chattel paper. When a transaction is evidenced both by
such a security agreement or a lease and by an instrument or a series of
instruments, the group of writings taken together constitutes chattel
paper;

(c) "Collateral" means the property subject to a security interest, and
includes accounts and chattel paper which have been sold;

(d) "Debtor" means the person who owes payment or other performance of
the obligation secured, whether or not he or she owns or has rights in
the collateral, and includes the seller of accounts or chattel paper.
Where the debtor and the owner of the collateral are not the same
person, the term "debtor" means the owner of the collateral in any
provision of the chapter dealing with the collateral, the obligor in any
provision dealing with the obligation, and may include both where the
context so requires;

(e) "Deposit account" means a demand, time, savings, passbook, or like
account maintained with a bank, savings and loan association, credit
union, or like organization, other than an account evidenced by a
transferable certificate of deposit that is an instrument within this
article;

(f) "Document" means document of title as defined in the general
definitions of chapter 671 (s. 671.201) and a receipt of the kind
described in s. 677.201(2);

(g) "Encumbrance" includes real estate mortgages and other liens on real
estate and all other rights in real estate that are not ownership
interests;

(h) "Goods" includes all things which are movable at the time the
security interest attaches or which are fixtures (s. 679.313), but does
not include money, documents, instruments, investment property,
accounts, chattel paper, general intangibles, or minerals or the like
(including oil and gas) before extraction. "Goods" also includes sta
nding timber which is to be cut and removed under a conveyance or
contract for sale, the unborn young of animals, and growing crops;

(i) "Instrument" means a negotiable instrument (defined in s. 673.1041)
or any other writing which evidences a right to the payment of money and
is not itself a security agreement or lease and is of a type which is in
ordinary course of business transferred by delivery with any necessary
indorsement or assignment; however, the term does not include investment
property;

(j) "Mortgage" means an instrument deemed such under chapter 697;

(k) An advance is made "pursuant to a commitment" if the secured party
has bound himself or herself to make it, whether or not a subsequent
event of default or other event not within the secured party's control
has relieved or may relieve him or her from his or her obligation;

(l) "Security agreement" means an agreement which creates or provides
for a security interest;

(m) "Secured party" means a lender, seller, or other person in whose
favor there is a security interest, including a person to whom accounts
or chattel paper have been sold. When the holders of obligations issued
under an indenture of trust, equipment trust agreement, or the like are
represented by a trustee or other person, the representative is the
secured party;

(n) "Transmitting utility" means any person primarily engaged in the
railroad, street railway, or trolley bus business; the electric or
electronics communications transmission business, including a telephone
company; the transmission of goods by pipeline; the transmission or the
production and transmission of electricity, steam, gas, or water; or the
provision of sewer service.


The Retail Installment Sale Contract - Security Agreement with which we
financed our automobiles is "chattel paper" which creates a security
interest. The MSO is taken as collateral by the "secured party".

FS 679.107 Definitions; "purchase money security interest."--A security
interest is a "purchase money security interest" to the extent that it
is:

(1) Taken or retained by the seller of the collateral to secure all or
part of its price; or
(2) Taken by a person who by making advances or incurring an obligation
gives value to enable the debtor to acquire rights in or the use of
collateral if such value is in fact so used.

History.--s. 1, ch. 65-254.

Note.--s. 9-107, U.C.C.


"[T]he holder of any security interest therein may demand and receive
from the owner thereof the manufacturer's statement of origin and may
retain it as long as he holds the security interest." FS 319.21(1) We
all know the State grabs our MSO. Even though the MSO is required to be
submitted when title is applied for (FS 319.23), only FS 319.21(1)
provides that the MSO is retained, then returned when the securty
interest terminates.

When the sales contract is paid, the security interest is normally
terminated. (69 Am Jur 2s, Secured Transactions § 529) [Fla Jur 2d,
Secured Transactions § 337]

The secured party has a duty to return collateral upon payment. "'When
the principal debt secured by the pledge has been paid, the pledgor is
entitled at common law to possession of the property pledged…' (Pepper v
Beville (1930) 100 Fla 97, 129 So 334)" [Fla Jur 2d, Secured
Transactions § 341]

For the holder of the MSO to release its security interest, file a
'Demand for termination statement--By debtor' (Fla Jur Forms § 49:58).

Information on a motor vehicle may be obtained by getting for HSMV 86056
from a tag and title agency. Follow the instructions on this form to get
the information on the motor vehicle.



Registration of vehicles

(1912) The statute licensing motor vehicles is a revenue measure merely,
and as there is no provision for examining the operators to test their
efficiency, the possession or otherwise of a license can not bear upon
the question of the skill of the operator. Atlantic Coast Line R. Co. v.
Weir, 63 Fla. 69, 58 So. 641. (1 Fla. Dig, Automobiles, 1.)

Procedure RS-01 section D. Vehicle Information tells what information
must be collected for the motor vehicle [partial]:

A description of the motor vehicle to be registered must include:
1.The purpose for which the vehicle is to be used. If a vehicle is a
body type of van, for proper registration the owner must provide
information as to whether the use is a station wagon or truck.
Classification of vans and similar type vehicles (ie. Blazers, Broncos,
etc.) is based on the following criteria:
a.If the vehicle has passenger seats in the back and is used for the
primary purpose of transportation of passengers and their personal
goods, the owner has the option of registering the vehicle as an
automobile or truck.
b.If the vehicle does not have a back passenger seat or is used
primarily for the transportation of goods, then the vehicle must be
registered as a truck.


Goods. - Black's 6th (partial)

All things (including specially manufactured goods) which are movable at
the time of identification to the contract for sale other than the money
in which the price is to be paid, investment securities and things in
action. Also includes the unborn of animals and growing crops and other
identified things attached to realty as fixtures. U.C.C. s. 2-105(1).
All things treated as movable for the purposes of a contract of storage
or transportation. U.C.C. s. 7-102(1)(f). In context of U.C.C., includes
used goods. Moore v. Burt Chevrolet, Inc., 39 Colo.App. 11, 563 P.2d
369, 370.


** Need to define: Passenger car, passenger automobile, motor coach
pickup truck, heavy truck, trailer, semitrailer, recreational vehicle,
motorcycle, etc., vehicles used as tools



Power of Courts

Traffic infractions are civil crimes not punishable by incarceration. (
F.S. 318.13(3))

Magistrates/Traffic hearing officials cannot on their own hold people in
contempt of court, but may file a motion for order of contempt. (F.S.
318.32(1)(a))

"No person belonging to one branch of government may exercise any powers
appertaining to either of the other branches." (Fla Const Art II, s. 3)
[Fla Jur 2d, Courts, s. 17]

"One consequence of the separation of governmental powers is that no
functions may be imposed on courts except those of a judicial nature. It
follows that judges may not be vested with either legislative or
executive powers." (Burnett v Greene (1929) 97 Fla 1007, 122 So 570)
[Fla Jur 2d, Courts, s. 17]

"Under the doctrine of separation of powers, which is embedded in both
the state and federal constitutions, the judiciary has no power to make
law, and in no case may it interfere with legislative prerogatives."
(Fla Jur 2d, Courts, s. 19)

"The power of any court is derived from the government which created it,
and is limited to or by the instruments conferring such power. In this
state, the ultimate source of all judicial power is the Constitution,
statutory allocation of jurisdiction being limited to such as the
constitution authorizes. Courts cannot assume jurisdiction not granted
them by the constitution or by statute or which has been expressly
denied." (Fla Jur 2d, Courts, s. 26)

"Jurisdictional facts pleaded in good faith constitute the test for
determining jurisdiction." (Fla Jur 2d, Courts, s. 28 [State v Miami
(1933) 113 Fla 280, 152 So 6])

"The defense of lack of jusidiction over the person is waived if not
timely presented." Green v Hood (1960, Fla App D2) 120 So 2d 223. [Fla
Jur 2d, Actions, s. 100] However, jurisdiction over subject matter
cannot be conferred by consent or agreement, nor can such lack be
waived. (Fla Jur 2d, Actions, s. 101)

"[W]here a motion to quash service is overruled, the defendant may
pursue his contention by appeal without submitting himself to the
jurisdiction of the court for any purpose other than to challenge
jurisdiction. Bowmall v Bowmall (1937) 127 Fla 747, 174 So 14." (Fla Jur
2d, Actions, s. 103)

Presumptions of jurisdiction may be invoked in favor of courts of
general jurisdiction, but not with regard to courts of limited
jurisdiction. The facts on which the jurisdiction of courts of limits
jurisdiction rests must appear in the record. (Fla Jur 2d, Courts, s.
29) The County Courts are classified as courts of limited jurisdiction.
(Fla Jur 2d, Courts, s. 71)

It has been shown (above) that the licensing of drivers is done by
executive agencies, and therefore courts for traffic infractions must be
executive courts. Criminal traffic violations are outside the
jurisdiction of traffic hearing officers and within that of judicial
officers.

Even though it has been ruled that after certain traffic infractions
were decriminalized that "county courts were to remain vested with
jurisdiction over these matters" (Nettleton v. Doughtie, 373 So.2d 667,
hn. 3), a ruling from Alachua County has not been overturned that "it is
a violation of a separation of powers provision of the State
Constitution for a judicial officer to sit as a hearing official in a
noncriminal traffic infraction case." (State v. Carr , 373 So.2d 657)
And because the jurisdiction of "county courts shall be uniform
throughout the state." (Fla.Const. 5-6), a court being not merely a
place but necessarily composed of officers with judicial powers (Fla Jur
2d, Courts, s. 1), no county judge outside of Alachua County can rule he
has authority to sit as a traffic hearing official, because to do so
would inflict non-uniformity of jurisdiction of County Courts. (An
Alachua County judge might rule he has authority to hear a traffic
infraction case, but that would probably then create an uncertainty on
this issue in this state requiring clarification by the Supreme Court.)
The county court which hears traffic infractions must therefore be one
staffed by nonjudicial officers, and distinct from the court presided
over by judges; it must be an executive court.

** Get cases:

If a court should render a judgement in a case where it has no
jurisdiction, it would be void. (** Krivitsky v Nye (1944) 155 Fla 45,
19 So 2d 563; …) [Fla Jur 2d, Courst, s. 26]

Judges are not prohibited from exercising concurrent jurisdiction with a
civil traffic hearing officer. (F.S. 318.32(2)) Upon the request of the
defendant, the case shall be assigned to a county court judge regularly
assigned to hear traffic matters. (F.S. 318.32(3))

Judges have the power to rule on the jurisdiction for executive courts.
(State ex rel. Hardie v Coleman (1934) 115 Fla 119, 155 So 129) [Fla Jur
2d, Courts, s. 21]

The judiciary has no power to make law, and in no case may it interfere
with legislative prerogatives. (Fla Jur 2d, Courts and Judges, s. 19)

A court must proceed in the administration of justice within the
limitations of its power. [Courts, 30] (State ex rel. Dillman v Tedder
(1936) 123 Fla 188, 166 So 590)

Judges cannot refuse to hear a case within their jurisdiction. [Courts,
30] (Newport v Culbreath (1935) 120 Fla 152, 162 So 340)

A court cannot improperly refuse to exercise jurisdiction once it is
shown to exist; in all cases where refused without justification, the
remedy of mandamus becomes available. (Fla Jur 2d, Courts, s. 29) Under
the doctrine of forum non conveniens a court may decline to exercise
jurisdiction over a transitory cause of action if the cause of action is
not sufficiently related to the court's forum; but it constitutes abuse
of discretion by the party advancing said doctrine when no other forum
appears on the record and is not advanced. (Fla Jur 2d, Courts, s. 29)

Service of Process:

"Ordinarily, in an action purely in personam in which a personal
judgement is sought, personal service of process on the defendant is
required, and in any case, in the absense of a statute authorizing a
substitutional method, service of process must be personal. (62 Am Jur
2d, Process § 44)" [Fla Jur 2d, Process § 26.]

"Generally, jurisdiction over the person of a nonresident … can be
acquired only by personal service of process … unless he or she waives
service of process by voluntary appearance or consents to or accepts
some form of service other than personal service. Under this rule a
personal judgement without personal service on a nonresident defendant
who does not appear or otherwise waive such service is regarded as void
as obtained without due process of law. (Gribbel v Henderson (1942) 151
Fla 712, 10 So 2d 734, other cites omitted)" [Fla Jur 2d, Process § 26.]

"Defenses pertaining to lack of jurisdiction over the subject matter,
lack of jurisdiction over the person, insufficiency of process, and
insufficiency of the service of process may, at the option of the
pleader, be made by motion rather than in the responsive pleadings. (Fla
Jur 2d, Actions § 65)" [Fla Jur 2d, Process § 84.]

"A defendant who is not served with process may disregard the
proceedings and subsequently raise the objection on an appeal from the
decree or resist the execution of the decree as void. (Husley v
Commercial Inv. Trust, Inc. (1931) 103 Fla 609, 138 So 766; Rorick v
Stilwell (1931) 101 Fla 4, 133 So 609.)" [Fla Jur 2d, Process § 84.]

Who performs service of process is governed by FS 48.021. The method of
service of process is governed by FS 48.031, reproduced in part here:

FS 48.031 Service of process generally; service of witness subpoenas.--

(1)(a) Service of original process is made by delivering a copy of it to
the person to be served with a copy of the complaint, petition, or other
initial pleading or paper or by leaving the copies at his or her usual
place of abode with any person residing therein who is 15 years of age
or older and informing the person of their contents. Minors who are or
have been married shall be served as provided in this section. [Emphasis
added.]
(b) Employers, when contacted by an individual authorized to make
service of process, shall permit the authorized individual to make
service on employees in a private area designated by the employer.
* * *


If one is outside the State, service is accomplished as provided in FS
48.194.

Those acts which subject persons to the jurisdiction of the state are
listed in FS 40.193. This list is very limited.
Look up "tort". At first blush, one may think violating a traffic 'law'
may be a tort. But see also Title XLV, Florida Statutes (Chs. 766-773).
Nowhere in Title XLV can I find violating a traffic 'law' being defined
as a tort. And under the principle layed out in National Bank of
Jacksonvill v. Williams et al. that "[t]he provisions of chapter 3747,
Laws Fla. 1887 (* * *), not being included in the provisions of the
Revised Statutes (sections 1727-1741) which cover the same
subject-matter, are thereby repealed" (38 Fla. 305, 20 So. 931, hn. 2),
no other definitions of torts can exist in the statutes. (I didn't see
any in a search either.)

FS 318.20 Notification; duties of department.--The department shall
prepare a notification form to be appended to, or incorporated as a part
of, the Florida uniform traffic citation issued in accordance with s.
316.650. The notification form shall contain language informing persons
charged with infractions to which this chapter applies of the procedures
available to them under this chapter. Such notification shall contain a
statement that, if the official determines that no infraction has been
committed, no costs or penalties shall be imposed and any costs or
penalties which have been paid shall be returned. A uniform traffic
citation that is produced electronically must also include the
information required by this section.
History.--s. 1, ch. 74-377; s. 39, ch. 76-31; s. 8, ch. 86-154; s. 2,
ch. 86-185; s. 48, ch. 96-350.





Power of Police Officers

No statutory requirement existed prior to 1971 which required an
operator or owner of a motor vehicle to have proof of financial
responsibility or security in his immediate possession or in a motor
vehicle when it is operated in the state. (FlAG 072-160)
Statutory requirement added in FS 316.646, violation of not having such
proof as required by 627.733 with you is a non-moving violation. See FS
316.646.

A municipal police officer cannot enforce a violation of state drivers'
license laws. (FlAG 048-231, July 23, 1948)

Arrest authority of officer at scene of a traffic accident:

FS 316.645 Arrest authority of officer at scene of a traffic accident.
--A police officer who makes an investigation at the scene of a traffic
accident may arrest any driver of a vehicle involved in the accident
when, based upon personal investigation, the officer has reasonable and
probable grounds to believe that the person has committed any offense
under the provisions of this chapter or chapter 322 in connection with
the accident.
History.--s. 1, ch. 71-135; s. 1, ch. 76-31; s. 3, ch. 81-3; s. 5, ch.
83-218.
Note.--Former s. 316.017.


If Florida Juris Prudence 2nd can be considered authoritative, those who
can enforce traffic laws are listed in sections 262-265 of volume 4A:
the Florida Highway Patrol, the Divisions of Law Enforcement of the Game
and Fresh Water Fish Commission, and the Division of Law Enforcement of
the Department of Natural Resources each have authority to enforce all
traffic laws of the state; university police officers have authority on
property and in facilities under the State University System; Florida
Marine Patrol Officers may detain and cite drivers for noncriminal
traffic infractions [4a Fla Jur 2d, Autos. S. 262]; the sheriffs's
office may enforce all of the traffic laws [4A Fla Jur 2d, Autos. 263];
and police officer's have authority to arrest any driver of a vehicle
involved in an accident when, based on personal investigation, the
officer has reasonable and probable grounds that the person committed a
traffic offense (FS 316.645) [4A Fla Jur 2d, Autos. 264]. This implies
that municipal police can only give a ticket unless there's been an
accident.

** Approaching a vehicle with a gun …

Defendant was improperly convicted * * * where there was no evidence
that the car moved or that the ignition was turned on, and where
defendant simply ran off when her brother assailed the police officer
for having placed defedant under arrest. Because the arresting officer
had no evidence that defendant had committed even a misdemeanor in his
presence, defensant's arrest was unlawful and therefore * * * defendant
had the common-law right to resist the unlawful arrest without resorting
to the use of force. (Marshall v. State (1978, Fla App D2) 354 So 2d
107) [Fla Jur 2d, Autos., s. 94pp]

A search of a vehicle after the issuance of a traffic citation is a
violation of the Fourth Amendment. (Knowles v. Iowa, 569 N. W. 2d 601)



Miscellaneous

According to Rules of Criminial Procedure 3.170(c), "If a defendant
stands mute, or pleads evasively, a plea of not guilty shall be
entered."

According to Rules of Civil Procedure 1.110(a), "Forms of action, and
technical forms for seeking relief and of pleas, pleadings, or motions
are abolished." Therefore, as noted in that index, pleas have been
abolished for civil cases.

"Magistrates shall be empowered to accept pleas from and decide the
guilt or innocence of any person…" FS 318.32(1)

In case the judge wants to keep people not directly invovled in a
traffic case outside the hearing room:
"[I]n the absence of an applicable statute, rule, or principle of law
requiring or authorizing a closed hearing, referee hearings conducted by
authority of this Court must be open to the public. See Fla. R. Jud.
Admin. 2.030(f)." The Florida Bar vs. Daniel E. Schramex, Supreme Court
of Florida, Case No. 77,871, Tuesday, February 4, 1992.

The traffic citation is not admissible evidence in any trial. (F.S.
316.650(9))

The officer may indicate the applicable civil penalty established in FS
318.18. (F.S. 318.14(2))

Willfully refusing to accept and sign a summons is a misdemeanor. (F.S.
318.14(3))

Paying the fine indicates admission to the infraction. (F.S. 318.14(7))

Withholding adjudication for a traffic infraction is not considered a
conviction. (F.S. 318.14(11))

** "Drive-way"?

Garage: "Broadly speaking, a garage is a place where motor vehicles can
be sheltered, stored, replaired, cleaned, and made ready for use,
although it may be given a more limited meaning for particular purposes.
Primarily, a garage is a place, structure, or building where motor
vehicles are stored and cared for. It is the modern substitute for the
ancient livery stable. A public garage is a building in which, for
compensation, motor vehicles are stored primarily for safe keeping, and
not merely as an incident to being repaired. A private garage is a
structure or building kept for storage of motor vehicles by the owners
or certain other persons, but not the general public. (38 Am Jur 2d,
Garages, s. 1)" [Fla Jur 2d, Garages, s. 1]

Guest: A guest is one who is riding for free, as opposed to a passenger
who has paid or provided some other compensation for his ride. In both
instances, it appears the "driver" is a driver for hire. One travelling
about for pleasure with another managing an "automobile" would be a
rider or friend. (** cites…)

Parkway: The term "parkway" as used in chapter 2 of this title, means a
parkway authorized by an Act of Congress on lands to which title is
vested in the United States. (23 USC 101(a))

Public road: The term "public road" means any road or street under the
jurisdiction of and maintained by a public authority and open to public
travel. (23 USC 101(a))

Note that section (b), following, says "It is hereby declared to be in
the national interest to accelerate the construction of the Federal-aid
highway systems, including The Dwight D. Eisenhower System of Interstate
and Defense Highways, since many of such highways, or portions thereof,
are in fact inadequate to meet the needs of local and interstate
commerce, for the national and civil defense." [Emphasis added.] Nowhere
does the word "public" appear.

23 USC § 103. Federal-aid systems
a.In General. - For purposes of this title, the Federal-aid systems are
the Interstate System and the National Highway System.
b.National Highway System. -
1.Purpose. - The purpose of the National Highway System is to provide an
interconnected system of principal arterial routes which will serve
major population centers, international border crossings, ports,
airports, public transportation facilities, and other intermodal
transportation facilities and other major travel destinations; meet
national defense requirements; and serve interstate and interregional
travel. [Emphasis added.]


Nothing is said about public use. I suspect "travel" means that afforded
by common carrier rather than private travel.

Pedestrian: Any person afoot. (Florida Model Traffic Ordinance, ch.
57-333, s. 2(32)) [This defines some person engaged in traffic on foot,
perhaps lugging merchandise on the back or shoulder.]

Private road or driveway: Every road or driveway not open to the use of
the public for the purposes of vehicular traffic. (ch. 57-333, s. 2(35))

Private street: "Literally speaking, this is an impossibility, for no
way can be both private and a street. It may be one or the other, but
not both. Greil v. Stollenwerck, 201 Ala. 303, 78 So. 79, 82." Black's 4
th

"[A]n orally amended citation charging the defendant with the criminal
offense of driving with a suspended license would be dismissed where no
arrest warrant, sworn statement, or other complaint substantiating the
offense was prepared and the traffic citation was not sworn to by the
arresting officer or notarized by an authorized person." (State v Olivia
(1990, Dade City Ct) 42 Fla Supp 2d 221) [ Fla Jur 2d, Autos., s. 138]

"Evidence that motorist cited for traffic violation was incarcerated for
23 minutes during booking process, even though he had never been
arrested and at all times had sufficient cash on hand to post bond
pending court disposition of citation, was sufficient to support finding
that municipality employing officer who cited motorist and county board
of criminal justice, which operated facility in which motorist was
incarcerated, had unconstitutionally deprived motorist of his right to
liberty. 42 U.S.C.A. Sec. 1983." Trezevant v. City of Tampa (1984) 741
F.2d 336, hn. 1

"Jury verdict of $25,000 in favor of motorist who was unconstitutionally
deprived of his liberty when incarcerated during booking process
following citation for traffic violation was not excessive in view of
evidence of motorist's back pain during period of incarceration and
jailor's refusal to provide medical treatment, as well as fact that
motorist was clearly entitled to compensation for incarceration itself
and for mental anguish that he had suffered from entire episode. 42
U.S.C.A. Sec. 1983." Trezevant v. City of Tampa (1984) 741 F.2d 336, hn.
5

"A state can only act by its officers. Fitts v McGhee, 172 US 516, 19 S
Ct 269, 43 L Ed 535" U.S.S.Ct.Dig, States § 4.

"What the state may not do directly it may not do indirectly. Bailey v
Alamaba, 219 US 219, 31 S Ct 145, 55 L Ed 191" U.S.S.Ct.Dig, States § 4.
-----
Aloha, He'Ping,
Om, Shalom, Salaam.
Em Hotep, Peace Be,
Omnia Bona Bonis,
All My Relations.
Adieu, Adios, Aloha.
Amen.
Roads End
Kris

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