Title: Fla

IN THE CIRCUIT COURT OF THE 12^TH JUDICIAL CIRCUIT
IN AND FOR MANATEE COUNTY, FLORIDA

[ ],

	Petitioner,			CASE NO. [ ]

v.

[ ],

	Respondent.
						/

PETITIONER’S REPLY TO MOTION TO DISMISS PETITION, RESPONSE TO ORDER TO SHOW CAUSE, AND 
MOTION FOR ATTORNEY’S FEES AND COSTS

	COMES NOW, the petitioner, [ ], by and through his undersigned Counsel, pursuant to the authority granted by Rule 1.630, of the Florida Rules of Civil Procedure, and Rule 9.100(k) of the Florida Rules of Appellate Procedure, and files this reply to petitioner’s motion to dismiss petition, response to Order to Show Cause, and motion for attorney’s fees and costs, and replies as follows:
1.	Admitted.
2.	Denied, petitioner is seeking his Constitutional and Statutory defined rights and for the City of [ ], through its Police Department, to comply with its legal duty to bring to light its actions of seizing property to the Court.
3.	Admitted.
4.	Denied.  See Fla. Const. Art. V, § 5; Fla. R. App. P. 9.340; Fla. R. Civ. P. 1.630; and Smith v. State, 696 So. 2d 814 (Fla. 2^nd DCA 1997).  See further replies below.
5.	Admitted, and furthermore pointed out that the Respondent’s admission that it never instituted an action under the Florida’s Contraband Forfeiture Act is based on their belief that they have no legal duty to institute same.
6.	Denied.  See paragraphs numbered 18 and 19, of the Petition for Mandamus, describing the petitioner being handcuffed and in the custody of police officers, when presented with the agreement, and further reply below.
Respondent’s prayer for relief seeks to enforce a contractual right through a Response to Petition for Mandamus which is not a legally available form of relief and furthermore the contract is illegal.
REPLY TO MEMORANDUM OF LAW
A. Reply to Motion to Dismiss Standard.
	Denied that Respondent’s Motion to Dismiss meets the standard required for granting same.  See further reply below.
B. Reply to Relief [ ] Seeks Not Being Available via a Writ of Mandamus

	The established legal rights the Petitioner is seeking are clearly defined in the Federal and State Constitutions which prohibit the government from taking the property of its citizens without affording them due process.  Fla. Const. Art. I, § 9; U.S. Const. Amend. V.  The City is attempting to create a legal right to contract between police officers making an arrest and the arrestee that forgoes and prevents any judicial review of same.  The Federal and State Constitutions, however, clearly place a prohibition on the actions of government when it seeks to take the property of its citizens and place a condition precedent to the government’s affecting the title to transfer over to them, that condition is a fair and just determination by an impartial Judge.  Since it is the position of the City of [ ] that they are not bound by the Constitution and Laws of this State, and that they can continue to take its citizens’ properties without any judicial intervention, a Writ of Mandamus is the appropriate vehicle.

See Article published in the Manatee County’s HeraldTribue “Seizure law under review” authored by Michael A. Scarcella (additional cases involving the use of the agreement by The Bradenton Police Department to take property were uncovered).

ii.	Reply to Law enforcement activities being discretionary functions
	The government’s requirement to go to a court of law to seek a review of its actions when taking the property of its citizens is not discretionary.  The government is not protecting the public safety of citizens when it appears before them with armed police officers carrying a contract and pen to take away the property of those citizens without seeking any judicial review prescribed by the Federal and State Constitutions, and as further specified by the Florida Contraband Forfeiture Act.  U.S. Const. Amend. V.; Fla. Const. Art. I, § 9; and Fla. Stat. §§ 932.701-932.707.
	Moreover, there is no separation of powers doctrine issue when both the Federal and State Constitutions specifically confer a power and authority upon the Courts of this State to review the actions of the executive branch to ensure their compliance with the laws of the State.
	Respondent’s argument that the Court may not Order it to change its method of combating crime by providing arrestees with a contract, is an admission that the City’s actions fall under Florida’s Contraband Forfeiture Act.  Fla. Stat. §§ 932.701-932.707.  Respondent’s cited authority in support of its argument that the City of [ ] is exercising a discretionary authority when it ignores both Federal and State Constitutions is clearly distinguishable.  The case law did not involve the issue of whether law enforcement officers had the authority to present arrestees with documents to sign away their rights to property, the action “sought the issuance of a Writ of Mandamus against the City of Coral Gables ("the City") for enforcement of the South Florida Building Code.”  Alexander v. City of Coral Gables, 745 So. 2d 1004, 1004 (Fla. 3^rd DCA 1999) (bold added for emphasis).
	This Court has the authority to Order the City to abide by its legal duty to preserve the legal rights of its citizens and to comply with statutory requirements cited above.
C.	Reply to The City’s Contraband Forfeiture Agreement being Legal and Valid

	Law enforcement officers are given only one discretionary authority to exercise under the Florida Contraband Forfeiture Act (FCFA), whether or not to seize the property of a person.  Fla. Stat. § 932.703(1)(a) (2006).  When law enforcement agencies of this State exercise their discretion to seize property it “shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.”  Id. at 932.703(1)(a).  Furthermore, “[t]he seizing agency may not use the seized property for any purpose until the rights to, interest in, and title to the seized property are perfected in accordance with the Florida Contraband Forfeiture Act.”  Finally, a law enforcement agency may not unilaterally convert lawful title over seized property to its ownership without an Order of the Court.  
The final order of forfeiture by the court shall perfect in the law enforcement agency right, title, and interest in and to such property, subject only to the rights and interests of bona fide lienholders, and shall relate back to the date of seizure.  Fla. Stat. § 932.704(8) (2006).

	Once a law enforcement agency has exercised its discretion to seize a citizen’s property, the FCFA provisions take effect and clearly state, “[t]he seizing agency shall promptly proceed against the contraband article by filing a complaint in the circuit court within the jurisdiction where the seizure or the offense occurred.”  Fla. Stat. § 932.703(4).  It does not, as the Respondent argues, give them a discretionary option of not going to Court.  After the action is filed in a Court of law, then and only then, may the claimant to property sign a settlement agreement with a right, subject to a specific waiver, to have it reviewed by an impartial Judge.  Id. at 932.703(7).  In order for this settlement agreement provision to take effect, there must first be a proceeding.  A “proceeding” is not one or more armed law enforcement officers standing around a handcuffed property owner and providing him or her with an agreement to forfeit their property over to the State.  The City’s interpretation flies in the face of the very principles upon which our democratic form of government was founded; the protection of individual rights and liberties.  This is why our State Supreme Court will not permit our Courts to deviate from the very specific statutory requirements contained in the FCFA when property is forfeited.  Velez v. Miami-Dade County Police Department, 934 So. 2d 1162 (Fla. 2006).
ii.	Reply to [ ] having voluntarily agreed to forfeiture

	The Respondent’s attempt to characterize the Petitioner’s experience as a meeting between two free and independent contracting parties ignores the fact that these were City Police Officers, armed with guns, charging the Petitioner with a crime by alleging he violated the currency reporting statute, taking his money, throwing him in jail, presenting him with an agreement that had no basis in law, setting him free, depositing the supposed evidence into a bank account rather than preserving it for a trial, and then resulting in the State Attorney’s Office’s decision not to prosecute the case.  This in no way reflects a voluntary meeting of the minds between to free and independent actors.  Because law enforcement was involved, the State laws and both State and Federal Constitutions prohibit the taking of the property in the manner that Respondent admits occurred.
iii.	Reply to FCFA contemplating forfeiture agreements.
	The Respondent, much like the citizens of this great State, can not pick and choose which parts of the law apply to them.  The language of the FCFA Statute unequivocally states:
It is the policy of this state that law enforcement agencies shall utilize the provisions of the Florida Contraband Forfeiture Act to deter and prevent the continued use of contraband articles for criminal purposes while protecting the proprietary interests of innocent owners and lienholders and to authorize such law enforcement agencies to use the proceeds collected under the Florida Contraband Forfeiture Act as supplemental funding for authorized purposes. . . .  Fla. Stat. § 932.704(1) (2006) (bold added for emphasis).

If the actions of the [ ] Police Department did not fall under the above stated language, they still fall under the following Constitutional provisions:
No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.  Fla. Const. Art. I, § 9 (2006) (bold added for emphasis).

. . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.  U.S. Const. Amend. 5 (bold added for emphasis).

Respondent’s reliance on subsection (7), of Section 932.704, of the Florida Statutes, ignores its reference to “proceedings” having been initiated and taken place before any agreement or settlement are entered into, and that a final Order of the Court is necessary to transfer title of the seized property to the State.  In order for Respondent’s definition of proceedings to apply the Court would have to find that the detention, arrest, handcuffing, and jailing of the Petitioner, and providing him with the City’s waiver agreement while in the custody and control of armed law enforcement officers is all the “proceedings” to which the State Legislature, and Federal and State Constitutions envisioned providing to our citizenry before taking away their property rights.  Such is not the case.
iv.	Reply to There being Support for forfeiture agreements
The Respondent’s reliance on State of Ohio v. Fogel, 2004 WL 2674591 (Ohio App. 9 Dist. 2004) and State v. Hensley, 9^th Dist. No. 03CA008356, 2006 Ohio 2664, are, respectfully, misplaced.  Both cases refer to facts in which a defendant waived his right to a civil forfeiture procedure in a court of law.  The Petitioner in this case was never given notice of a court date, never received a hearing, nor was he provided with the opportunity to obtain or be appointed an attorney.  The Petitioner was arrested, handcuffed, taken by armed police officers to jail, and asked to sign an agreement; no pleadings were filed, no time given to respond, no opportunity to seek counsel, no hearing held, and no judicial review occurred.
City of Toledo v. Mroczkowski, 2006 WL 283851 (Ohio App. 6^th Dist. 2005), cited by Respondent, is distinguishable for the same reasons stated above, in City of Toledo the defendant appeared in a court of law and entered into a negotiated plea agreement.
v.	Reply to Forfeiture agreements being valid in Florida
	The cases cited by the Respondent all dealt with in court waivers made before a Judge and do not apply to this case for the reasons stated above.
	There can be no lawful contract between the Petitioner and the Respondent when Section 932.704, of the Florida Statutes, clearly and unambiguously states that the Respondent is required to file a complaint in the Civil Circuit Court in all cases where it seizes property from a citizen.
In contractual terms, the Petitioner did not voluntarily initiate the interaction with the Respondent’s police department, did not voluntarily place himself under arrest, did not voluntarily transport himself to the jail and his signing of the contract while under arrest, in the custody of and in the presence of armed police officers, was in no way voluntary.  These points were clearly stated in the Petition for Writ of Mandamus and supported by the attached documents and furthermore confirmed by Respondent’s response.  There is no statutory authority for the Respondent to ignore the Federal and State Constitutions, and the requirements set out by the Florida Civil Forfeiture Act.
	Respondent’s attempt to rely solely on subsection (7) of Section 932.704 of the Florida Statutes as a grant of authority for it’s City police officers to arrest, handcuff, and present its detained citizens with the an agreement and waiver, ignores the remaining subsections of that same Statute and the Federal and State Constitutions.  As cited by the Respondent,
When the claimant and the seizing law enforcement agency agree to settle the forfeiture action prior to the conclusion of the forfeiture proceeding, the settlement agreement shall be reviewed, unless such review is waived by the claimant in writing, by the court or a mediator or arbitrator agreed upon by the claimant and the seizing law enforcement agency.  Fla. § 932.04(7) (2006) (bold added for emphasis).

	Clearly within this cite is the reference to a “proceeding” having taken place, a proceeding which was previously discussed within the body of the same Section in subsection (1) as follows:
The seizing agency shall promptly proceed against the contraband article by filing a complaint in the circuit court within the jurisdiction where the seizure or the offense occurred.  Fla. § 932.04(1) (2006) (bold added for emphasis).

The Respondent’s reliance on City of Toledo v. Mroczkowski, 2006 WL 283851 (Ohio App. 6th Dist. 2005), as addressed more fully above, is, again, misplaced.  The Respondent’s citation of U.S. v. $14,344.50 in U.S. Currency, 49 Fed. Appx. 207 (10^th Cir. 2002) and U.S. v. Libretti, 28 Fed. Appx. 754 (10^th Cir. 2001), are clearly distinguishable and ignores the fact the waivers to civil forfeiture proceedings in those cases were done before a Criminal Court as a part of a plea agreement.  These cases do not support the waiving of those rights without the oversight and review powers of a Court of law.
The Respondent’s attempt to characterize the transaction between the Petitioner and his arresting officers as purely contractual, again ignores well established Constitutional precedents that protect helpless individuals who are placed in handcuffs, accused of crimes, and presented with documents to sign by armed law enforcement officers (as cited above).  Such an argument could also be made for allowing arrested persons to waive their right to court proceedings when they are charged with a capital or other crime, but our Federal and State Constitutions, ratified by our founding citizens, chose to restrict the executive branch’s powers by creating three separate and equal branches of government with mandatory oversight by a fair and impartial judiciary.  In this case the State legislature created the specific requirements for the filing of a civil compliant which the Respondent chose, and continues, to ignore; the State Court was excluded from reviewing the case to ensure that the legal rights of the Petitioner were protected; and the executive unilaterally chose to act in a manner that made it the sole and exclusive authority for determining whether it was or was not justified in taking the Respondent’s property under force of arrest and to transfer title of the seized property over to itself without a Court Order.
D.	Conclusion
	The petition seeks to enforce the right of due process and the duty of the City of [ ], through its police department, to perform and abide by the laws of this State.  The relief being sought is clearly within the powers and authority of this Court as imposed upon it by the State’s Constitution.  Fla. Const. Art. V, § 5.  The purported contract that occurred between the Respondent who was under arrest, handcuffed, and taken to jail, and the police officers who arrested him, is not governed by any principles of common law and contracts, the Respondent is a State actor which is granted specific and limited authority under Florida Statutes to take its citizens’ properties which require them to file a civil action with the Circuit Courts of this State.  Fla. Stat. §§ 932.701-932.707.  Even if the facts and circumstances were to be taken out of the context of the Florida Contraband Forfeiture Act, it would still fall under the Constitutional prohibitions of taking citizens’ properties without due process.  Fla. Const. Art. I, § 9; U.S. Const. Amend. V.  There is very little effort and time involved for the City to file an action, even in cases where a lawful waiver is made, to ensure and protect the Constitutional rights of citizens to voluntarily, knowingly, and intelligently give up same before an impartial Judge.
	Finally, the Respondent’s insistence that our State’s legislature intended to permit its armed law enforcement agencies to draw up agreements and present them to handcuffed individuals for the purpose of waiving a Constitutional right that stands as a cornerstone of our great and powerful Nation to empower its helpless citizens and ensure that the executive branch follows the law, ignores the fact that the legislature mandates them to go to the Court whenever it chooses to seize property.  The actions sought to be ratified by the City of [ ], through its Police Department, would send citizens’ rights into the darkness of police interrogation rooms and the streets on which the police meet up with its citizenry.
	The Respondent’s request for attorney fees should be denied for reasons stated above, and furthermore, any attorneys’ fees and costs incurred by this Petition for Writ of Mandamus should be included and carried over by Order of this Court to the Circuit Court that takes jurisdiction and has the authority to award same under the FCFA.
I CERTIFY that a true and correct copy of the foregoing document was sent by regular U.S. mail to [ ], on this 8^th day of December 2006.

Respectfully submitted,
The Law Offices of 
Van Ness & Van Ness, P.A.

__________________________
Louis Daniel Lazaro, Esq.
Attorney for the Petitioner
46 N. Washington Blvd. Suite 9
Sarasota, Florida 34236
Telephone:	941/362-3560
Facsimile:	941/362-3632
Florida Bar No.: