Miami may have to refund $12M in impound fees

An appeals court has ruled unconstitutional an ordinance crafted by Miami commissioners to fight prostitution and raise cash -- clearing another legal hurdle for a possible refund of $12 million to thousands of car owners.

The law, passed in 1997 during the city's financial crunch, allowed police to confiscate any vehicle alleged to be involved in drug or prostitution crimes. The original price to recover the car: $500, which was bumped up to $1,000 a year later.

That's on top of the towing and storage fees.

In last week's decision, the Third District Court of Appeals said that the ordinance does not clearly require police to notify an absent owner when the car is seized, its standard of proof is too lenient and there is no exception for innocent owners.

''We do not believe that an ordinance that does not allow for an innocent owner to be immune from loss of property and additional monetary penalties can satisfy due process,'' the court wrote in its opinion.

But the case is not over.

The city may ask the appellate court to rehear the case or go straight to the Florida Supreme Court, Deputy City Attorney Julie Bru noted in a written statement.

Bru also said that the outcome of a similar case in Hollywood -- on which another appellate court has yet to rule -- could affect Miami's chances of getting a Supreme Court review.

Miami lawmakers enacted the measure during a fiscal meltdown -- which later would lead to an unconstitutional fire-rescue fee -- in the mid-1990s.

''The discussion was two-pronged. We wanted to attack a big prostitution problem, but there was an economic element,'' said Commissioner Tomás Regalado, who first was elected in 1996. ``The city was in financial crisis. There was a frenzy of fund-seeking.''

The ordinance was first challenged in 1999 when Sidney Wellman, who was arrested for soliciting prostitution while in his wife's car, and Nadine Theodore, whose husband was arrested for the same reason while using her car, filed a class-action lawsuit arguing that state forfeiture laws should trump the city's measure.

At trial in Miami-Dade, a judge found that the ordinance was unconstitutional because it didn't make an exception for an innocent owner and because joint owners weren't necessarily given automatic notice of the seizure.

On appeal, the Third District Court reaffirmed the lower judge's decision. It found the ordinance unconstitutional because a state forfeiture law, requiring notice to owners of seized property, was in place already.

The Florida Supreme Court sided with the cities of Miami and Hollywood, which had a similar ordinance on its books, but sent both cases back to appellate courts for constitutional review.

Ronald Guralnick, who has shepherded both cases for more than seven years and worked on similar cases in Tampa and West Palm Beach, said he looks forward to wrapping them up.

''The file for this case goes around my whole office,'' he said of the Miami case.

Bru pointed out that ''the court simply held that the ordinance was unconstitutional in three ways that can easily be fixed,'' declining to specify how the city would fix the problems or come up with the money if it is to be refunded.

Guralnick criticized the idea of people having fewer rights if arrested for a misdemeanor than they would in a felony and said he believes the city has taken advantage of many.

''These people have to get their money back,'' he said.

Miami Herald staff writer Charles Rabin contributed to this report.