By Richard Diamond

Florida Supreme Court justices during a Tuesday hearing did not appear to agree that charging a "convenience fee" for paying red light camera tickets online unjustly enriched American Traffic Solutions (ATS, now known as Verra Mobility). The Eleventh Circuit US Court of Appeals asked the high court to interpret this question of state law so that the federal judges can then decide whether ATS needs to pay $29 million in refunds, under a lawsuit filed by motorist Steven J. Pincus.

"There's $7.90 that's in ATS's hands that should be in Mr. Pincus's hands because it was unlawful for them to impose any additional fee, fine, surcharge or cost and illegal to collect a commission for all the other reason," the lawyer for the motorists, Bret L. Luskin, told the court.

Mailed Florida photo fines are capped by state law at $158, but ATS tacks on an additional five percent "convenience fee" if motorists pay by credit card. Since three out of four motorists decide to pay tickets online or over the phone, the lawyers estimate ATS has collected 3.7 million in fees in the past five years, worth $29 million. The suit wants that money refunded because the state legislature never authorized these fees.

"It should be self-evident that the city and ATS can agree amongst themselves in their contract how much the city should compensate ATS for the performance of its contractual duties," Lusskin explained. "What they cannot do is agree amongst themselves in their contract that someone else, a non-party, has to pay compensation to American Traffic Solutions."

Justices appeared unpersuaded.

"It seems to me the critical factor here is the choice to make an electronic payment is entirely voluntary," Chief Justice Charles T. Canady said. "At some point you seem to indicate there's a duty to make available, as a matter of right, the ability to pay electronically. I don't know where that's written."

Lusskin responded that the statute makes collecting the fee itself unlawful.

"The relation between American Traffic Solutions and Mr. Pincus and accused drivers is anything but voluntary," Lusskin explained. "The only voluntary relationship is between the city and American Traffic Solutions... It's an illusion that this is voluntary. Section 318.121 strictly prohibits additional fees, fines, surcharges or costs except for five exceptions enumerated in the statute."

Appearing on behalf of the Florida Office of Financial Regulation, David M. Costello sided with ATS but argued there could be a common law legal basis to file a private lawsuit against a city and a vendor for violating Florida law.

"A statutory violation results when the defendant will have inequitably received a result from the plaintiff as a result of the violation," Costello argued. "If the statute renders a charge unenforceable or void, that is the quintessential scenario when someone is holding to a benefit to which they have no legal entitlement."

Once the Florida justices answer the questions of state law, the case will return to the federal court to determine if the case should proceed further.