North Palm Beach “Takes the Fifth” On Police Abuse of Power Incident

...or "It Takes a Village to Take the Fifth"

Regular readers of my column are familiar with the saga of my being reported to the Florida Highway Safety and Motor Vehicle department, FHSMV, as a mentally or physically incompetent driver. I became aware of this approximately two weeks after I was ticketed for speeding by a North Palm Beach policeman. The letter I received from the FHSMV started out, “This agency has received information expressing concerns about your ability to drive safely. Please call the driver license office below to set up an appointment to take the vision, written, driving (in traffic) and hearing examinations.”

I looked into this and learned that this “information expressing concerns about my ability to drive” was reported to the FHSMV under a little know Florida law, 322.126(2), (3), which allows “any person” to confidentially report any other Florida driver as unable to drive safely and be held harmless from all civil or criminal liability even if the report was malicious in intent. I subsequently started a petition at www.DumbLaw.org to change this law. I’ve also met with two Florida legislators, Democrat Irv Slosberg of Boca Raton and Republican, Pat Rooney of Palm Beach Gardens to ask their assistance to change this law in Tallahassee. Both strongly support my position and have agreed to help me.  

Under the law, the FHSMV keeps secret the name of the informant. However, after a little detective work, I came up with a “person of interest” or suspect. He is a North Palm Beach policeman, the same one who ticketed me for speeding two weeks before I received the letter from the FHSMV. It turns out that this officer’s wife had been recently employed by me at my Toyota dealership. For what I believed were good reasons, I was forced to terminate her employment. She subsequently sued me under the EEOC for wrongful termination and my insurance company settled the case. I was also able to learn from the FHSMV that the informant was a “professional” meaning a police officer or doctor. Since my doctor agreed to give me a letter stating that I was 100% mentally and physically capable of driving a car, that left a policeman. The only policeman that I’d had any dealing with in quite some time was this North Palm Beach policeman. Finally, I did take and pass all of the required driving tests…written, eye test, hearing test, driving in traffic and driving on a special course. In fact, I not only passed, I passed with flying colors. My hearing and eyesight (20/20 with glasses) were perfect. I completed all of the driving tests without a single mistake and I missed only one question on the test (I could have passed missing up to10). These findings prove that the “person” who reported me to the FHSMV was either mistaken or not telling the truth. Since we know that the “person” was a professional, it would seem unlikely that he was mistaken.

Feeling that the above circumstantial evidence uncovered by my detective work was overwhelming, I decided to confront the Village of North Palm Beach. Through my attorney, I spoke with the vice Mayor who agreed to talk to the chief of police. When I didn’t hear back for a while, I was told that the matter was being discussed with the “collective bargaining” entity for the police department, the PBA. After several weeks, the North Palm Beach town attorney wrote me a letter stating the town’s position on my allegations. This is the pertinent part of the letter:

“With respect to the letter Mr. Stewart received from the Department of Highway Safety and Motor Vehicles (“DMV”) requesting that he appear for re-examination, Section 322.126(3), Florida Statutes, states that any report regarding a licensed driver’s mental or physical disability to drive is confidential and exempt from disclosure pursuant to Florida Public Records Law. The Florida Legislature has expressly determined that such reports shall not be disclosed or used for any purpose other than determining the qualification of a person to operate a motor vehicle on the highways of this state. As such, no civil or criminal action may be brought against any physician, person or agency who reports a potential disability to the DMV, nor shall any such report be used as evidence in any civil or criminal trial or in any court proceeding. 322.126(3) & (4), Florida Stat. (2011). See also Duckworth v. State, 923 So. 2d 530 (Fla. 4^th DCA 2006). The Florida Legislature has clearly determined that the overriding public interest in ensuring that all licensed drivers possess the requisite ability to operate a motor vehicle trump any concerns raised by licensed drivers regarding the circumstances surrounding the filing of such a report.

            In light of the foregoing, even if the Village possessed information regarding a medical report filed with the DMV concerning Mr. Stewart, the Village is prohibited from disclosing the information set forth therein. Additionally, neither your client nor the Village can utilize the report as evidence in any criminal or civil proceedings unrelated to Mr. Stewart’s qualification to operate a motor vehicle.

Should you have any questions relative to the foregoing, please to not to hesitate to contact me.

Sincerely Yours,

Village Attorney”

After reading the above, I think you can appreciate my title to this article, North Palm Beach “Takes the Fifth” on Police Abuse of Power Incident.  Most people understand that people accused of a crime in America can elect to “refuse to answer on the grounds that it might tend to incriminate them”.  If you feel the same way I do about this, “taking the fifth” it’s just another way of saying “I’m guilty but you’ll have to prove it without my cooperation”. 

I’m betting that this police officer has never filed another report under this statute before in the remote chance that he believed in good faith that the driver lacked the physical or mental qualifications to drive. It’s a shame, arguably disgraceful, that law enforcement in North Palm Beach allows its officers to quench their personal agendas by abusing their official position and then hiding behind a statute’s confidentially provisions. I’m sure that the confidentially provision was not made part of the stature by the legislature to allow police officers to file reports in bad faith and with no objective basis.

My attorney tells me that, in spite of this statute, I have grounds to sue on the basis that this Florida statute is unconstitutional and that a judge could overturn this part of the law.  But I don’t want to sue the town of North Palm Beach, the cop that reported me, or anybody else. What I do want is for the town and the police officer to do the right thing which is to sincerely apologize. I would also like the town to take the necessary precautions to see that this never happens again to anybody else driving through the Village of North Palm Beach.