Fish v. Pasco County Florida Traffic Division et al

Filing 21

ORDER: The Bankruptcy Court's Order is affirmed. The Clerk is directed to transmit a copy of this Order to the Bankruptcy Court and is thereafter directed to CLOSE THIS CASE. Signed by Judge Virginia M. Hernandez Covington on 3/18/2013. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
IN RE:
TERRY LEE FISH,
Debtor.
_______________________________/
TERRY LEE FISH,
Appellant,
v.

Case No. 8:12-cv-2498-T-33
Bankr. No. 8:11-bk-19061-CPM

PASCO COUNTY FLORIDA TRAFFIC
DIVISION, PAULA O’NEILL, and JON
M. WAAGE as Chapter 13 Bankruptcy
Trustee,
Appellees.
_______________________________/
ORDER
Terry Fish filed for protection under Chapter 7 of the
United

States

Bankruptcy

Code

and

received

a

Discharge.

Thereafter, Pasco County attempted to collect traffic fines
from Fish and refused to renew Fish’s driver’s license based
on Fish’s failure to pay the fines.

Fish challenged the

County’s actions in a motion for sanctions.

The Bankruptcy

Court determined that Pasco County did not violate Fish’s
Discharge because traffic fines are non-dischargeable in
bankruptcy.

Fish now appeals the Bankruptcy Court’s ruling.

The Court affirms the Bankruptcy Court after finding that the
fines in question were not discharged in Fish’s bankruptcy.

I.

Procedural Background
Fish filed a pro se voluntary Chapter 7 bankruptcy case

on October 12, 2011.

(B.R. Doc. # 1). On October 21, 2011,

the Bankruptcy Court granted Fish’s application to proceed in
forma pauperis. (B.R. Doc. # 11).

On March 2, 2012, the

Bankruptcy Court granted Fish a Discharge pursuant to 11
U.S.C. § 727. (B.R. Doc. # 29). Importantly, the Discharge
specified, “Debts for most fines, penalties, forfeitures, or
criminal restitution obligations” are “not discharged in a
chapter 7 bankruptcy case.” Id. at 2 (emphasis in original).1
The Bankruptcy Court closed the case on March 30, 2012. (B.R.
Doc. # 30).
On April 24, 2012, Fish filed a Motion for Sanctions
against the Pasco County Florida Traffic Division and Paula S.
O’Neill, Clerk and Comptroller. (B.R. Doc. # 33).

Fish

specified in the Motion for Sanctions:
The Debtor requests that his Chapter 7 Bankruptcy
be Re opened so that the Bankruptcy Court can re
affirm that the Debtor’s Traffic Citations were
discharged on march 2, 2012 by order of the Court.
. . . The Pasco County Florida Traffic Division has
failed to allow the Debtor to obtain his Florida

1

11 U.S.C. § 523(a)(7) exempts from discharge a debt
“to the extent such debt is for a fine, penalty or forfeiture
payable to and for the benefit of a governmental entity, and
is not compensation for actual pecuniary loss, other than a
tax penalty.”
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Driver’s License which was suspended for non
payment of three (3) traffic citations. . . . The
Debtor states that the $732.50 in fines is a
financial hardship and the Debtor due to his
poverty can not pay.
Id. at 1.

Fish attached to his Motion for Sanctions a March

20, 2012, “Driver’s License Suspension and Collection Notice”
requesting that Fish pay the County $732.50 “immediately.”
Id. at 7 (emphasis in original).2
The Bankruptcy Court held a hearing on the Motion for
Sanctions on August 14, 2012, and denied the Motion in a
written Order dated August 22, 2012, as follows: “The traffic
fines are not dischargeable.

Pasco County’s attempt to

collect them is not violative of the Debtor’s discharge.”
(B.R. Doc. # 49).

On September 4, 2012, Fish filed an Appeal

of the Order denying the Motion for Sanctions. (B.R. Doc. #
54).3

That appeal is before this Court.4

2

The traffic fines are for careless driving, failure to
provide insurance, and passing within 100 feet of an
intersection. (B.R. Doc. # 33 at 7).
3

A transcript of the hearing has not been made available
to the Court.
4

It appears that Fish has filed multiple appeals in
connection with his bankruptcy case and that his bankruptcy
case is ongoing. The Court confines its analysis to review of
the Bankruptcy Court’s Order dated August 22, 2012.
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Initially, Fish briefed the Court on an appeal not
pending before this Court.

The Court entered an Order on

February 6, 2013, explaining that “an appellate court has
jurisdiction

to

review

only

those

judgments,

orders

or

portions thereof which are specified in an appellant's notice
of appeal.” (Doc. # 14)(citing Osterneck v. E.T. Barwick
Indus., Inc., 825 F.2d 1521, 1525 (11th Cir. 1987)).

The

Court directed that this matter be re-briefed. (Doc. # 14).
The parties have complied.
brief

(Doc.

#

15)

on

Fish filed his amended appellate

February

7,

2013,

and

“Addendum” (Doc. # 16) on February 14, 2013.

filed

his

The Trustee

responded on March 1, 2013. (Doc. # 17). Fish filed his reply
brief (Doc. # 19) on March 8, 2013 and filed a supplement
(Doc. # 20) on March 15, 2013.

The Court affirms the

Bankruptcy Court as explained below.
II.

Standard of Review
Upon entry of a final order by the bankruptcy court, a

party may appeal to the district court pursuant to 28 U.S.C.
§ 158(a).

The United States District Court functions as an

appellate court in reviewing decisions of the United States
Bankruptcy Court.

In re Colortex Indus., Inc., 19 F.3d 1371,

1374 (11th Cir. 1994).

This Court reviews de novo the legal

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conclusions of the bankruptcy court. In re JLJ, Inc., 988 F.2d
1112, 1116 (11th Cir. 1993).
The

standard

of

review

employed

by

this

Court

in

reviewing the bankruptcy court’s findings of fact is the
clearly erroneous standard of review described in Federal Rule
of Bankruptcy Procedure 8013: “Findings of fact, whether based
on oral or documentary evidence, shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the bankruptcy court to judge the credibility
of the witnesses.”
Cir. 1989).

See In re Thomas, 883 F.2d 991, 994 (11th

A finding of fact is clearly erroneous when,

“although there is evidence to support it, the reviewing court
on the entire record is left with the definite and firm
conviction that a mistake has been committed.” Crawford v. W.
Elec. Co., Inc., 745 F.2d 1373, 1378 (11th Cir. 1984)(citing
United States v. United States Gypsum Co., 333 U.S. 364
(1948)).
III. Analysis
A laborious analysis is not warranted here.
States

Code

enumerates

§

523

certain

bankruptcy case.

entitled
debts

not

“Exceptions
discharged

to
in

a

11 United
Discharge”
Chapter

7

One such exception is for “a fine, penalty,

or forfeiture payable to and for the benefit of a governmental
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unit.” § 523(a)(7).

The Court explained the importance of

this exception in Kelly v. Robinson, 470 U.S. 36 (1986): “The
right to formulate and enforce penal sanctions is an important
aspect of the sovereignty retained by the States.

This Court

has emphasized repeatedly the fundamental policy against
federal interference with state criminal prosecutions.” Id. at
47.

The Court also explained that the fine/penalty exception

“is a broad exception for all penal sanctions, whether they be
denominated fines, penalties, or forfeitures.” Id. at 51.
Other courts have echoed this sound reasoning in a
variety of contexts.

See also Cillo v. The Florida Bar, 165

B.R. 46, 49 (Bankr. M.D. Fla. 1994)(costs associated with
attorney disciplinary proceeding non-dischargeable because
“the plain language of 11 U.S.C. § 523(a)(7) creates a broad
exception for all penal sanctions”); SEC v. Telsey, 144 B.R.
563, 565 (Bankr. S.D. Fla. 1992)(disgorgement order came
within the broad exception to discharge under 11 U.S.C. §
523(a)(7)).
Traffic fines, such as those before the Court, fall
squarely within the ambit of 11 U.S.C. § 523(a)(7). See Cuyler
v. City of St. Mary’s Police Dep’t, No. 287-00412, 1988 Bankr.
LEXIS 2871, at *5 (Bankr. S.D. Ga. July 18, 1988)(“The caselaw
is clear that a speeding ticket falls within the reach of 11
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U.S.C. § 523(a)(7).”); In re Stevens, 184 B.R. 584 (Bankr.
W.D. Wash. July 26, 1995)(“It is generally accepted that
traffic and parking fines are a ‘fine or penalty’ for purposes
of § 523(a)(7), because their intent is to facilitate the city
government’s regulation of traffic and parking.”); In re
Eyiowuawi, No. 09-75950, 2011 Bankr. LEXIS 5240, at *2 (Bankr.
N.D. Ga. Oct. 28, 2011)(“Apposite case law is clear that debts
for parking fines are excepted from discharge under 11 U.S.C.
§ 523(a)(7).”).
Because the fines were not discharged in Fish’s Chapter
7 Bankruptcy, it follows that the County did not violate
Fish’s Discharge injunction in attempting to collect the fines
and in refusing to reinstate Fish’s driver’s license on the
basis of non-payment of the fines.

Fish has not demonstrated

any error by the Bankruptcy Court and after reviewing the
record, the Court affirms the Bankruptcy Court.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

The Bankruptcy Court’s Order is affirmed.

(2)

The Clerk is directed to transmit a copy of this Order to
the Bankruptcy Court and is thereafter directed to CLOSE
THIS CASE.

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DONE and ORDERED in Chambers, in Tampa, Florida, this
18th day of March, 2013.

Copies: All parties of record
Pasco County Traffic Division
attn: Paula S. O’Neill, Clerk and Comptroller
7530 Little Road
PO BOX 338
New Port Richey, FL 34654-0338

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