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Item H01M C ounty of f Monroe ELj » °o � BOARD OF COUNTY COMMISSIONERS /� r i � �� Mayor George Neugent, District 2 The Florida. Ke Se y I Mayor Pro Tern David Rice, District 4 Danny L. Kolhage, District 1 Heather Carruthers, District 3 Sylvia J. Murphy, District 5 County Commission Meeting May 17, 2017 Agenda Item Number: H.1 Agenda Item Summary #2304 BULK ITEM: No DEPARTMENT: Assistant County Administrator Christine Hurley TIME APPROXIMATE: STAFF CONTACT: Christine Hurley (305) 292 -4441 2:30 P.M. AGENDA ITEM WORDING: Discussion and direction to staff to begin filing complaints with the Florida Department of Business and Professional Regulation (DBPR) against property owners who been found to be illegally renting their homes as vacation rentals and against real estate agents who unlawfully advertised vacation rentals. ITEM BACKGROUND: The Department of Business and Professional Regulation (DBPR) licenses real estate agents and brokers. As part of the licensure requirements, real estate agents and brokers must abide by the following statutes: Division of Real Estate Florida Statute Section 455.227 The following acts shall constitute grounds for which the disciplinary actions (specified in F.S. 455.227(2)) may be taken: • F.S. 455.227(1.)(k.) Failing to perform any statutory or legal obligation placed upon a licensee. o Florida Statute Section 475.25(1.) The Florida Real Estate Commission may deny an application for licensure, registration, or permit, or renewal thereof, may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, registration, or permit; may impose an administrative fine not to exceed $5,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant: o F.S. 475.25(1)(c.) Has advertised property or services in a manner which is fraudulent, false deceptive, or misleading in form or content. o F.S. 475.25(1.)(e.) Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of Chapter 475 or Chapter 455. • Florida Statute Section 475.42(1.)(a.) A person may not operate as a broker or sales associate without being the holder of a valid and current active license therefor. o F.S. 475.42(1.)(i.) A broker or sales associate may not place, or cause to be placed, upon the public records of any county, any ... writing which purports to affect the title of, or encumber, any real property if the same is known to her or him to be false, void, or not authorized to be placed of record, or not executed in the form entitling it to be recorded, or the execution or recording whereof has not been authorized by the owner of the property ... for any unlawful purpose. o F.S. 475.42(1.)(k.) A person may not knowingly conceal any information relating to violations of Chapter 475. o F.S. 475.42(l.)(n.) A person may not disseminate or cause to be disseminated by any means any false or misleading information for the purpose of offering for sale, or for the purpose of causing or inducing any other person to purchase, lease, or rent, real estate located in the state or for the purpose of causing or inducing any other person to ,acquire, an interest in the title to real estate located in the state. In addition, a lawful vacation rental must obtain a permit from DBPR as more fully set forth below: • Division of Hotels and Restaurants o Florida Statute Section 509.013(4)(a.)(1.) As used in Chapter 509, Florida Statutes, a public lodging establishment includes "transient public lodging establishments," which means any unit, group of units, dwelling, building, or group of buildings which is rented to guests more than 3 times in a calendar year for periods of less than 30 days or 1 calendar months, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests. o Florida Statute Section 509.241(1.) Each public lodging establishment ... shall obtain a [State] license from the Division. Such license may not be transferred from one place or individual to another. It shall be a misdemeanor of the second degree ... for such an establishment to operate without a license. o Florida Statute Section 509.242(1.) A public lodging establishment shall be classified as a ... vacation rental if the establishment satisfies the following criteria: ■ F.S. 509.242(1.)(c.) A vacation rental is any unit or group of units in a condominium or cooperative or any individually or collectively owned single - family, two - family, three - family, or four - family house or dwelling unit that is also a transient public lodging establishment but that is not a timeshare project. The items highlighted in yellow would be applicable to agents or brokers that are listing vacation rentals: For less than 28 days to rent In areas where vacation rentals are prohibited In areas where vacation rentals are allowed by have not secured a proper permit Staff is seeking direction on whether the Board would like the County to pursue filing complaints against agents and /or brokers and property owners. It is contemplated that such complaints would be filed after the Special Magistrate has found a violation of the County Code and when there is evidence that the owner had a licensed real estate agent or broker representing them in the vacation rental of a property that is not eligible for that activity or not permitted correctly. It is also contemplated that complaints would be filed against owners of vacation rentals who do not hold the appropriate state license. PREVIOUS RELEVANT BOCC ACTION: none CONTRACT /AGREEMENT CHANGES: N/A STAFF RECOMMENDATION: Direction to refer appropriate cases to DBPR after successful code prosecution. DOCUMENTATION: Fla. DBPR Primer - Hotels & Restaurants Division (MinuteTrac) Fla. DBPR Primer - Real Estate Division (MinuteTrac) FINANCIAL IMPACT: Effective Date: Expiration Date: Total Dollar Value of Contract: Total Cost to County: Current Year Portion: Budgeted: Source of Funds: CPI: Indirect Costs: Estimated Ongoing Costs Not Included in above dollar amounts: Revenue Producing: Grant: County Match: Insurance Required: Additional Details: If yes, amount: N/A REVIEWED BY: Christine Hurley Completed 04/25/2017 12:34 PM Peter Morris Completed 04/28/2017 3:25 PM Cynthia McPherson Completed 04/28/2017 3:48 PM Bob Shillinger Completed 05/02/2017 2:20 PM Budget and Finance Completed 05/02/2017 2:21 PM Maria Slavik Completed 05/02/2017 2:38 PM Kathy Peters Completed 05/02/2017 3:46 PM Board of County Commissioners Pending 05/17/2017 9:00 AM Florida Department of Professional Regulation Division of Hotels & Restaurants 1. One (1) copy of a completed Consumer Complaint Form (attached), submitted online at: http: / /www.myfloridalicense. com/dbpr /hr /forms /complaint - forms.html 2. Intake - Complaint Analyst Upon receipt at intake, a Complaint Analyst reviews the complaint to determine if the complained -of activity falls within the Florida Division of Professional Regulation - Division of Hotels & Restaurants's (hereinafter "DBPR ") enforcement jurisdiction, and, if so, if the allegations are legally sufficient to initiate an investigation based upon a violation of Florida Statutes - Chapter 509, Florida Administrative Code - Chapter 61C -1, and /or Florida Administrative Code - Chapter 61C -3 3. Investigation Initiated If deemed jurisdictionally and substantively sufficient, the Complaint is forwarded to DBPR District 1 (covering Monroe and Miami -Dade Counties) and assigned to a District Office inspector, who commences an investigation. 4. Notice of Violation If the completed investigation indicates that a violation of the above statutory or administrative provisions has occurred, then: 1) Proof of Service The inspector serves a citation and obtains proof of service of that citation by making contact with the owner or operator of the vacation rental and obtaining his /her signature on the citation and the citation's corresponding inspection report. 2) Warning and Educating Attempts to educate the owner or operator that he /she is operating an unlicensed vacation rental unit. 3) Sixty (60) Day Compliance Period Provides the owner /operator with approximately 60 days to gain compliance with the cited violation. 4) Referral If the owner /operator refuses to gain compliance, the case is referred to the DBPR - Office of General Counsel (hereinafter "OGC "). 5. Legal Proceeding Initiated If the licensee remains non - compliant, OGC may then file a formal administrative Complaint on behalf of DBPR in accordance with Florida Statutes - Chapter 120 (hereinafter "Florida Administrative Procedure Act "). 6. After OGC files an administrative Complaint, the Respondent has twenty -one (21) days to respond, and may choose: 1) Settlement To enter a Consent Order stipulating to the violation(s), penalty(ies), and required corrective action(s), and settle the case. For these to become legally effective, they must be subsequently be submitted to the DBPR Division Director (hereinafter "Director "), who may approve, deny, or propose different terms to a proposed stipulation. 2) Informal Hearing If the Respondent admits that there is no dispute of material fact, the Respondent may elect to resolve the issue(s) by informal hearing, where he /she may present mitigating evidence to the OGC attorney, after which he /she may enter into a Consent Order. 3) Formal Hearing If the Respondent alleges that there exists a dispute of material fact, the case is brought before a Florida Department of Administrative Hearings - Department of Management Services (hereinafter "DOAH ") Administrative Law Judge (hereinafter "ALJ" ). 1. Recommended Order The AU issues a Recommended Order (hereinafter "RO ") following the formal hearing's conclusion. 1) Exceptions Either party may object to the ALJ's factual findings or legal conclusions by filing Exceptions within fifteen (15) days of the ALJ's RO. 2. Final Order After the Director receives the ALJ's RO and accompanying Exceptions, he /she then determines whether to accept, reject, or modify the legal conclusions or, more rarely, the factual findings, of the ALJ, or may dismiss the administrative Complaint altogether. 1) Appeals /Finality a. Either party and any person adversely affected by the Director's Final Order may appeal the Final Order, within thirty (30) days of its rendition by the Director, to the Florida District Court of Appeals (hereinafter "Florida DCA "). b. The Director's Final Order becomes "Final" for the purposes of imposition of penalty(ies) upon the parties after the 30 -day appeal period expires, or if the Final Order is upheld on appeal by the applicable Florida DCA. DBPR HR -7003 — Division of Hotels and Restaurants Consumer Complaint Form STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION 2601 Blair Stone Road Tallahassee, FL 32399 -1011 Phone: 850.487.1395 http: / /www. myfloridalicense. com /contactus/ www.MyFloridaLicense.com /dbpr /hr I FOR OFFICE USE ONLY I Complaint # Date Received SECTION 1 - LICENSEE INFORMATION License Type: ❑ Food Service ❑ Lodging ❑ Elevator ❑ Registered Elevator Company ❑ Elevator Inspector Name Address City County Zip Code Business Phone License Number (if known) SECTION 2 — COMPLAINANT' INFORMATION Last Name First Middle Title Suffix Organization Name (if representing an organization, please provide the name of the organization) CONTACT INFORMATION Primary Business Phone Number Primary Home Phone Number Primary E -Mail Address Alternate Phone Number or Fax Number Does the Complainant want to be contacted? ❑ Yes ❑ No MAILING ADDRESS Street Address or P.O. Box City State Zip Code ( +4 optional) Country SECTION 3 — DETAILS OF THE COMPLAINT Please provide any additional comments on an addendum. If addendum is used, please check here ❑ 2016 July Page 1 of 1 Florida Department of Professional Regulation Real Estate Division 1. One (1) copy of a completed Uniform Complaint Form (attached), submitted in writing, to: A ttention: Consurrmer Complaints Section DBPR - Division of Real Estate 400 West Robinson Street, Suite N801 Orlando, FL 32801 -1757 2. Intake - Complaint Analyst Upon receipt at intake, a Complaint Analyst reviews the complaint for legal sufficiency. 3. Investigation Initiated If deemed sufficient, an Investigator is assigned to the case and commences an investigation. 4. Formal Legal Review Upon the investigation's completion, the case is referred to the Florida Department of Professional Regulation - Real Estate Division - Office of General Counsel (hereinafter "OGC "). The OGC then opines as to whether the investigation reveals that probable -cause exists that a violation of Florida Statutes - Chapter 455, Florida Statutes Chapter 475, and /or Florida Administrative Code — Chapter 6 1 J2 has occurred. 5. Legal Proceeding Initiated Upon OGC's opinion that there exists probable -cause of a violation, as a predicate to filing an Administrative Complaint, OGC presents the case, in the form of a Proposed Administrative Complaint, to a Florida Real Estate Commission (hereinafter "FREC ") probable -cause panel for a determination as to whether probable - cause exists that a violation has occurred. The FREC probable -cause panel may: 1) Dismiss the Complaint 2) Issue a Letter of Guidance In the event probable -cause of a minor violation is found, the FREC probable -cause panel may issue to the Respondent a Letter of Guidance - a written reprimand - in lieu of authorizing OGC's filing of an Administrative Complaint; or 3) Approve the Proposed Administrative Complaint 6. If the FREC probable -cause panel determines that there exists probable -cause that a violation has occurred, then OGC is directed to file an Administrative Complaint on behalf of the Florida DBPR - Real Estate Division in accordance with Florida Statutes - Chapter 120 (hereinafter "Florida Administrative Procedure Act "). 7. After OGC files an Administrative Complaint, the Respondent has twenty -one (2 1) days to respond, and may choose: 1) Settlement To enter a Stipulation Agreement consenting to the violation(s), penalty(ies), and required corrective action(s), and settle the case. For these to become legally effective, they must be subsequently be submitted for approval before the full FREC, which may approve, deny, or propose different terms to a proposed stipulation. 2) Informal Hearing If the Respondent admits that there is no dispute of material fact and the infraction is both minor in nature and is not a repeat violation, the Respondent may elect to resolve the issue(s) by presenting mitigating evidence and /or witnesses testimony and legal arguments at an Informal Hearing against OGC and before the full FREC - but may not dispute the facts alleged in the Administrative Complaint. 3) Formal Hearing If the Respondent alleges that there exists a dispute of material fact, or the infraction is deemed substantial, the case is brought before a Florida Department of Administrative Hearings - Department of Management Services (hereinafter "DOAH ") Administrative Law Judge (hereinafter "ALJ "). 1. Recommended Order The ALJ issues a Recommended Order (hereinafter "RO ") following the disciplinary hearing's conclusion. 1) Exceptions Either party may object to the ALJ's factual findings or legal conclusions by filing Exceptions within fifteen (15) days of the ALJ' s RO. 2. Final Order After the full FREC receives the RO and accompanying Exceptions, it then determines whether to accept, reject, or modify the legal conclusions or, more rarely, the factual findings, of the ALJ, or may dismiss the Administrative Complaint altogether. 1) Appeals /Finality a. Either party and any person adversely affected by that FREC Final Order may appeal the Final Order, within thirty (30) days of its rendition by the FREC, to the Florida District Court of Appeals (hereinafter "Florida DCA "). b. The FREC's Final Order becomes "Final" for the purposes of imposition of penalty(ies) upon the parties after the 30 -day appeal period expires, or if the Final Order is upheld on appeal by the applicable Florida DCA. Uniform Complaint Form Instructions — Real Estate STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION Uniform Complaint Form (RE 2200) Instructions All complaints must be submitted in writing to: Attention: Consumer Complaints Section DBPR - Division of Real Estate 400 West Robinson Street, Suite N801 Orlando, FL 32801 -1757 The Division of Real Estate administers the provisions of Chapter 475 Florida Statutes, relating to sales associates, brokers, and real estate appraisers who hold Florida real estate and /or appraisal licenses. Pursuant to Section 455.225 Florida Statutes, a complaint is legally sufficient if it contains ultimate facts that show that a violation of this chapter, of any of the practice acts relating to the professions regulated by the department, or of any rule adopted by the department or a regulatory board in the department, has occurred. The department may investigate, and the department or the appropriate board may take appropriate final action on, a complaint even though the original complainant withdraws it or otherwise indicates a desire not to cause the complaint to be investigated or prosecuted to completion. Please provide all relevant documentation with this complaint form. All relevant documentation includes, but is not limited to, copies of the following: Sales Contract (Front & Back) Canceled Checks (Front & Back) Lease /Rental Agreements (Front & Back) Listing /Management Agreements (Front & Back) Closing Statement Multiple Listing Printout Appraisals Repair Bills Monthly Statements Correspondence Agency Disclosure Form Judgement /Civil Law Suit Please send legible copies of your supporting documents. We are unable to return original documents to you. Should additional documentation be requested and not received by this department within thirty (30) days of the request, the file may be closed. Pursuant to Chapter 455 Florida Statutes, the complaint and all information obtained pursuant to the investigation is confidential until 10 days after probable cause is found to exist. Investigations differ in complexity and duration, so providing a time of completion is not possible. We appreciate your cooperation and understanding in this matter. Revised 0608 RE 2200? Uniform Complaint Form ? Real Estate STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION Please submit t o address on last page . TO ENSURE THE PROPER PROCESSING OF YOUR COMPLAINT, PLEASE CHECK THE APPLICABLE BOX: ❑ UNLICENSED ACTIVITY ❑ ESCROW DEPOSIT ❑ PROPERTY MANAGEMENT ❑ APPRAISAL ❑ OTHER Attach additional sheets as necessary. RE - 2200 Uniform Complaint Form Revised 0608 COMPLAINANT INFORMATION Last Name First' Middle Title Suffix Your Company/Occupation MAILING ADDRESS Street Address or P.O. Box cit State Zio Code ( +4 oDtion.i) County (if Florida address) Country CONTACT INFORMATION Primar Phone Numb Primar E -Mail Address' Unlicensed Activit Complaint? Yes ❑ No ❑ Unknown ❑ COMPLAINT DESCRIPTION' Attach additional sheets as necessary. RE - 2200 Uniform Complaint Form Revised 0608 CONTACT PERSON IF OTHER THAN YOURSELF Last Name First'', Middle Title Suffix IF APPLICABLE) ADDRESS Street Address or P.O. Box First'' Middle Title Suffix ADDRESS Street Address or P.O. Box City State Zip Code ( +4 gotionai) C ount y (if Florida address) Countr Zio Code ( +4 optional)___ CONTACT INFORMATION Primar Phone Number Primar E -Mail Address PRIVATE ATTORNEY FOR COMPLAINANT OF COMPLAINT' IF APPLICABLE) Last Name First Middle Title Suffix First'' Middle Title Suffix ADDRESS Street Address or P.O. Box c ompany occupation Cit Street Address or P.O. Box State Zio Code ( +4 optional)___ C ount y (if Florida address) Cit Countr State CONTACT INFORMATION C ount y (if Florida address) P rimar y Phone Number Alternate Phone Number as E as 0 LU c� E 0 Iq c� rr M as tI8 LU �a as E CL Cd �a E CU d RE-2200 Uniform C ompi —t Form Remised 0608 SUBJECT OF COMPLAINT' Last Name First'' Middle Title Suffix L icense N umber (if known) c ompany occupation MAILING ADDRESS Street Address or P.O. Box Cit State 7 n C�dP ( +4 — i—,)_ C ount y (if Florida address) Countr CONTACT INFORMATION Primar Phone Number Primar E -Ma ii Ad dress` RESIDENCE ADDRESS (IF DIFFERENT THAN MAILING ADDRESS) S treet Address Cit State Zip Code ( +4 o ptional) C ount y (if Florida address) Countr as E as 0 LU c� E 0 Iq c� rr M as tI8 LU �a as E CL Cd �a E CU d RE-2200 Uniform C ompi —t Form Remised 0608 PRIVATE ATTORNEY FOR SUBJECT OF COMPLAINT IF APPLICABLE Last Nam a First Middle Title Suffix IF APPLICABLE ADDRESS S treet Address or P.O. Box First Middle Title Suffix ADDRESS ADDRESS Cit State Zip Code ( +4 optional) C ounty (if Florida address) State Countr Z,p Code ( +4 optional) CONTACT INFORMATION Countr P rimar y Phone Number CONTACT INFORMATION Alternate Phone Number I affirm that I have provided the above information completely and truthfully to the best of my kn.-ledge. Complainant Si Here: Date: Please mail the completed Uniform Complaint Form to the address below: Division of Real Estate 400 West Robinson Street Suite N801 Orlando, Florida 32801 RE-2200 Uniform C omplaint Form Revised 0608 WITNESS IF APPLICABLE IF APPLICABLE)' Last Name First Middle Title Suffix ADDRESS ADDRESS S treet Address or P.O. Box Cit Cit State Statei Z,p Code ( +4 optional) C ounty (if Florida address) Countr Countr CONTACT INFORMATION CONTACT INFORMATION P rimar y Phone Number P rimar y Phone Number Alternate Phone Number Alternate Phone Number I affirm that I have provided the above information completely and truthfully to the best of my kn.-ledge. Complainant Si Here: Date: Please mail the completed Uniform Complaint Form to the address below: Division of Real Estate 400 West Robinson Street Suite N801 Orlando, Florida 32801 RE-2200 Uniform C omplaint Form Revised 0608 WITNESS IF APPLICABLE Last Name First Middle Title Suffix ADDRESS S treet Address or P.O. Box Cit State Zip Code ( +4 optional) C ount y (if Florida address) Countr CONTACT INFORMATION P rimar y Phone Number Alternate Phone Number I affirm that I have provided the above information completely and truthfully to the best of my kn.-ledge. Complainant Si Here: Date: Please mail the completed Uniform Complaint Form to the address below: Division of Real Estate 400 West Robinson Street Suite N801 Orlando, Florida 32801 RE-2200 Uniform C omplaint Form Revised 0608