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Item Q3 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: March 19, 2014 Department: County Attorney Bulk Item: Yes X No _ Staff Contact Person/Phone#: Lisa Granger 305-292-3470 AGENDA ITEM WORDING: Approval to file an action in Circuit Court seeking an injunction to compel the property owners Gilbert and Dalia Sanchez to comply with the County's Codes and with the cease and desist Order granted by the Special Magistrate for Code Compliance for property located at 224 Tarpon Street, Tavernier,Florida. ITEM BACKGROUND: On August 5, 2010 a vacation rental inspection conducted by the Code Compliance Department at the subject property confirmed that the property was being rented as a short term rental of less than 28 days and case number CE10080044 was opened by the Code Compliance Department. A Stipulated Agreement was entered into on January 27, 2011 between the property owner and Monroe County Code Compliance. The property owner admitted to the violations and agreed to pay a one-time fine in the amount of$2,000.00. Per the final order signed by Special Magistrate John Van Landingham, the property owners Gilbert and Dalia Sanchez were to immediately cease and desist all vacation rental activity including the advertising and/or holding out of the property for any period of less than 28 days. The property owner gained compliance and paid the one-time fine as ordered. This case remains open for lack of payment of costs of prosecution which currently total $360.89. A lien was filed on March 3, 2011 for the lack of payment. On September 9, 2011 Code Compliance again received a complaint regarding the use and the advertisement of the subject property for periods of less than 28 days and case number CE11090038 was opened by the Code Compliance Department. The violations were cited as repeat violations for rental of less than 28 days and advertising for rentals of less than 28 days. The case was scheduled for a Special Magistrate hearing on May 31, 2011. The property owners did not appear at the hearing and did not contest the violations. However their attorney was present at the hearing only to argue that the violations were not irreparable and irreversible in nature and therefore did not require a one time fine in the amount of$15,000.00. After the hearing, the Special Magistrate found the property owners in violation of two repeat violations, ordered the property owners to immediately cease and desist all vacation rental activity including the advertising and or holding out of the property for any period of less than 28 days and imposed a daily fine in the amount of $1000.00 per day per violation. Additionally, the Special Magistrate found the violations to be irreparable and irreversible in nature and ordered a one-time fine in the amount of $15,000.00. This case was not compliant at the time of the compliance date ordered by the Special Magistrate. The compliance inspection was conducted on June 25, 2012. The inspector was met on the subject property by tenants and the tenants provided a copy of the rental contract for the dates of June 23-30, 2012 (a term of less than 28 days only one month after the Judge's Order). The property owners appealed the Order on July 2, 2012 requesting that the appellate court reverse the final orders by the Special Magistrate based on a finding that renting a home for less than 28 days is not"irreparable or irreversible in nature". The County argued that violations of the vacation rental codes are irreparable and irreversible in nature because of the effect the illegal activity has on the surrounding neighborhood.The County also pointed out that the property owners did not deny or contest the violations. The Circuit Court, sitting in its appellate capacity, ruled in favor of the County by affirming the Special Magistrate's Order. The Circuit Court stated that the property owners "did not challenge the factual presentation made by the County, nor did they introduce any evidence of their own".The Circuit Court further stated the property owners' "suggestion"to the Circuit Court that it find that the Special Magistrate "erred' in applying the terms "irreparable" and "irreversible" in the context of this case, to have "no support in the record or in the law" and that "it is axiomatic that a violation which cannot be cured or remedied is "irreparable or irreversible in nature." The property owners have filed an appeal of the Circuit Court's Appellate Opinion to the 3`d DCA. Research by Code Compliance continues to show that the property is still used in violation of the County's vacation rental codes. PREVIOUS RELEVANT BOCC ACTION: N/A CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: Approval. TOTAL COST: INDIRECT COST: BUDGETED: Yes _No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes _ No_ AMOUNT PER MONTH Year APPROVED BY: County Attvt OMB/Purchasing Risk Management DOCUMENTATION: Included Not Required DISPOSITION: AGENDA ITEM# Revised 7/09 a-, BEFOINart'HE COUNTY CODE COMPLIANCE SPECIAL M&tTRATE MONROE COUNTY,FLORIDA MONROE COUNTY FLORIDA. I Petitioner. I Case No.CE 10L�7 U ) VS. ) I Subject Property yRReal lEEstate Number. T 0460 �Z) Doan 1936270 06/07/2013 4:04PN Filed & Recorded in Official Records of I MONROE COUNTY AMY HEAVILIN ) Respondent(s). FINAL ORDER Having fully considered the evidence presented at hearing,Including testimony of the Code Compliance Inspector(s)and/or witnesses under oath,the following Findings of Fact and Conclusions of Law are ORDERED: The Respondent(s)and/or Authodzed.Aepresentative ff/�'aOl� 7�— S�re— / re e 6re not present and d Idid o contest the vlolabon(s)set forth in the Notice of VlolationlNotice of Hearing which is incorporated herein as itlully set forth. ( he Respondent(s)is/are the owners)of property located within Monroe County and was/were duly noticed of the hearing.The Respondents)is/are in violation of the Monroe County Code(s)as fully set forth in the Notice of Vlolatlon/Notioe of Hearing fried in this case and pursuant to Section 16207 of Florida Statutes costs in an amount to be determined at the conclusion of this case are hereby levied for the administrative recovery of the costs of prosecuting and Investigating this matter.Costs will continue to accrue until compliance It achl ved and case is dosed. Furthermore,the Respondent(s)shall comply with those Code(s)referred to in the Notice of Violation/Notioe of Hearing on or before # ("THE COMPLIANCE DATE'). ( In the event the violations)were or are not corrected on THE COMPLIANCE DATE PREVIOUSLY ORDERED or on THE COMPLIANCE DATE SET FORTH HEREIN,fine(s)in the dollar amount of: $ �30' .3•/o/ y� � �DD� d � Doan 1936270 Bkn 2632 PgN 1803 for each day beginning on THE DAY AFTER THE COMPLIANCE DATE that the Respondents)Islam in violation islam hereby ORDERED. (/one-time fine of$ � 1�-4690. 400 is ORDERED,and the violation(s)Were found to be irreparable or irreversible and repeat ( ) It is further ordered,that the County is hereby authorized to make all reasonable repairs which are required to bring the property Into compliance and charge the respondent(s)with cost of repairs including administrative recovery of the casts of prosecuting and investigating this matter. IT IS THE RESPONDENT(S)RESPONSIBILITY TO REQUEST A REINSPECTION TO DETERMINE WHETHER THE PROPERTY IS COMPLIANT BY CALLING CODE COMPLIANCE AT (30514534MM FOR THE UPPER KEYS•(305)289.2810 FOR THE MIDDLE KEYS:(3051292.4495 FOR THE LOWER KEYS. In the event of nonpayment of fines and/or costs Imposed on RespondeAs),a certified copy of this Order may be recorded in the public records and shall thereafter constitute a Alen against the land on which the violation or violations exist and upon any other real or personal property owned by the violator.The County may institute foreclosure proceedings if the Alen remains unpaid for three months and/or may sue to recover money Judgment for the amount of the lien plus accrued Interest.Please make checks payable to Monroe County Code Compliance and mall to:Monroe County Code Compliance,Attn:Office of the Liaison,2798 Overseas Hwy.,Suite 330,Marathon,FL 33050. ( ) The Respondents)were in violation of the MONROE COUNTY Code(s)as fully set forth in the Notice of ViolationlNotloe of Hearing filed in this case and did not come into compliance on or before THE COMPLIANCE DATE but are now in compliance.The Respondents)shall pay the total amount of cost and/or fines($ )to Monroe County Code Enforcement within thirty(30)days of this Order. (VI T DATED this day of ii 20 � � . b II ohn G.Van in i _ t_ Page 1 of 2 FINAL ORDER PAGE 2 CASE NUMBER: CE11090038 Respondent(s)mailing address of record with the Monroe County Property Appraiser's Office: SANCHEZ DALIA AND GILBERT LUIS 12640 VIRTUDES ST DocN 1936270 CORAL GABLES,FL 33156-6350 BkN 2632 PNN 1804 Location of Subject Property: 224 TARPON ST TAVERNIER, FL 33070 RE NUMBER: 00506710000200 APPEAL PROCEDURES Respondent(s) shall have 30 days from the date of the foregoing Order of the Special Magistrate to appeal said Order by filing a Notice of Appeal, signed by the Respondent(s). ANY AGGRIEVED PARTY, INCLUDING MONROE COUNTY, MAY HAVE APPELLATE RIGHTS WITH REGARD TO THIS ORDER PURSUANT TO SECTION 162.11, FLORIDA STATUTES. ANY SUCH APPEAL WILL BE LIMITED TO APPELLATE REVIEW OF THE RECORD CREATED BEFORE THE SPECIAL MAGISTRATE. ANY APPEAL MUST BE FILED WITH CIRCUIT COURT WITHIN 30 DAYS OF THE EXECUTION OF THIS ORDER. CERTIFICATE OF ORDER I ligreby certify that this is a true and correct copy of the above Order. Nicole M. Petrick, Liaison CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Order has been furnished to the Respondent(s) via hand delivery / first class U.S. mail to Respondent(s) address of record with the Monroe County Property Appraiser's Office as referenced above and/or Authorized Representative on this day of ,20_/ Nicole M. Petrick, Liaison PAGE 2 of 2 MONROE COUNTY OFFICIAL RECORDS BEFORE TMe COUNTY CODE ENFORCEMENT SPECIAL MAO. .RATE MONROE COUNTY,FLORIDA MONROE COUNTY FLORIDA. ) 0/1J1 Petitioner, ) Case No.CE� Ilez VS. ) Subject Property Real Estate Number. e:2 S '7/2- �31� ���s > DocN 1826387 03/07/2011 9:00RM 1 Filed 8 Recorded In Official Records of 1 MONROE COUNTY BMW L. KOLHRGE ��cuc�iez DooN 1826387 Respondent(s). 1 Skill 2807 P9N 631 FINAL ORDER Having fully considered the evidence presented at hearing,Including testimony of the Code Enforcement Inspector(s)and/or witnesses under oath,the following Findings of Fact and Conclusions of Law are ORDERED: The Res dent(s) and/or Authorized RepresentativeX.7,7ed t�J��♦ a"�Q��«Pn� '�'� n ��"�7 AgEI&MMgWresent and did ntest the violations)set forth in the Notice of Moiaflon/Notice of Hearing which is Incorporated herein as if fully set forth. (y�The Respondents)(stare the owners)of property located within Monroe County and waslwere duly noticed of the hearing.The Respondent(s) istare In violation of the Monroe County Code(s)as fully set forth In the Notice of ViolationlNotice of Hearing filed in this case and pursuant to Section 162.07 of Florida Statutes costs in an amount to be determined at the conclusion of this case are hereby levied for the administrative recovery of the costs of prosecuting and Investigating this matter.Costs will continue to accrue until compliance is achieved and case is closed. FurthWmore,,the Respondent(s)shall comply with those Code(s)referred to in the Notice of Violation/Notice of Hearing on or before ("THE COMPLIANCE DATE"). (71, e event the violation(s)were or are not corrected on THE COMPLIANCE DATE PREVIOUSLY ORDERED or on THE COMPLIANCE DATE SET FORTH HEREIN,fine(s)in the amount of: $ - x .S'd0. DD Q- 23dd.d a3-7a. $ �'oo• dv for each day beginning on THE DAY AFTER THE COMPLIANCE DATE that the Respondent(s)Ware in violation islare hereby ORDERED. Wl'sone time fine of$ 0 of,d DO.O D is ORDERED,and the condition causing the violation(s)is found to present a threat to the public health,safety and welfare. It is further ordered,that the County is hereby authorized to make all reasonable repairs which are required to bring the property into compliance and charge the respondent(s)with cast of repairs Including administrative recovery of the costs of prosecuting and investigating this matter. IT IS THE RESPONDENT1131 RESPONSIBILITY TO REQUEST A REINSPECTION TO DETERMINE WHETHER THE PROPERTY IS COMPLWNT BY CALLING CODE ENFORCEMENT AT (3051453-8806 FOR THE UPPER KEYS(3051289.2810 FOR THE MIDDLE KEYS:113051292-W FOR THE LOWER KEYS. In the event of nonpayment of fines and/or costs Imposed on Respondenl(s),a certified copy of this Order may be recorded In the public records and shall thereafter constitute a Ilan against the land on which the violation or violations exist and upon any other real or personal property owned by the violator.The County may institute foreclosure proceedings B the Ilan remains unpaid for three months and/or may sue to recover money judgment for the amount of the Ilan plus accrued Interest Please make checks payable to Monroe County Code Enforcement and mail to:Monroe County Code Enforcement,Attn: Office of the Liaison,2798 Overseas Hwy.,Sults 330,Marathon,FL 33050 (7 e Respondent(s)were In violation of the MONROE COUNTY Code(s)as fully set forth In the Notice of Vlolation/Notice of Hearing filed In this case andgWx,9t come Into compliance on before THE COMPLIANCE DATE but are now in compliance.The Respondent(s)shall pay the total amount f c nd/or flnea($ ,, Ddr. 3Y 1 to Monroe County Code Enforcement within thirty(30)days of this Order. ( .S 6 DS ce.17 / C � D QODDOo'i D DATED this,_day of J hn G. la h I il Magistrate Page 1 of 2 FINAL ORDER PAGE 2 CASE NUMBER: CE10080044 Respondent(s)mailing address of record with the Monroe County Property Appraiser's Office: SANCHEZ DALIA AND GILBERT LUIS 12640 VIRTUDES ST Doep 1826387 CORAL GABLES, FL 33156-6350 Skp 2307 PoN 832 Location of Subject Property: 224 TARPON ST TAVERNIER, FL 33070 RE NUMBER: 00506710000200 CERTIFICATE OF ORDER I hereby certify that this is a true and correct copy of the above Order. Nicole M. Petrick, Liaison CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of this Order has been furnished to the Respondent(s) via hand delivery / first class U.S. mail to Respondent(s) address of record with the Monroe County P operty Appraiser's Office as referenced above and/or Authorized Representative on this I�Zp W day of �20__hl . Nicole M. Petrick, Liaison PAGE 2 of 2 MONROE COUNTY CODE ENFORCEMENT SPECIAL MAGISTRATE DocU 1826387 Monroe County Code Enforcement Bkq 2507 PqN 833 Petitioner vs. Case Number: C6,196 Gtl r#rr*,01s 404,11%aftf#n hez Respondent(s) STIPULATION TO CODE VIOLATION AND FOR TIME TO COMPLY FOR FIRST TIME OFFENSES In the matter of: Re#00100110-000200 Gilbert Luis and DWb to z(hereinafter referred to jointly and severally as "Respondent(s)") and Monroe County Code Enforcement ("Petitioner"), by and through the undersigned individuals, hereby agree and stipulate to the following: 1. Respondent(s) agrees that I/we received the Notice of Hearing issued in this case, and that a hearing is scheduled to be heard on J400AWSm , - to determine whether the charges alleged in the Notice of Violation and Notice of Hearing are accurate and supported by substantial evidence ("Hearing"). 2. Respondent(s) agrees that the violation(s) existed as alleged in the Notice of Violation which was served in this matter. Respondent(s) understands that he/she could appear at the Hearing and contest any evidence to be submitted by Code Enforcement. However, by entering into this Stipulation, Respondent(s) understands and agrees that: C\Documents and Settings\peterson-denist\My DocumentASTIPULATION CE100800444oc av �o an a N ul v (a) He/she need not appear at the Hearing, but instead, stipulates to entry w �m of the finding against Respondent(s); and a '' m w (b) Any evidence in the Code Enforcement file will be deemed the record in the case; and (c) He or she waives the right to appeal any finding of violation or order that he or she would otherwise have under Section 162.11, Florida Statutes. 3. The parties agree that the violations cited: 23-72 and 1344(k)(1) will be checked for compliance on January 17y 2011. 4. The Respondent(s) understand that the use of this property as a short term vacation rental is a threat to public health, safety and welfare and the violations are irreparable and irreversible in nature; therefore, a one time fine of 2 0 is payable on or before January 1?7, 2Q'11 and will immediately cease and desist all short term vacation rentals. Violations 130-83(b)and 6}2?lb)(2)(1). 5. The Respondent(s) understand that failure to comply within the time given in paragraph 3 and 4, a fine of$2000.0.0 per day shall accrue as follows: 6-27 (b)(2)0) $500.00 per day 130-83(b) $500.00 per day 134-1 (k)(1) $600.00 per day 23-72. $500.00 per day 6. The Respondent(s) agree to pay all costs incurred in prosecuting the case within 30 days of the compliance date set forth in paragraph 3. 7. This Stipulation Agreement shall be recorded as a lien against the subject property and upon any other real or personal property owned by the C)Documents and Settings\petemon-denise\My Documents\STIPULATION CEI0080044,doc 2 ao v xo Respondent(s) if the costs and one time fine are not paid within the time period set forth N a wr t9 a in paragraph 3, 4 and 6. w v on 1 � 8. Respondent(s) agrees and represents that Respondent(s) a m w entered into this Stipulation of the Respondent(s)'s own free will. Respondent(s)further understands and agrees that he/she has the right to consult with counsel prior to signing this Stipulation, and has done so or has elected to waive this right. 9. The parties understand and agree that the Respondent(s) may revoke this Stipulation and that such revocation must be done in writing or done in person with Denise Pttemort by the end of business January 10,2011. CADDcuments and Settings%peterson-denise\My Documents\STIPULA'I'ION CEI0080044.doc 3 DoeN 1826387 8kN 2307 PIN 836 By signing this Stipulation, both parties represent that they have READ, O D, AND NSENT to ' e1'rrls and conditions. Si pondent(s) / Date t Z Signature of Petitioner/ Date Print Name �n, —T�etn ise..�e�.rson STATE OF n Q n dA Print Name COUNTY OF_ AAi(Ai bO afi STATE OF /�OI/O/jg PERSONALLY APPEARED BEFORE ME,the COUNTY OF L undersigned authority, PERSONALLY APPEARED BEFORE ME,the na l i& S mbkl t 2- who,after undersigned authority, first being sworn by me,affixed his/her signature (name of individual sing)in t e space provided /Y���C �Q"f who,after above on this 17 day of 20 11 first being sworn by me,affixed his/her signature e of individual signing)in the s ace provided Notrury Publk State wFro ; is 1�—day of .tA. 20 N A Y P Jennifer Sorondo L C �� , My Commission EE051250 a Erna 1212e12014 My commission expires 12- ZLO or APTBLI My commission expires /'P//Z 20/3 Si�gnatur nt(s) Date lidery Pubd�Sttait�eRof Florida Print name my Conlin.Expired Dec 12,2013 CW Mietton 100 917M %jM TArotolo NAUONI Notary inn. STATE OF SOY G(Ol COUNTY OF PERSONALLY APPEARED BEFORE ME,the undersigned authority,, c,I i bu swthez- who,after first being sworn by me, affixed his/her signature (name of individual signing)in e&sace provided above on this f 7 day ofi��� 0k MONROE COUNTY NOIARY P C OFFICIAL RECORDS 94g;g C\Dnts\STIPULAT70N CE10080044.doc 4 IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR MONROE COUNTY APPELLATE DIVISION CASE NO: 12-AP-1-P 12-AP-7-P (CONSOLIDATED) 12-AP-3-P (CONSOLIDATED) 12-AP-4-P (CONSOLIDATED) SUNSET POINT BEACH, LLC, Appellant Vs. MONROE COUNTY, FLORIDA, Appellee APPELLATE OPINION In this consolidated appeal, Appellants seek review of final orders entered by the Monroe County, Florida Code Enforcement Special Magistrate, which cases have been consolidated for purposes of briefing and oral argument. Appellants challenge the findings made by the Code Enforcement Special Magistrate with regard to their properties, which are located in Monroe County, Florida, and each of which were cited by the County for violation of the Monroe County Ordinance which prohibits the rental of property for periods of less than 28 days in certain zones, or without the correct licensing. The procedural history of these cases is simple. Appellants did not contest the allegations of the Code Enforcement officers, whereupon the Special Magistrate found violation in each case, assessed fines and ordered an immediate cease and desist to the rental of the subject properties for periods of less than 28 days. Appellants now suggest, on appeal, that the Special Magistrate misapplied the law by finding the violations to be "irreparable" or"irreversible" in nature, as a predicate to the level of fines imposed and issuance of the cease and desist orders. First, it should be noted that the law generally does not allow argument on appeal of matters which were not properly accepted to or challenged before the administrative agency in question, and thus were not preserved for appellate review. See Kantor v. School Board of Monroe County, 648 So.2d 1266 (Fla. 31d DCA 1995), and cases cited therein. Appellants did not challenge the factual presentation made by the County, nor did they introduce any evidence of their own. They did not suggest to the hearing officer that the County's unrebutted evidence was insufficient to support a finding that the violations were "irreparable" or"irreversible" in nature. Accordingly, they are generally foreclosed from seeking relief in the appellate division of the circuit court. Moreover, Appellants' suggestion that the appellate division finds that the Special Magistrate erred in applying the terms "irreparable" and "irreversible" in the context of this case, has no support in the record or in the law. It is axiomatic that a violation which cannot be cured or remedied is "Irreparable" or"irreversible" in nature. For example, a pile of brush improperly left on a right of way can be remedied by removal of the brush, and an electrical circuit which is wired incorrectly under the code can be remedied by a correction of the wiring. However, the unlawful rental of real estate on a transient basis, once the rental has been completed, is not curable. It is, by definition, irreparable or irreversible, because the violation, that is the unlawful renting, has been completed in its entirety and no action can be taken to undo that. It is specious to suggest that refraining from future violations would somehow constitute a cure or remedy a violation in this context. Accordingly, the orders appealed from are hereby AFFIRMED. DONE and ORDERED at Key West, Monroe County, Florida, this 24t' day of September, 2013. David J. Audlin, Jr. DAVID J. AUDLIN, JR. CHIEF JUDGE cc: Steven T. Williams, Esq, Assistant County Attorney Andrew M. Tobin, Esq.