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Item Q4 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 Grammer 305-292-3470 AGENDA ITEM WORDING: Approval to file an action in Circuit Court seeking an injunction to compel the property owners Leland D.Egland and Kristy Redlich 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 43 South Bounty Lane,Key Largo,Florida. ITEM BACKGROUND: On May 24, 2012 a vacation rental inspection conducted by the Code Compliance Department at the subject property confirmed that the property, which was homesteaded, was being rented as a short term rental of less than 28 days and case number CE12030097 was opened by the Code Compliance Department. The case was scheduled for a Special Magistrate hearing on July 19, 2012.The property owners did not appear at the hearing. Per the final order signed by Special Magistrate John Van Landingham, the property owners Leland D. Egland and Kristy Redlich were to immediately cease and desist the occupancy of the subject property until roof repairs were completed and inspected per Monroe County Code and were to immediately cease and desist the rental of the property for less than 28 days. Daily fines in the amount of$1,000.00 per day per violation were ordered if compliance was not achieved on or before the compliance date established by the Special Magistrate. Additionally a one time fine in the amount of$12,000.00 was ordered by the Special Magistrate because of the irreparable and irreversible nature of the violations. The property owners gained compliance on the violation of MCC Section 130-83(b) (renting the subject property for less than 28 days) but did not gain compliance on the advertising violation (MCC Section 134-1(k)(1). The property continues to be advertised for rentals of less than 28 days. This case remains open for non-compliance, lack of payment of fines, the one time fine and costs.The County's lien was filed. The property owners appealed the Special Magistrate's 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" that the Circuit Court finds 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 P 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. P:\BOCC ITEMS\AIS Egland 43 South Bounty Lane.docx 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 Atty OMB/Purchasing Risk Management DOCUMENTATION: Included Not Required, DISPOSITION: AGENDA ITEM# Revised 7/09 P:\BOCC ITEMS\AIS Egland 43 South Bounty Lane.docx BEFOhAE COUNTY CODE COMPLIANCE SPECIAL MA,,1IRATE MONROE COUNTY,FLORIDA MONROE COUNTY FLORIDA, I Petitioner, I Case No.CE Z, 34097 I VS. I jSubject Property Real Estate Number: I DocN 1936269 06/07/2013 4:04PN I riled & Recorded in Official Records of I MONROE COUNTY AMY HEAVILIN 1 I Respondent(s). I 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 Respondents)and/or Authorized Representative we re no resent and d did not contest the violation(s)set forth in the Notice of Violation/Notice of Hearing which is incorporated herein as if fully set forth. ( The Respondent(s)islare the owner(s)of property located within Monroe County and waslwere duly noticed of the hearing. ( /The Respondent(s)islare in violation of the Monroe County Code(s)as fully set forth in the Notice of Violation/Notice of Hearing served upon the Responden s). (: The violations)is found to be irreparable or irreversible and a one-time fine of$ a,n,Q D, e20 Is ORDERED,payable within days of this Order. (Pursuant to Section 162.07(2)of Florida Statutes all costs Incurred by the County In prosecuting the case Is ordered to be paid within thirty(30)days of compliance. Costs will continue to accrue until compliance is achieved and the case Is closed. 8 /ff off (-THE (4The Respondent(s)shall comply with the Code(s)referred to in the Notice of Violation/Notice of Hearing on or before COMPLIANCE DATE'). (,�In the 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 dollar amount of: $ 60-10 62 el DocN 1936269 BkN 2632 PgN 1801 for each day beginning on THE DAY AFTER THE COMPLIANCE DATE that the Respondents)islare in violation islare hereby ORDERED. ( ) It is further ordered,that the County is hereby authorized to make all reasonable repairs including demolition which are required to bring the property into compliance and charge the Respondent(s)with the cost of repairs incurred by the County,the costs of prosecution incurred by the County and any fines Ordered in this matter. ( ) The Respondents)were in violation of the MONROE COUNTY Code(s)as fully set forth In the Notice of Violation/Notice 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 Compliance within thirty(30)days of this Order. �mmediate Cease and Desist"the Occupancy of the subiect property until roof repairs have been completed and inspected per Monroe County Code Immediate Cease and Desist the rental of the subiect property for less than 28 days. The compliance date indicated above is only aDDlicable to the charges of 134 1(k)(1). In the event of nonpayment of fines and/or costs Imposed on Respondent(s),a certified copy of this Order may be recorded In the public records and shall thereafter constitute a lien 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 lien 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 mail to:Monroe County Code Compliance,Attn:Office of the Liaison,2798 Overseas Hwy.,Sulte 330,Marathon,FL 33050. IS T RE PO ENT S ESPONS BI (TY Ip IlEgLUEST A RE18§13ECTION TO DETERMINE HE R E IS MPL' 8 C NG 0 CO L CE T 0 4 THE UPPER KEYS (3051289 2810 FOR THE MIDDLE KEYS•(3051292.4495 FOR THE LOWER KEYS. DATED this 771 day of 20 /a r John G an Lan I Me Istra a Page 1 of 2 r FINAL ORDER PAGE 2 CASE NUMBER: CE12030097 Respondent(s) mailing address of record with the Monroe County Property Appraiser's Office: EGLAND LELAND D DocN 1936269 43 SOUTH BOUNTY LANE BkN 2632 PgN 1802 KEY LARGO, FL 33037 Location of Subject Property: 43 S BOUNTY LN KEY LARGO, FL 33037 RE NUMBER: 00496131003400 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 hereby certify that-this is a true and correct copy of the above Order. 01 0 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 h/G� on this go Xy day of %.7 ,20 r Nicole M. Petrick, Liaison PAGE 2 of 2 MONROE COUNTY OFFICIAL RECORDS r 1 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 fwith 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 a 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. 3ro 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 9 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. Audlij Jr. DAVID J. AUDLIN, JR. CHIEF JUDGE cc: Steven T. Williams, Esq, Assistant County Attorney Andrew M. Tobin, Esq.