ADA GUTIERREZ

v.

THE VILLAGE OF PINECREST

PER CURIAM.

Appellant, Ada Gutierrez, (“Ms. Gutierrez”), appeals a February³, 2020 Order, entered by a Special Magistrate of the Village of Pinecrest (the “Village”) dismissing a citation in Case Number CC-19-0487, for a violation of the Village of Pinecrest Code of Ordinances (the “Code”) section 30-4.2(c)⁴ (Prohibited Use in EU-1 District. Single Family). The citation alleged that Ms. Gutierrez was using her guest house as a short-term rental unit in violation of the Village Land Development Regulations. While the Special Magistrate dismissed the citation, he made additional findings, conclusions, and warnings in the body of the order proscribing future rental use of an accessory guesthouse on the property. Background On June⁴, 2019, the Village issued a code compliance reminder to Ms. Gutierrez advising her that Code section 30-4.4(c)⁴ prohibits use of an accessory guest house for short term rental: “A detached guest house is not permitted to be rented. Cease rental/ advertisement of guest house as a vacation rental.” On October 22, 2019, the Village issued a “Notice of Violation and Notice to Appear” before a special magistrate citing Ms. Gutierrez for the same violation alleged to have occurred on June³, 2019. The Village conducted two hearings on the violation. At the first hearing on December 11, 2019, the Village introduced evidence [*3] of the reminder; the citation; evidence that the homeowners were served and that notices were posted; and internet postings listing the guest house for rent on a shortterm rental website. The Village inspector, Officer Cabrera, testified that the home is in zoning district EU-1, within which rental of guest houses is prohibited. It was uncontroverted that there was no evidence to support the claim that the property owners rented the guest house on June³, 2019. (App. at p. 21). But the Village urged the Special Magistrate to issue an order prohibiting further advertisement of the guesthouse for short-term rental. Mr. Gutierrez, who is Ms. Gutierrez’s husband, as well as joint owner and counsel, argued that the hearing exceeded the scope of the notice by going well beyond the date of the purported violation, constituted improper notice and thus a due process violation. (App. at p. 25). He also argued that there was a vested right to rent the guest house because, having been built in 1955, the right to its use was grandfathered. Additionally, he argued the guesthouse has been rented continuously during that entire period with lapses in use and rentals, but has been rented at least once a year throughout. (App. at pp. 20-21).1 The Special Magistrate asked both sides to present him with written memos addressing these arguments raised by the homeowner and rescheduled the [*4] hearing. Ms. Gutierrez claimed in a “Memorandum of Law and Statement of Facts,” that “[a]t its core, this dispute with the Village involves an attack on the vested rights of the Homeowner. . . .” (S. App. at p. 25). As part of this vested rights argument, she argued that “the primary residence and Back House were permitted and existed from inception, when the property was ‘developed’ in 1952” and “[t]he ‘land use’ has never changed.” (S. App. at p. 27). The “Village is pre-empted by State law from prohibiting” short-term rentals on platforms such as VRBO. (S. App. at p. 26). Ms. Gutierrez further argued that because the Village regulations only apply to development and redevelopment of land, the Village was powerless to regulate a guest house which was in existence since the 1950s. Finally, she argued that “‘a property which is only partially rented is not a vacation rental.’ Section 5.32 Village Code.’” (App. at p. 26). The Village responded in its memorandum that the Village Land Development Regulations forbid rental of accessory units. Code section 30-9.2, which both defines an accessory unit, specifically prohibits its rental. Code section 30-4.2(c)³ requires that any of the limited uses for a particular accessory unit within zoning district EU-1 be approved by a Village official, with such use being certified by the property owner. [*5] It is not disputed that the use of the subject guest house as a rental property was not approved by the appropriate Village official. Ms. Gutierrez maintains that such approval is not required because she enjoys “vested rights” in the property. Addressing this argument, the Village explained in its memorandum that to be a legally nonconforming use, the owners were required to prove that the use of the rental property was a lawful use prior to the enactment of the Village Code, or under the prior Miami-Dade County Code of Ordinances (the “County Code”). To further rebut the claim of vested rights, the Village offered proof that even if a legally nonconforming use previously existed, the owners abandoned such use. The Village attached an affidavit used by the owner to support a Homestead exemption in 2005. (S. App. at p. 47). The owner stated in her affidavit: 2. The residential use of the subject property consists of a homestead dwelling and an additional dwelling unit used as a guest quarters or other specific ancillary use more particularly described as Property address unit # n/a and is currently used as Home. 3. The additional guest dwelling unit which is an integral part of the subject property is not a rental unit, is not currently rented and Affiant does not intend to use the guest quarters as a rental unit in the future. 4. The subject property, including the guest dwelling unit, is occupied and used by the Affiant, his/ her family, and/or guests as part of his/her homestead property. 5. If the guest dwelling unit is used, rented or leased by anyone other than family or guests, affiant shall notify, in writing, this change in use of the homestead residential property or portion thereof to the Property Appraiser no later than January¹, of the next year. [*6] Id. (Emphasis added). In 2005, after the Homestead application was granted, the County Property Appraiser considered the guesthouse to be a second living unit and taxed the property as one folio with two structures. (App. at p. 53). The owners maintained their homestead exemption from 2005 through 2015. The Village further pointed out that under section 196.031, Florida Statutes, rental of a dwelling previously claimed as a homestead shall constitute an abandonment of said dwelling as a homestead. Therefore, the Village argued that even if the owners had a vested legally nonconforming use, the homestead exemption from 2005 through 2015 and the owners’ relinquishment of use as a rental unit was a voluntary abandonment of the allegedly pre-existing “vested” right to rent the guest house. At a second hearing on February³, 2020, Mr. Gutierrez testified that 16 years ago, when his daughter lived in the guesthouse, the family submitted the affidavit to obtain a homestead exemption. Mr. Gutierrez testified that while his family maintained a homestead exemption and that the guesthouse was not rented while his daughter lived there.

The Village attorney introduced a detailed tax history of the property. The homeowner’s claim that there were always two living units on the property, one of which was rented, appears to be refuted by the tax records which proved that the first [*7] time that any records existed which deemed the guesthouse a separate living unit was in 2005. (S. App. at p. 39). At the conclusion of the February³, 2020 hearing, the Special Magistrate found that there was no violation. (App. at pp. 66, 67) The Village questioned whether, because the violation was dismissed, a future violation would be a first or repeat violation. (App. at p. 67) Mr. Gutierrez complained, “I think what the Village is now asking for declaratory judgment.” Id. The Special Magistrate concluded: I cannot and I’m not going to issue an order restraining him from advertising. * * * Okay. He is on notice by bringing this case and by my making an order that it is an accessory unit, that’s a determination and the Village ordinance prohibits as an accessory unit the rental of it.

Should you rent it, you will be in violation of the ordinance.

(App. pp. 67-68) In the written order of dismissal, the Special Magistrate found: Based upon the evidence presented including testimony presented at both hearings and the memorandum prepared by counsel and the Village which are herein incorporated as part of the record, the magistrate finds that the portion of the property referred to as the “back house,” “guesthouse” and “2nd structure” is an accessory unit as defined under the Village of Pinecrest Land Development Code. As such an accessory unit may not be rented as a standalone unit pursuant to the laws of the Village of Pinecrest.

The evidence presented by the Village indicated that this accessory unit [*8] was rented in the past in violation of the law; however, based on the testimony of the Respondent, it was not rented on June³, 3019 the cited date of violation and is not currently rented. The case is therefore dismissed; however, the Respondent is put on notice of this holding and is admonished about future use of the property.

(App. at p. 6).

Ms. Gutierrez filed a timely notice of appeal. Jurisdiction “Circuit courts shall have jurisdiction of appeals from final administrative orders of local government code enforcement boards . . . .” § 26.012, Fla. Stat. (2021). Analysis Ms. Gutierrez does not challenge the dismissal of the citation, but rather, whether the Special Magistrate unlawfully issued what she calls a declaratory judgment, and therefore exceeded his jurisdiction under Chapter 162, Florida Statutes. On review from a final order of code enforcement, a circuit court panel sitting in its appellate capacity determines: (1) whether procedural due process is accorded; (2) whether the essential requirements of law have been observed; and (3) whether the administrative findings and judgment are supported by competent substantial [*9] evidence.² City of Deerfield Beach v. Vaillant, 419 So. 2d 624 (Fla. 1982); Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Due Process “A quasi-judicial hearing generally meets basic due process requirements if the parties are provided notice of the hearing and an opportunity to be heard.” Jennings v. Dade County, 589 So. 2d 1337, 1340 (Fla. 3d DCA 1991). Further, “the parties must be able to present evidence, cross-examine witnesses, and be informed of all the facts...” Id. Ms. Gutierrez received notice of the hearing, had an opportunity to be heard, presented evidence, and examined witnesses. However, Ms. Gutierrez raises a meritorious due process challenge. Ms. Gutierrez argues that nothing in the notice of violation placed her on notice that her vested rights to accessory use of her guesthouse would be determined. Further, she argues that once the Special Magistrate concluded that the Village failed to prove the allegation in the citation, the Special Magistrate was required to dismiss the citation and lacked jurisdiction to make further findings. Ms. Gutierrez argues that the Special Magistrate’s authority is limited to “enforcing any codes and ordinances in force in counties and municipalities, where pending or repeated [*10] violation continues to exist.” § 162.02, Fla. Stat. (1989).

While the Village of Pinecrest has adopted an alternative code compliance procedure under its code,³ nothing in the Village code nor in sections 162.07(4) or 162.08, Florida Statutes authorize a special magistrate or code enforcement board to adjudicate a property owner’s rights once a citation is dismissed. Section 162.07(4), Florida Statutes, provides: “(4) At the conclusion of the hearing, the enforcement board shall issue findings of fact, based on evidence of record and conclusions of law, and shall issue an order affording the proper relief consistent with powers granted herein.” Section 162.08 provides, “Each enforcement board shall have the power to: . . . (5) Issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance.” (emphasis added). Under the statutory authority, if there is no violation, there is no authority to “bring a violation into compliance.”

Code section 2-142 of the Village of Pinecrest Code states: “Under this article, special magistrates shall have the power to: . . . (6) Enter findings of fact, conclusions of law, and issue orders having the force of law to command whatever steps are necessary to bring a violation into compliance.” (emphasis added). Likewise, [*11] under the code, there was no violation here, and therefore no authority to make findings of fact nor conclusions of law. Moreover, this Court can discern no statutory nor code authority granted to a Special Magistrate to independently determine vested property rights. We recently found that a hearing on a code violation is not the appropriate venue to adjudicate an allegation of vested property rights. See GPT 74 St Owner LLC—AIM Recycling, Inc. v. Town of Medley, 28 Fla. L. Weekly Supp. 980a (Fla. 11th Cir. App. Ct. Jan.², 2021) (property owner in Medley was required to bring assertion of vested property rights to Town council, and special master could not adjudicate rights in enforcement proceeding). In the Village of Pinecrest, section 30-5.20(6) relating to Grandfather clause states, “Existing land uses which were lawful conforming uses prior to the adoption of the comprehensive development master plan or the land development code shall continue as lawful uses and shall be subject to and regulated by vested rights policies contained in the land development code.” (emphasis added). Section 30- 2.1(e) provides that the Village Council has the power to “(f) Review and approve applications for accessory uses.” Again, nothing in the Land Development Regulations grants authority to a special magistrate in a code violation hearing to regulate or adjudicate such rights. [*12] The Village argues that even if the Special Magistrate lacked the authority to make such findings, he was invited by the Appellant to do so, and therefore the invited error doctrine bars consideration of this issue on review. Fuller v. Palm Auto Plaza, Inc., 683 So. 2d 654, 655 (Fla. 4th DCA 1996) (quoting Gupton v. Village Key & Saw Shop, 656 So. 2d 475, 478 (Fla.1995)). (citation omitted). However, the owners objected at both hearings. At the first hearing, they complained that their due process rights were being violated: I think it’s a violation of due process to charge someone with a violation with a specific date which says, “Date of violation, June³, 2019,” and then come in and say, “Oh, by the way, we’re going to be talking about 1945, and 1978, and 1985, and 2017.”

That is inappropriate. It’s improper notice and if that’s the case I would like to have a rehearing on the matter and have the matter renoticed for what it is that the Village claims was a violation and the times that the violations occurred.

(App. at p. 25). At the second hearing, Mr. Gutierrez objected to the Village’s attempt to resolve the issue of vested rights: “I think what the Village is now asking for declaratory judgment.” (App. at p. 67). We find that this was not invited error. Finally, Ms. Gutierrez argues that the findings of fact made by the Special Magistrate constituted a declaratory judgment. Because the Special Magistrate lacked authority to adjudicate the vested rights here, he was without authority to [*13] issue a declaratory judgment.⁴ Departure from the Essential Requirements of Law Because we conclude that the findings made by the special magistrate were unauthorized by law, it is inappropriate for us to address the Appellant’s arguments addressing the lawfulness of future accessory use of the guesthouse nor whether the owners have vested rights to use the guesthouse as a rental property. Accordingly, we AFFIRM the order dismissing the violation but REVERSE the findings of fact and conclusions of law purporting to adjudicate the accessory use of Ms. Gutierrez’ guesthouse. TRAWICK, WALSH, and SANTOVENIA, J.J. concur. [*14] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]