CRISTINA HERNANDEZ

v.

CITY OF MIAMI CODE ENFORCEMENT BOARD

PER CURIAM

Appellant Cristina Hernandez owns a house located at 2222 SW 17th Street in the City of Miami. David Winker, Appellant’s husband, also lives in the home. These proceedings were initiated in response to neighbors’ anonymous complaints that unpermitted work occurred at the Hernandez property and that David Winker was operating his law practice at the Appellant’s home without a certificate of use. (App. 23, 60) A code inspector investigated the allegations in the complaints and cited the owner for six violations.¹ The Notice of Violation listed the following violations: 1. VIOL REF #2272- Home occupation without a Certificate of Use and/or failure to follow the requirements for a home occupation business. Miami 21 section 6.1 2. VIOL REF #2111-Failure to obtain a valid certificate of use for the type of business being conducted. Miami 21 section 7.1.1.1.(b). Miami 21 Article 4 table 3. City Code 2-207 3. VIOL REF #2151- Failure to obtain a business tax receipt for operation of a for-profit business. City Code Chapter 31. 4. VIOL REF #2172-Illegally operating a business in a residential zone. Miami 21 Art. 4 Tbl 3. Art 6. 7.1.2. 5.VIOL REF #2104- Work performed without a permit and/or permit not finalized. City Code Sec 10-3 (FBC 104,105) Miami 21 section 7.1.2. 6. VIOL REF #2113- Illegal Units. Miami 21 1.1. ART. 4 table³&4.

[*3] On August 16, 2020, Mr. Winker mailed a letter to the Department denying the alleged violations and purporting to seek to resolve them. Code Enforcement never responded to the letter. The violations were not corrected, and on January 8, 2021, Code Enforcement notified Appellant by letter of six continuing violations. On the same date, Code Enforcement posted on Appellant’s home a notice to appear for a hearing scheduled for January 19, 2021. The hearing was continued until February 10, 2021. (App. 49) February 10, 2021 Hearing Non-attorney Bob Powers represented Ms. Hernandez at the hearing. Mr. Winker was not present. The following evidence was presented: Evidence on Unpermitted Unit The property contains two structures: a main residence and a separate smaller structure, referred to as structure “B” on the tax records. The inspector went to the property and observed that a freestanding unit was illegally expanded and converted from an open garage into a one bedroom, one bath living unit. (App. 61) No permits were on file for that conversion. Id. Moreover, the unit was reflected in the tax records as 16 feet wide, and the inspector measured it at 25 feet. Id. The tax records reflect no permits to enlarge structure “B.” (App. 62) The tax records reflect the size of structure “B” as 16.3 by 22.3 feet: [*4] (App. 4). The records of the Property Appraiser reflect that the property contains only one living unit which contains three bedrooms and two bathrooms. (App. 41) The City also introduced a page from the Trulia website listing the property as a 4/3 residence with an additional one bedroom, one bath cottage. (App. 7) The Appellant Ms. Hernandez testified that she bought the house in 2012 complete with a separate cottage on the property. Her mother-in-law currently lives in the unit. (App. 68-69) The inspector explained at the hearing that unfortunately, if the owner bought the property with an illegal unit, the new owner would inherit the violation and would still be required to correct the violation. (App. 69) Evidence on Citations for Operating a Law Office from the Home Four violations pertain to Mr. Winker operating his law office from Appellant’s home at 2222 SW 17th Street in Miami. The inspector testified that when he went to investigate the complaint, he knocked but got no response at the [*5] home. (App. 62)2 A month after the notice of violation was posted, in September 2020, Mr. Winker changed his business address on Sunbiz to 4720 S. Lejeune Rd. in Coral Gables. On the Florida Bar website, Mr. Winker lists his law office address at 2222 SW 17th Street in Miami. (App. 24) Florida for Profit Annual Reports filed by Winker for 2019 and June 2020 list the “principal place of business” for David J. Winker P.A. as 2222 SW 17th St. in Miami. (App. 26-27) The 2018 Articles of Incorporation for David J. Winker P.A. list his principal place of business as 2222 SW 17th Street in Miami and the nature of the business as “LEGAL AND REAL

ESTATE BROKERAGE SERVICES AND ALL OTHER SERVICES THAT CAN

LAWFULLY BE PROVIDED BY AN ATTORNEY AND REAL ESTATE

BROKER.” (App. 28) Mr. Winker obtained his Business Tax Receipts (referred to as BTRs) for the address at 4720 SE LeJeune Road in Coral Gables. (App. 37-40) He obtained no BTRs for the City of Miami. The Inspector testified that the business located at the Coral Gables address was a spine rehabilitation center. Someone working at the facility told the inspector that Mr. Winker receives his mail at that location but does not work there. (App. 63) [*6] In his letter to Code Enforcement, Mr. Winker claimed that he has no home office within the meaning of the ordinance. He also complained in his letter that the BTR ordinance conflicts with public statements of City officials because City Attorney Victoria Méndez purportedly used her home address for her own P.A. (App. 32). Mr. Winker quoted City Attorney Méndez’s alleged public assurances that so long as a City resident maintained a licensed and permitted business elsewhere, they would not be cited for working remotely at home in the City during the pandemic. (App. 33) Facts Pertaining to Selective Prosecution No evidence was presented at the hearing to support Appellant’s assertion that he was targeted for selective prosecution. Mr. Winker did not appear or offer testimony to support this allegation. In his letter, Mr. Winker remarked about the anonymous complainant: Because a large portion [of the anonymous complaint] consists of screenshots of me tweeting news articles about Commissioner Joe Carollo’s recall and other City of Miami issues, it is readily apparent that the dossier was prepared for purposes of political retaliation against me for my work on behalf of City of Miami residents.

There has been substantial media coverage of this case given the evidence of political retaliation – Commissioner Carollo calling me a “scumbag” on NBC6 was a proud moment and resulted in a flood of congratulatory messages from fellow residents – and its broad implications for thousands of people working from home during the pandemic. [*7] (App. 32) Mr. Winker also cited an article from NBC6 in his letter and in his brief. (App. 32; https://www.nbcmiami.com/news/local/anonymous-complaint-leads-toattorney-attempting-to-recall-miami-commissioner-being-cited/2276503/) This article described the case as follows: While telling NBC 6 over the phone, “David Winker is a sc**bag, and you can quote me on that,” Commissioner Joe Carollo says he has nothing to do with the code violation or with the anonymous complaint packet. “It seems like it’s just pure harassment. But do I have any evidence that it’s Joe Carollo? Not at all and I’ve never said it was Joe Carollo. It’s consistent behavior and it’s a hell of coincidence,” said Winker. Many are now working from home during the coronavirus pandemic. The Director of Code Compliance with the city, Adele Valencia, tells NBC 6 inspectors have issued twenty-four code violations for running businesses out of residential homes without having proper paperwork with the city. Code enforcement responds to complaints and the anonymous research packet on Winker was the latest. Valencia tells NBC 6 they treated this as any other case.

Analysis On review from a final order of code enforcement, a circuit court panel sitting in its appellate capacity is tasked with determining: (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 evidence. City of Deerfield Beach v. Vaillant, 419 So. 2d [*8] 624 (Fla. 1982); Haines City Community Dev. v. Heggs, 658 So. 2d 523, 530 (Fla. 1995). Due Process Appellant argues that she was deprived of due process because the City gave her insufficient notice to cure the violations, because the City failed to respond to Mr. Winker’s letter, and because of selective prosecution. “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. The first prong of the test to be considered is whether the Board accorded procedural due process. Generally, “due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgment is rendered.” Richard v. Bank of Am., N.A., 258 So. 3d 485, 487 (Fla. 4th DCA 2018) (citation omitted) Appellant argues that she was given two days to resolve all the alleged violations. See § 2-814(b) (“[I]f a violation of the code is found, the code inspector shall notify the violator in writing and give him or her a reasonable time to correct the violation”) While the Appellant argued that the notice was posted on August 13, [*9] 2020, Code Enforcement introduced a date-stamped photograph showing that the notice was posted on the home on August 6, 2020. (App. at 54) Regardless of what date the notice was first posted, Appellant was not served with a notice of hearing until January 2021. The hearing was continued to February 10, 2021. Therefore, Appellant had six months from the date of posting to cure the violations, and an additional 120 days after the Final Order to comply with the Code. Appellant was not denied due process for insufficient time to cure. Appellant next claims that the prosecution of this code compliance case constituted “selective prosecution,” because it was politically motivated payback for her husband's involvement in other matters against City officials. State v. A.R.S., 684 So 2d 1383 (Fla 1st DCA 1991). Municipalities are generally entitled to sovereign immunity for decisions “when and how to enforce specific laws.” Detournay v. City of Coral Gables, 127 So. 3d 869, 872-873 (Fla 3d DCA 2013). In explaining the concept of sovereign immunity in the context of how a municipality enforces its own ordinances, the court, citing Trianon Park Condominium Association, Inc. v. City of Hialeah, 468 So. 2d 912, 922 (Fla.1985), explained: It bears repeating, however, that the reason courts cannot generally supervise the executive when it is deciding when and how to enforce specific laws is not based on the archaic notion that “the king can do no wrong.” Instead, it is founded on the doctrine of separation of powers, one of the structural pillars upon which American freedoms rest: “[U]nder the constitutional doctrine of separation of powers, the [*10] judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights.” Id. at 918. To hold otherwise, the Court reasoned, “would require the judicial branch to second guess the political and police power decisions of the other branches of government and would violate the separation of powers doctrine.” Id.

Detournay, 127 So. 3d at 872-873. It makes no difference that this case is an appeal of a decision to enforce the code rather than an appeal of a judgment in an independent action. This Court has no power to require the City to prosecute other violators nor to determine that it should not have prosecuted this violation.

Even if “selective prosecution” were a defense to this violation, there is no discernable record from which this Court could make such a finding. A complaint by an anonymous neighbor precipitated the City’s investigation. The complainant appears to have been motivated by personal animus against Mr. Winker. But there was no evidence that the complainant was a City official. The City was obligated to investigate the complaint. Miami 21 section 7.1.1.1(b) The Appellant offers no evidence to the contrary. Even the news accounts which she cites containing Mr. Winker’s statements do not support Appellant’s claim of selective prosecution. Finally, Appellant contends that the City’s failure to respond to Mr. Winker’s August 16, 2020 letter is an additional due process violation. However, there is no Code provision that requires the City to respond to such a letter. Moreover, the letter does not offer to fix or cure the violations; rather, it gives reasons why all the [*11] violations should be deemed unfounded or unenforceable. Upon due consideration of each of Appellant’s claims, this Court cannot find that there was any due process violation. Essential requirements of law In Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 527 (Fla. 1995), the Supreme Court held that “applied the correct law” is synonymous with “observing the essential requirements of law.” Further, to warrant relief, there must be “an inherent illegality or irregularity, an abuse of judicial power, an act of judicial tyranny perpetrated with disregard of procedural requirements, resulting in a gross miscarriage of justice.” Id. (citation omitted). Appellant argues that Board departed from the essential requirements of law because it did not follow the Code provisions requiring that the Appellant be given a reasonable opportunity to correct the violations. Appellant had six months to resolve the violations. There is no departure from the essential requirements of law for failing to give adequate time to cure. Appellant also claims a departure from the essential requirements of law because Appellant is not responsible for the alleged violations. She asserts that Winker has his law office in Coral Gables, not the City of Miami. She maintains that there is no evidence that unpermitted work was performed on Appellant's property [*12] and that no "illegal" units exist. Appellant believes that she was wrongly found responsible for the alleged violations. An argument that the Appellant was not in fact responsible for the violations does not constitute a departure from the essential requirements of law. Other proof supported the violations. Accordingly, there is no basis for Appellant’s assertion that there was a departure from the essential requirements of law. Competent Substantial Evidence The Appellant argues that there was no competent, substantial evidence to support the violations. “Competent, substantial evidence must be reasonable and logical.” Wiggins v. Florida Dept. of Highway Safety and Motor Vehicles, 209 So. 3d 1165, 1173 (Fla. 2017). The test is whether there exists any competent substantial evidence to support the decision maker’s conclusions, and any evidence which would support a contrary conclusion is irrelevant. See Dusseau v. Metro. Dade Cty. Bd. of Cty. Commrs., 794 So. 2d 1270, 1276 (Fla. 2001). In other words, we determine whether there is any competent evidence to support the findings upholding the violations. We do not reweigh the evidence presented.

Of the six cited violations, four pertain to Mr. Winker operating his law office from his home in the City of Miami, and two pertain to an unpermitted unit in the home in violation of City Ordinances. [*13] Operating a Business from the Home Without Certificate of Use The first violation refers to home occupation without a certificate of use or failure to follow the requirements for a home occupation business. Miami 21 section 6.1 Intent and Exclusions, Table 13, pertaining to a Home Office, limits a home office to the following uses: Home Occupations limited to individual tutoring: non-amplified individual instrument instruction; authors and composers; artists; designers; seamstresses; tailors; and uses similar in impact. Office uses, excluding medical and dental offices: Certificate of Use required.

Appellant claims that Winker's law office is not located at the residence property in the City of Miami but rather at a fully licensed location at 4720 S. Lejeune Road in Coral Gables. Appellant further argues that there is no office in Appellant’s home and no space “devoted” in the house to Winker’s law practice. Inspector Mignott testified that Appellant was doing his work from home prior to the COVID-19 pandemic, and that Winker’s principal address in Coral Gables is in fact a spine rehabilitation center where Mr. Winker does not work. Inspector Mignott testified as follows: A. . . . If I’m not mistaken, there was a response saying that they’re doing work from home, because of Covid, but, in reality, they’ve been doing work from home prior to Covid. And it looks like they adjusted that their mailing address after the violation, so they adjusted their mailing address or principal address for a spine rehabilitation center. And when [*14] I tried to contact that medical facility, they said that the said person doesn’t work here. They just get their mail there.

Q. Were you able to find any other place of business for the

individual, who was operating the property, who was working out of that property? Any other place that they’re receiving mail or registered to have a business? A. No, their business is at the subject property in question. Q. Okay. And no other office; is that correct? A. And, correct, they have no evidence of an accessory of use.

(App. 63; Tr. at 9:1-25;10:1-9) (emphasis added) Mr. Winker lists 2222 SW 17th Street in the City of Miami as his law office’s address with the Florida Bar. He lists this Miami residence in the firm’s 2018 Articles of Incorporation, in its 2019 and 2020 Annual Reports with the Division of Corporations, as well as on Sunbiz. There was competent substantial evidence to support the order upholding this violation. The second violation pertains to failure to obtain a certificate of use for the type of business being conducted. Miami 21 Article 4, table³ contains a table addressing Building Function: Uses. A home office is allowed under the T³, T4, and T⁵, and T6 zones. “Work-Live” is not permitted in those zones, while “Live- Work” is permitted in part in the T4, T⁵, and T6 zones. The subject property is located within the T³ zone. (App. 30) City Code 2-207 states: City Code 2-207 – Zoning certificate of use required; annual reinspection of buildings and premises; fees for inspections and [*15] issuance of certificates states: “(3) Office as defined by Miami 21. A. First²,000 square feet or less: $263.00. b. Each additional¹,000 square foot or part thereof in excess²,000 square feet: $53.

Appellant argues that Winker’s law office has been in Coral Gables since 2010, and there is no evidence that he adjusted his mailing address. However, a Florida Sunbiz record reflects that the principal place of business of Winker was not changed to 4720 S. Lejeune Rd. in Coral Gables until September 2020 – approximately one month after the initial citation. (App. 25). Again, both Florida for Profit Annual Reports filed by Winker in 2019 and June 2020 and the 2018 Articles of Incorporation list the “principal place of business” as 2222 SW 17th St. (App. 26- 28). Additionally, he lists his home address with the Florida Bar. While Mr. Winker used a mailing address in Coral Gables as his principal place of business, the City presented evidence that his practice was not physically located there. No record evidence was presented that Mr. Winker ever obtained a certificate of use for his law practice in the City of Miami. There was competent substantial evidence to uphold the Board’s Finding as to the second violation. The third violation addressed the failure to obtain a business tax receipt (BTR) for the type of business conducted. Section 31-26 of the City of Miami Code provides: [*16] Chapter 31 – Local Business Tax and Miscellaneous Business Regulations, Sec. 31-26. – Required: separate locations to comply with BTR; doing business with the City of Miami or its agencies.

(a) As a condition precedent to engaging in or operating in the city any business, profession or occupation referred to expressly or otherwise in section 31-50 herein, whether as owner, agent, employee, manager or operator, a BTR shall be procured from the city as provided in this article, on or before October¹ of each year. . . . . (b) Such conditions precedent shall apply, separately and severally, to each place or location where any such business, profession or occupation will be engaged in or operated regardless of the capacity in which the person or legal entity engaging in or operating such business, profession or occupation shall act, whether as owner, agent, manager or operator. (c) Except where specifically contrary to general law, any person doing business with the City of Miami and/or any or its agencies shall obtain a City of Miami BTR for the type of business they are contracting.

While Mr. Winker obtained a BTR for his mailing address in Coral Gables (App. at 39-40), the evidence is uncontroverted that he never obtained one for operating his law office in the City of Miami. (App. 65; Tr. at 11:6-17; 12:7-14) Thus, there was competent substantial evidence to support this violation. It is undoubtably true that City residents may have worked from home during the COVID-19 Pandemic. Mr. Winker argues that this occurrence would place a duplicative onus upon City residents to obtain multiple BTRs. The City may wish to address this legislative problem. But the Pandemic did not create a legal excuse for [*17] or defense to Mr. Winker’s years-long non-compliance with requirements of applicable City ordinances. Moreover, there was evidence in the record that the only location where Mr. Winker operated his law office was the residence in City of Miami. Thus, there was competent, substantial evidence to support the third violation. The fourth violation concerned illegally operating a business in a residential zone. See Miami 21 Article 4, table³; Art. 6. Supplemental Regulations, with Tables; Article 7.1.2. Appellant argues that Winker was not illegally operating a business in a residential zone. However, Inspector Mignott testified that Winker adjusted his business mailing address, or principal address to a spine rehabilitation center (Winker’s Coral Gables address), where apparently Winker did not work. Appellee also submitted evidence proving that Winker’s principal place of business was his Miami house. Accordingly, there was substantial competent evidence to support the fourth violation. Unpermitted Unit The fifth violation concerned unpermitted work for converting the second structure into a cottage with kitchen and plumbing and expanding the size of the [*18] structure in violation of Sec. 10-3 of the Building Code.³ See also Article 7.1.2.

Appellant argues that in citing her for work in converting the second structure completed in 1951 and 1954, the City is retroactively applying the Code. Appellant also contends that all work was done with permits in 1951 and 1954, as reflected on the Tax Card for substantial work on part B 4 of the Property. Appellant also argues that the second structure was denoted by the Property Appraiser as 26 feet wide (10 ft + 16 ft) and therefore was not increased in size. (Brief at p. 21).5

Inspector Mignott testified that during his inspection of Appellant’s property, he “noticed that they had a garage that was detached in the back of the property, and the garage is now converted into a living unit as in a one-bed, one-bathroom unit.” (App. 61, Tr. at 7:8-12). The online posting of the Property admitted into the record 4 Structure B is alternatively referred to as “living unit,” “cottage,” or “garage” in the Transcript of the Hearing and the Brief/Response.⁵ There was no record evidence presented below to support this assertion. Appellant’s brief cites to a web page not presented at the hearing. The property appraiser records in the record do not support the Appellant’s factual assertion. (App. at 10) [*19] stated that the Property had an additional 1/1 cottage. (App. 6-7) He measured the unit and the measurements exceeded that reflected on the tax card. Inspector Mignott testified that there was no permit on file for changing the garage into a living unit. The tax card for the Property reflects that “structure B” does not have any kitchen or bathroom in it. (App. 4) The Inspector also measured the back unit, and its width exceeds that reflected by the tax records for the property.

While there was a permit to add a unit to the back of the Property issued on Feb. 22, 1951, and Feb. 24, 1954 (App. 5 – “Building permits”), the tax card reflects that under “interior features – Building B “Plumbing fixtures,” sinks, lavatories, toilets, and tub & showers were not checked, which meant that they did not exist at that time. In contrast, in the main building, the tax card reflects that there were plumbing fixtures. (App. 4, “Interior Features” – fourth table down) This evidence supports the conclusion that plumbing was added to Structure B/garage sometime after 1954. Therefore, there was competent substantial evidence supporting the finding that there was work performed without a permit or a permit was not finalized.

Violation six concerns illegal units. Miami 21, Art. 1.1 provides: Miami 21, Art. 1.1 Definitions of Building Function: Uses (Article 4, Table³) a. Residential. This category is intended to encompass land use functions predominately of permanent housing. Single Family Residence: Detached Building used as permanent residence by a single housekeeping unit. The term is general, applying to all detached house types. Also known as Principal Dwelling Unit. [*20] See also Miami 21 Article 4, table 3.

Appellant argues that no “illegal units” exist and that there was no work done on the house since she purchased it in 2012. As reflected above, there was ample evidence in the record that the detached garage had been converted into a one bath/one bedroom living unit without a permit. Appellant admitted at the hearing that her mother-in-law lives in the cottage. (App. 69; Tr. at 15:18-21) Thus, there was competent substantial evidence to uphold the Board’s Finding as to the sixth violation. For all the reasons discussed above, we AFFIRM the final order upholding each of the established code violations. TRAWICK, WALSH, and SANTOVENIA, J.J. concur. [*21] Copies Furnished to: [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] [email protected]