Milo sues: lawsuit filed against the city as short-term
rental fight continues
Steve Milo's attorney, Richard Rumrell, fires a major shot
at the city, accusing them of selective and targeted enforcement and making up
rules of procedure as they go along
-- John Patten, 01/12/07
--
jpatten@veniceflorida.com
Got a comment?
Make
it here.
RELATED:
COURT DOCUMENT: Milo et al.
v City
of Venice, as filed in 12th Judicial Circuit (PDF file, 58 pages)
-- full text of complaint as filed in circuit court on Fridy, January 11, 2008
VIDEO: Attorney Richard Rumrell's arguments before city council on December 12, 2007
Part 1 ||
Part 2 ||
Part 3
-- Venice Florida! dot com via YouTube
VIDEO: Valerie Fernandez,
attorney for Pacific Legal Foundation
Fernandez vows to fight the city all the way up the appellate process
-- Venice Florida! dot com via YouTube
You knew it was coming
The battle over the legalities of short-term rentals has finally moved into the
courts. On Friday, Richard Rumrell, attorney for nine named plaintiffs
(including Steve Milo's Vacation Rental Pros), filed a 58-page civil complaint
for damages and petition for relief. Specifically, the plaintiffs seek damages
and legal fees as well as a cessation of the city's new interpretation of the
legality of short-term rentals of residential houses.
Starting with page 11 of the complaint, Rumrell documents
the strange and twisted path that continues to lead the city and Milo to the upcoming battle
in court. Rumrell's complaint states that from May through July of 2006, City
Manager Marty Black and City Planning Director Tom Slaughter were researching
the legalities of short term rentals within the city. It was their opinion at
the time that there were no ordinances to regulate the term of length of a
residential rental property and that the city would have to enact an ordinance
if the city wanted to regulate the activity.
According to the complaint, Slaughter directed his staff
to start work on drafting such an ordinance in July of 2006. The
attempt to draft such an ordinance lasted only afew days, thanks to heavy-handed intervention of
then-Mayor Fred Hammett.
Hammett, Black order that Milo's properties be
investigated while Hammett's short-term rental house is left off of the list
The complaint states that on the order of then-Mayor Fred Hammett, the city
immediately reversed its position. According to the complaint, Hammett had
unilaterally decided that short term rentals were already regulated by the city
and issued a memo to city staff to that effect. The complaint then alleges that
Milo's properties, at Hammett's direction, were singularly targeted for code
enforcement while the city ignored other short-term rental properties (such as
one owned by Hammett -- not specifically in the complaint but hinted at in the
below section is the mention of a house in The Inlets that is owned by Hammett
and that has been used for short-term rentals):
In response to the directive issued by the Mayor, in the latter part of
July, 2006 BLACK, directed the Building Official and Fire Marshal to review
their inspections, directed that the Florida Division of Hotels and
Restaurants be contacted to inspect all public lodging establishments within
the CITY, directed the Building and Fire Marshal to take any lawful means
necessary to ensure that the properties were not utilized as public lodging
establishments until any deficiencies that may threaten public health, safety
and welfare were corrected; and directed code enforcement officers to review
all resort lodging rentals that have been identified to verify that they are
in full compliance with all applicable provisions of the City Sign Regulation
and Vehicle Parking Area.
In these directions, BLACK prepared a list of properties for inspection.
The list of properties provided by BLACK only contained the addresses
of the PETITIONERS’ Properties. Notwithstanding that he had received
communications from other residents who had advised that they were involved in
rentals of their properties, including the current Mayor, as well as other
persons well known to BLACK, he specifically targeted the PETITIONERS.
Not surprising, that after the investigation by the CITY which was
specifically targeted at PETITIONERS’ property, it was revealed that none of
the PETITIONERS properties had received any citations from the CITY regarding
noise, trash or parking problems and that PETITIONERS were in compliance with
the state licensing requirements set forth in the Chapter 509 and the local
occupational licensing requirements.
-- Milo et al. v City of Venice complaint, pages 14 - 15
City's planning department opens up an IHOP franchise
Things get stranger after that according to Rumrell's complaint. In spite of
Hammett's directive, Slaughter immediately issued a memo stating he was unable
to comply with Hammett's command to flip-flop by making a zoning determination
as ordered by Hammett. After a subsequent meeting with Black and City Attorney
Bob Anderson, Slaughter immediately pulled out his spatula and put on an IHOP
apron:
On July 24, 2006, after SLAUGHTER issued his July 2006 memorandum advising
that he was unable to issue a zoning determination, a meeting occurred with
SLAUGHTER, ANDERSON and BLACK. The result of this meeting was that SLAUGHTER
reversed the opinion of his July 2006 memorandum and all previous opinions of
BLACK and SLAUGHTER.
BLACK then issued a memorandum to SLAUGHTER and ANDERSON requesting that
they issue a zoning determination to clarify whether the certain uses defined
in Section 509 of the Florida Statutes are permitted as principal special
exception uses in RSF and RMF (multi-family, residential) zoning districts.
During that same time, Mayor Hammett wanted to make sure that any rentals
in the CITY were only rented to a "traditional family."
On August 2, 2006, the CITY, by and through SLAUGHTER, issued a Zoning
Determination Letter pursuant to CITY Ordinance, Section 86-22, entitled
"Zoning Analysis of Short-term Rental of Single-family Residences,"
(hereinafter "ZONING DETERMINATION"), which reversed his July 2006 memorandum.
-- ibid, pages 15 - 16
Due process is highly overrated -- why don't we just do
it the Venice way?
The complaint then goes through the history of the two hearings that were held
at city hall, first before the Planning Commission (7-0 in favor of short-term
rentals), and then before City Council (7-0 against short-term rentals), and how
the city had strangely had to file an appeal with itself to try to overrule its
own decision as rendered by the planning commission.
You may want to read that last paragraph again. It is
technically correct, despite its mind-boggling legal bizarreness -- only in
Venice could you have an appeal filed against a party with the filing being done
by the very entity that had made the decision being appealed.
Come to think of it, you may want to read those last two
paragraphs again. Somewhere out there, law students are reading them with
near-total incredulity and probably a lot of laughter.
Additionally, Rumrell argues that the city's appeals
process was seriously flawed at best as the city appeared to be making up the
rules of procedure as it went along.
There has been a significant lack of procedures by the CITY to govern these
types of appeals. The appellate procedures were created on an
ad hoc
basis by ANDERSON and it was not until the day of the appeal
that the procedures that were used were actually adopted by the CITY. By not
having proper procedures in place, the CITY did not conduct a
de novo
review of the Planning Commission Decision and improperly
considered new material. PETITIONERS were not afforded procedural due process.
Because of this lack of proper procedures and the consideration of new
material, PETITIONERS were prejudiced and would be prejudiced if the Court
determined that the matter be placed before the CITY with proper procedures in
place.
-- ibid, page 25
That argument was also strangely put forward by attorney
Jon Preiksat at the hearing that was held before city council. Preiksat noted
that the hearing before council was given the designation of a legal procedure,
despite the fact that witnesses would not be sworn and no cross-examination was
allowed by opposing attorneys. In Preiksat's opinion, this was a highly creative
first for a legal hearing anywhere in the United States, let alone in Venice
(see video
on YouTube). Preiksat was representing Marilyn Hollowell, an unhappy
neighbor of one of Milo's properties.
Selective enforcement is one thing, but how about
selective retroactive enforcement?
Rumrell's main argument throughout is that the city has been aware of short-term
rentals for decades and is now trying to selectively enforce some of them out of
existence, specifically his clients' properties. That's a no-no according to
Rumrell:
It is well established in Florida that a statute or ordinance must be given
its plain and obvious meaning. See Ocean’s Edge Development Corp. v. Town
of Juno Beach, 430 So.2d at 475 (Fla. 4th DCA), review denied, 436
So.2d 101 (Fla. 1983) (quoting Rinker Materials Corp v. City of North Miami,
286 So.2d 552, 553 (Fla. 1973)). The Fourth District Court of Appeal in
City of Hallandale v Prospect Hall College, Inc., 414 So.2d 239, 240 (Fla.
4th DCA 1982) found that: "Since zoning regulations are in derogation of
private ownership rights, general zoning law provides that zoning ordinances
are to be construed broadly in favor of the property owner absent clear intent
to the contrary. 7 Fla.Jur.2d Building, Zoning and Land Controls §59
(1978)." The premise espoused by the Fourth District Court of Appeal in
City of Hallandale was followed by the court in Ocean’s Edge
Development Corp. v. Town of Juno Beach, 430 So.2d 472: "Government cannot
function in such after-the-fact fashion; property owners are entitled to rely
upon the clear and unequivocal language of municipal ordinances. This
principle is not innovative, nor does it originate with this court."
-- ibid, pages 27 - 28
No response from city... yet
Due to the fact that the lawsuit was filed on a Friday, the city has issued no
response yet. As of this (Saturday) morning, email traffic to council members
had yet to mention the court filing by Rumrell, indicating that the city, as
ofthe publication of this article, was unaware that the legal process had officially moved from city hall to
the courthouse.
Thus: good morning, mayor and council. Now go take your
phones off the hooks, cuz this is probably gonna be a bad day.
John Patten is the head of Web Operations for Creative Pages, and has worked in broadcasting for over 12 years. He
can also be incredibly rude at times.
