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Vero code board defended in vacation rental case

STORY BY LISA ZAHNER (Week of March 13, 2014)

As legislation that would return the power to regulate vacation rentals to local governments winds its way through the Florida Legislature, the City of Vero Beach received an answer brief in the code enforcement case centered around former Vice Mayor Tracy Carroll and her husband John’s Camelia Lane home.

In the 29-page document, Rossway Moore Taylor attorney Tom Tierney defends the city’s own Code Enforcement Board against allegations that the volunteer panel overstepped its bounds in declaring the city’s code too vague to enforce.

The August decision during a hearing on a $50 citation issued to the Carrolls by the city prompted the City Council to hire the South Florida law firm of Weiss Serota Helfman Pastoriza Cole & Boniske to defend Vero Beach Planning Director Tim McGarry’s interpretation that the city code prohibits renting a private home for fewer than 30 days.

The appeal process has been slow going, even more so because Tierney asked for and was granted two extensions of time to file his answer. The Feb. 28 brief cites 13 cases between Florida cities and property owners to back up its arguments and also points out what Tierney considers omissions in the city’s initial brief.

Tierney claims the city “omitted various key quotes from the hearing that support the Carrolls’ arguments.” He specifically notes “the lack of any definition on the issue in question in the City of Vero Beach Code of Ordinances,” and “the Director of the Planning and Development Department expressly acknowledging there was also no guidance on how the ordinance should be applied, and the Carrolls’ specific arguments to the (code) Board.”

McGarry is quoted as saying “No, I understand. We are talking about tenancy; that has always been an issue on that. The staff doesn’t disagree that it is not in the ordinance.”

The brief asserts that McGarry concurred at the time that there was no clear definition of “public lodging establishments” for either the staff or the homeowner to rely upon, and no direction on how to apply the code. “McGarry testified that the Department had to look outside of the regulations to Florida Statute,” the brief said.

“As both Mr. Tierney and Mr. Carroll testified, the Department Director (McGarry) simply relied upon his own belief as to what the ordinance should have stated,” the document continues.

The brief further quotes McGarry as stating in the hearing, “I wish the code had this specific language in there,” and “I think clearly a reasonable person would say the 30 days is plenty. It is not in the code. I understand that.”

Since the board’s widely criticized decision – scrutinized in part because several members of the committee who voted in the Carrolls’ favor had previously served on the code board with John Carroll – Winger has proposed doing away with the code board and hiring a special magistrate to handle infraction hearings. That proposal initially failed, with the council deciding instead to recruit some new blood onto the code board.

Meanwhile, House Bill 307 and identical Senate Bill 356 have both been introduced in the Florida Legislature. The Senate bill has cleared all the required committees. The House bill was successfully voted out of Rep. Debbie Mayfield’s Business and Professional Regulations Subcommittee and was sent on to the Local & Federal Affairs Committee on Feb. 5.

If the bill is approved by both chambers, and then signed by Gov. Rick Scott this session, it would go into effect on July 1, thus permitting Vero Beach to revamp the current ordinance or even scrap it and craft a new, stricter one prohibiting vacation rentals in the city limits.