hello my name is Erikica Aello and I am the appointed special magistrate to hear today's cases i am a practicing attorney licensed by the Florida Bar and board certified in city county and local government law i have been appointed to this position in accordance with the authority set forth in chapter 162
Florida statutes and the city of St pete Beach Code of Ordinances i am not an employee of the city of St pete Beach and I do not represent the city here today i also do not confer with the city's code enforcement officers outside of the hearing process about your cases it is my role to fairly
and objectively review the matters presented as such I would like to advise you of certain matters related to today's proceedings today's matters will be heard in the order on which they may appear on the agenda unless otherwise agreed every effort will be made to hear all persons having relevant evidence
arguments or comments related to the specific case that is being heard if you wish to speak today it is necessary that you be sworn in which I will do momentarily all testimony given will be done so under oath in all cases the city has the burden of proof so the city will
present its case first the respondent will then be given an opportunity to refute the city's allegations formal rules of evidence do not apply to this proceeding however I will make every effort to ensure that fundamental fundamental fairness and due process is afforded to all parties after hearing
all relevant evidence I will issue an order the order will be reduced to writing and all parties will be provided with a copy so please ensure that we have your current address or email address additionally you are advised that I do not have the authority to grant you a variance permit or special
exception of any kind my role is solely to determine whether the city code has been violated and under some circumstances to provide a reasonable time to correct the violation by whatever means are available to you please be advised that you may be subjected to a fine and a lean may be
recorded on your property if the violation is not corrected by the compliance deadline if one is provided if you wish to present any evidence today please sign in at the podium before you speak and it will be necessary that you swear or affirm to tell the truth therefore at this time I
will swear in any witnesses any wish anyone wishing to speak today please stand and raise your right hand to be sworn in do you swear or affirm that the testimony you're about to give is the truth the whole truth and nothing but the truth yes and for those of you who brought counsel council need not be
sworn as they will not be giving testimony today unless you will and then let me know as you approach the podium okay so we will move on um the changes to the agenda my understanding is item 3 C on the case or on the agenda case
number 20240475 City of St pete Beach versus Bayside Shops LLC we will be reserving time for that um that will be the last case to be heard today is that correct that is correct that would be under your um cases um and then we would have the
lean reduction following that okay so we want to hear the s the the Bayside shops after the lean reduction case or at the end of the cases on the agenda i think at the very end um after the
lean reduction okay because of the change in magic and just for the benefit of the record and the public um the reason we are moving that case to the end is because I do have a conflict um of interest or a potential conflict of interest with the attorney representing Bayside Shops and therefore we will have
another magistrate take my place so after conclusion of the regular agenda except for that case I will excuse myself and another magistrate Mr tom Thanis will come and take my place and he will hear the that last case on the agenda um so any other changes to the agenda this morning yes uh Madam Special
Man Pete Dur code enforcement manager for the city of St pete Beach uh we would like to add case number 2022 0159 for lean reduction order from special magistrate Tannis um after okay
so he's heard his uh he's heard 20 that that previous case before okay 202 so then there will be uh we will proceed through cases 3 A B D um E
okay and then lean reduction 8A and then there will be uh we'll take a brief recess mr thanus will come back here 3 C and then the new lean reduction case that you've just added is that correct okay perfect okay so moving on to the first item on
the agenda here today uh case number 20240089 City of St pete Beach versus Patrick Thomas McNelte and Annette Weiss McNelte good morning Madam Magistrate steven Rivera City of St pete Beach Code Enforcement this is a status hearing for the 90-day extension to secure a permit
for the driveway at uh 10464th A I believe yes um they are in compliance they did get the permit uh get the overhead please
just does show that it was issued so they are good to go as far as the permit is um city is not seeking any fines however we are looking for the $330 for administrative costs okay all right are anyone on behalf of the respondents here today either Mr or
Miss McNelte mr river did you have an opportunity to speak with them at all prior to the hearing i I see Mr mcnelte in passing uh I did tell him uh you know as long as the permit was issued that I wasn't going to be seeking I just wanted him to get the permit understood and he was trying to do what he could we had some hiccups with the city you know with
the hurricanes um so we were willing on working with him he just had to get the permit okay um since no one here is be here excuse me since no one is here on behalf of the respondent I am going to find that the property is now in compliance with my previous order in the city's code I will not be issuing any
fines but I will be assessing $330 in administrative costs of the city all right moving on to case 3B case number 20240157 City of St pete Beach versus 10008 Airport Road LLC
thank you Special Magistrate Lewis Cruz representing the City of St pete Beach code enforcement as you know this is a status hearing on a 30-day extension to sec excuse me to secure the dumpster permit um before 3:14 that was done properly so the property has obtained
the dumpster enclosure permit and is now in compliance um as the I think it was the property manager spoke before they they want to get some things done in the property itself since the hurricanes and then they're going to work on that dumpster enclosure so they have that good time frame i think it's about 6
months for the permitting process to keep that open um before they have to get any inspection so um as long as they're following that guideline that we have instilled through the building department we're perfectly perfectly fine and the city will be asking for $329 for the administrative cost and no
fines okay so at this point um this if the propertyy's in compliance with this particular code violation you're stating within the next six months if they don't comply with the terms of the permit any granted extensions etc you might bring them back to Okay ma'am understood okay anyone
here on behalf of 108 Airport Road LLC okay finding no one i will find that the property is now in compliance with this magistrate's order as well as the stated code sections i am not going to assess any fines but I will assess the $329 in administrative costs of the
city moving right along to agenda item 3D case number 20250148 city of St pete Beach versus 2500 Sunset Way LLC good morning special magistrate should we ask if you would like this um
your honor so there is a second case wi which is a different property address um they are adjacent one to the other and um they do have council present today representing uh both of those property owners i believe that one of the
property owners was agreeable to stipulating to the violation um and if if that is the case if I could ask council that's present representing them representing both property owners they
are adjacent and I'm not clear on what that stipulation is going to be so I'd rather make a little presentation and see what Okay and even though you represent both property owners we are going to be take you prefer we take these separately i'm I think for due process we should take
them as separate cases unless your clients have agreed to It's the same fact pattern it's all one six of one half dozen okay so your clients are comfortable with Okay and then the city's okay with that well no I agree with you um I would prefer to do them separate it was just my understanding
that one of them was agreeable to uh stipulating to the violation itself and that we would only be talking about possible fines on on a single case on a single case but if that's not the case we can we can proceed forward okay so we will then go ahead and proceed forward
as individual cases um and if need be once we get through the first one uh if you change your position on stipulation we can certainly do that okay um so proceeding with uh the 2500 sunset way LLC okay so good morning special
magistrate Ayako Rectell code enforcement officer representing the city of St pete Beach this is case number 20250148 the respondent is 2500 Sunset Way LLC the violation address is the same 2500 Sunset
Way violation description the property is in violation of section 25.9A and B a permit is required and section 94-7 A to F where a vehicle permits of the land development code and the code of special ordinance code of ordinance for the city
of St pete Beach for the case summary the initial inspection was made on February 19th 2025 um is determined that it was irreparable and irreversible damage violation was dated uh February 21st
2025 notice of hearings was dated and posted on the property February 21st 2025 here's a picture of the affidavit of posting at 2500 Sunset Way this is the property the clear vacant property uh this image shows the
vegetation that was established and how it has been reduced through the center there as a pathway through um this shows the track marks on the sand that was used by the
tractor and this shows you uh a distant view of how from the vacant lot they rode through the dunes another picture of the vacant property with the image of the tractor in the rear corner damaged the
vegetation that is an image of the tractor that was used so the corrective action that the city is seeking is the existing dune system has been damaged and this is prohibited the recommended fine is $5,000 per
violation totaling 10,000 plus $6,966 of cost of repair per property plus $330 for administrative costs and any recording fees associated with the case okay okay can you please explain to me
the request for the $6,966 in repairs to the property and evidence of such so if I can get the overhead please so we had requested an estimate
be provided by the um public services director and this is the estimate that he came up with um it is a collective estimate for both properties like I say these cases are similar adjacent properties so the total
came to 13,932 for both divided by two so that's where the 6,9 Okay and is this for the city to abate the property yes yes okay and please
show him please show the um how that was determined the cost well and my question is has the city already abated the property no no ma'am okay and has the city given clearly at this point you've not given the opportunity to the respondents to abate the property on their own no ma'am no we do not wish we
do not want them back in the Dune system it's a prohibition and is that their private property or is that public property that is the city uh the Dune system is city controlled and maintained okay and do you have any proof of that a survey of the
property or anything like that that demonstrates where based on the photographs I can see that there was destruction but I don't know if that was private property where the dune system starts i mean I saw tractor marks on the what I could assume was maybe the parcel
um but outside of that I you know aside from that one pathway is there any other demonstrations on who owns that property you could try to pull up the property appraisers website it was in the file record the property appraisers but this
is um we did ask for Camden to the public services director to be here today to explain how he came up with his estimate unfortunately he has a conflict this morning but the repair estimate was based um on approp um approximate field
measurements and unit prices for a recent dune restoration project okay so that's how we came up with those numbers okay all right uh anything further from the city out of this okay that concludes my presentation thank you council on
behalf of the respondent no questions at this time okay um do you have a presentation or that you would like to make or call any witnesses okay please go ahead and come forward thank you good morning city reps and good morning magistrate my name is George Grahamling i represent both
respondents 2500 Sunset Way and Hunter Beach LLC we're talking now I understand uh just about the 2500 but the facts are more or less the same so I would start by telling you we're not contesting the allegations we're not admitting them we want to work towards a resolution the
city knows this we've been in phone conversations meetings and so on since we got the NOV and there's absolutely no defense here on the question of a permit was necessary what we didn't have was the permit but what we did have was good intentions a belief that the activity
was authorized a lifetime regarding uh of respecting the law and the environment and we thought the respondents at least thought they were able to do this activity with with no permit partly in reliance on a Facebook posting that the city made i'd like to
introduce that as exhibit one josh you may um if you guys want to put it on the overhead and we're again we're not going to spend today defending the the need for a permit we're going to concede that for purposes of working this out
but this shows you this was the city's Facebook page four days after Helen can you see it i can um it says to me it says and this is my opinion you can return return sand to
the beach from your property which they did and you can use mechanized equipment which they did wherever where it says that where does it say that Josh right there right above that here it is heavy equipment so after phone calling and emails and so on and so forth which you don't want to belabor they did it anyway
no permit okay fair enough so here we are i try I've been trying to settle this thing so let's go forward with um um the crux of the matter and the crux of the matter is although unauthorized disturbance of dunes is a
serious offense and it cannot be sanctioned and we do not condone it we're not defending it um the scale of the enforcement should be commensurate in my opinion with the harm if any to the dune system and I would like to address that um I myself am not an expert in oceanography or wetlands or
any of that i am an environmental lawyer and I don't know that the city has brought anybody to the table who could give you a a a a true understanding of whether there's been harm do we need restoration has there been damage is it irreparable is it irreversible so I brought an expert and with your
indulgent magistrate I'd like to introduce Britney Banko as our expert she's got a PowerPoint presentation um which I think puts this in context hopefully i provided this to Nancy in the city a week ago they've seen it there's no objection I'm told to
introducing Britney in her testimony so if you if if we may do that now absolutely and and that true representation there's no objection yes okay of course um a lot of this is going to be repeated on the next property so you're hearing the story well I and I
don't have a problem once we make it through this if you want to just go ahead and adopt the evidence that was submitted in this case for the next case that's perfectly fine as long as the uh the city doesn't have any additional questions i skipped I skipped one point in one exhibit so back to the crux of the matter my
reading of the code is if the magistrate finds that the damage was irreparable irreparable and irreversible the max fine can be levied that's 5,000 per they've shown you that with 20,000 but that's the case they have to make and so the only person here who can
testify as to the damage is is Miss Banko we'll we'll hear from her right now but the code doesn't define irreparable or irreversible and the only thing I have is Webster's dictionary i'd like to introduce that into evidence uh it's not necessary to take into evidence but you certainly can okay well it's I I
believe the case law bears out yeah but case law bears out pretty substantially what irreparable irreversible is but please this is your case to prosecute so if you feel that's necessary you may I'll skip that and I will turn the uh podium over to Miss Banko if that's if that's of course
good morning good morning i'm Britney Banko i'm a senior ecologist with Verdantis LLC i've been brought on to assess the dunes for the respondents um let's see here so this is just a little bit about my professional qualifications i have a
bachelor's of science and environmental science and policy from the University of South Florida i'm a certified professional wetland scientist from the Society of Wetland Scientists i have 16 years of experience in Florida ecosystems qualifications include environmental
permitting and compliance wetland delineation restoration mitigation and evaluation aquatic system evaluation wildlife ecology and permitting my prior to being in the private sector I also worked for the department of environmental protection and I have done
some compliance on coastal projects um on the side here I have a little bit more information i have living shoreline training swift mud wetland assessment procedure MSHA certified qualified storm water management inspector open SSI open water
diver certification uh permitted gopher tortoise agent and I'm a member of the Tampa Bay Association of Environmental Professionals Florida Stormwater Association and the Florida Native Plant Society so the scope of our evaluation
included an on-site inspection on March 11th 2025 we collected some data using a Trimble GPS unit that has submeter accuracy and we assessed the most waterword limit of the dune and then we overlaid it on some LAR maps and aerial
photography that are pre-torm and posttorm so this is a photo taken from 252 Sunset Way facing the water this is their pre-existing path that led from their home out to the beach and you can see that there is vegetation throughout
outside of the walkway and this was taken pre-torm this is posttorm these are this was from our these photos are from our evaluation on March 11 posttorm okay uh this is a side view of the current dune at Sunset Way
properties this is a current view of the pathway oh sorry i'm going backwards this is the opposite side of the pathway um the dunes are clean there's no um storm debris or anything no stains no orders odors or debris were observed
within the proximity within the properties or the proximity of the properties these are photos taken of dunes located further north just to kind of show that they these properties look very similar to the other properties along the beach
this is another example of that so visual map comparisons you can see here um the prehurricane that was taken in 2018 so that pink the brighter pink area
is the higher elevation the properties are the two in the red box so prior to the storms there were sort of two distinct dune systems and if you can see those blue points that's the data that I collected on March 11th using the
trimble so that is submeter GPS accurate or submeter data of where the edge of the sand dune is today so post hurricane that was collected by the army corps of engineers on October 26
2024 so you can see that the storm had done some significant damage and kind of moved a lot of the sand around the hot pink or the brighter pink area is the higher dune elevation so you can see it went from two distinct dunes sort of to
one flatter air dune area you can still see the pathways are present and those blue points are exactly where the edge of the dune is today so this was taken October 2024 and the data of the blue dots was March 11th
so where the dune is today is pretty consistent with what it looked like post storm these are just some pre and post aerial photos so you can see what it looked like um the blue dots are on there as well you can kind of see it's consistent
within what's west of these two properties and the properties located north and south right so we just have a few summary points here so Hurricane Helen and Hurricane Milton devastated the sand dune system along St pete Beach including the dunes
at 2500 and 252 Sunset Way locations the dune system has gradually recovered to a healthy and functional condition through natural forces including natural vegetative recruitment nature will continue to restore the dune system without human intervention or
restoration and based on my physical inspection of the dune at these properties and my professional experience as a biologist and wetland scientist the dune system has not been irreparably or irreversibly damaged by human activity and that's it okay thank you does the
city have any questions um I do just a couple so is it your testimony that there has been absolutely no damage at all done to this dune system by virtue of the um the heavy equipment i can say
that there were tracks that are out there but these systems are not really static systems and they're really wind and water driven so there may have been some temporary impacts but I don't think that it is a permanent impact to the dune okay
so let me make sure I get this correct um so the presence of tracks which you've agreed has existed based on the photographs um that instance in and of itself did that damage the dunes
it it was probably some temporary damage so in your opinion is temporary damage repable yes res restorable yes even though once the damage occurs it it happened
yes so that damage in that instance is not reversible because the damage occurred i would say no only because it is like nature you know these systems move around although it was maybe some
human interaction with the intent like some positive intent behind it from the photos from city of St beach it already doesn't look like that the tracks are gone there's vegetation there isn't a significant impact to the
dune but when the tracks were um made there was damage that was done there may have been i was not present okay the fact that um could you give us a better understanding um you're saying
that over time that the dune will basically repair itself how much time are you considering what What is your opinion on that well it really depends it depends on storms it depends on if we get another hurricane it depends on
human intervention post you know before another storm comes i know that there's been some concern with people on the beach walking through there currently because the dune system is just flattened a little bit so there's a lot more human
traffic so it's possible that that dune may not be restored to the condition that it was possibly but I believe most of the damage was hurricane related and not from the tracks okay but but your testimony is that because of the tire
tracks because of the presence of the heavy equipment there was damage there could have been could have been or or was I'm really only going off the photo that she showed in my mind so okay could have
been a little But you did testify that you did go to the property correct i did but in March so I didn't see so you weren't there when the actual damage occurred i was there after the damage or after some work had occurred okay all
right that's it okay um Miss Banko do you happen to know the extent of the what you just described as work that was done at that location was we didn't map out anything pardon me but really all we collected was some
photographs of the general condition and compared it to the adjacent properties and then we collected the landward extent of the dune so we could compare it to you know did following the storm was there less dune or more dune and based on the data that we have it is
consistent with what it looked like right after the hurricane okay and that that's what I my next question was going to be you inspected visually in March but your LAR maps were from October yes okay okay and that was after post Milton or just post Helen uh post both so Helen
was in September 2024 milan was October okay okay i don't have any further questions do you have any follow-up questions um not for this witness but I would like to call um our code officer back of course
um before we do the code officer does the respondent have anything further any further testimony evidence or um presentation you would like to give prior to the code officer being recalled closing sure please thank you um well we heard the testimony and
we and you heard us say that we're not really here to contest or fight about the violation it happened it was a mistake we saw the Facebook page that said I think the natural recruitment delay opinion will take over and this is this is not worth restoring in the sense
of human interaction it's not necessary however if the scientists disagree and that's what we do we do um I would as I said earlier the magistrate certainly has authority to find the respondents if that happens it happens i would I would u mention that the respondents have no
track record no history of anything like this they are permanent citizens and good citizens of St pete they respect the environment they're very contrite about this very sorry this happened and are willing to you know do it to do something to make it make it right so today we're hopefully looking for a
resolution outcome finality whether it's get fined don't get fined write a check whatever it is and that's that's hopefully where we'll end up today okay i guess I have a question too and I know there hasn't been any testimony to this effect but just for my edification um the photographs from the city seem to
appear to show a tractor clearing a vacant lot and pushing sand out into the dunes can you maybe explain thank you thank you yes let let May I offer my assessment of the photographs okay the the lot in question is 2500 that is a new house going in that's
a that's a permit it's been issued it's been designed it's got an architect it's got a permit that Upland lot has nothing to do with this i don't know why that photo came in but it was part of the packet so that I respectfully suggest should be disregarded the Bobcat is the Bobcat you saw that and my understanding of what
happened and I I will confess I do not have every fact at my disposal i don't think it's worthwhile to rehearse it all we don't have it here today if we need it but my understanding is based on the Facebook sand was moved from point A to point B on the beach and from the
backyard or the walkways of the of the existing house at 252 to the beach through that little pathway okay that pathway has been there for 57 years and the uh the um the the property boundary that I I
know we're interested to know i happen to have if I may put this up yes please i want I want to enter it because I think the city wants to but um Okay every single house has a path so the path per se is is not a I
don't think the city's arguing that the path is anything right um I don't believe so i think the path is is permitted my code officers so at the end of the day um if I can confirm that well and you can bring you can recall him and ask him that question at
the end of the day the dune system all up and down north and south all the way to the dawn and back looks the same to me it's ubiquitous it was severely damaged by hurricanes not by us and it will naturally recruit and restore your honor I think that um council is now
providing fact he's not providing he's arguing and I'm and I understand he's not under oath so I'm not taking these as testimony or fact to consider it's just to get context and we want to work it out we we we're not interested in a contest over the right or wrong or any of that so Okay thank you thank you very
much and uh Mr dubicky you wanted to recall the city's code officer um I do for a couple items um first um if I may um ask the questions regarding the survey and the extent of
where the city's property begins and the damage in the dune area thank you um Madam Special you asked about the dimensions and if the property extends beyond um where these red lines are as you can
clearly see that's their property boundaries and we know that um this is not entirely accurate but this is the closest we're going to get including um this replat of Sunset Park the lot in
question is five right there and this is a closeup of that lot as you can clearly see the dimensions are 110 through 50 or 110 by 50 and it does not extend to the main high water line so it does not extend beyond what you see here
on property appraisers website okay that is very helpful and clarifies quite a bit thank you thank you and then did you have any follow-up questions um I do um on the estimate that was prepared could you again for the record state who
prepared that estimate um Camden Mills public services director and why was Mr uh Mills asked to prepare that because he had done some re um previous restoration work that was required on our beaches so he had an understanding
of what um additional work would be required what contractors etc is it your testimony he has a history of of providing estimates of damage okay um and could you um when did he go and
provide the estimate um that came last week doesn't have a date on there well let me read let me change the question then um so as a code enforcement officer you believe that
there is damage there absolutely and you did consult with um Director Mills to verify that in his opinion there was there was damage there well I met with staff out there and to take measurements to quantify if we could what restoration
would be needed and can I ask a follow-up um in speaking with uh Mr mills um and I don't believe that you've given any of your background to solidify that you have any type of specialized knowledge of the dunes but giving Mr
mills um your conversation with Mr mills um what do you know what the damage was the damage caused by the hurricanes was there additional damage caused by the property owner what was the genesis of the damage well I think when you have damage from the storm it's presents as a
uniform sort of decaying of the dunes and you can clearly see that the high ridges of the dunes as as shown in my pictures and a hollow that was created where you see the plants were vegetation was suppressed rode over with equipment
so the city's position is that the sand that was cleared from the properties through the dune system to the beach on what had previously been a pathway but then became some sort of accreted dune that is damage to a like a
new dune system that was caused by the hurricanes well it's the decaying of the previous existing dunes so therefore Right but the previously existing dunes had a pathway cut through them true so the storms changed the nature of the dunes
i'm just trying to figure out what exactly is the mechanism for the damage the equipment that had to traverse into the dune to get to the other property to move the sand okay so the pathway through the whatever was created the damaged dunes that was damaged by the
hurricanes is now being further damaged by Absolutely cutting a pathway through them yes okay i think I understand the city's position that estimate came on April 5th thank you Mr mills any further questions from the city no questions
absolutely yeah if you could you can come to the microphone and you guys can just switch off that way it's both on the recording on the question of damage um could you describe it did you see it yes
broken sea oats yeah suppressed sea oats you're talking about the path mainly I assume no this didn't look like there was an established path there at all this is clearly just to exit the vacant lot with the tractor to go around to the property 252 and clear the sand and then
here's the Facebook page have you seen this before probably yes so it does it say return the sand to the beach that you're allowed to return the sand to the beach yes i don't think it does mention that you can go through the dunes to do that too how How would you do
it hand and shovel i don't know says use mechanized equipment oh well um and I know you're not here as a scientist but I may ask you i've never seen that estimate i still haven't seen it how big is the area for restoration that the city is
advocating just our just our lots or just the city lots or the whole the whole uh just the prop the area in front of 2500 and 252 so right here this is city property in the
red this red box is the city owned dune system here's our here's the respondent property where are you talking about would you point it out please okay the repair was based on approximately field measurements um that aren't quantified here and unit prices
from a recent dune restoration the estimated cost of materials sand and plantings is approximately $1,615 the remaining costs are for mobilization erosion costs and surveys these those costs will likely fluctuate depending on contractor's use i I do
have another inquiry and I apologize to interrupt your cross-examination but the estimate that you're giving that the city is giving includes plantings my understanding is from the storms the dunes came in and covered what
vegetation was there otherwise that vegetation moved because of the the the water coming in and removing the sand um you're stating that the damage caused by the tractor putting it back out to the
beach then further they were fine with the sand covering them but now that the tractor went out there damage that they need to be replanted i I my my concern is and let me kind of get you where my brain is going here my concern is there was
damage caused by the hurricanes and the what I am understanding from this estimate is the city wants to put back the dunes back to the way they were prior to the hurricanes coming in so what damage was caused if damage was caused whatever damage was caused by the
property owners the city is seeking far in in excess of the damage caused by the property owners and instead is seeking to put the dunes back to the way they were pre-storm is that not the case so the storms ended in last one in October
right correct by the picture we can see that there was established vegetation growing through trying to recover as the beach is trying to recover on its own and this was February of 2025 this picture was correct so there was vegetation growing
uniformly throughout that dune and you can see clearly that the tractor rolled over it and damaged the dune so that is the the status of which we would like to return it to you're not seeking to rectify it to the pre
pre-existing hurricane no it was much higher in elevation it was more uh established but And do you know what date the property owners uh allegedly damaged the property
i don't have the date of the violation i just had the date of the initial inspection right and this came through um a complaint that was passed through to code enforcement and what date was that complaint made probably a couple of days before I actually went out there so
I would took went out there on I think your pictures dated February 19th yeah so two days before that I think we received the complaint and then I went right out there and took the pictures and
uh posted for the hearing the same day and I do have here the estimate area that was if I can go to the overhead again sorry for the to quantify the area that he has based the assessment on in the
column here and we we've got charges for signage we've got CH charges for rope and post and beach access it this estimate I and I wish I could question Mr mills he's not here but this estimate seems to include things to put the dunes back
pre-storm not pre quote damage i I think I have enough does the city have any further evidence it would like to present or any question any further questions no your honor okay okay um and I didn't see or hear any
testimony i only saw one picture with regard to vehicle permits i I'm assuming the vehicle tracks is what you're saying that's the evidence of having heavy machinery on the beach that didn't otherwise have a permit associated with it is that correct correct and the construction company confirmed to me
when I questioned them because the owners weren't available that it is not their tractor it didn't belong to the construction company it belonged to the neighbors at 252 okay so do we know whose tractor it was and are we for sure i mean obviously there's something that drove out on the
beach but do we know which what vehicle drove out onto the beach i'm assuming by the it was a little mini tractor and you can see the tracks are a little mini tractor comparable to what we saw okay on the site so you you don't you can't confirm that but based on the pictures and the the tracks on the sand you're
making the connection but Correct and you do you know who that tractor was that was on the property for 2500 yes the construction company said it did not belong to them and it was owned by 252 property owners and they had my
question who which of the properties are you assessing the vehicle because obviously there are two cases here 2500 and 252 so one of them is saying that the tractor is not theirs one of them is saying the tractor is theirs you have you have two code citations here one for
permits for dunes and one for permits for vehicles i've not really heard a lot of um evidence to support the violation for vehicles so I'm just trying to see who that is specifically against the tractor belonged to 252 they had
accessed the dune violation through 2500 so by 2500 allowing the tractor to come through their property makes them also responsible for allowing a a vehicle to come through uh unpermitted onto the beach
okay and you have proof you you made an assumption that that's what happened based on the tracks on the ground correct and and by what the construction uh company had told me okay anything further from the respondent no I wish you had more facts but it's almost at a
point It's not worth it um I will say two things one the the tractor it's my understanding was not owned by anybody it was ready and not by 2500 by the adjacent owner okay um number one number two
um the only the only testimony we've heard that in my opinion about the damage to the D matters is Miss Banko and we haven't heard that it's that it's irreable so I will I will arrest okay and since it's the city's burden city
has last ups do you have anything further based on that argument no and these two properties are intertwined i mean you know the identical Okay violations okay thank you very much i appreciate that um
I'm going to contend with the section 94-73 vehicle permits violation first um I I don't have I don't believe that there is enough evidence um by preponderance of the evidence to find that that specific code section had been
violated i believe there is some circumstantial evidence but not enough to tell me or point to me who the violator was um so I am not going to find a violation of section 94-73 vehicle permits um as far as section
25-9 permit required uh I do not believe that there has been any evidence to suggest that the parties the parties both agree that a permit was required um to either excavate or otherwise cause damage to a dune or conduct or cause to
be conducted any activity improve or enhance a dune so my I'm going to get hung up on there's been a lot of talk about damage i don't necessarily know that I believe that
there was quote damage to the dune um however that's not what the code says the code says in no instance shall any person municipality county or other public or private agency excavate or otherwise cause damage to a dune so the key word here for me is excavate i don't
think that there is I I think both parties agree that a mechanical equipment went through what was otherwise a path prior to the storms um and the dunes coming in to fill that path went through created a path over
the previous location to dump the sand on the beach um dictionary definition of excavate I'm that fits with me so I will find that there was a violation that no permit was secured Um and there had been an excavation of
the beach or of the dune rather um I do not find that this is an irreparable or irreversible uh violation only because the city has provided a means of abatement
um I I can't see how you can argue that the violation cannot be repaired or cannot be reversed when you've provided me evidence of how the city contends that it will repair and reverse the damage that was caused to the dunes so
um I find that to be uh invalid and I don't find this to be an irreparable or irreversible violation um I do find that there was a violation for failure to require to get the permits i don't find the Facebook posts to be relevant really
i think it also says that you may do this that doesn't mean that you seed uh getting permission from the city to do so i also don't find Facebook to be a very credible source period um regardless if that post was made by a governmental entity if it was made by a
private citizen um that being said um I am going to this is the part that's a little tricky there is a violation it's not irreparable irreversible i there's no way to ask for a daily running fine
because the city is not does not want the property owners to fix the um the violation so here I am running into chapter 162 issues that say if I don't find it's irreparable or reversible and pin a specific fine I
must then find a daily running fine or allow uh time to abate but you are not letting the property owner abate the issue so all I can request is that they fix it by going to get a permit for the work that they had done to be either
granted or denied because that is the violation that you've brought to me is that they have failed to get a permit they can cure and get a permit they just can't go back and do the work so again I am going to find that there is a violation i I don't I I guess I will
defer to the city um on the means to I'm not going to give you the means to abate because because in all honesty if I do so I'm going to do it within a confined space meaning you are only going to get
to abate to how the property looked posttorm prior to the tractor going out there um and I am only going to allow you I'm not going to give you any money to do so you would have to come back and say this is exactly what we we did but either way you're still going to have to
get a permit from FD2 which is this the the solution for the violation that's at hand so at this point does the city have another uh request for relief based on the ruling that I've just made um no
your honor we we do want the abatement um however because this issue has multiple facets to it um would it be possible to um perhaps continue this case and allow the um property owner and
the city to come back to you with um a proposed resolution for it uh I would defer to the property in favor of that it's today the city's had plenty of time that's the first estimate I've seen
we we we would not like to continue it with respect then what I will do at this point is I am going to obviously I'm going to find that there's a violation i am going to res reserve ruling on the remainder so that I can do a little research to see what powers and
authorities I have and come up with a solution um I will get an order out with regard to this property and that um and then what I will do in my order is um if need be I will put a mechanism in there where we can in that at the next magistrate meeting we can come back if
need be um and discuss whatever's in there but my order is going to stand it will just be to discuss the mechanism for what that happens to be underneath it um because this is an equitable uh process i am trying to be fair but um
but I am in a in an in in a position right now where I'm happy to go ahead and make the determination that there was a violation in the hearing however that the mechanism of trying to figure out what the um either abatement or or what the fine procedure would be I just
need to get a little bit more research done on that so actually let me walk that back a little bit i'm going to give you guys uh seven days from today's date to get me something backed by law what you think my authority is um and what you think an appropriate resolution
should be and I will be able to get my order out to you today um that will give you the ability to um come back to me and then I can amend my order after that um I think that might be the most equitable resolution that way we're not coming back in 30 days but you go both
can get to me your positions and then based on that I'll issue an amended order with um a final order on that one including a settlement I assume if we reach one if you reach a settlement before the seven days just let me know and then we'll dispense with the whole thing but um that's by between the
parties as far as my my um responsibility in this process I just need to determine whether or not there's a violation and an appropriate either remedy for it or fine assessed with it that's the trick tricky part I'm having right here just because or ordinarily I would just say go get the permit and go
ahead and and fix the cure the the code violation but you can't cure the code violation because they don't want you on your property so um and I'm I'm not willing to have them abate it because what I've seen here is the baitment doesn't really constitute whatever the
violation was um so if I'll to clarify after my ramblings um there is in fact a code violation not for section 94-73 but instead for section 25-9 um and then I will issue that order today via written order make sure I have
your email address uh and then within 7 days of my order you will have the opportunity to get to me um what you believe either an appropriate fine or resolution on the abatement of the violation is i will consider those and in the meantime if you happen to work
out a settlement by all means let me know and we can dispense with an amended order thank you that's crystal clear any questions on that no thank you okay and then um moving on
to case number 20250149 City of St pete Beach versus 252 Sunset Way LLC understanding it's the exact same issue um Miss Stubric do you have any concerns with us moving forward in the same manner um I I know
there were No your honor I I think that would be um a fair disposition of of resolving both of these cases okay all right perfect so then I will do so i will I will issue um a consolidated order if that's okay
with both parties there is a correction to the to the record on the address or the name josh yeah so Iron Josh Cold Iron um for the respondent um so on the agenda it says 252 Sunset Way LLC and
that's not the property owner um the property owner's Hunter uh Beach House LLC and it's on the property appraisers if need contact information but um I think it's just a script yeah just a scriber error on the agenda your honor
could I ask for two separate Yes orders um just because the facts are a little bit different because of the vehicle the vehicle one okay okay i don't have a problem with that are you have any objection to two separate orders good okay okay um all right then i will get
two separate orders on both cases 3 E 3D and 3E um like I said I will get those orders written to you today and then within seven days you'll have the opportunity to and I'll I'll detail that in my order so that you have that information okay um there are no repeat
violations new cases or cases complied no old cases so moving on to agenda item 8A the lean reduction that I'm handling which is case number 20250089 City of St pete Beach versus David Tucker
mr der Madam Special Master Street Pete Der code enforcement manager for the city of St pete Beach uh we have this lean reduction request that was provided by Mr tucker and Mr tucker has stated the individual
in front of me had seven violations and was fined 700 or rather 500 each i had three violations and was fined $1,000 each i understand that this is because he had hurricane damage i had
damage as well and feel I should be treated equally the city is requesting that the imposition of fines ordered and that's your order and your order basically says that the fines are $1,000 for three stays
totaling 3,000 plus administrative costs so we're requesting um that this order be upheld mr tucker's property did not sustain damage or substantial damage your decision is further supported by the
nonsubstantial damage determination that was made by the city that determination was made by the building official for the city of St pete Beach Luke Curtis and it basically says that 7605 Cookinaway has been
assessed and as having sustained damage estimated to be 2.2% of the structures value any claim that Mr tucker is making that he has no substantial damage as refuted
by the reviews that were posted after um there were stays at his property one um was was um in October 2024 stayed about a week and then this one was in December stayed a few
nights as you can see Anna and her team were super accommodating and so kind my boyfriend and I had a trip booked had a trip booked tripped that ended up failing a few days after the falling rather a few days after the
hurricane and Anna kept us up to date on how the house and the area were we had the best time um as you know the hurricane happened in Hurricane Helen was in September 26 20 24 milton was um October
9th 2024 um there were there is further evidence that Mr tucker has never gotten a if there was substantial repair Mr tucker has never gotten a permit for those repairs and we have outlined the permits that have been issued to that property
all the way back uh January 2024 was the last permit for plumbing issue um no uh permanent sub permit subsequent to that um so this idea that he had substantial damage I think is it's a stretch um for him to prove thank you this concludes my
presentation thank you Mr tucker morning madam magistrate um here's a sworn statement of loss showing that uh was about
$135,000 in damage the roof lifted so we've got two sides to this house one side is rented out now by the month it had no damage but the roof itself was lifted so it inundated the other side of
the house and we've still got hidden damage in that side we don't even know about yet mold okay and so can you explain to me your argument for why the lean should be reduced um and and h I guess because when I made my
order and I imposed the fines I had what testimony information that I had at the time none of this came up i understand that this might have happened occurred afterwards but you would have known of the damage that was occurring on your property especially a roof damage at that time but none of that information I did know but I did not hear you ask the
the individual in front of me if he had hurricane damage i didn't know that was even part of the program keep in mind I don't normally go to court understood so my by me not hearing that I couldn't address it and here's the
uh sworn statement of damage notorized if you want those and your sworn statement is that a sworn statement of your loss to Frontline Insurance or from Frontline Insurance to you stating that that's what the losses
are maybe you have a copy of that one as well you can have copies of all of it i just want copies back you got it we'll give you copies back so again my question is are these are these sworn statements of loss from you the one previous to Front Line the one previous
was this is from Front Line itself statement of loss there's a logo at the top of it okay and again I wouldn't be back here your honor had I heard you ask the question about hurricane damage i don't know who didn't have hurricane damage on the side
well and I I I don't recall that other person's case and I'll be honest with you it wouldn't matter to me anyways what what does matter to me is I if I recall correctly when I'm making my decisions if there was hurricane loss and they were not able to repair their property
or they were not able to be in their property the city has provided a review that you were still able to rent the that second part of the property either if it's short-term or not somebody was able to get in there after the storms is that true or was that part of it remember it's it's I understand but you were able to have somebody on the other
side on the other side okay all right so your property was not a completely and I think that was and again I I'm not trying to take the other person's things into consideration but you brought it up i try and take everybody on their own um as I'm required to but if I recall they
had substantial damage where they they weren't even able to remedy their property so I without recalling that I don't really want to compare the two i just want to take what I have on face value here you're asking for a reduction in the $3,000 based on what somebody else got um I'm not going to consider
that i might consider that you get a reduction based on the fact that you have uh damage to your property and are unable to pay it looks like you got an insurance payout also looks like you're able to go ahead and have somebody on the other side um I'm not saying that you didn't have insignificant damage i I don't really care about a substantial
damage determination or damage is damage you you have a property got damage you have to pay to to fix it i understand that um so what I see here in your application is that you're asking for a reduction in your fine to $1,500 is that
correct from the 3,000 yes ma'am okay all right and the city is not is is is not willing to do the 10% reduction at all it's just a straight impose what was on the the order from the fines correct okay in addition to that your honor I only
saw where they provided evidence of two uh references on there and in all honesty nobody was sworn here today there's not I mean I can take it into consideration this is a purely equitable decision i'm I tend to use the same criteria um when I issue the fine to be
the same criteria when I look at reduction of the fine if the city's not willing to come down at all um I I I'm not trying to downplay your your significant damages that's 135,000 in your estimation 40,000 in your insurance company's estimation i know there are deductibles involved um is this your
primary home yes it is your Okay so if you're renting out the other side where are you living presently it's it's two parts to the home the other side's complete entity of its own mhm and our side is complete entity of its own okay but you said one side was
damaged and then you were only renting out the one side so the home was built in in 1992 mhm the addition to it was built added on in 2002 that side didn't get the significant damage our side did we don't know what's going to happen once they
pull the roof off which is supposed to happen this Thursday and Friday now they I don't know if the general contractors pulled the permits on that yet because he just met with me Saturday okay and he told us he was planning on doing it Thursday and Friday i do know that we have water damage inside of our primary
residence but we don't know what's on the other side at this point until they pull that roof off okay and so the rentable side you're still continuing to rent but on a 30-day basis by the month by the month okay and keep in mind your honor I had a property manager i thought I was doing everything in compliance i
didn't know again we had this discussion last time that ignorance of the law is not excuse you you work whatever the fine is i didn't take that into consideration that's between you and your property manager if you want to go after your property manager by all means here's the other part of it where she's got it on her
website now 30-day minimum okay well and we're and I'm assuming you wouldn't you'd have to be in compliance if you if you were here for a lean reduction um Okay anything further you'd like to present to me today that's it all right anything further from the city any questions from the city okay
okay um I am um I will um grant the lean reduction however I am not going to reduce it to $1,500 i am going to reduce it by $500 so it will be reduced to $2,500 plus the $330 of administrative costs of the city
while I do appreciate that you've had you've had storm damage you were renting this the other side i know it's your home but these were previous to the storm rentals you were still able to rent afterwards so I'm not really compelled um to reduce it any further
than that um so I will get an order out on that and then it'll be the regular terms which I believe is within 30 days of the order you'll have the opportunity to pay the reduced fines if you don't it'll go back up to the $3,000 um and if I have your contact information I believe I already do i'll send you the
order to that effect thank you thank you very much okay and I believe that's all for me today so we will take a brief recess of about five minutes 10 minutes how much do five minutes five minutes and then
you all will reconvene with uh my better looking half Mr my name is Thomas A thanosis i'm filling in for Ms aello as special magistrate on this particular case due to a conflict that she has stated on the record um I
don't believe I need to go through the opening statement that she did uh other than affirm that I am not an employee of the city of St pete Beach i'm an independent attorney who has been retained by the city to hear code enforcement cases um I believe um the
item that we have before us today is the city of St pete Beach versus Bayside Shops LLC case number 2024 0258 uh I've also had the opportunity to uh receive an amended motion to dismiss
uh I'll open it up with Mr der making an opening statement and then turn it over to Mr denhart um Mr special Manate Pete Dur code enforcement manager city of St pete Beach all I'm here to do is to request I don't know if you were in the room when we added um case number
20220159 which was an order actually that you handled a case that you handled um in this case the respondent paid the lean reduction uh we would like an
order so that the um lean can be dismissed um we're missing an order so we're asking that you provide us an order and tell me ex exactly what you're looking for on the order that the um lean was um
it was reduced and settled and then it was also paid in full after and it was paid in full yes sir all right uh I'll issue that order by tomorrow at the latest thank you and I'll have officer Cruz present the case that you just brought and that particular case I don't have uh it's not
on the agenda though correct is it so I if I may um your honor I think he's just looking for the satisfaction release that can be placed of record yes all right for case number 2022 0159 yeah so it's just administrative 44590th Avenue
St pb mr duper do you have a form that the city uses for that um I don't Mr der may Do you have a former release and satisfaction that the city not for that specifically this is so that we have this order saying that this lean has
been paid so this is a document that's going to get recorded it sounds like the clear title yes so you need something that Okay i'll I'll issue something if you think I need to make a revision to it you'll let me know okay all right and the uh respondent's not here is that
correct or is she here no all right so I'll deal with with you then okay all right let's start the uh case I referenced earlier mr cruz good morning morning good morning thank you special magistrate Lewis Cruz representing the city of St
pete Beach code enforcement this is code enforcement case number 20240475 respondent is Bayside Shops LLC violation address is 5501 Golf Boulevard violation description the property if I could have you stop there yes sir i see
Mr denhard standing when I see an attorney standing it usually means he'd like to say something i would u I do have a motion to dismiss to argue and I thought that was going to be argued first miss Jello had indicated back when she was on the case it certainly would be all right any objection Miss Dupich
no but I I believe the code officer could just do an introduction so that way the public everyone knows what case that's what I was going to do i was going to come into the case yeah let's get Mr cruz back up at the podium and then just introduce the case so we know uh what we're talking about and if
anybody is watching uh they'll they'll have a better understanding of the case mr cruz please pick up where I interrupted you thank you sir um I'll I'll start from the top over here um this is code enforcement case number 20240475 respondent is Bayside Shops LLC
violation address is 5501 Golf Boulevard violation description the property is in violation of section 38.5 prohibited uses and structures of the land development code of the city of St pete Beach case summary the initial
inspection was 814 2024 notice of irreparable or irreversible violation dated 8:14 2024 notices of hearing dated and posted on the property 8:14 2024 these are a true and accurate
representation of what I have witnessed this is the affidavit of posting at 5501 Golf Boulevard August 14th 2024 this is the initial first page of the Airbnb
advertisement at the property of 5501 Golf Boulevard just giving you a synopsis of the person that's running the Airbnb advertisement which comes out to be one of the comedy club owners at the property of 5501 Golf
Boulevard just some pictures of the interior of the rental and I'm going to go through these if you would like me to stop please just let me know there actually let's hold off on substantive evidence until we get past the motion to dismiss yes sir thank you
mr denhard I hope to have heard you said if we could pass a motion to dismiss i think I said if we do right if I may Jim Denhard I represent the respondent Bayside Shops LLC and its
managing member Janet McNary who is an attorney in Tampa is present with us as well and I have filed a motion to dismiss and an amended motion to dismiss on the basis of this case not
being irreversible irreparable and it makes a substantial difference because if it is not irreversible and irreparable by code by statute 162 and by the St pp code the inspector has to issue a notice of
violation give a reasonable period of time for the property excuse me to come in compliance and then if it's not brought into compliance go ahead with the proceedings that was not done in this case had it been done in this case
we wouldn't be here because the violation was corrected on I think August 15th the day after the notice of violation was issued i've given to uh your honor and the city attorney the definitions of irreversible
and irreparable and would first start out and say in my constitutional argument I believe there's substantial vagueness in the St pete Beach code there is no definition of those two terms contained
in the code so a reasonable person it's hard for him to know what's prescribed and what's not prescribed the U law of course says that generally criminal or municipal ordinances can be
criminal in nature if they authorize criminal penalties in this case the fine could be $5,000 in Florida that's the same as a thirdderee felony which carries a fine of up to $5,000 section 3-16 of the St pete Beach
Land Development Code provides that items that are violation of the LD RS can be u punished as a criminal case as a municipal ordinance citation uh up to $500 up to 60 days in
jail and that's in section 1.14 of the St pete Beach Code this alleged violation supposedly violated the LDC so criminal penalties could be imposed i would point out that as to
the definitions of irreversible and irreparable and we heard a little bit about this earlier in the environmental case but my definitions and I've given to your honor uh the definitions that come out of Black's Law Dictionary I've given it to the city attorney and if you go down each one of
these irreparable is defined as being incapable of being rectified incapable of being restored incapable of being remedied incapable of being cured incapable of being regained or incapable of being
repaired to be rectified is to set right make it right that was done in this case it was corrected that day no more short-term rentals to be restored the property restored is defined by Miriam Webster dictionary as
to bring back or put into a former or original state this property was it was put back into the original state of not being rented anymore for Airbnb or any other kind of short-term rentals uh also incapable of being
remedied and I certainly would submit that the violation has been remedied i mean the earlier case today dealt with dunes i was going to argue that certainly some environmental cases could be irreparable or irreversible if you
chop down dunes if you chop down mangroves uh at one time I represented a client for chopping down a massive 80-year-old oak tree in Safety Harbor i would have to agree that's irreversible irreparable but in this situation it was not
irreversible irreparable the incapable of being remedied uh talks about providing or serving a remedy for there was a remedy it was made right and remedy even is defined as
redressing a wrong that was done in this case the incapable of being cured cured talks about to correct one or more legal errors that was done to regain is to get back to something in its original state
that was done and to repair again is to remedy heal or to make right again this situation was made right immediately and again it makes a big difference because if it's not irreversible or irreparable
then the code officer has to give a notice violation reasonable period of time for bringing the property into compliance and then if failing that if it's not then we come before the hearing before the special magistrate the irreversible the other
part of irreparable means to damage so extensive or so great as to make it impossible to revert to an earlier state of condition state or condition and that's out of Miriam
Webster dictionary so I would submit that the code first of all in St pete Beach is too vague and I think it has a constitutional infirmity for that reason
um I will admit that after being involved in this case city attorney where cities where I'm city attorney I'm changing my code to put in definitions of irreversible and irreparable i'm not saying the city can't do that but right now they don't have it so then as we all
know you look to kind of the common everyday dictionary definitions and there's not a def common dictionary definition here that would support this incident being irreversible or irreparable even in the earlier case
Miss Oella find found that you know going over the dunes that was not irreversible irreparable and that was the hurricanes were in October the damage apparently was done in March in this case property was cited in
August it was corrected in August so I submit that the motion to dismiss should be granted and you can't skip from going from a charge from irreversible irreparable to saying well maybe there was another violation that
wasn't because it wasn't cited at that and there wasn't the opportunity that's mandated by statute 162 to be able to correct the violation so I submit the case should be dismissed thank you thank
you Ms stupri your response um your honor before you today is not we don't have a criminal matter um before you today um I think comments and references made to the code um
violations having uh some type of criminal um nature to them is really just a red herring um this case is not being prosecuted in in that regard this is being prosecuted as a code enforcement violation for irreparable
irreversible harm um also presented to you was reference to our prior case which was environmental um in nature um as as being evidence of of irreversible and irreparable um saying that Miss
Jello had considered that as such um she's also in other cases viewed uh specifically short-term rentals as being irreparable irreversible but what it really gets to is the heart of the matter which is the nature of the
particular violations that are before you um council has referred to the opportunity to um to remedy it and has also made argument that that in fact they has been remedi remedied um but
that is not the case because these short-term rentals they are transitory in nature they are not of a continuing violation um to characterize it as
uh subject to uh remediation or repair would require that rental to be ongoing and then there would be a compliance period where you could then terminate it these are instances that are transitory in nature they happen
they cause harm they're a violation of the code um in fact Florida statute also segregates these type of uh violations from other violations that would be
somewhat continuing in nature um there is no definition in state statute as to what irreparable or irreversible is in nature the words in nature provide the discretion to the
reviewing body to to determine whether or not it is irreparable or irreversible the statute does give some guidance in that it uh basically shortens the um the
notice requirements to bringing it before the magistrate indicating that it's it's a very serious thing that it needs to have immediate resolution the statute also gives an enhanced fine
um again showing that it is something that is very significant in nature and differentiating it from a uh reoccurring um type of violation that could be cured
with that said um you know the statute again it does give some indication of some excuse me some factors that could be considered but those factors are not dispositive of the definition of
irreversible and irreparable um looking at the gravity of the situation um the uh the ability to correct which is not present and if there is any type of previous um violation but again those are things
factors to consider in determining whether or not it is irreversible and irreparable in this particular case uh there are multiple u violations that have
occurred and the fact that they have um arguably stopped um engaging in short-term rentals doesn't cure those prior incidents that were transitory in nature
because they are transitory in nature they are different they are not subject to um any type of cure making them irreparable and irreversible it happens you can't stop it
all right i would Mr der no we're just talking about the motion to dismiss yes sir um in addition to what you just heard from the city attorney I would like to add the following um this is from state statute 16206
can we zoom in get a little bit closer on that please which says if the code inspector has reason to believe a violation or the condition causing the violation presents a serious threat to the public health safety and welfare or if the violation is irreparable or
irreversible in nature the code inspector shall make a reasonable effort to notify the violator and may immediately notify the enforcement board and request a hearing so as I said in addition to what you just heard from our city attorney we had reason to believe that this violation um was irreparable
and irreversible so we notified the respondent and immediately notified the enforcement board hence is why we're here so thank you thank you Mr denhard anything you'd like to add very very briefly please
first of all my motion to dismiss was in two parts two arguments the first part going to um what was just argued about well this isn't a criminal I I understand this is not a true criminal proceeding it's somewhat like it it's a
little bit of Quinn to it it's a little bit quasi judicial it's a little bit a lot of things but forget that argument altogether and just go to argument number two in my motion to dismiss and that's the one dealing with irreversible and irreparable and what we just heard
was yes that is what chapter 162 says and I remember when that came out back in 1982 I think it was except I think it was chapter 163 at that time but it provides a method to try to stop
things that are causing substantial harm and damage if the code inspector finds it to be irreversible irreparable and yes in that instance they can do it but the statute also says
or the St p ordinance also says that ultimately it's up to you to determine is it irreversible or irreparable and that's section 22-279B of the St pete Beach Code that if after due notice and hearing you find
it to be irreparable or irreversible you may impose a fine not to exceed $5,000 um and then it gives a criteria that you must determine which is the gravity of the violation any actions taken by the violator to correct the
violation and any previous violations committed by the violator well first of all whether forget it being criminal forget maybe it being uh vague whether it is or not it's not irreversible it's
not irreparable yes they did give their notice and it stopped immediately so the property the day after the notice was given was in the same condition that it was back before any short-term rentals that
started i think the testimony would show if we get there like 6 months before so I don't think we can be here mr der you have one more comment based on what you just heard from the attorney
um irreparable or irreversible means it cannot be undone in this instant what cannot be undone is the fact that I'm sure his client has not um paid back or discounted or given back that money that they collected that is what cannot be
undone the um violation occurred they collected that money and that's why we're here because that process was not undone that's the So let me ask the question then does every case that you bring before the special magistrate
involving um uh short-term rental violations are those all handled by as irre irreversible and irreparable violations yes that's correct sir all of them yes sir yes your honor and um again the gravity of um there is a public
policy a very significant one regarding short-term rentals and as you know they are heavily regulated by the state and as well as the local governments in certain certain aspects before you today will be 33
violations let's go back to violation number one or number two is there any way that those could be remedied no they happened can I impose a fine for those violations yes you can okay would that be an adequate remedy
a fine is a penalty and not remedial all right let's deal with the amended motion to dismiss uh which I had a chance to review this morning when it was handed to me um on the constitutionality issue I will find
against the respondent beside Shops LLC i don't believe this rises to a constitutional issue this the city ordinance is patterned after the state statute state statute does not define irreparable or irreversible in nature um
I did look before the hearing uh search the attorney general website to see if there's ever been a case that the attorney general has opined on the definition of those two words and I've not found anything there i looked for state uh appellet court cases didn't find anything there that specifically
defined them so I think that leaves it to uh common sense and using uh dictionary definitions which are very helpful um for me I think if if we are looking at irreversible or irreparable damage I think the case the the
situation that Mr denhart mentioned it's probably applicable if I were to have snuck on the Masters Augusta National yesterday or not yesterday going back about 10 or 15 20 years ago when the Eisenhower tree stood at 210 yards off the T- box on number 17 and cut it down
uh the day before the tournament that would be irre irreversible and irreparable harm because there's really no remedy to put that tree that tree that had stood there for many years putting that back uh to its previous um uh location and it's and its uh and and
the growth that it had over the decades that it was there uh so I would view something like that as irreversible interrearable i know I sat through Miss Aello's u uh decision this morning where she um looked at an environmental issue
dealing with dunes and found that those were not uh any kind of disturbance of the dunes were not irrevocable or I'm sorry irreparable or irreversible so to the extent that there that the constitutional issue has been raised I'm going to find against the respondent on
that i think we get to um my view that subsection four of the statute and the city code is a remedy that the city has for situations where there's irre irreversible irreparable harm and you have that option if you think it is uh
that nature i know the cases I handled previously for about the two or three years that I was sitting as the magistrate on on various cases i don't believe I saw too many cases that asked for damages for um irreparable or irreversible harm um most of the cases I
handled were after the fact where penalties were imposed based on daily violations sometimes very substantial into the several thousands of dollars sometimes more minor matters but they were all involved action that was taken before the case was brought and the um
the the remedy that was suggested by the city was to impose a fine which I did on a fairly regular basis on almost all of the cases that were brought before me where I found the respondent responsible so I think in this case um I think the
question becomes um is the city prepared to move forward with a garden variety zoning violation case as we have before us today and that is somebody who rented out uh their property on a short-term
rental basis where the this the zoning code the LDRs uh prohibited the rent any kind of rental uh in that particular AC is it AC zoning district I think it is so I think that's the question is if you're ready to move forward with that
today and I think I'd like to hear from both attorneys if that's what the issue is before me today so I'll start with Miss Dupage your honor if you could just clarify for the record your finding are you making a
finding that this is not irreplaceable irrevocable irreplaceable yes you are yes interesting okay well thank you for calling it interesting but my my feeling is this is a garden variety zoning
violation uh I know it's only been Mr denhart's uh statements but he has indicated both in writing and orally here today that the violation was remedied the next day don't know if that's the case or not u certainly trust Mr denhart's word but you know that's an
issue that needs to be established factually but I don't really view um uh short-term rental violations as being irreparable when you've got the ability to stop them if they're illegal if this were a situation where you could have
seven-day rentals and they were doing for three days u you know that you know there are penalties that have been imposed in previous cases for those but I would be very surprised if they were found to be irreparable and irreversible because they are there's an adequate remedy at law in imposing damages that's
how you get uh landlords who are advertising at Airbnb and other uh online platforms to comply with what the local ordinance is and I believe in this particular case there is to be no rentals in this particular zoning
district i I I don't know if that's the case i certainly defer to somebody from the staff to help me understand that but I would think that the um my reading of of the AC zoning district is that there are no rentals unless there is one very
specific exemption for multifamily and again I I'd have to go back and look at my notes on it but I will um and and I can find that if that becomes pertinent today so Mr der um I'm listening to you Mr tannis and so Pete Der again on
behalf of the city uh you asked the question if miss uh special master Jello rules um on these cases which are short-term rentals um if they're irreparable and or
irreversible in nature and as you see there on in paragraph 7 the special mag street finds the respondent and the subject property were in violation of section 30.5 of the coh city's code of ordinance as the use is not a use of right or condition in the zoning
district the rentals in violation of the code are determined to be irreparable or irreversible in nature and the respondent is assessed $1,000 for each of three stays um Mr special magistrate I with all due respect I hear you i
understand what you're saying but these cases have been heard previously um to be irreparable or irreversible as I mentioned um the act of renting um these properties on a short-term basis yes they can be corrected after the um
violator respondent receives a notice from the city but again the act itself is not uh being undone hence it being irreversible in nature right and so again with all due respect um I would
ask that you continue finding these cases to be irreparable or irreversible um your honor decisions in if I may also um clarify I mean I would say that perhaps there may be some circumstances where a short-term rental based on the
facts in a particular case could be an ongoing um violation as you subject to to remedy that would be a situation where a rental is in the process and is
continuing to be rented and the code violation comes to you in that situation you could terminate the rental uh within a short period of time right there and then but when you have instances that are transitory in
nature they happened it stopped you can't go back and undo that and that I think is the distinction that needs to be made um if you can't go back and undo it it's irreparable it's irreversible
mr denhard your honor I learned 50 years ago as a young prosecutor that when you've kind of won the argument you're not supposed to keep arguing and I certainly accept your ruling that it's not irreversible and irreparable but now the city's saying well you can't undo something i
would point out that in the majority of code enforcement cases they come up because of something like a junk or abandoned vehicle in a yard overgrown grass in a yard or something like that yes somebody has an abandoned vehicle
they're required to give notice to that person and reasonable opportunity to cure it and if they cure it then they can't go back and say "Well we want to find it because it was there." That's not the way 162 was written that's not the way the St pete Beach code is written same way with a junk vehicle uh
overgrown grass any other violation that's not irreversible irreparable their own code says that if unless it's irreversible and irreparable they must give the notice of violation and
give a reasonable period of time for bringing the property into compliance once it's brought into compliance there is no more case it doesn't come before the magistrate so I don't think if it's not irreversible and irreparable they can't say "Well we're
going to change now we gave you a notice of violation for being irreversible and and irreparable but now we're going to proceed under just a normal ordinance." They got to go back to square one and start over again if they're going to do that thank you so I think this case started
off there was a notice of hearing that was issued asking or directing your client to be here on September 9th 2024 and it cited it doesn't cite any particular ordinance as having been
violated but there's a reference to an affidavit that was attached i don't think I saw the affidavit in the file but then I see on August 14th there was also an irreparable or irreversible notice of violation issued citing 38.5
uh stating that your client was um uh engaging in activity not permitted by the by the AC activity center district regulations the case started off as Mr cruz testified earlier with the irreparable or irreversible the city has
two different forms that they use one for regular violations one for irreversible irreparable irreversible violations it started off as he testified on August 14th when he went to the property when he observed the
violation and when he issued this notice he elected the route of going irreversible irreparable uh there was no other violation cited so you think it's an eitheror situation i mean can I treat this as a standard violation like I've
always done and I I agree with you if it was a junk and debris let's say somebody had a junk car in their backyard uh that and it stood there and it sat there for 30 days uh and then the owner finally moved it um I think I'm hearing from the city that that's irreparable and and
irre um irreversible behavior uh though I've never treated a case like that i treat it as a violation much like you suggested I should and I should penalize the person for having it been there he had time to cure probably didn't cure it you know in a certain period of time but you know to have it brought before the
magistrate uh but the um uh the magistrate has the authority to impose a fine for that kind of behavior i think in this case if it was just brought as a a violation of 38.5 without the irreversible and irreparable language included in the
notice I'd be dealing with we'd probably be done by now because I would have found that your client I think your client may be acknowledging that there was use of the property that was not permitted in the AC zoning district and but she corrected it immediately upon being notified i'm still I still have
the authority though to impose a penalty for the behavior that that brought this before the magistrate so had it I'm sorry yeah go ahead had it been a normal case they would have had to give a notice of violation and the notice of violation would have had to say I believe the code
inspector I believe that a reasonable period of time for you know you've got to correct it by a certain date whether it's 10 days normally 10 days 30 days whatever it would have been corrected within that time and if it's corrected within that time then the violation terminates there is no violation as all
of us know here the purpose of code enforcement is to obtain compliance with the code it's not to penalize code enforcement has always in Florida since it started in the early 80s been to obtain compliance with the codes of the
city had it been a normal I mean it's an eitheror yes I do think it's an eitheror that's why they have two different forms they elected this one they didn't get past go on this one if they want to go back now and say she's in violation now then they've got to give her a
reasonable period of time and it's going to be I mean she's not in violation now so So this notice was the first time your client was informed that there was a violation occurring at the LLC's property that's what Mr yes and that's what Mr cruz testified to he showed you
three dates august 14th August 14th August 14th everything happened on one day everything was cured that day there were no more rentals after that miss Mcinenry uh went to her her client or her tenant and said "You can't do
this." And they canled out all future rentals there were no more rentals it was brought into compliance the day that the original violation citation was issued August 14th so you think that the form is what's prohibiting me from
proceeding with this as a regular uh violation of the city code am I authorized to treat this as just a garden variety violation of city code for which I could penalize your client for having violated before August 14th i
I don't think so no and I don't see the authority for that in the St pete Beach Code their code tracks 162 that says under normal garden varieties here's how you proceed if you think it's irreversible irreparable then you can
proceed this way and they did not proceed in the first way so no had they proceeded in the first way this never would have been set for a hearing okay maybe the code inspectors disagree with me but yeah and again in the interest of making sure everybody has a
chance to be heard let's let Mr der uh discuss this one more time um sir I take you back to 16206 paragraph 4 which says we have reason to believe that this is irreparable or irreversible and it's not just based on
the city's determination as I just showed you we have evidence and precedents that these cases short-term rentals that we have uh the city has zero tolerance policy uh zero tolerance zero tolerance policy for these cases
are now heard and the president has been set by the uh our sitting special magistrate that these cases are being heard as irreparable and irreversible it's not just based on a first and a second um
um take a take a guess at which uh notice of violation we we'll be sending we are sending these notices of violation that are titled um irre irreversible and irreparable because of the precedent that has been uh set by
the special magistrate this is not just us uh picking which we're going to do eeny meenie miny mo not that's not the kind of operation that we have here it's a matter of why not do that on your uh junk car in the backyard case because as is correctly pointed out you have the
the um the the responsibility and you're given the opportunity to correct it's not a matter of they didn't correct after they were notified it's a matter of what you did within that specified time that the officer will prove to you that there was a specified time that the
violation was occurring that matter is not going to be undone hence the irreversible aspect of this so the 30 days that the junk car was sitting in the backyard how does that get how does that come into play then if if the owner
of the junk car moves it off the lot the day that he receives the notice of violation case is over magistrate doesn't even hear it correct um you don't want to penalize him for having it there for the 30 days that it sat there in violation of the code it's not a
matter of uh penalizing as as you're well aware um staff and I we educate all day every day right the idea is um funds have been collected by the respondent for the illegal act
and those funds that were collected will not be given back or refunded to the to the the visitors that stayed on this property we have made that determination not just because of of staff's involvement but we also have a special magistrate who has ruled in favor of
these cases being I and I and so that uh precedence because it's established again it's not a eeny meenie miny mo which violation notice we're going to send today any short-term rentals in the city of St pete Beach because of the zero tolerance policy we uh apply the
INI standard to those cases these are not your garden type variety cases as you're pointing out uh a vehicle left on someone's property for 30 days um that case might never be uh heard by the special magistrate because that case can be um corrected in this instant in these
short-term rental cases we have established precedence that these cases are INI because of the funds that are collected by respondents illegally so because they're renting on a short-term basis which is illegal and those funds are not being refunded that is the
president don't I get a chance to penalize the person who is uh illegally renting the unit by imposing a substantial fine that could be equal to the amount of rents that person collected of course I I and so I I don't know if you can make that decision i
think that would go the city likes to uh send a message to people that try to rent on Airbnb illegally and VBO and other online platforms by asking for a substantial fine i don't think any of the cases that Miss Aleello hears uh her
orders direct the refund of money to those people who had the benefit of staying there in violation of the short-term rental record i mentioned the refund as as it relates to the irreversible aspect of this we're not expecting a refund that's not our
business right the idea is what is the consequence for you renting your property illegally and that consequence is to declare that these cases are irreversible and irreparable and that is why there is that um request for either
5,000 which is pursuant to the statute but it's normally deduced or deducted to $1,000 which as you just saw um is is normally Mrs uh Aello's ruling
okay thank you if I may have Mr denhart I would point out the city does have a remedy here as you're aware codes can be enforced one of three ways they can be enforced through a code enforcement board or special magistrate they can be
enforced by injunction in circuit court and they can be enforced by local ordinance violation issued in the county court the city has a remedy if they want to punish for a past incident they can charge a local ordinance violation
saying that on X date somebody violated the code by running short-term rentals that citation then is returnable to the Penllis County Court and a judge hears that and if the person's found guilty then they receive a fine for that code enforcement through
the code enforcement board and special magistrate is for the purpose of bringing the property into compliance with the codes and so the city so far has just gone this route i'm not saying that they may not have the option to issue whatever 30 different local
ordinance violation citations for each however many there are that they say were rented before my client had any knowledge of it they maybe can do that and go back they're still certainly within that statute of limitations for that so they have a remedy for past
things just like they would have a remedy for saying a junk car was on somebody's property for a certain date but they corrected it well the city still could charge an LOV a local ordinance violation in love court what it's called here
um and they could go out on Thursday and they could try to receive a fine for each day but they can't go back for the junk car and the overgrown grass and now say they want you to impose a fine
because something happened before this started on August 14th thank you your honor the city does have different remedies in these type of cases we have chosen to come forward with this case as
irreparable and irre irrevocable the prior violations that occurred there are 33 of them there is no way that we can go back the property owner cannot go back and cure those they're done they're
irreparable irreversible going forward i think there's been testimony that she understands or the the entity understands that they should not be renting these on a short-term basis but that's prospective we're here
because of the 33 violations that are irreparable and irreversible that occurred in the past okay anything else i'll stay seated okay so let's do this i I don't necessarily
think we need to go to proofs at this point do we is there anything else mr cruz you were going to show the uh the list of violations they're in the record i've seen those i don't think Mr denhard or his client will be disputing what is part of the record correct we we
stipulate that there were short-term rentals basically between January 1st or December 31st and August 14th my client had no knowledge about it until she received the notice of violation on the 14th it was immediately corrected on the
15th we will stipulate to that any objection to that stipulation and also that she received no money it was done by a subtenant well there's a lot to be packaged there um if there's a stipulation that the rentals occurred um
well I I'm not sure what your attorney is saying if you could just re restate it i'm asking specifically what your stipulation is um come on up to the podium Mr your honor has passed and again I I'm not I have all day so we can
go through a full uh set of proofs on this if you'd like but what I'm trying to do is uh sort this out as far as the INI issue as to whether uh I'm allowed to even hear a case like that uh if I were to find it not to be irre
irreparable or irreversible uh the question is can I just hear this as a garden variety case has your notice re has your client received notice that the city is pursuing a remedy for violation i think the INI part of the statute is is a remedy available to the
city along with all other remedies available to the city and that would include the imposition of a fine for each violation and that there's a cap on that uh you know a daily cap and we could go back and take the 11 violations that have been alleged calculate the
number of days ask and the city would ask for a fine on that and I would most likely take the city's request your request and probably find something that I think is reasonable in between those two numbers and and impose a fine on your client for
the the past violations that occurred even if your client did not have actual knowledge and I heard that is it Miss Menry Mckenry mckenry yeah and I'm again this is not an issue I'll take as fact at this point but it sounds like Miss
Mckenry did not have notice that this was going on had a tenant who was taking advantage of the situation and was leasing it out uh unbeknownst to her again no defense uh other than I can take that into consideration when fashioning a penalty if if this was a
planned activity by the owner of the property the LLC then I would probably take a much more different I'd take a different approach to it but um I I think that's the issue and you know if I wanted to proceed on this as a garden variety violation where I can impose a a
fine for each violation um you know I'd be prepared to do that today because it sounds like we did have violations we're not disputing that it's just the your client is indicating that she was not aware of it which I can take that into consideration too and I would issue an order and I think that would probably
end the case but it sounds like if my only choice is to find this to be uh irreparable and irreversible and I find that it's not then that ends the case and I don't think that's where the city wants to go with this no but um going back to the possible uh I want to go the
possibility of a stipulation there is um documents in the record that uh code has provided um evidencing the um 33 instances of of um rental short-term rental of that property so I would be
okay stipulating that um there was short-term rental um 33 times um as shown in the agenda materials I think beginning on page 31 through 41
so that's under the evidence tab and I see several colorful pictures and uh red boxed uh ex exchanges which I assume were on was it Airbnb this platform yeah
so and again I'm I'm see 33 different exchanges that took place and I haven't read each one and I could but I'm assuming that those were efforts at rentals that actually materialized uh prior to August 14th
2024 so I guess that's what Miss Stuper is asking you to stipulate too that these were actual violations that occurred prior to the notice being issued we we have no knowledge of those so I'm not you know I can't dispute those my client was not involved in that
she had no knowledge of it she was not involved other than being the managing member of the LLC that owns the property okay all right so is that a stipulation i won't I won't treat it as a stipulation i'll just treat it that the city has submitted
evidence that is not contradicted and and I can't contradict that as part of my knowledge yep all right what I'm going to do is I'm going to take the matter under advisement i obviously have um you know I I probably am deviating from what Miss Aello has decided in the
past on these cases and that's why I do want to look at it i want to see if I can find some case law um you know I I am definitely ruling that this is not a constitutional issue obviously I think I understand like you and I were in law school at the same time back in the 70s and early 80s maybe um for you not for
me um not for me i Okay and you know if if there's a remedy if there's an answer uh outside of deciding a case on the constitutional basis then you should do so and I think in this particular case we have uh the statute under chapter 162 having been in existence for many years
since 1980s and those words have appeared in there without full definitions and they've been applied by many magistrates in many cities throughout uh the state of Florida for many years and at this point there's no case law finding them unconstitutional uh Mr denhard I'm I'm not saying you
have not found a new issue to raise after 40ome years of this statute being in existence but I'm not the one that's going to blaze that trail and find it to be unconstitutional i think the question for me is whether this is irre irreparable and an irreversible um
situation if it is then I allow the city to move forward and I'll find in favor of the city in a case like this if I find that it's not irreparable and irreversible then I'm think I'm hearing that from you that I'm not allowed to take the next step and just treat this
as a regular code violation case and impose a penalty for that is that correct i believe that if you find it's not irreversible and irreparable we should never have gotten to this part of the proceeding all right uh so there therefore no fine all right i would just like to mention one other thing if I
could since and I'm not sure need to think this through a little bit but I would point out again to you under section 222-279B of the St p Beach code it says that if you do find irreversible and irreparable it gives your marching
orders and says then in determining the amount of fine if any which is used right in their code the special magistrate shall consider the gravity of the violation any action take taken by the violator to correct the violation
and any previous violations committed by the violator now I'm a little bit questioning here where we're heading today because obviously I need to build my record and have my testimony if um there's any chance that you're going to be entering
a fine I would like to go ahead with the hearing just so that all the testimony is in the record and I I apologize for having to do that but No I I understand that because you you will have the opportunity to take this up if you'd like to okay and your client is willing to uh participate in in an appeal of my
decision uh why don't I do this if I find that the case is going to go on uh I'll reschedule it for another hearing and um and I'll try to pick a date that's convenient on the regular call date so it doesn't necessarily have to be next month because I sense that
there's no urgency at this point since there's no allegation that the rentals are continuing so it would probably either next month or the month after where we'd have we'd reconvene and then do proofs at that point and let the city present its full case you'll have an opportunity to present your case and
then I can make a decision on that thank you okay and I do have several trips out of the country coming up this year so I'm not sure it's the second Monday of the month right it's still second Monday of the month for all the hearings so
um yeah let's Why don't you look at your calendar and tell me i'm I'm sure we can work out a date if if it gets to that point yeah we definitely want to keep it on the regular call though i just want to be able to have some input on the date of the hearing because Absolutely i'll have
Miss Dupers contact you and then you work that out for hurricanes and for me for illness so Right all right thank you very good all right matter taken under advisement uh both the motion uh to dismiss and the case and chief and if
needed I'll reschedu another hearing uh where we can move forward with INI case good um your honor yes with all due respect so um then we would be renoticing the case for the future
hearing or you're going to continue it my my order will include a new hearing date and I will consult with Mr denhard and Miss Stupri and Mr der on scheduling that whether it's the second Monday in May or the second Monday in June um
we'll have to figure that out obviously there's no reason for me to delay it my concern would be having to repost the property continuing it to a date certain um if we could as long as there as long as there's notice to me I will agree
that that's notice that complies with 16 yeah there's there's no need to repost any of the pro we're still working off the original post that was uh posted on August 14th of 2024 so he's waved it's just subject to your notice yeah I I think he has notice now and his client is here and she has
noticed so and if I could get the spelling on your last name Miss McCry please yes it's m cn er y okay thank you thank you all right there are other people in the
back are they here for anything i have potential witness council for witness no need to All right okay i I wasn't sure if you were Okay and that concludes today's special magistrate hearing thank you thank you