Judge Kakarek’s follows:

IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY FLORIDA

CHARLES FITZ, Plaintiff,

vs.

CITY OF VERO BEACH, FLORIDA

Defendant. ______________________________/

FINAL JUDGMENT

This matter came before the Court on Plaintiff’s Motion to Enter Final Judgment and the Court having reviewed the file and being otherwise fully advised in the circumstances, makes the following findings of facts and conclusions of law:

1. Plaintiff, Charles Fitz (hereinafter referred to as “Plaintiff”), filed a four- count Second Amended Complaint seeking (1) a declaratory judgment that the City of Vero Beach’s Ordinance 2015-02 is preempted by Section 509.032, Florida Statutes; (2) a declaratory judgment that the Ordinance places an impermissible restriction on speech and expression; (3) a declaratory judgment that the Ordinance is unconstitutionally vague; and (4) a declaratory judgment that the Ordinance unconstitutionally delegates legislative authority to the City’s planning director.

2. There are no material facts in dispute.
3. Plaintiff is the owner of three dwellings located in a single-family

residential zoning district (R-1A) within the City of Vero Beach. Plaintiff purchased these homes on various dates between 2003 and 2014 and uses the homes as short term rentals with leases ranging from a few days to over a month. In order to attract potential tenants he advertises these rentals on various web sites.

4. On or about February 6, 2015, Plaintiff received a Code Enforcement Warning from the City concerning his property located at 766 Fiddlewood Road, Vero Beach. The warning advised him that he was operating a “guest house and transient quarters” for periods of less than 30 days in a residential zone. On April 29, 2015, he received a Code Enforcement Citation for violating Vero Beach City Code provisions 60.11 and 61.02 for “operating a guest house and transient quarters in a residential zone.” This citation has a civil penalty of $500.00. In response, Plaintiff filed the present action.

5. Title VI of Part III, Land Development Regulations, of the code of Ordinances is the City’s zoning ordinances. Section 60.11 of the Code requires property owners within the City to act in conformity with zoning regulations and provide for a fine for violators. Section 61.02 of the Code lists the permitted uses within a single-family residential zoning district. Plaintiff candidly admitted, in his Motion for Summary Judgment, that pursuant to Section 61.02, “guest house and transient quarters” as defined in Chapter 60 is not a permitted use within a single-family residential zoning district.

6. On January 6, 2015, the City enacted Ordinance 2015-02, amending Chapter 60. The definition of “guest house and transient quarters” was amended from the 1986 definition in the Code but is substantively identical to the prior version only with minor stylistic and punctuation changes and provides:

Guest house and transient quarters: Any structure including converted dwellings in which less than ten (10) bedrooms, with or without meals, is are rented or otherwise provided for compensation to transients for their temporary care and lodging.

The Ordinance also added a number of new definitions, including:

Guest: Any patron, customer, tenant, lodger, or occupant or a guest house, transient quarters, hotel, motel, or similar establishment or accommodation.

Transient: A guest in transient occupancy.

Transient Occupancy: Any occupancy for which it is the intention of the parties that the guest’s occupancy will be temporary. There is a rebuttable presumption that the occupancy is transient when the structure, building, dwelling, accommodation, or portion thereof, is rented to guests for periods of less than 30 days or one calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented for periods of less than 30 days or one calendar month, whichever is less.

7. Effective June 2, 2011, the Florida Legislature amended Section 509.032, Florida Statutes, adding subsection (7)(b) which was later amended such that it presently provides:

(b) A local law, ordinance, or regulation may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals. This paragraph does not apply to any local law, ordinance, or regulation adopted on or before June 1, 2011.

WHETHER ORDINANCE 2015-02 IS PREEMPTED BY SECTION 509.032, FLORIDA STATUTES

8. Plaintiff contends in Count I of his Second Amended Complaint that when section 509.032(7)(b), became effective on June 2, 2011, there was nothing in the City’s Code that regulated the duration of vacation rentals; therefore, the Statute precluded the City in 2015 from enacting the Ordinance 2015-02, which Plaintiff claims regulates the duration of vacation rentals by amending the definition of “guest house and transient quarters” and adding the definition of “transient” and “transient occupancy.”

9. The City contends that there is nothing in the Code which prohibits or regulates the duration of vacation rentals. Instead, the challenged provision of the Code, as amended by the Ordinance, regulates the land use “guest house and transient quarters.” The City contends that it has consistently regulated the land use “guest house and transient quarters” since at least 1977, well before the Legislature amended section 509.032.

10. In Ordinance 1977-1334, this use was not a permitted land use in any zoning district but was merely a conditional use in the Transient Residential District (R- 3), the Restricted Commercial District (R-3A), the Tourist Commercial District (C-1A), the Highway Oriented Commercial District (C-1), and the Central Business District (C- 24). The 1977 Ordinance definition of “Guest Houses and Transient Quarters: set forth in the ordinance was:

Any structure, including converted dwellings in which less than ten rooms, with or without meals are rented or otherwise provided for compensation to transients for their temporary care and lodging.

Under that ordinance this land use was not a permitted or conditional land use in the R- 1A zoning district in which Plaintiff’s properties are located.

11. In 1986, the City adopted Ordinance 1986-43 which repealed the zoning ordinances existing under the 1977 version of the Code and adopted Title IV of the Code. Chapter 60, the definitions section of Title IV, specifically defined the land use “guest house transient quarters” as:

Guest house transient quarters: Any structure including converted dwellings in which less than ten (10) rooms, with or without meals, are rented or otherwise provided for compensation to transients for their temporary care and lodging.

12. The City also adopted two more Ordinances amending Title IV, Ordinance 1987-29 and 1991-06. The 1991 Ordinance eliminated the land use “guest house and transient quarters” as a permitted or conditional land use in any residential zoning district. This prohibition and regulation has remained in place through the present date and was in effect at the time Plaintiff purchased his properties.

13. Plaintiff’s houses constitute a “guest house and transient quarters” under the plain reading of the Code. As such they are not permitted or conditional uses in the R-1A zoning district and have not been permitted since at least 1977. The 2015 addition of the definitions of “transient” and “transient occupancy” to Chapter 60 of the Code does not substantively change the definition of “guest house and transient quarters.”

14. Additionally, the Court finds no merit to Plaintiff’s contention that the addition of the rebuttable presumption in the definition of “transient occupancy” is a regulation on the duration or frequency of vacation rentals. This rebuttable presumption regulates nothing; rather it is an evidentiary tool by which “an inference [is] drawn from certain facts that establish a prima facie case, which may be overcome by the introduction of contrary evidence.” Black’s Law Dictionary (8th ed. 2004); see also Universal Ins. Co. v. Warfel, 82 So. 3d 47, 51 (Fla. 2012).

15. Plaintiff’s reliance on the appellate case of City of Vero Beach v. John and Tracey Carroll, Case Number 312013AP000016 (Code Enforcement Case Number 13- CE-3954) is misplaced. In Carroll, the Appellate Division of the Circuit Court reviewed the administrative action of the Code Enforcement Board and issued a per curiam affirmance of the Code Enforcement Board’s decision. The per curiam opinion has no precedential value. See St. Fort v. Post, Buckley, Schuh & Jernigan, 902 So. 2d 244, 248 (Fla. 4th DCA 20015); State Comm’n on Ethics v. Sullivan, 430 So. 2d 928 (Fla. 1st DCA 1983).

16. The Court concludes that the City’s regulation of Plaintiff’s property as a “guest house and transient quarters” and the prohibition of such land use in the residential zoning districts was well settled and existed in the Vero Beach Code at the time Section 509.032(7)(b), Florida Statutes, became effective. Further, Ordinance 2015-02 did not make any substantive changes to the definition of “guest house and transient quarters.” Therefore, Ordinance 2015-02 was not preempted by the Statute.

WHETHER ORDINANCE 2015-02 PLACES AN UNCONSTITUTIONAL RESTRICTION ON PLAINTIFF’S RIGHT TO FREE SPEECH AND FREEDOM OF EXPRESSION

17. In Count II of Plaintiff’s Second Amended Complaint, Plaintiff alleges that by adding the definition of “transient occupancy” to the definition Section of Chapter 60 that the City is “attempting to regulate or place a restriction on Plaintiff’s right to free speech and expression.” More particularly, Plaintiff argues the rebuttable presumption created by this definition—that the “occupancy is transient when the structure, building, dwelling, accommodation or portion thereof, is rented to guests for a period of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests for periods of less than 30 days or 1 calendar month, whichever is less”—restricts his right to advertise or hold out to the public that his properties are regularly rented for periods of less than 30 days or 1 calendar month.

18. Plaintiff’s argument is without merit. Ordinance 2015-02 regulates conduct, specifically in what zoning district an individual can operate a “guest house and transient quarters.” The definition of “transient occupancy” in no way restricts Plaintiff’s speech or rights of expression. It does not restrict or forbid his ability to advertise his property for rent for periods of less than 30 days. The definition merely creates a rebuttable presumption that if he chooses to so advertise that this may be offered to prove that he is operating a “guest house and transient quarters” which is not permitted in the R-1A zoning district. In fact, Plaintiff continues to advertise his properties.

WHETHER ORDINANCE 2015-02 IS UNCONSTITUTIONALLY VAGUE

19. In Count III of Plaintiff’s Second Amended Complaint, Plaintiff argues that the word “temporary” as used in the definition of the term “transient occupancy” is not itself defined by the code, thus making the Ordinance 2015-02 unconstitutionally vague because “persons or ordinary intelligence could not read the Code and determine what conduct is permitted and what conduct is prohibited.” State v. Catalano, 104 So. 3d 1069, 1075 (Fla. 2012). In Plaintiff’s Motion for Summary Judgment, Plaintiff argued for the first time that certain other provisions of the Code are also unconstitutionally vague. Because these other allegations were not raised in this Second Amended Complaint, Plaintiff is legally precluded from raising these new allegations.

20. In State v. Catalano, the Florida Supreme Court discussed the standard to be applied when it is alleged that a statute is unconstitutionally vague and stated:

There is a strong presumption that a statute is constitutionally valid, and all reasonable doubts about the statute’s validity must be resolved in favor of constitutionality. See DuFresne v. State, 826 So. 2d 272, 274 (Fla. 2002). “This Court has noted, however, that in a vagueness challenge, any doubt as to a statute’s validity should be resolved in favor of the citizen and against the State.” Id. (citing State v. Brake, 796 So. 2d 522,

527 (Fla. 2001)). Accordingly, in order to withstand such a challenge, a statute must provide persons of common intelligence and understanding adequate notice of the proscribed conduct. Id. at 527.

Catalano, 104 So. 3d at 1075. “To withstand constitutional scrutiny, however, statutes do not have to set determinate standards or provide mathematical certainty.” Id. at 1076. In considering the constitutionality of Ordinance 2015-02 pursuant to the vagueness standard, the Court must first look at the language of the ordinance itself. Id. at 1075. When a term of an ordinance is not defined, courts look to its plain and ordinary meaning, which can be discerned from a dictionary. Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 104 (Fla. 2011); Gyongyosi v. Miller, 80 So. 3d 1070, 1075 (Fla. 4th DCA 2012).

21. Courts in other states have determined that the term “temporary” within a statutes is not unconstitutionally vague. In Dunn v. State, 286 Ga. 238, 686 S.E. 2d. 772 (2009) an individual challenged the statutory term “temporary residence” as being unconstitutionally vague. The Supreme Court of Georgia, applying the common understanding standard, held that the statutory term was not unconstitutionally vague because the term “temporary” means “lasting for a time only; existing or continuing for a limited (usu. short) time; transitory.” Dunn, 686 S.E. 2d at 775 (quoting Black’s Law Dictionary (7th ed. 1999)); see also State v. Sommerfield, 2006 WL 758747 (holding that the undefined statutory term “temporary domicile” did not render a statute unconstitutionally vague and stating that since the legislature chose not to provide a specific definition, the term is construed with its ordinary meaning).

22. In Plaintiff’s Motion for Summary Judgment, Plaintiff himself cited the Merriam-Webster Dictionary for the definition of the word “temporary” as “continuing for a limited amount of time; not permanent.” “Transient.”

23. In the present case, the word “temporary” is not a term-of-art requiring a special definition. “Temporary” as used in Ordinance 2015-02 does not need an independent definition in order for an individual of common intelligence and understanding to recognize the conduct that is proscribed.

WHETHER ORDINANCE 2015-02 UNCONSTITUTIONALLY DELEGATES LEGISLATIVE AUTHORITY

24. In Count IV of Plaintiff’s Second Amended Complaint, Plaintiff alleges that Section 60.06 of the Code constitutes an unlawful delegation of legislative power to the planning director to determine the law. Plaintiff claims that because the planning director can give a written determination as to whether a land use that is not listed in the zoning ordinance can be reasonably interpreted to fit into a category of allowable uses that the planning director can determine that law.

25. Ordinance 2015-02 also added Section 60.06 to the Code which provides:

Sec. 60.06. – Only specified uses allowed; interpretation.

(a) No use shall be allowed in a zoning district unless it is specifically listed as a permitted, conditional, or special permit use in that zoning district. Accessory uses and structures are allowed in all zoning districts. Notwithstanding any provision to the contrary, uses that are specifically required to be allowed in any zoning district by applicable state law shall be allowed in accordance with such state law, whether or not the use is listed as a specified allowable use. However, it is the city’s express intent that such pre-emption apply only to the extent clearly required by state law, and that such use must otherwise fully conform with the city’s land development regulations.

(b) The planning director shall determine in writing if a use that is not specifically listed can be reasonably interpreted to fit into a category of all allowable uses in the subject zoning district where similar uses are described, using as a guide the latest edition of the Land-Based Classification Standards of the American

Planning Association or the North American Industry Classification System Manual. Nothing shall preclude the planning director from first obtaining guidance from planning and zoning board or city council prior to making such determination.

26. Under the Code in order for a use to be allowed in a zoning district it must be specifically listed as a permitted, conditional, or special permit use in the zoning district. The Code authorizes the planning director to determine, in circumstances where a use is not specifically listed, whether the use can be “reasonably interpreted to fit into a category of all allowable uses in the subject zoning district where similar uses are described, using as a guide the latest edition of the Land-Based Classification Standards of the American Planning Association or the North American Industry Classification System Manual.”

27. Legislative delegation of power to a legislative or executive agency which permits an agency to determine what the law is violates Florida’s separation of powers doctrine; however, the legislature is not prohibited from delegating authority to carry out legislative policy when such delegation is accompanied by proper standards and guidelines. Florida Gas Transmission Company v. Public Service Commission, 635 So. 2d 941, 944 (Fla. 1994).

28. In Southern Alliance For Clean Energy v. Graham, 113 So. 3d 742 (Fla. 2013), the Florida Supreme Court discussed the separation of powers clause in the Florida Constitution and what was required of statutes granting power to an administrative agency and stated:

Under this separation of powers clause, the non-delegation doctrine requires that “fundamental and primary policy decisions . . . be made by members of the legislature who are elected to perform those tasks, and [that the] administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the

enactment establishing the program.” Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1978). In other words, statutes granting power to an administrative agency “must clearly announce adequate standards to guide . . . in the execution of the powers delegated. The statute must so clearly define the power delegated that the administrative agency is precluded from acting through whim, showing favoritism, or exercising unbridled discretion.” Lewis v. Bank of Pasco Cnty., 346 So. 2d 53, 55-56 (Fla. 1976).

In the present case, the delegation contained within Ordinance 2015-02 provides sufficient standards and guidelines for the planning director. The planning director is required to determine whether the use can be reasonably interpreted to fit into a category of allowable uses in accordance with the Land-Based Classification Standards of the American Planning Association or the North American Industry Classification System Manual.

It is hereby ORDERED AND ADJUDGED that:

1. The request for declaratory judgment in Count I of Plaintiff’s Second Amended Complaint, that Ordinance No. 2015-02 is preempted by Section 509.053, Florida Statutes, is answered in the negative, as Ordinance No. 2015-02 is not preempted.

2. The request for declaratory judgment in Count II of Plaintiff’s Second Amended Complaint, that Ordinance 2015-02 is unconstitutional due to its restriction of free speech and freedom of expression is answered in the negative, as Ordinance 2015- 02 does not regulate speech.

3. The request for declaratory judgment in Count III of Plaintiff’s Second Amended Complaint, that Ordinance No. 2015-02 is unconstitutionally vague is answered in the negative, as Ordinance 2015-02 is not unconstitutionally vague.

4. The request for declaratory judgment in Count IV of Plaintiff’s Second Amended Complaint, that Ordinance 2015-02 unconstitutionally delegates legislative authority is answered in the negative, as Ordinance 2015-02 does not unconstitutionally delegate legislative authority.

5. The Court reserves jurisdiction over Defendant’s, City of Vero Beach, claim for attorneys’ fees and costs pursuant to Section 57.105, Florida Statutes.

DONE AND ORDERED at Vero Beach, Indian River County, Florida, this 3rd day of May, 2016.

__________________________________ PAUL B. KANAREK
Circuit Judge

Copies furnished to:
J. Garry Rooney, Esq., D. Jonathan Rhodeback, Esq., Matthew Randall Groom, Esq., attorneys@rooneyandrooneylaw.com
John W. Frost, II, Esq., jfrost1985@aol.com, paulaw1954@aol.com
Nicholas T. Zbrzeznj, Esq., nzbrzeznj@fvdblaw.com, mgonzalez@fvdblaw.com