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HomeMy WebLinkAboutApplication & Supporting DocsCARLOS WILLIARD 8 FLANAGAN, P. A. ATTORNEYS AT LAW THOMAS P. CARLOS W. CHAD WILLEARD JEFFREY M_ FLANAGAN July 7, 2004 Ms. Ana Gelabert-Sanchez Director, Planning & Zoning City of Miami 444 SW 2nd Avenue Miami, Florida 33130 Re: Letter of Intent Family Boarding Home, Inc. Dear Ms Gelabert-Sanchez: SUITE i000 999 PONCE DE LEON BOULEVARD CORAL GABLES, FLORIDA 33134 TELEPHONE 300.444.1500 FACSIMILE 305.443.8617 E-MAIL !NFO@CWFPA-COM SENDER'S E-MAIL: JM FRRYF@CWPPA.COM Please accept this correspondence as the Letter of Intent in support of a special exception application being filed on behalf of Family Boarding Home, Inc. ("FBH"). More specifically, FBH is seeking City Commission approval for a change of ownership of a community based residential facility ("CBRF") pursuant to Section 934.3 of the City of Miami Code. FBH took control of a CBRF located at 1800 SW 11 Terrace, 1895 SW 11 Terrace, 1144 SW 19 Avenue and 1024 SW 19 Avenue in 1990. FBH has maintained ownership and operation of the CBRF since that time. However, when ownership changed in 1990, approval was not obtained as required by the City Code. FBI I provides needed housing and living services to members of our community who are not able to live by themselves. This CBRF serves a challenged segment of the population and allows the residents the ability to live among and interact with the rest of the community. FBH has owned and operated the CBRF since 1990 without any problems, without creating a nuisance to the neighborhood and in compliance with regulatory requirements. Ownership and operation of the facility for the past 14 years is evidence that FBH is competent and able to run the facility. We respectfully request your support and approval of this request especially in light of the fact that FBH has been the owner for 14 years and has a proven track record. if you require any additional infoiiiiation, or have any questions, please do not hesitate to contact me. Yours truly, CARLOS WILLIARD & FLANAGAN, P.A. fi-ey M/ 1nna ;an`._ DEFORTMENT OF HEARING BO43S 444 SW 2nd Avenue, 7th Floor • Miami, Florida 33130 Telephone 305-416-2030 • Fax 305-416-2035 PUBLIC HEARING APPLICATION FOR A SPECIAL EXCEPTION Welcome to Hearing Boards! This application process is for your reference and review. It is intended to serve as a guide in acquainting you with our public hearing process. Following are a series of concerns/requirements for you take into account. By any means, please feel free to contact the department, should you have any questions. CITY OF MIAMI ORDINANCE NO. 11469, CODIFIED IN CHAPTER 2, ARTICLE Vl OF THE CITY CODE STATES THAT ANY PERSON WHO RECEIVES COMPENSATION, REMUNERATION OR EXPENSES FOR CONDUCTING LOBBYING ACTIVITIES TO REGISTER AS A LOBBYIST WITH THE CITY CLERK, PRIOR TO ENGAGING IN LOBBYING ACTIVITIES BEFORE CITY STAFF, BOARDS, COMMITTEES AND THE CITY COMMISSION. A COPY OF SAID ORDINANCE IS AVAILABLE IN THE OFFICE OF THE CITY CLERK (MIAMI CITY HALL), LOCATED AT 3500 PAN AMERICAN DRIVE, MIAMI, FLORIDA, 33133. The responses to the attached application must be typed and the complete application must be signed in black ink. It will be accepted, along with pertinent documents, only the first seven days (1-7) of the month from 8:00 am untii3:30 pm. Please note that the cashier located on the 4th floor will close at 4:00 pm; therefore, the complete application, reviewed plans and a paid receipt must be submitted. You will be responsible, if needed, to bring an interpreter for the English language to any presentation before city boards, committees and the city commission. Power of attorney will be required if neither applicant or legal counsel representing the applicant execute the application or desire to make a presentation before city boards, committees and the city commission. An additional recordation cost for the resolution is $6.00 for the first page and $4.50 for additional pages. All fees are subject to change. Also, for City Commission resolutions, please contact the City Clerk's Office at 305-250-5360. Applications for Zoning Change (Amendment to Zoning Atlas and/or Overlay District) and Land Use Change (Amend the Comprehensive Neighborhood Plan) will not be accepted unless it has a signature from the Planning and Zoning Department designee. Applications given to customers do not constitute action from the City of Miami without plans review and written comments from the Zoning Division of the Planning and Zoning Department. Rev. 09/29/03 Within the City generally, AL within certain zoning districts, cert i structures, uses, and/or occupancies specified in tt-Wrdinance are of a nature requiring spl and intensive review to determine whether or not they should be permitted in specific locations, and if so, the special limitations, conditions, and safeguards which should be applied as reasonably necessary to promote the general purposes of this Zoning Ordinance and, in particular, to protect adjoining properties and the neighborhood from avoidable potentially adverse effects. It is further intended that the expertise and judgment of the Zoning Board be exercised in making such determinations, in accordance with the rules, considerations and limitations relating to Special Exceptions (see Article 16 of the Zoning Ordinance). Formal public notice and hearing is mandatory for Special Exceptions. The Zoning Board shall be solely responsible for determinations on applications for Special Exceptions except when otherwise provided for in the City Code. All applications shall be referred to the Director of the Planning and Zoning Department for his/her recommendations and the Director shall make any further referrals required by these regulations. Jeffrey Flanagan, Esq. on behalf of Family Boarding Home, Inc. hereby apply to the City of Miami Zoning Board for approval of a special exception for the property located at 5PP attached Exhibit "A" folio number sPP attached Exhibit "A" . 1. Three (3) original surveys of the property prepared by a State of Florida registered land surveyor within six (6) months from the date of the application. 2. Two (2) 11x17" original plans and one (1) 24x36" original plan, signed and sealed by a State of Florida registered architect or engineer showing property boundaries, existing (if any) and proposed structure(s), parking, landscaping, building elevations and dimensions and computations of lot area and building spacing, etc. 3. Plans need to be stamped by Hearing Boards first and then signed by Public Works on the 8th Floor, Zoning on the 4th Floor and Planning on the 3rd Floor, prior to submittal of application. 4. An 8 '/� x 11" copy of the plans after signature from the above departments. 5. Affidavit and disclosure of ownership of subject property and disclosure of interest (pages 4 and 5). 6. Certified list of owners of real estate within a 500-foot radius of the outside boundary of property covered by the application (pages 6 and 7). 7. At least two photographs that show the entire property (land and improvements). 8. A clear and legible copy of the recorded warranty deed and tax forms of the most current year that shows the present owner(s) and legal description of the property. 9. A clear and legible copy of the subject property's legal description on a separate sheet of paper. Rev. 09/29/03 2 10. Is the property within II/boundaries of a historic site, historic •rict or archeological zone designated pursuant to Chapter 23 of the Miami City Code? (Contact the Preservation Officer at the Planning and Zoning Department at 305-416-1400 for information.) 11. Is the property within the boundaries of an Environmental Preservation District designated pursuant to Chapter 17 of the Miami City Code? (Contact the Preservation Officer at the Planning and Zoning Department at 305-416-1400 for information.) 12. What is the acreage of the project/property site? see attached Exb ih i t "A" 13. What is the purpose of this application/nature of proposed use? Section 934,3 New ownership of community based residential facility. 14. All documents, reports, studies, exhibits (8 1/2 x11") or other written or graphic materials to be submitted at the hearing shall be submitted with this application. 15. Other (specify and attach documents explaining why any information you are attaching is pertinent to this application). 16. Cost of processing according to the City Code: Special exception $ 800.00 Special exception requiring automatic city commission review $ 2,000.00 Extension of time for special exception $ 500.00 Public hearing and public meeting mail notice fees, including cost of handling and mailing per notice $ 3.50 Surcharge equal to applicable fee from item above, not to exceed eight hundred dollars ($800.00) except from agencies of the city; such surcharge to be refunded to the applicant if there is no appeal from the applicant or a property owner within five hundred (500) feet of the subject property. Signature ' Address Name Jeffrey M. Flahaa' ai , Esq . Telephone 305-444-1500 999 Ponce De Leon Blvd., Ste 1000 Coral C;ahl pc, Fl nrida 33134 Date June 7, 2004 STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this day of adby rt.C1i10.ciaf who is a(n) individual/partner en orporati n of =� L aoar „I � ; € r c' a(n) individualipartnershi orporati n he is _,personally_nown to) me or who has produced as identification and ho did (did not) take an oath. Jessica Espinosa r i C€s tsskn # ?D2T3053 ,af .e4'2_ (Stamp) ��'. .v As`=Expires;o Signature 1.80o.35o.s161 ;s;.ro Rev. 09/29/03 ���ier k s``� • . AFFIDAVIT Before me, the undersigned authority, this day personally appeared Jeffrey M. Flanagan, Esq. , who being by me first deposes and says: 1. That he/she is the owner, or the legal representative of the owner, submitting the accompanying application for a public hearing as required by the Code of the City of Miami, Florida, affecting the real property located in the City of Miami, as described and listed on the foregoing pages of this affidavit and made a part thereof. 2. That all owners which he/she represents, if any, have given their full and complete permission for him/her to act in his/her behalf for the change or modification of a classification or regulation of zoning as set out in the accompanying petition, a including responding to day to day staff inquires; ❑ not including responding to day to day staff inquiries in which case he/she should be contacted at305-444-1500 3. That the foregoing pages are made a part of this affidavit contain the current names, mailing addresses, telephone numbers and legal descriptions for the real property of which he/she is the owner or legal representative. 4. The facts as represented in the application and documents submitted in conjunction with this affidavit are true and correct. Further Affiant sayeth not. Jeffrey M. Flanagan, Esq. Applicant Name STATE OF FLORIDA COUNTY OF MIAMI-DADE e for going instrument was acknowledged 20t, y 1 [ CiCtr` ct�} 'l individuallpartnegeicorporatiori of Applica R t ig at re before me this ;i [ . a'e1 day of who is a(n) a(n) individual/partnershi orporat . She is personally known to me or who has produced as i entification and who did (did not) take an oath. . ' u- Jessica Espinosa Pi.:' al. ,, Commission # DD273053 (Stamp) :�' 4. = Expires: Dec, 7, 2007 " y'••••• " Amara Notary �'' rTinit `�� 1400-3504161 Signature Rev, 09//29/03 4 DISCLOSURE OF OWNERSHIP . Street address and legal description of subject property: see attached Exhibit "A" 2. Owner(s) of subject property and percentage of ownership. Note: The Miami City Code requires disclosure of all parties having a financial interest, either direct or indirect, in the subject matter of a presentation, request or petition to the City Commission. Accordingly, disclosure of shareholders of corporations, beneficiaries of trusts, and/or any other interested parties, together with their addresses and proportionate interest are required. (Please supply additional lists, as applicable.) Owner's Name Family Boarding Home, Inc. Mailing Address 1024-1026 SW 19 Avenue Zip Code 33135 Telephone Number 3°5-753-3933 Leonore Gonzalez 50% Rubin Corteguera 50% 3. Street address and legal description of any property (a) owned by any party listed in answer to question #2 and (b) located within 500 feet of the subject property. (Please supply additional lists, as applicable.) Street Address Legal Description N/A Owner or Attorney for Owner Name Ow STATE OF FLORIDA COUNTY OF MIAMI-DADE The foregoing instrument was acknowledged before me this —1 day of • o n who is a(n) 2(6 by 3c FC e x C i C 9m individual/partn , orpora isx I L% & r r e • a(n) individual/partnershi -drporatidjvH She i ersonall kown to m`e or who has produced - as i entification and who did (did not) take an oath. (Stamp) Jessica Espinosa Commission # 0D273053 Expires: Dec. •�7, 20►07 Aaron on No y 1,000-350-5161 Signature Rev. 09/29/03 5 • • EXHIBIT "A" Legal Description: SWANNANOA PB 9-40 LOT 23 BLK 1 LOT SIZE 50.000 X 142 OR 14415-4052 0190 5 01-4110-012-0220 — 1024 SW 19 Ave., Miami SWANNANOA PB 9-40 LOTS 24 & 25 BLK 1 LOT SIZE 100.000 X 142 OR 14415-4052 0190 5 01-4110-012-0230 — 1024 SW 19 Ave., Miami SWANNANOA PB 9-40 LOT 26 BLK 1 LOT SIZE 50.000 X 142 OR 14415-4052 01.90 5 01-4110-012-0240 — 1024 SW 19 Ave., Miami SWANNANOA PB 9-40 LOT 29 BLK 1 LOT SIZE 50.000 X 142 OR 14415-4052 0190 5 01-4110-012-0270 — 1144 SW 19 Ave., Miami SHENANDOAH PB 8-90 LOT 24 BLK 24 LOT SIZE 57.080 X 118 OR 14415-4052 0190 5 01-4110-063-3720 — 1895 SW 1.1 Terr., Miami SHENANDOAH PB 8-90 LOT 12 BLK 25 LOT SIZE 57.090 X 118 OR 14415-4052 0190 5 01-4110-063-3800 — 1800 SW 11 Terr., Miami "II= MEP' FAMILY BOARDING HOME, INC is a Florida Corporation in charge of the operation of four Assisted Living Facilities license by the State of Florida to operated in Miami, Fl. SCOPE OF CARE The facility provides one or more personal care services to residents 400.402(6), F.S 400.402(17), F.S 400.407(3)(a), F.S Personal services means direct physical assistance with or supervision of activities of daily living and the self- administration of medication and other similar services. Personal services include, but are not limited to, individual assistance with or supervision of essential activities of daily living, as eating, bathing, grooming, dressing, toileting and ambulating; assistance with self administered medication. FACILITY RECORDS STANDARDS The facility is responsible for maintaining and having accessible all required facility records. 400.441(1)(e), S.S 58A-5.024, F.A.C. Facility must maintain an up-to-date resident admission and discharge log An up-to-date record of major incidents occurring within the last 2 years. The facility shall maintain liability insurance coverage in force at all the times The facility maintain a grievance procedure for receiving and responding to resident complaints and recommendations. The facility must have an annual fire inspection conducted by the local fire marshal or authority having jurisdiction. The facility shall provide documentation of a satisfactory sanitation inspection conducted annually by the County Health Department. The facility will maintain as public information all completed surveys, inspections and complaint investigation reports. The facility must report to the Agency, on a monthly basis, any and all liability claims filed against the facility. RESIDENT RECORDS STANDARDS Resident records shall be maintained on the premises. 58A-5.024(3), F.A.0 Each resident must have a resident record in the facility which includes: • Admission Documents • Demographic data • Health data • Medical examinations • Health care provider's orders ▪ Therapeutic diets • Weight records • Contracts • Medication Observation Record(MOR) • Health Care Surrogate designation • Do -Not resuscitate order • Guardianship documents • Advanced Directives, if completed ADMISSION CRITERIA STANDARDS Each resident must be at least 18 years of age in order to meet residency criteria. 58A-5.0181(1)(a), F.A.0 Each resident must be free from signs and symptoms of any communicable disease which is likely to be transmitted to other residents or staff in order to meet residency criteria. 58A-5.0181(b), F.A.0 Each resident must be able to perform the activities of daily living, with supervision or assistance if necessary in order to meet residency criteria. 58A-5.081(1)(c), F.A.0 Each resident must be able to transfer, with assistance if necessary in order to meet residency criteria. The assistance of more than one person is permitted. 58A-5.0181(1)(d), F.A.0 Each resident must be capable of taking his/her own medication with assistance from staff if necessary to meet residency criteria 58A-5.0181(1)(e)1; F.A.0 A resident shall not be a danger to self or others as deteiij..ined by a physician, or mental health practitioner licensed under chapters 490 or 491. 58A-5.0181(1)(g), F.A.0 A resident shall not required licensed professional mental health treatment on a 24-hour a day basis. 58A-5.0181(1)(h), F.A.0 A resident shall not be bedridden. 58A-5.0181(1)(i), F.A.0 RESIDENT CARE STANDARDS The facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. 58A-5.0182 ,F.A.0 The facility provides daily observation by designated staff of the activities of the resident while on the premises and daily awareness of the general health, safety, and physical and emotional well being of the individual. The facility will maintain a written record, updated as needed, of any significant changes in the resident's normal appearance or state of health, any illnesses which resulted in medical attention, major incidents, changes in method of medication administration, or other changes which resulted in the provision of additional services, The facility will provide an ongoing activities program. The program shall provide diversified individual and group activities in keeping with each resident's needs, abilities, and interests. Resident will be encourage to participate in social, recreational, educational and other activities within the facility and the community. The facility will maintain Cooperative Agreement with New Horizons Community Mental Health Center to provided residents with a Day Treatment Program on the facility premises. The facility shall as needed by each resident, assist residents in making appointments and remind residents about scheduled appointments for medical, dental, nursing, or mental health services. STAFFING STANDARDS The facility is under the supervision of an Administrator who is responsible for the operation and maintenance of the facility, including the management of all staff and the provision of adequate care to all residents. (See Resume attached as Exhibit A) 58A-5019(1),F.A.0 A Manager will be appoint in writing during periods of temporary absence of the Administrator, the manager shall complete the CORE training requirements within 3 months of becoming a manager, and shall attend update training for any portion of the CORE that has been revised as a result of new legislation, rule, amendment, or update material. 58A-5.0191(1)(b), F.A.0 58A-5.0191(1)(d), F.A.0 Each staff member's personnel record contains a copy of the original employment application with references. 400.4257(4), F.S 58A-5.024(2)(a) F.A.0 Personnel records should contain verification of freedom from communicable disease including tuberculosis. 400.4257(4), F.S 58A-5.024(2)(a), F.A.0 All facility employees must complete biennially, a continuing education course on HIV and AIDS. 400.4275(2), F.S Personnel records should contain documentation of current certification in an approved First Aid and CPR course. 400.4275(2) F.S Unlicensed persons who will be providing assistance with self-administered medications must receive a minimum of 4 hours of training prior to assuming this responsibility. 400.4256, F.S Staff who prepare or serve food must receive a minimum of 1 hour in-service training within 30 days of employment in safe food handling practices. 58A-5.0191(2)(e), F.A.0 The Administrator or person designated by the administrator as responsible for the facility's food service and the day -to- day supervision of food service staff obtains, annually, a minimum of 2 hours continuing education in topics pertinent to nutrition and food service in an ALF. 400.452(6), F.S 58A-5.0191(6), F.A.0 The facility shall develop a written job description for each staff position and provide a copy of the job description to each staff member, 400.4275(4);F. S Personnel records should contain documentation of compliance with Level I background screening requirements. 400.4275(2),F.S K OFF. i 44 154052 1.90 Jay 31 PH 2 22 i° 9 Oil o 3' 9 7-7 5 WiiRAN7Y cCCO t',ROM CORPORATION RAMCO ■ORMA,a arrant' 3Beeb t tz icxth irC, Made, this clay o/ January A.D. 19 90 . ieilutelt ALL BOARDING HOME, INC. , a carporal:Ors exi.stirw under the laws of the State of Florida , having its principal place of business in the County of Dade and State of Florida and Jaufully authorized to trrrusad LSMeg sir the State of Flcrida. party of the fiat part, and FAMILY BOARDING HOME, INC., a Florida corporation whose post office box address is: 1026 S.W. 19th Avenue, Miami, Florida 33135 of tint County of Dade and State of Florida party of the second part itnesse2%: That the said party of the first part. for and ill cornidtratiort of the 540 of TEN ($10.00)3l/ass, to it in (rand paid by the said parr y of /vier serorui part. the receipt whereof it hrrtby acknowledged has granted, bargained and sold to the said. part y of the second partits heirs and assigns firer, the following dturrkd land situate. lying and being ire fire Campy of Dade and Stale of Ronda, to -wit (LEGAL DESCRIPTION AS PER ATTACHED SCHEDULE "A") SUBJECT T0: 1. Taxes for the year 1990 and subsequent years. 2. Conditions, restrictions, ].imitations and easements of record, if any, without intent to reimpose or reinstate same_ 3. Applicable zoning ordinances of such governmental authorities having jurisdiction hereover. 4. Mortgage held by GEORGE F. HERO AS TRUSTEE, dated April 3, 1984, recorded in Official Records Book 12115, at Page 2032, of the Public Records of Dade County, Florida, in the original principal amount of $392,500.00 (as to the first five (51 listed properties on Exhibit "A"). 5. Mortgage held by ALEX LEME and ANNA LEME, his wife, dated August 5, 1966, recorded in Official Records Book 12992, at Page 2728, of the Public Records of Dade County, Florida, in the original principal sum of $55,000.00 (as to the 6th listed property on Exhibit "A"). Documentary ;,tamps Collected $ 20570 p_ $ 16$3 40_ SURTAX Doc, Stamps Collected Class "C" Intangible Tax Collected Richard P. Brinker, Clerk Dade County, -Fla. By (irk j"31-9D p� And the said party a/ the liar part sloes hereby fully warrant the lids to said Land. and will defend the same against this /n w/ud dozens o/ all lK rscnn minnow sc:. yy� ;31tt ,ssaitness ijerPof, thesaid padyaftht first (Corporate e1) part has caused these presents to be signed in its name by Se rrs proper officers. and to corporate seal to be affixed, attest - ' to secretary, this day and yar above wt inn. A{tvt��;- 1 Secretary. ALL BOARDING HOME, INC. *Tr seal rib bd. rcdi�t pt:cse ire of us: I � This lrtstnnusnt pnpared by Stanley Joel. Levine, Esquire Address Miami Arthur Godfrey Road, Suite 222 Miami Beach, Florida 33140 Tele: (305) 531-0308 nt Iouvrtswiti e: •f 441544053 $Iutc of-loriln, aolnit 1 iif Dade (tt,,rrrr Crri1 rrtift2 direr as this day of January. A.D. 19 90 , Before err personally app'arerl EUGENIO LEGOBHURU and SARAB LEGOBBURU ALL BOARDING HOME, INC. the State of • Florida irutruntent rrJ such others and see rally aektsonled =eel the execution thereof to he their frre act and deed at ter( r officers for the u 1 and papaws therein mentioned and that they affixed thereto the official seal.of laid corpora- tion, and that the said instrument is tlu' aril att,l decal of taiel corporation. i 21r 9 my ri,,nra tite and afPal kill eat ire the County of Dade the day rind year last t jore'aud. Mycarrfcary an exptrc_c (r4 j+yu�C, State Q flarsda 2 t Ls rr0e My cOrrre41011 Expires Jetty President and Secretary resprctiae'ly of a corporation strider the la et of to we bourn to be tiie persons who signal the form airy{ Miami Beach and Slam of Florida ;;I:). Notary Public,:, W ' 0 /441 V Cie 0 1'S orrs 144 ! 5 4O54 RCC. EXHIBIT "A'. Lot 12, Block 25 of AMENDED MAP 0E'SHENANDOAH, according to the Plat thereof, recorded in Plat Book 6, at Page 90, of the Public Records of Dade County, Florida (Folio 4 01-4110-63-3000-B) Lots 24 and 25, Block 1 of SWANNANDA, according to the Plat thereof, as recorded in Plat !look 9, at Page 40, of the Public Records of Dade County, Florida (Folio 4 01-4110-12-0230-G) Lot 24, Block 24, of AMENDED MAP of SHENANDOAII, according to the Plat thereof, as recorded in Plat Book 8, at Page 90, of the Public Records of Dade County, Florida (Folio i( 01-4110-63-3120-5) Lot Twenty -Three (231, Block One (1), of SWANNANOA, according to the Plat thereof, as recorded in Plat Book 9, at Page 40, of the Public Records of Dade County, Florida • (Folio 0 01-4110-12-0220-8) Lot 29, Block 1 of SWANNANOA, according) to the Plat thereof, as recorded S.n Plat Book 9, at Page 40, of the Public Records of Dade County, Florida (Folio 0 01-4110-12-0270-7) Lot 26, Block 1 of . SWANNANOA, according to the Plat thereof, a5 recorded in Plat Book 9, at Page 40, of the Public Records of Dade County, Florida (Folio 4 01-4110-12-0240) i.r 4CeRr.ED N1 or!a itcana nn. nr nAaE aartfaiwk aernRa YEAip, 'Es, mciiA.RD P. Brit CLERK CIRCUIT cow CITY OF MIAMI CODE ENFORCEMENT BOARD CITY OF MIAMI Plaintiff vs. ' FLORIDA BOARDING HOME, INC., A Florida For -Profit Corporation Defendant / ORDER The Matter came to be heard at the hearing on February 20, 2004, concerning violations of the City of Miami Code and the City of Miami Zoning Ordinance for the properties Iocated at 1800 S.W. 11 Terrace, 1895 S.W. 11 Terrace, 1144 S.W. 19 Avenue, 1024 S.W. 19 Avenue, 1026 S.W. 19 Avenue (subject properties), the parties submitted their written closing arguments on March 12`h and 22nd respectively, and the Special Master having heard all interested parties, reviewed the record, and otherwise being duly advised in the premises, finds as follows: 1. The Defendant raised the issue of whether the City Ordinances violate the Fair Housing Amendment Act. This tribunal has jurisdiction to determine violations of City Ordinances and therefore cannot rule on this issue. 2. The Defendant's Motion for Directed Verdict is denied. A. 1800 S.W. 11 Terrace, Miami, Florida 1. On September 29, 2003, the subject property was issued a Notice of Violation by the City of Miami for violations of tin/ �'s I 7 Zoo4 Case No.: CR: 0321614; 0321615; 0321613; 0321313; 0321612 • a. City Code Section 10-3 South Florida Building Code Section 305.2 and Florida Building Code Section 104 and 105 - work completed without a finalized permit, interior remodeling, and addition of rooms. b. Zoning Ordinance Article 9 Section 917.1 - failure to provide required off street parking. c. Zoning Ordinance 6871, Article VI Section 1; Ordinance 9500 Section 300 and Schedule of District Regulations; Zoning Ordinance 11000 Section 300 and 400 - use not allowed in zoning district. d. Zoning Ordinance 9500 scheduled district regulations and Section 2034; Ordinance 11000 Section 300, 400 and 934 and Ordinance 6871 Section 43 and 45 - failure to provide proper distance between facilities. e. Zoning Ordinance 9500 Section 300 and 400 and 2034; Ordinance 11000 Section 300, 400 and 934, Ordinance 9500 Section 2034; Ordinance 11000 Section 934 - facility changed ownership and has not obtained a Class B Special Permit exception or special exception spend by the commission. Ordinance 9304 amending Ordinance 6871 - population of facility comprises more than allowable percentage according to census tracks. 2. Said Notice directed the violator to correct said violations by October 16, 2003. 3. ' The parties entered into a Stipulation of the following facts: a. The subject property was built in 1925. b. At the time the subject property was built it contained 4 + 1 bedrooms, 1 bathroom, 1 kitchen and a garage. 2 c. Family Boarding Home, Inc. was registered and incorporated with the State of Florida on January 10, 1984. d. In April 19, 1984, ownership of the real estate was transferred from Daphne Buchanan to Family Boarding Home, Inc. e. The subject property at the time of its licensure by the State of Florida had 12 residents. f. November 1988, the subject property changed ownership from Family Boarding Home, Inc. to All Boarding Home, Inc. g. In 1990, the subject property changed ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. h. The subject property is located in a single family residential district (R-1). i. The subject property is currently being used as an assisted living facility and is licensed by the State of Florida. j. The subject property currently has 11 residents. k. The subject property currently has 7 bedrooms, 2 bathrooms and 1 kitchen. 4. The City conceded that due to this facility being licensed for 7 to 14 residents, there is no need for the facility to meet the parking requirements of the City of Miami Codes pertaining to community based residential facilities. Hearing Transcript Page 18. B. 1144 S.W. 19 Avenue, Miami, FL 1 On September 29, 2003, the subject property was issued a Notice of Violation by the City of Miami for violations of: 3 . • a. City Code Section 10-3 South Florida Building Code Section 305.2 and Florida Building Code Section 104 and 105 - work completed without a finalized permit, interior remodeling, and addition of rooms. b. Zoning Ordinance Article 9 Section 917.1 - failure to provide required off street parking. c. Zoning Ordinance 6871, Article VI Section 1; Ordinance 9500 Section 300 and Schedule of District Regulations; Zoning Ordinance 11000 Section 300 and 400 - use not allowed in zoning district. d. Zoning Ordinance 9500 scheduled district regulations and Section 2034; Ordinance 11000 Section 300, 400 and 934 and Ordinance 6871 Section 43 and 45 - failure to provide proper distance between facilities. e. Zoning Ordinance 9500 Section 300 and 400 and 2034; Ordinance 11000 Section 300, 400 and 934, Ordinance 9500 Section 2034; Ordinance 11000 Section 934 - facility changed ownership and has not obtained a Class B or, special permit, special exception approved by the Commission. f. City Code Section 10-23, 10-24 failure to maintain exterior of commercial or residential property. g. Ordinance 9304 amending Ordinance 6871 - population of facility comprises more than allowable percentage according to census tracks. 2. Said Notice directed the violator to correct said violations by October 16, 2003. 3. The parties entered into a stipulation of the following facts: The subject property was built in 1926. -4 • • and 1 kitchen. b. At the time the subject property was built it contained 3 bedrooms, 1 bathroom c. Family Boarding Home, Inc. was registered and incorporated with the State of Florida on January 10, 1984. d. In April 19, 1984, ownership of the real estate was transferred from Daphne Buchanan to Family Boarding Home, Inc. e. The subject property at the time of its licensure by the State of Florida had 12 residents. I November 1988, the subject property changed ownership from Family Boarding Home, Inc. to All Boarding Home, Inc. g. In 1990, the subject property changed ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. h. The subject property is located in a single family residential district (R-1). i. The subject property is currently being used as an assisted living facility and is licensed by the State of Florida. j. The subject property currently has 9 residents. k. The subject property currently has 5 bedrooms, 2 bathrooms and 1 kitchen with a sink, cabinets, refrigerator, microwave and stove. 4. The City conceded that due to this facility being licensed for 7 to 14 residents, there is no need for the facility to meet the parking requirements of the City of Miami Codes pertaining to community based residential facilities. Hearing Transcript Page 18. 5 • • C. 1895 S.W. 11 Terrace, Miami, FL 1. On September 29, 2003, the subject property was issued a Notice of Violation by the City of Miami for violations of: a. City Code Section 10-3 South Florida Building Code Section 305.2 and Florida <: Building Code Section 104 and 105 - work completed without a finalized permit, interior remodeling, and addition of rooms. b. Zoning Ordinance Article 9 Section 917.1 - failure to provide required off street parkin c. Zoning Ordinance 6871, Article VI Section I; Ordinance 9500 Section 300 and Schedule of District Regulations; Zoning Ordinance 11000 Section 300 and 400 - use not allowed in zoning district. d. Zoning Ordinance 9500 scheduled district regulations and Section 2034; Ordinance 11000 Section 300, 400 and 934 and Ordinance 6871 Section 43 and 45 - failure to provide proper distance between facilities. e. Zoning Ordinance 9500 Section 300 and 400 and 2034; Ordinance 11000 Section 300, 400 and 934, Ordinance 9500 Section 2034; Ordinance 11000 Section 934 - facility changed ownership and has not obtained a Class B or, special permit, special exception approved by the Commission. f. Ordinance 9304 amending Ordinance 6871 - population of facility comprises more than allowable percentage according to census tracks. 2. Said Notice directed the violator to correct said violations by October 16, 2003. 3. The parties entered into a stipulation of the following facts: The subject property was built in 1934. 6 • b. At the time the subject property was built it contained 6 plus 2 bedrooms, 3.5 bathrooms and 1 plus 1 kitchens and 1 garage. c. Family Boarding Home, Inc. was registered and incorporated with the State of Florida on January 10, 1984. d. In April 19, 1984, ownership of the real estate was transferred from Daphne Buchanan to Family Boarding Home, Inc. e. The subject property at the time of its licensure by the State of Florida had 10 residents. f. November 1988, the subject property changed ownership from Family Boarding Home, Inc. to All Boarding Home, Inc. g. In 1990, the subject property changed ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. h. The subject property is located in a single family residential district (R-1). The subject property is currently being used as an assisted living facility and is licensed by the State of Florida. j. The subject property currently has 16 residents. k. The subject property currently has 9 bedrooms, 4.5 bathrooms and 1 kitchen with a sink, counter and 1 refrigerator. 1. The garage was converted to a living unit. D 1024 S.W. 19 Avenue, Miami, FL 1 On September 29, 2003, the subject property was issued a Notice of Violation by the City of Miami for violations of. 7 • a. City Code Section 10-3 South Florida Building Code Section 305.2 and Florida Building Code Section 104 and 105 - work completed without a finalized permit, interior remodeling, and addition of rooms. b. Zoning Ordinance Article 9 Section 917.1 - failure to provide required off street parking. c. Zoning Ordinance 6871, Article VI Section 1; Ordinance 9500 Section 300 and Schedule of District Regulations; Zoning Ordinance 11000 Section 300 and 400 - use not allowed in zoning district. d. Zoning Ordinance 9500 Scheduled District Regulations and Section 2034; Ordinance 11000 Section 300, 400 and 934 and Ordinance 6871 Section 43 and 45 - failure to provide proper distance between facilities. e. Zoning Ordinance 9500 Section 300 and 400 and 2034; Ordinance 11000 Section 300, 400 and 934, Ordinance 9500 Section 2034; Ordinance 11000 Section 934 - facility changed ownership and has not obtained a Class B or, special permit, special exception approved by the Commission. f. City Code Section 10-23, 10-24 failure to maintain exterior of commercial or residential property. g. Ordinance 9304 amended Ordinance 6871 - population of facility comprises more than allowable percentage according to census tracks. 2. Said Notice directed the violator to correct said violations by October 16, 2003. 3. The parties entered into a stipulation of the following facts: a. The subject property was built in 1926. 8 b. At the time the subject property was built it contained 3 bedrooms, 2 bathrooms and 2 kitchens. c. Family Boarding Home, Inc. was registered and incorporated with the State of Florida on January 10, 1984. d. In April 19, 1984, ownership of the real estate was transferred from Daphne Buchanan to Family Boarding Home, Inc. e. The subject property at the time of its licensure by the State of Horida had 15 residents or more. f November 1988, the subject property changed ownership from Family Boarding Home, Inc. to All Boarding Home, Inc. g. In 1990, the subject property changed ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. h. The subject property is located in a single family residential district (R-1). i. The subject property is currently being used as an assisted living facility and is licensed by the State of Florida. j. The subject property currently has 15 or more residents. k. The subject property currently has 10 bedrooms, 3 bathrooms and no kitchen. ISSUES 1 Whether the subject properties violate the City of Miami Code Sections as cited in the Notices of Violation issued on September 29, 2003? 2. Whether the City of Miami is estopped from finding that the subject properties are not in Miami Zoning requirements? -9 3. Whether the City of Miami is barred by lathes for failure to enforce the City of Miami Code and the City of Miami Zoning Ordinances? ISSUE 1 Whether the subject properties violate the City of Miami Zoning Code and the City of Miami Code as cited in the Notices of Violation issued on September 29, 2003? ISSUE 1.A. - POPULATION IN EXCESS OF CENSUS TRACKS The City of Miami has dismissed charges as to this issue as to all subject properties. Hearing Transcript Page 18. ISSUE 1.B. - WORK COMPLETED WITHOUT A PERMIT The City charged the Defendants with violations of City Code Section 10-3, South Florida Building Code Section 305.2 and the Florida Building Code Section 104 and 105 for work completed without a finalized permit, interior remodeling, and addition of rooms. The City has the burden to prove that no permits were issued. The City failed to meet this burden. ISSUE 1.C. — DISTANCE REQUIREMENTS Pursuant to the agreement of the parties, this issue is stayed and will be reassessed following the ruling herein. Hearing Transcript Pages 12, 13 and 14. ISSUE 1.D. — PARKING REQUIREMENTS Pursuant to the agreement of the parties, this issue is stayed with respect to the subject properties located at1895 SW 11 Terrace, 1024 SW 19 Avenue and 1026 SW 19 Avenue, and will be reassessed following the ruling herein. Hearing Transcript Pages 12,13, and 14. ISSUE 1.E. — FAILURE TO MAINTAIN FA(ADE The City of Miami has dismissedcharges as to this issue as to all subject properties. Hearing Transcript Page 18. - 10- ISSUE 1.F. - CHANGE OF OWNERSHIP The change of ownership required the application for and granting of a Class B Special Permit or a special exception. In this case, the ownership of the properties changed in November 1984, from Daphne Buchanan to Family Boarding Home, Inc. In November 1988, the subject properties changed ownership from Family Boarding Home, Inc. to All Boarding Home, Inc. In January 1990, the subject properties changed ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. The transfer of stock in 2002/2003 is not considered.a change of ownership of the subject properties. The records reflect that no Class B Special Permit or Special Exception was ever applied for or granted for the subject properties. ISSUE 1.G. - USE NOT ALLOWED IN R-1 ZONING DISTRICT Community based residential facilities with more than 6 residents are not permitted in the R1 zoning district. Ordinance 6871, 9500, 11000. Florida Statutes Chapter 419.001 entitled "Site Selection of Community Residential Homes" Subsection (10) provides that the siting of community residential homes in the arca zoned for single family shall be governed by local zoning ordinances. While a community based residential facility containing 7 to 14 residents constitutes a single family under the Statute._(419.00J (l a , the City is given the authority to govern the location of said facilities. In this case, the City of Miami Codes provide that community based residential facilities with more than.6 residents cannot be located within an R-1 zoning district. ISSUE 2 Whether the City of Miami is estopped from finding that the subject properties are not in confotwance with the City of Miami Zoning requirements? - 11 - • • The Defendant's position is that the City is estopped from enforcing its zoning ordinance due to the fact that certificates of use have been issued to the subject properties for many years as community based residential facilities, also known as adult congregate living facilities. The elements necessary to establish estoppel are: 1. Representation as to a material fact that is contrary to a later asserted position. 2. A reliance upon that representation. 3. A change in position detrimental to the party claiming estoppel caused by the representation and reliance, Sun Cruz Casinos LLC vs. City of Hollywood Florida, 844 So.2d 681 (Fla. 4th DCA, 2003). The Court in Sun Cruz stated the general rule as "...the doctrine of equitable estoppel may be invoked against the municipality as if it wasn't as individual." Hollywood Beach Hotel Co. vs. City of Hollywood, 329 So. 2d 10, 15 (Fla. 1976). The First District Court of Appeals in Alachua County vs. Cheshire, 603 So. 2d 1334 (Fla. 1 DCA, 1992) held that "...the theory of estoppel requires affirmative conduct by the governmental agency, not merely negligence". In this case, not only did the City continue to issue certificates of use and building pet [hits for the subject properties, the City confirmed to state regulatory agencies on numerous occasions that the subject properties conformed with the zoning regulations of the City of Miami. In addition, on several occasions, the zoning administrator sent correspondence to the owners/managers of the subject properties advising them that there was no current certificate of use for these "community based residential facility" and further instructed that the applications for said certificates of use be made annually. Defendant's Exhibits 2, 3, 4, 14E, A5E, 16E, 17F, 14F, 16F, 17G, 17H, 171. It is clear fromthe evidence that the City knew of the zoning violation of the use of these facilities. - 12- • The Defendant relied upon the City's memos, certificates of use issued since at least 1982 as well as various building permits in their decision to purchase the stock of Florida Boarding Homes. The Defendant has incurred substantial costs in reliance upon the City's public records in the purchase of the stock. The Courts have held that `ordinarily, a governmental entity may not be estopped from the enforcement of its ordinances by an illegally issued building permit". Corona Properties of Florida vs. Monroe County, 485 So.2d 1314 (Fla. 3 DCA, 1986). Further, the City of Miami Ordinances, which are a part of this record, provide that a certificate of use issued in error shall not confer any rights to occupancy. Section 3408, Zoning Ordinance 9500; Section 2107, Zoning Ordinance 11000. In this case however, the certificates of use and building permits have been issued for many years and occupancy has occurred during all of those years. The City cannot now claim that there was no right to occupancy. The Defendant was and is entitled to rely on the assurances and commitments of the governmental authorities and, while the government entity may not be estopped from the enforcement of its ordinances by an illegally or inadvertently approved permit or certificate of use, in this case, the subject properties have been allowed to operate in single family residential districts since at least 1982. ISSUE 3 Whether the City of Miami is barred by laches to enforce the City of Miami Code and the City of Miami Zoning Ordinances. The Defendants claim that the City is barred under the doctrine laches from enforcing the stated ordinances as they apply to the subject properties. -.13- • • A defendant who seeks to assert the affirmative defense of laches must prove the following by clear and positive evidence: 1. Conduct on the part of the defendant giving rise to the situation of which the complaint is made; 2. Failure of the plaintiff having had knowledge or notice of defendant's conduct to assert its rights by a suit; 3. Lack of knowledge on the part of the defendant that the plaintiff will assert the right on which it bases its suit; and 4. Injury of prejudice to the defendant in the event relief is accorded to the plaintiff. The first element, conduct on the part of the defendant giving rise to the situation of which the complaint is made, is proven by virtue of the violations. The second element, failure of the plaintiff having had knowledge or notice of defendant's conduct to assert its rights by a suit, has been proven as the City, having much prior knowledge of the uses of the subject properties since at least 1982, failed to assert its right by a suit until September 2003. The third element, lack of knowledge on the part of the defendant that the plaintiff will assert the right on which it bases its suit, is proven by the evidence that the current Defendant, as well as previous owners of the subject properties, would have no knowledge or reason to believe that the City would assert its rights since it had not done so since at least 1982 and had confirmed compliance of its zoning laws to state regulatory agencies. While it is true that by virtue of publication of the City of Miami Ordinances, the Defendant has constructive notice of the ordinances and presumably the nature and extent of the powers of the governmental agency who issued the certificates of use, in this case, City failed to take any action as to the use of the subject properties since at least 1982. - 14 - • • Also, although, as a general rule, there is no statute of limitations as to the enforcement of City ordinances, the fact that the City has failed to take any action as to the use of the subject properties since at least 1982, acts as a bar to enforcement. The subject properties have been operating as community based residential facilities since at least 1982. It is also clear from the evidence that the City knew of the zoning violation of the use of these facilities. The evidence shows that the zoning administrators and various other city personnel knew that these facilities were located in R-1 zoning districts and that they were being operated as community based residential facilities. The City cannot now assert that Family Boarding Homes should have known that the City would have enforced their rights under the ordinances. The fourth element, injury of prejudice to the defendant in the event relief is accorded to the plaintiff, is also proven. The Defendant in this matter paid a substantial amount of money to purchase the stock in the corporation which owns the subject properties. Based upon the evidence and testimony, diligent searches of the City's records were conducted and relied upon in consideration for the purchase of the stock. The Defendant has met the burden of establishing the four elements of laches by clear and positive evidence as applied to the use of the subject properties in R-1 zoning districts. Cases have held that the mere purchase of land does not create a right to rely on existing zoning. In this case however, the current Defendant, who purchased the stock of the prior owner, relied in good faith upon 'the continual issuance of certificates of use and building permits with regard to the subject properties. In this case, the ownership of the properties changed in November 1984, from Daphne Buchanan to Family Boarding Home, Inc. In November 1988, the subject properties changed ownership from ingHome, anuary 1994, he subject properties changed - 15 - ownership from All Boarding Home, Inc. to Family Boarding Home, Inc. Plaintiffs Composite Exhibit 1- 6A-D, 7A, 7B; Composite Exhibit 2-5 A-D, 6A-B; Composite Exhibit 3-6A-D, 7A-B; composite Exhibit 4-5A-D, 6A-B. The transfer of stock in 2002/2003 is not considered a change of ownership of the subject properties. The new owners of the properties had the obligation to advise the City of the change in ownership and apply for a Special Exception or a Class B Special Permit. Ordinance 9500, Section 2034.3; Ordinance 11000, Section 934.3. The City would have no way to know if a change of ownership occurred without notice from the new owners. In this case, the Defendant knew or should have known that the City would assert its rights as to the change of ownership once the City became aware of the changes. It is not reasonable that the Defendant would not have been aware of this requirement and the City's right and intention to enforce it once it gained knowledge and notice of the violation. FINDINGS 1 The subject properties are in violation of the City of Miami ordinances with respect :to their use in the R-1 zoning district by virtue of the part that all properties have more than 6 residents. 2. The subject properties are in violation of the City of Miami ordinances for the failure to apply for and obtain a Special Exception or Class B Special Permit. 3. There is no violation as to the alleged work being completed without a permit. 4. The City is barred from enforcing the violations as to use in R-1 zoning districts of the City of Miami ordinances under the doctrine of laches. 5. The City is estopped from enforcing the violations as to use in R-1 zoning districts against the subject properties. 6. :' The parking requirements are to be determined in accordance with City ordinances. The distance requirements are to be determined in accordance with City ordinances. - 16- • ! 8. The Defendant is in violation of City of Miami Ordinances for failure to apply for and obtain a Special Exception or Class B Special Permit upon the change of ownership. 9. The Defendant must apply for a Class B Special Permit or Special Exception within 30 days of this order. 10. To comply with Florida Statutes, the Defendant must decrease the number of residents in the subject properties located at 1895 S.W. 11 Terrace, 1024 S.W. 19 Avenue, and 1026 S.W. 19 Avenue to between 7 to 14 within 30 days of this Order. The subject properties located at 1800 S.W. 11 Avenue and 1144 S.W. 19 Avenue shall not increase the current number of residents of 11 and 9, respectively. DONE AND ORDERED in Miami, Miami -Dade County, Florida, on this /' day of i \ / ' --�, I• �. MaryAT[n -ri'cacs Special Master 0 , 2004. Copies Furnished to: Elsa Jaramillo-Velez, Esquire, Assistant City Attorney, City•of-Miami Neil Chonin, Esquire, Counsel for Defendant Teresita Fernandez, Chief, Hearing Boards, City of Miami Armando Bucelo, Esquire, Counsel for Special Master - 17 -