1st DCA Opinion on Short Term Residential Home Rentals

A home owners association in Bay County had brought a lawsuit arguing that the use of homes for short term vacation rentals, such as on VRBO or Airbnb, violated the covenants restricting the property use to residential only and prohibiting the use for business purposes.  In a Florida VRBO Rental Case of first impression, the Court held that this uses did not violate the restrictive covenants

The specific issue in this appeal—whether short-term vacation rentals violate restrictive covenants requiring property to be used only for residential purposes and prohibiting its use for business purposes—appears to be a matter of first impression in Florida. . . .

However, courts in a number of other states have considered the issue and those courts have almost uniformly held that short-term vacation rentals do not violate restrictive covenants nearly identical to those at issue in this case. . . .

These decisions explain that in determining whether short-term vacation rentals are residential uses of the property, the critical issue is whether the renters are using the property for ordinary living purposes such as sleeping and eating, not the duration of the rental.

We agree with the analysis in these decisions.

This case is significant as a case of first impression in Florida, because it is the only appellate decision on this matter, it is binding on all Florida trial courts. and it is significant, because it is one of the growing number of case interpreting laws that are being applied to technologically disruptive business models such as Airbnb, UBER and VRBO.

1st DCA Ruling in ATT Bid Protest Case

Late last week the 1st DCA issued its ruling in the major major AT&T bid protest case that we had mention on the flbidprotest.com blog.

The case affirmed the award to a subsidiary of Harris Corporation, finding that the statement of work was not a responsiveness checklist, so a bid not meeting the statement of work could still be responsive. It also affirmed the agency ability to materially change the scope of the procurement during the ITN negotiations.

What is most interesting, however, is a clarification of when a protest has to be filed. It clarified that a challenge to how the agency changed the criteria during negotiations did not have to be filed as a spec challenge to the ability to negotiate, and also there is not need to protest at the notice of intent to negotiate stage, a protest will still be available at the notice of intent to award posting, and responsiveness can be raised at that time, no waiver has occurred.

On a final note, the court also stated

We affirm the Final Order regarding the Department’s ability to make changes to the Statement of Work during negotiations. It is worth noting that our affirmance rests on the record before us and our determination that AT&T was not harmed by the Department’s actions here. We do find compelling AT&T’s argument that such action has a potential chilling effect on third parties who choose
not to reply to an ITN upon the belief they cannot meet the ITN specifications as written. As those parties are not before us seeking relief, those concerns are left for another day.
This is a real and troubling issue. Sometimes a client has told me that they have not responded to an ITN, because, they could not meet the stated requirements, and then later it turns out that specific requirements were negotiated away, and they could have satisfied the actual contractual requirements. Now the question is what is the point of entry for that kind of a challenge? One often can’t tell until the final contract is revealed.
Appellate cases on bid protests are rare, so every case is closely studied, and this case is rich with possibilities.

Importance of Preserving Issues in Administrative Cases

The 1st DCA has issued an opinion again noting the importance of preserving arguments in administrative proceedings.

We affirm the Final Order of the Office of Financial Regulation in all respects. We highlight Appellant’s Points I and II only, to hold that Appellant did not preserve those issues for appellate review.
“It is well-established that for an issue to be preserved for appeal, it must be raised in the administrative proceeding of the alleged
error.”Dep’t of Bus. & Prof’l Regulation, Constr. Indus. Licensing Bd. v. Harden, 10 So. 3d 647, 649 (Fla. 1st DCA 2009)(citing
Yachting Arcade, Inc. v. Riverwalk Condo. Assoc., Inc. , 500 So. 2d 202, 204 (Fla. 1st DCA 1986)).

Issue not raised in Initial Brief is waived

In a case about whether the IG Staff could be required to sign confidentiality agreements at the Department of Corrections, the case appears to have been totally blown by counsel on appeal.  Because the trial court found no standing for those who sued, but since that argument was not raised in the initial brief, the court could not reach the merits arguments  even if the trial court had been wrong on standing.

The initial brief never addresses the trial court’s rulings regarding the lack of a justiciable controversy or standing,” . . .  It is well-settled that an issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.

This case highlights once again the importance of both preserving and raising arguments for appeal. Full opinion here Issue Waived First Raised in Reply Brief

Source: Appeals Court sides with state in whistleblower case

First DCA Holds 284.30 notice must be given to collect 119 attorney fees

In a case decided today, full opinion here, DEO v. Consumer Rights LLC, the First District overturned a trial court award of about $150,000 in fees and costs for a plaintiff that prevailed in a public records, chapter 119 request against a state agency. The basis for reversal was that the plaintiffs had not complied with the notice requirements of 284.30 that required a copy of the complaint to be served on DFS, if attorney fees are sought against a state agency.

The Statute provides

A party to a suit in any court, to be entitled to have his or her attorney’s fees paid by the state or any of its agencies, must serve a copy of the pleading claiming the fees on the Department of Financial Services; and thereafter the department shall be entitled to participate with the agency in the defense of the suit and any appeal thereof with respect to such fees.

Florida Credit Card Surcharge Statute Unconstitutional

Yesterday, the 11th Circuit struck down Florida’s criminal statute, Fla. Stat. § 501.0117, which allows businesses to give a discount for paying with cash, but not to charge a surcharge for paying with credit. The Court basically determined that since the economic effect of a cash discount or a credit surcharge was the same, Florida was not prohibiting economic conduct but speech – how the price difference was characterized – and that this speech prohibition did not survive the intermediate scrutiny and Central Hudson test applicable to commercial speech.  Interesting case.

Attorney Fees under Florida Equal Access to Justice Act (57.111)

This is an interesting 5th DCA Case interpreting the Florida Equal Access to Justice Act. Under this act,

Unless otherwise provided by law, an award of attorney’s
fees [limited to 50,000] and costs shall be made to a prevailing small business
party in any adjudicatory proceeding or administrative
proceeding pursuant to chapter 120 initiated by a state
agency, unless the actions of the agency were substantially
justified or special circumstances exist which would make
the award unjust.

In this case, the Department of Financial Services brought an action against an insurance license, and on appeal the court had previously determined that the complaint was without merit. When he filed for fees under 57.111, an ALJ entered an order denying him fees, basically finding that the law at the time DFS brought the professional licensing complaint supported the complaint.  The 5th DCA reversed, finding that what was important was the law at the time of the alleged violation, not the law when the enforcement action was brought.

 

Bar Journal Article on distinctions between Florida Federal and State Appeals

This article contains some good basic distinctions relevant for filing an appeal, such as how much time is available to file an initial brief.

While the Florida and federal appellate rules are in many respects similar, in other ways they are quite different. This article briefly highlights some important distinctions between the state appellate rules applicable to civil appeals of final orders in the Florida district courts of appeal, and the federal appellate rules applicable to civil appeals of final judgments in the 11th Circuit.1

Source: Bar Journal Article

Tampa man at center of U.S. Supreme Court bankruptcy ruling | Tampa Bay Times

Interesting quote about Monday’s Supreme Court ruling on stripping second mortgages.

There[in state court], a lender holding a first mortgage can get a final judgment of foreclosure that clears the second mortgage off the property.”For borrowers who didn’t come into bankruptcy, 99 out of 100 times they are going to get the same result (in state court) — a second mortgage wiped away,” McEwen said.

Source: Tampa man at center of U.S. Supreme Court bankruptcy ruling | Tampa Bay Times

Justices Curb Bankruptcy Filers’ Ability to Have Second Mortgages Canceled – NYTimes.com

The Supreme Court ruled that second mortgages may not be voided if the property is worth less than the mortgage debt.

Source: Justices Curb Bankruptcy Filers’ Ability to Have Second Mortgages Canceled – NYTimes.com

The Supreme Court ruling will now prevent underwater homeowners from easily discharging home equity loans and other types of second mortgages in Chapter 7 bankruptcies.

The ruling covers a potentially large pool of people who might seek bankruptcy protection as a solution to their housing woes. In Florida alone, 23 percent of the state’s roughly 1.3 million underwater homes have multiple mortgages, according to an analysis in March by RealtyTrac. . . .

The Supreme Court ruling does not completely prevent homeowners from voiding their second mortgages. Bankruptcy lawyers say homeowners may still seek to strip off second mortgages by filing Chapter 13 bankruptcy cases. But that process, the lawyers said, can cost more and take many years to complete. By contrast, Chapter 7 is geared toward helping lower-income people and typically takes just months.

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