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1145 NE 92 St (8)p,OOTECHNICAL 'ENVIRONMENTAL HYDROGEOLOGY ASB ESTOS Miami, May 29, 1997 Mr. John Baron DYNATECH ENGINEERING CORP. JOHN W. BARON ROOFING CONTRACTOR 2210 W. 78th Street Hialeah, FL 33010 Re : Permit No. : 41357 Jim Swaner's Residence at 1145 N.E. 92nd Street Miami Shores, FL Dear Mr. Baron: In accordance with your authorization, DYNATECH ENGINEERING CORP., performed an uplift test in compliance with protocol PA -106 and the South Florida Building Code on May 28, 1997 at the above referenced project. Dynatech Engineering Corp., is a Certified Dade County Testing Agency. The purpose of our inspection was to determine the uplift capacity of the existing roof tiles for the one story residence at the above referenced project. The subject roof consisted of a Double Roll roof tiles foam set. On May 28, 1997 our field engineer visited the site and conducted seventy four uplift tests on the roof tiles at the locations indicated on the attached sketch. All tests were performed according to the South Florida Building Code Section 3404.3 and protocol PA -106 using a Humboldt scale model H- 4620. The following is a summary of results - Field Test Results are : TEST NO. TEST LOCATION 01 - 48 F 49 - 59 P 60 - 74 C See Attached Diagram See Attached Diagram See Attached Diagram FIELD UPLIFT PULL TEST > Than 40 LBS > Than 40 LBS > Than 40 LBS TESTING LABORATORIES DRILLING SERVICES INSPECTION SERVICES ROOFING TEST RESULT Passed Passed Passed 750 West 84 Street, Hialeah, FL 33014 -3618 o Phone (305) 828 -7499 ()Fax (305) 828 -9598 Page No. 2 1145 N.E. 92nd Street Test results were found in compliance with the South Florida Building Code and Protocol PA -106. Pursuant to section 7.3.2. of PA -106 a copy of this report shall be forwarded to the building official for his final roof top inspection. The test results are limited to the tested areas. If other roof areas exhibit different conditions, it should be brought to our attention for remedial work. This uplift test is not a roof top inspection. A final roof top inspection must be conducted by the building official for approval. The test results presented reflect the condition of the roof system at the time of the test. These results are time and sample dependent since roof conditions are continously changing due to exposure to the elements. It has been a pleasure working with you and look forward to do so in the near future. Sincerely yours, Wissam Naamani, P. E. DYNATECH ENGINEERING CORP. Engineer Florida Reg. No. 39584 Special Inspector No. 757 WN /sr cg o laRea ar4 1U p4 S1 156. O SAP oda VIA CAS ( gut 4.., Si N- E 9 2 STREET t. '2 s► St • Z 3 q . o .i .► .t a ti • • t ® • st 0 V 0 Ld Z Dynatech Engineering Corp. Client: vbNH w • i:132.11t4 RodFuSG C.st412AcoC Project: tvh5 Ks 92 SIeS£ to.% sHoess , c-waaoa • Scale: N.T.S. ✓ Date: 5•Z8•gT � r F44 /%/x/1 /t oZ (T 4/(T Lis /02 y ‘r s����-/i5 / 02oerila S ;; Cr Fe-4 elf/ 57 T MIAMI SHORES POLICE DEPARTMENT 10050 N. E. 2ND AVENUE MIAMI SHORES, FLORIDA M E M O R A N D U M TO : SGT A26 TC/7 FROM: /1 G, , ,� G'�G /S R E : (9 Aelrz) /97- /74- DATE: c2r /7■6 �� MIAMI SHORES POLICE DEPARTMEUT 10050 N. E. 2ND AVENUE MIAMI SHORES, FLORIDA M E M O R A N D U M TO : /-77 (.?1/A1-7-2r- FROM: OC C I/ 67 0eS1-45 RE : 0445 ,' ,e/( z) /ft //W ,V6 a2- G 7 / L4, /4/ 4‘oz /r 67 //x, ‘ 2- y- DATE: /� G� TO o -S n7 MIAMI SHORES POLICE DEPARTMEUT 10050 N. E. 2ND AVENUE MIAMI SHORES, FLORIDA M E M O R A N D U M F ROM: � G 6COR R E : Qo P4-ieI 1 ) //4K /V � 2 ST I Gr 4, /a/ z-42Z/f 3, r 5Yslri f 7cl/gAz oWqC ‘T F24, 1 61/ DATE: -�7 TO : WM. Bradford, Building Inspector FROM: Sgt. R. Wylie, Police Dept. RE : Cars parked at 1145 N.E.92nd. St. overnight The following vehicles were parked at the above address on the night of 26- Feb -1968. w r y fz?Y'C'. • Saskatchewan license #35 -776 Florida license # 1W42618 New York license #6592 YK Ohio license # 498 EP Florida license # 4w51655 MIAMI SHORES POLICE DEPARTMENT 10050 N. E. 2ND AVENUE MIAMI SHORES, FLORIDA c M E M O R A N D U M e DATE: 27- Feb -68 Mr. L.K. Kornberg 1199 N.E. 92nd Street Miami Shores, Florida 33138 Dear Mr. Kornberg: 10050 N. E. SECOND AVENUE MIAMI SHORES, FLORIDA 33138 (305) 758-8000 May 3, 1983 In response to your letter of April 26, 1983, please be advised that our records indicate that the property owner of 1145 N.E. 92nd Street was the owner of the property as early as June of 1965. Our Ordinance, in its present form, was adopted on April 2, 1974. As you can see, the owner did have possession of that property prior to the enactment of the Ordinance. Sincerely, L. R. FORNEY, JR. VILLAGE MANAGER Frank LuBien,Director FL:gm Building & Zoning a L FILL IN NAME AND ADDRESS HERE FOR e URN Z WINDOW ENVEL • PE Mr. L.K. Kornberg 1199 N.E, 92 Street Miami Shores, FL 33138 Dear Mr. Kornberg: ShotaTilLyr 10050 N. E. SECOND AVENUE MIAMI SHORES, FLORIDA 33138 1305) 758 -8000 Thank you for your note regarding rental activities at 1145 N.E. 92nd Street, Miami Shores. As you mentioned, these room rentals have been in existance for a number of years, and began prior to enactment of present Ordinances. In a recent similar case where the Village took action against an owner for renting rooms, the Court upheld her right to rent rooms, because at the time she started, it was not unlawful. Please call, if I may be of further service. FL: gm April 5, 1983 Sincerely, Frank LuBien, Director BUILDING & ZONING DEPT, L. R. FORNEY, JR. VILLAGE MANAGER Subject ••::1.o6 to FOLD MESSAGE REPLY -::a. o FOLD FOLD CTINleoulJeneu CAA•LNE FORM 44-872 3-PArd 1075 • PR:NIPD C4 U.SA Date S4ened RETAIN WHITE COPY, RETURN PINK COPY 776 /r f A/ L "Z. ) /=-- ,5-- ,r/ Y ✓/ •• %--7 i0, Cry�aGg' 4 /e0)/. 7 , ( W / r C. LAWTON McCALL VILLAGE MANAGER Mrs. Ann Farmer 1145 N. E. 92nd St. Miami ihoa'eo, Fla. Dear M'o. Farmer: aiami �hores H L O A I D A Sane 29, 1966 J indly sign attached affidavit, have it notarized and return to the Village Clerk prior to 4:00 p.m. Tuesday July 5, 1966, for presentation with your request to the Village Council. Thanking you in advance for your attention in this matter. Very Duly yours, W. R. kradford uilding CI Zoning Inspector In consideration of the issuance by MIAMI SHORES VILLAGE to the undersigned of a permit to construct improvements upon the property hereinafter referred to, the undersigned hereby agree that no part of the premises will be used for rental purposes, or for any purpose which is in violation of any of the ordinances of Miami Shores Village. It is further agreed that if the premises are used for a purpose contrary to the terms of said ordinances that an injunction may be applied for and granted forthwith and without notice to us, or those claiming under us. The said property is described as follows: An existing two car garage converted to a storage building with toilet facilities - located to the rear of 1145 N. E. 92nd Street on Lot 24, Block 2 - Bay Lure Subdivision. Recorded in the public records of Dade County in Plat Book 44- Page 63. STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) MIAMI SHORES VILLAGE Florida Owners: Before me, the subscriber, a Notary Public in and for said State and County personally appeared the persons who signed the above agreement, who are well known to me and known to me to be the persons described in said agreement and each of said subscribers acknowledged to and before me that executed the same freely and voluntarily for the purposes therein expressed. WITNESS MY hand and seal this day of Notary Public, State of Florida at Large My Commission expires: April 12, 1951 2. it. 4. Wk. Otfioe of Federal Housing Adatinistratioa City Ball. Coral Cables. Florida. cAntlemens- This is tolaertify that a pre.;conorets impaction =sande by the undersigned =Mem* 2; ° at of the W. 0. Frazier residence lot 24, Bloch 2, Bayium tguSattoa Ms apprond as it was found to Witrietly in asaordanoe with the Building Code of Miami ShornaTillogs. Yours very truly. Copy to Mr. W. 0. Frazier, 1421 N. E. 12nd Street, Mini, Florida j0}14 D. IIANSZLL Direotor of Wilding asiti Zoning ( q September 14, 1994 Mr. James C. Swaner 1145 N.E. 92 Street Miami Shores, FL 33138 Dear Mr. Swaner: This will acknowledge receipt of your letter of September 6, 1994. You mentioned a number of things that you plan to do which we need to discuss. It would be better for you to call me, or give me your phone number and I will call you to find out just exactly what you plan to do and how I can help you. Sincerely, Frank LuBien Director, Building & Zoning etuzu/ - itotenitilare BUILDING AND ZONING DEPARTMENT 10050 N.E. SECOND AVENUE MIAMI SHORES, FLORIDA 33138 -2382 TELEPHONE (305) 795-2204 FAX (305) 756-8972 f Mr. Frank Lubien, Miami Shores City Hall Miami Shores, FL 33138 Dear Mr. Lubien, 1145 N.E. 92 St. Miami Shores, FL 33138 Sept. 6, 1994 I'm writing this letter because, like many these days, the obligations of my work mean I have fully scheduled days and am on call for emergencies at my eye clinic, so I cannot come in personally to City Hall. My wife and I recently purchased the property at 1145 N.E. 92 St. and intend to make improvements on the same, as Mrs. Farmer left it in a state of disrepair. Among the improvements we are undertaking, are central air conditioning, a security system including new doors and hardware, and a substantial bit of painting, floor coverings etc. and some cosmetic improvements outside. I am hiring a licensed air conditioning company to handle aspects of this remodeling including the electrical boost recommended by FPL. They, with the Security company, are filing the required permits to do the work. Because of the prior use of the property for a rooming house, we will be required to remove some of the internal windows and possibly make a wall of these spaces. All these modifications will be made to Miami Shores code by the companies doing the work. The only wiring would be to carry additional amperage for the air, dishwasher and garbage disposer as suggested by FPL, but not switch or wall wiring. Your understanding of the prior const fiction of the house and the efforts your office can make to keep this a simple process is greatly appreciated. We endorse the codes of our Miami Shores community. As informed by the attorney for our closing, Richard Fernandez, a zoning commissioner; we understand some non - complying materials were used for constructions on the property without knowledge or certification of City Hall. We will be moving to rectify these violations and with our neighbors the Courtys, are making plans to fence the property line. A permit has been granted for a fence between the houses and like the existing fence between our house and the neighbors to the East, our intentions include gates on both sides with 10 feet of connecting fence to the house to enclose and secure the back yard. These are right angle, four foot high sections from both sides of the main house, well back from the front corners of our home. As I said before I am not able to come in during business hours. Is a permit required for these short sections and could I get this if so, by mail. In addition, our design includes the plan to place two Palm trees in the circular driveway island. These would match compatibly with the neighbors trees across the street in size and type. Do I need a permit for the trees? and to put a standard seal coat of black driveway treatment down like the rest of the neighborhood? If so please forward applications by mail with a bill for the appropriate fees so I can return them and proceed. Again we are happy to have purchased in Miami Shores and fully prepd to be good citizens, looking forward to maintaining the neighborhood by working with you in as simple and efficient manner as possible. Sincerely, Jam s Swaner Mr. James C. Swaner 1145 N.E. 92 Street Miami Shores, FL 33138 Dear Sir: WGN:sm /Copy to: Frank LuBien, B. &Z. Dir. COMMUNITY AFFAIRS AND CODE ENFORCEMENT DIVISIONS 10050 N.E. SECOND AVENUE MIAMI SHORES, FLORIDA 33138 -2382 TELEPHONE (305) 795-2204 FAX (305) 756 -8972 November 30, 1994 Recently it has come to my attention that your property at 1145 N.E. 92 Street, Miami Shores, was purchased from Ann B. Farmer. Miami Shores Village records indicate that In 1966, promises were made by Mrs. Farmer stating that said premises would not be used for rental purposes or multi- family use. If this unit still has an efficiency or apartment, It must be returned to the original configuration, I.e. "single family" occupancy. Please contact me at 795 -2204 to discuss this matter. Si ft' Orel / illiam Nelson Code Enforcement Director Postmark or Date Id at line over top of envelo' right of the return addres CERTIFIED P 868 298 447 MAIL TOTAL Postage & Fees I Retum Receipt Showing to Whom, Date, and Addressee's Address Retum Receipt Showing to Whom 8 Date Delivered I Restricted Delivery Fee I Special Delivery Fee I Certified Fee 'Postage IP.Yf<,ttit ZIP'arraV1"L'J 1'LVl 3313 1 Stlerit 8 ° • NE 92 STREET t "sr .__n_it r n rT nt IS ent to JAMES C SWANER ��5 Do not use for Internatio P uSE0. (See Reverse) M $ .29 •2 .0 O 0 PS FOrM 3800, JUNE SENDER: • Complete items 1 and /or 2 for additional services. • Complete items 3, and 4a & b. • Prim your name and address on the reverse of this form so that we can retum this card to you. • Attach this form to the front of the mailpiece, or on the back if space does not permit. • Write "Return Receipt Requested" on the mailpiece below the article number • The Retum Receipt wil show to whom the article was delivered and the date delivered. 3. Article Addressed to: MR. JAMES C. SWANER 1145 NE 92 STREET MIAMI SHORES, FL 5. Signature (Addressee) 6. Signature (Agent) PS Form 3811, December 1991 33138 AU.S. GPO: 1 993 --352 -714 1. also wish to receive the following services (for an extra fee): 1. ❑ Addressee's Address 2. ❑ Restricted Delivery Consult postmaster for fee. 4a. Article Number • . :P 868 298 447 . 4b. Service Type ❑ Registered ❑ Insured KLCertified ❑ COD ❑Express Mail ❑ Return Receipt for Merchandise 7. Date of Delivery DOMESTIC RETURN RECEIPT • m 0 0 N 0 0 cc c 0 cc c 8. Addressee's Address (Only if requested Y and fee is paid) co o n 33 _ f0 SD • C) c et fl) O • fl. soft o O. 0 CD w • - m ii m a MIAMI SHORES VILLAGE FLORIDA The undersigned hereby affirms the current single - family resldentlal use of said property and further affirms that neither the existing portion nor the proposed portion of property will be used for anything other than a single- family residential use. Should It be determined that any use other than single- family resldentlal Is found to exist on said premises, wheth- er created before or after the date of this affidavit, Miami Shores Village shall have the right to immediately seek all remedies available under the law. The said property Is described as follows: 1145/ *NE / *92 Street DADE Folio 11- 32 -05- 027 -0360 Dev MIAMI SHORES Map *W8 STATE OF FLORIDA ) COUNTY OF DADE ) Owner(s) of Record: Notary Publi State of Florida L ity PU OFFICIAL NOTARY SEAL i SANDRA M MNTIEL 1 COMMISSION NUMBER 'r CC401281 is c2 MY COMMISSION .EXP. OF Fr AUG. 17,1998 Before me, the subscriber, a Notary Public in and for said State and County, personally appeared the persons who signed the above agreement, who are personally known by me or who have produced the following Identification and who are known by me to be the persons described In said agreement, did acknowledge to and before me that i9, ,j .ScJ034'( executed the same freely and voluntarily for the purposes therein expressed. WITNESS MY hand and seal this R day of ,g 19 q �/ rte,._ a(t-L. , . STATE OF FLORIDA COUNTY OF DADE 1 9 9''>/ . MIAMI SHORES VILLAGE FLORIDA The undersigned hereby affirms the current single - family residential use of said property and further affirms that neither the existing portion nor the proposed portion of property will be used for anything other than a single - family residential use. Should It be determined that any use other than single - family residential Is found to exist on said premises, wheth- er created before or after the date of this affidavit, Miami Shores Village shall have the right to Immediately seek all remedies available under the law. The said property is described as follows: 1145/ *NE / *92 Street DADE Folio 11- 32 -05- 027 -0360 Dev MIAMI SHORES Map *W8 Owner (s) of Record: Before me, the subscriber, a Notary Public In and for sald State and County, personally appeared the persons who signed the above agreement, who are personally known by me or who have produced the following I d e n t i f i c a t i o n te ATL ) and who are known by me to be the persons described In said agreement, did acknowledge to and before me that fjlq,v - 9"44.1.4e executed the same freely and voluntarily for the purposes therein expressed. WITNESS MY hand and seal t h i s day of ,d¢ Q __ Notary Publi State of Florida cf aY Po OFFICIAL NOTARY SEAL 0 G SANDRA M MONTIEL _��,i * COMMISSION NUMBER �: . .n�'= < CC401261 �/ 9 • MY COMMISSION .EXP. OF F\.` AUG. 17,1998 Mr. James C. Swaner 1145 N.E. 92 Street Miami Shores, FL 33138 Dear Sir: COMMUNITY AFFAIRS AND CODE ENFORCEMENT DIVISIONS 10050 N.E. SECOND AVENUE,. MIAMI SHORES. FLORIDA 33138.2382 TELEPHONE (305) 795.2204 FAX (305) 756 -8972 November 30, 1994 Recently It has come to my attention that your property at 1145 N.E. 92 Street, Miami Shores, was purchased from Ann B. Farmer. Miami Shores Village records Indicate that In 1966, promises were made by Mrs. Farmer stating that said premises would not be used for rental purposes or multi - fami ly use. If this unit still has an efficiency or apartment, It must be returned to the original configuration, I.e. "single family" occupancy. WGN:sm Please contact me at 795 -2204 to discuss this matter. /Copy to: Frank LuBien, B. &Z. Dir. SI crel Illiam Nelson Code Enforcement Director. Pastime* Or Date d at line over top of envelope to th right of the return address CERTIFIED P 868 298 447 MAIL TOTAL Postage & Fees I Return Receipt Showing to whonc Date. and Addressee's Address I Return Receipt Shoeing to wham & Date Delivered I Restricted Delivery Fee I Special Delivery Fee I pa 43tiat aP, vll1.J! .L Iry 1.. - 1LI1 33138 I ' r, °. HE 92 STREET • ,ttATT f^ TT AT T71A IJAMES C SWANER $ 2.29 I .. 1 M O 0 $_ .29 1 S Form 800, JUNE 19! 03 Cr 03 ru -D 6. (Agent) ....,t) : PS Form 3811, December 1991 nu.s,0PO:toa—osx -7u DOMESTIC RETURN RECEIPT • 7i. _ : .. ' ; , .. .. ••_ '; ; ., ,p. it - . 1 • 00 Date 3/17/88 TO ANN B. FARMER 1145 N. E. 92nd St. MIAMI SHORES, FL. 33138 COURTESY NOTICE MIAMI SHORES VILLAGE BUILDING AND ZONING DEPARTMENT 10050 N. E. SECOND AVENUE 114892 PHONE: 758 -8000 LOCATION: 1145 N. E. 92nd ST. An inspection of the above location indicates that you have violated: X Zoning Ordinance 270 Section(s) SCHEDULE OF REGUALTIONS & SEC 216 South Florida Building Code Chapter Section(s) Code of Miami Shores Village, Chapter Article Section(s) By OPERATING BUSINESS IN RESIDENTIAL ZONE. (RENTING ROOMS) OCCUPYING SINGLE FAMILY RF,STf1.Ng'F. WTTH MORF, THAN 2 PERSONS NOT RELATED BY BLOOD OR MARRIAGE. Requirements for Correction• • COMPLY WITH CODE (COPIES ENCLOSED) STOP RENTING ROOMS, REMOVE ALL PERSONS IN EXCESS OF CODE RESTRICTION. Please correct the violation in the next two weeks. Tbank you, By 1 DIRECTOR OF BUILDING & ZONING HELP KEEP MIAMI SHORES THE VILLAGE BEAUTIFUL Date M'RCH 1 fl . 1 982 TO ANN B. FARE ^R 1145 P!. F. 4'' STt'EET NOTICE OF VIOLATION MIAMI SHORES VILLAGE BUILDING AND ZONING DEPARTMENT 10050 N. E. SECOND AVENUE PHONE: 758 -8000 #4892 MIAMI SHORES, F[. 3 S138 FINAL NOTICE PREMISES 114E N.E. 92 STREET You are hereby notified that an inspection of the above premises disclosed that you have violated: X Zoning Ordinance 270 Section (s) SCHEDULE OF REGULATIONS & SEC. 216 South Florida Building Code Chapter Section (s) Code of Miami Shores Village, Chapter Article Section(s) By OPERATING BUSINESS IN RESIDENTIAL ZONE. (RENTING ROOMS) OCCUPYIN SINGLE FAMILY RESIDENCE WITH MORE THAN @ PERSONS NOT RELATED BY BLOOD OR MARRIAn:E. Requirements for Correction COMPLY WITH CODE STOP RENTII\G ROOMS, REMOVE ALL PERSONS IN EXCESS OF CODE RESTRICT -ON. Therefore, you are hereby directed that on or before the 14TH day of APRIL 19 SR , you are to correct said violation and notify the Building Division that the violaton has been corrected. FAILURE TO MAKE THE CORRECTION AND TO NOTIFY THIS DEPARTMENT THEREOF WILL NECESSITATE IN CHARGES BEING FILED AGAINST YOU IN DADE COUNTY COURT OR THE „MIAMI SHORES VILLAGE CODE ENFORCEMENT BOARD, OR BOTH. By DIRECTOR OF BUILDING AND ZONING j. Wi 1 sor Frank Lu Bien Director, Building and Zoning Department City of Miami Shores 10050 N.E. 2nd Avenue Miami Shores, Fl 33138 Dear Mr. Lu Bien: JOHN G. FLETCHER ATTORNEY AT LAW SUITE 115 7600 RED ROAD SOUTH MIAMI, FLORIDA 33143 - 5484 TELEPHONE (305) 665-7521 April 11, 1988 Re: Anne B. Farmer, your number 4892 on a "Final Notice" Ms. Anne Farmer has requested that I represent her in regard to a matter that appears to be a misunderstand- ing by Miami Shores Village. Ms. Farmer has received a "Final Notice" from you which has a number 4892 and a date of April 4, 1988, on it. Attached to it is a "Final Notice" dated March 31, 1988, to Ms. Farmer which states that she has violated some zoning ordinance by operating a business in a residential zone, apparently by renting rooms. Speci- fically she is charged with occupying a single family residence with more than two persons not related by blood or marriage. In the past a similar situation arose with Ms. Elsie Baioff who was the subject of an alleged violation noticed by the City of Miami Shores in 1981. That matter went to the Circuit Court on identical facts and the Circuit Court determined that Ms. Baioff could not be prohibited from using her home as a rooming house. For your information I enclose herewith a copy of the mandate from the Circuit Court in that case together with a copy of the Court's decision. I also enclose for your information a copy of the Appellant's Brief on the Merits in the case which should help the City understand why it was wrong in Ms. Baioff's case and why it is wrong in Ms. Farmer's case. However, I will briefly explain that Ms. Farmer has been renting rooms to a number of people since 1964. She has receipts reflecting that such is the case. In doing Page 2 April 11, 1988 Frank Lu Bien so she obviously had more than two people unrelated by blood or marriage residing in the house. It was not until 1974 that the City amended its zoning ordinance to preclude more than two persons who are so unrelated from occupying a single family home. However, such a provision is not applicable to nonconforming uses, i.e., uses which were legal when commenced. Such nonconforming uses may con- tinue to function. Indeed the Miami Shores Village zoning ordinance contains a savings clause for nonconforming uses which is Section 524 thereof. I refer you to the discussion commencing at page 14 of the brief in the Baioff case. I bring this to your attention to save the necessity of any type of hearing before the code enforcement board. Such an action would be inappropriate and would cost Ms. Farmer time and money in defending against an improper notice. As a consequence it is requested that the final notice be withdrawn and that the matter be placed at rest. I cannot imagine that anyone at the Village would knowingly and falsely accuse Ms. Farmer of violating a Village ordi- nance when it is clear that she is properly operating a nonconforming use, which is certainly not a violation. As a consequence I would appreciate your discharging this matter as early as poEsible. JGF /wm cc: William Fann ELSIE BAIOFF, v s. Appellant, MIAMI SHORES VILLAGE, et al., Appellees. APPELLANT'S ERIEF ON THE MERITS ON APPEAL FROM THE MIAMI SHORES VILLAGE CODE ENFORCEMENT BOARD Steven L. Josias, Esq. Co- counsel 3040 E. Commercial Blvd. Ft. Lauderdale, Florida 33308 (305) 771 -4500 APPELLATE DIVISION CASE NO. 81 -190 AP John G. Fletcher, Attorney for Appellant Suite 222 7600 Red Road South Miami, Fl. 33143 (305) 665 -7521 IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA TABLE OF CONTENTS ISSUES PRESENTED FOR REVIEW: FIRST ISSUE: The Code Enforcement Board of Miami Shores Village denied the essential requirements of the law, including due process, to the Appellant when it gave insufficient notice of hearing, said notice having been served 26 hours and 55 minutes before said hearing, thus not permitting Appellant to be represented by counsel, and proceeded to hold said hear- ing notwithstanding. SECOND ISSUE: The Code Enfcrcement Board of Miami Shores Village erred in failing to apply the applicable Village Ordinances to the undisputed fadts and thus failed to permit the continuance of a valid and legal use; the same being a denial of the essential requirements of law. TABLE OF CITATIONS: STATEMENT OF THE CASE AND OF THE FACTS: ARGUMENT: Second Issue: CONCLUSION: 2 Pages: 7 13 3 5 First Issue: 7 13 20 NOTE ON THE REMEDY INVOLVED: 20 CERTIFIC.PTE OF SER.JICE: 22 TABLE OF CITATIONS Cases Cited Atkins v. State ex rel. Shelton, 187 So. 363 (Fla., 1939) Balino v. Dept. of Health and Rehab. Serv., 348 So.2d 349 (Fla., 1st DCA, 1977) Bemas Corporation v. City of Jacksonville, 298 So.2d 467 (Fla., 1st DCA, 1974) Bubb v. Barber, 295 So.2d 701 (Fla., 2nd DCA, 1974) Pages: Citizens of Florida v. Mayo, 333 So.2d 12 1, 7 (Fla. 1976) City of Miami Beach v. Consolo, 279 So.2d 12 76 (Fla., 3rd DCA; 1973), cert denied, 292 So.2d 24 (1974) City of Miami v. Lithgow, 12 So.2d 380 13 (Fla., 1943) Dandy Co. v. Civil City of South Bend, 401 13, 14 N.E. 2nd 1380 (Ind.App., 1980) Daoud v. City of Miami Beach, 780 2d 585 14 (Fla., 1942) Elgin v. Rippberger, 375 N.E. 2d 170 (Ill. 13 App., 1978) Fillmore City v. Reeve, 571 P.2d 1316 (Utah, 13 1977) Finkley v. John Raffa Lathing, 120 So.2d 9 10 (Fla., 1960) Florida Department of Transportation v. J.W.C. 13 Company, Inc., 396 So.2d 778 (Fla., 1st DCA, 1981) Florida Tallow Corp. v. Bryan, 237 So.2d 308 12 (Fla., 4th DCA, 1970) Fortunato v. City of Coral Gables, 47 So.2d 14 321 (Fla., 1950) Gulf and Eastern Development Corporation v. 11, 12 City of Fort Lauderdale, 354 So.2d 57 (Fla., 1978) 10, 11 13 14 11, 12 TABLE OF CITATIONS (con't) Knapp v. State, 370 So.2d 39 (Fla., 3rd DCA 1979) Purifoy v. State, 359 So.2d 446 (Fla., 1978) Rinker Materials Corporation v. City of North Miami, 286 So.2d 552 (Fla., 1973) FLORIDA STATUTES 4 Pages: 10 Nicholson v. Wyatt, 77 So.2d 632 (Fla., 1955) 13 995 N.E. 125th Street Corporation v. County 11 National Bank of North Miami Beach, 349 So.2d 758 (Fla., 3rd DCA, 1966) Milling v. Berg, 104 So.2d 658 (Fla., 2nd DCA, 14 1958) 18 18 State Dept. of Agriculture and Con. Serv. v. 13 Strickland, 262 So.2d 893 (Fla., 1st DCA, 1972) State v. Breidenbach, 213 N.E. 2d 745 (Ohio 14 App., 1964) Southern Realty and Utilities Corporation v. 11 State, 181 So.2d 552 (Fla., 3rd DCA 1966) Times Publishing Co. v. Burke, 375 So.2d 10 297 (Fla., 2nd DCA, 1979) Van Pelt v. Hilliard, 78 So.693 (Fla., 1918) 18 Section 166.059 20 Section 166.061 20 STATEMENT OF THE CASE AND OF THE FACTS This appeal is from a decision (R.12) of the Miami Shores Code Enforcement Board (hereafter Board) directing the Appellant (hereafter Mrs. Baioff) to cease renting rooms at her single family residence. Mrs. Baioff did not dispute the leasing of the rooms, but advised the Board that such is a valid and legal use permitted by two sections of the Village's Zoning Ordinance. First, it is permitted as a home occupation in the district and second, it is permitted as a valid nonconforming use as it was specifically permitted by the Village's Zoning Ordinance at the time she began renting rooms (Transcript of 5/7/81, pages 52 -59). The case before the Board (contending a zoning violation) was presented by the Village on May 7, 1981. Both parties (the Village and Mrs. Baioff) rested their cases and presented arguments. At the close of the arguments the Board asserted that it could not rule as it did not have sufficient information to reach a conclusion. Over the objection of Mrs. Baioff's attorney the Board adopted a motion directing the Village to provide additional evidence as to the ostensible zoning violation. (Transcript of 5/7/81, page 65.) The Board adjourned for a period not to exceed 31 days and advised Mrs. Baioff's attorney that a special 5 meeting would be called at some unspecified future date, on ten days notice as required by the Board's rules, (Transcript, 5/7/81, page 67 -68). All notices of the Board must be in writing. Section 166.062, Florida Statutes. Notwithstanding the foregoing the Board did not give ten days written notice. Instead, on June 3, 1981, at 4 :35 P.M., it had a police officer (not the code inspector as required by Section 166.062, Florida Statutes) hand deliver to Mrs. Baioff's attorney a notice of hearing for June 4, 1981, at 7:30 P.M. The Board, in lieu of the ten days written notice, gave a 26 hour (and 55 minutes) notice. Mrs. Baioff's attorney was unable to attend the Board's meeting on such insufficient notice and Mrs. Baioff asked for a continuance so that she could be represented by counsel, which request was denied. (Transcript of 6/4/81, pages 1 -2). The Board then proceeded against Mrs. Baioff, took additional testimony and argument on behalf of the Village and entered the challenged Order. This appeal ensued. 6 ARGUMENT The Code Enforcement Board of Miami Shores Village denied the essential requirements of the law, including due process, to the Appellant when it gave insufficient notice of hearing, said notice having been served 26 hours and 55 minutes before said hearing, thus not permit- ting Appellant to be represented by counsel, and proceeded to hold said hearing notwithstanding. The Miami Shores Village Code Enforcement Board ( "Board ") held a hearing on May 7, 1981, at the behest of its zoning code enforcement officer. The Village officer presented his case, attempting to prove that Appellant Elsie Baioff was violating Village zoning laws by taking in boarders at her single family home. Mrs. Baioff, through her counsel, demonstrated that at the time Mrs. Baioff began sharing her home with others, the zoning code permitted the premises to be used as a boarding house. The subsequent amendment to the Code, if in fact it now prohibited boarding houses in her district, did not render her use of the premises illegal as she was carrying on a valid, existing, nonconforming use. Nonconforming uses are permitted under the City zoning ordinance, and by judicial determination.* * The second issue hereof details the zoning matters. 7 At the resting of the cases of the Village and of Mrs. Baioff on May 7, 1931, the Board was unable to come to a decision. A motion was made and adopted as follows (Transcript, 5/7/81, p. 66): "I would like to have my motion accepted as given with the amendment that was offered that we would request this session or this adjournment for a period of 31 days to obtain additional evidence, that's the extent of the motion." The vote on the motion was affirmative and the hearing was adjourned. The wording of the motion appears to call for another hearing 31 days from May 7, 1981, such being Sunday, June 7, 1981. :However, in subsequent discussion it was determined that a special meeting would be called at a date to be fixed later and ten days notice given to Mrs. Baioff's attorney. Ten days notice is required by the regulations of the Board (Transcript, 5/7/81, p. 67). On Wednesday, June 3, 1981, at 4:35 PM a Village police officer delivered written notice to Mrs. Baioff's attorney. The notice was for a hearing to be held on Thursday, June 4, 1981, at 7:30 PM. Mrs. Baioff's attorney advised the Village that he was unable to attend because of the insufficient notice. Mrs. Baioff went to the June 4th hearing and advised the'Board 8 (Transcript, 6/4/81, pages 1 - 2): "My name is Elsie Baioff and my attorney is John Fletcher; and you know Mr. Fletcher was given notice yesterday at 4:35 p.m. and cannot be here tonight. Mr. Fletcher handles many night meetings for cities and therefore needs suffi- cient notice of these meetings. There- fore, the notice being insufficient you should reschedule this meeting for another date. Mr. Fletcher does state however that the purpose setforth and the invalid notice is contrary to law. Since I am represented by Mr. Fletcher, his presence is necessary before I can participate in any way." Notwithstanding Mrs. Baioff's inability to be represented by counsel because of the Board's in- sufficient notice, the Board: 1. Reopened the Village's previously closed case (Transcript, 6/4/81, p. 4); 2. Took additional testimony from prior witnesses (Transcript, 6/4/81, page 4 et seq.); 3. Took testimony from a new witness (Transcript, 6/4/81, page 5 et seq); 4. Found Mrs. Baioff to be in violation of the Village's zoning ordinances (Transcript, 6/4/81, page 11 et seq.); 5. Levied a continuing fine against Mrs. Baioff (Transcript, 6/4/81, page 11 et seq.); and 6. Failed to consider Mrs. Baioff's defenses previously raised by her attorney (Transcript, 6/4/81). 9 No emergency was involved in this matter, nor did the Board or anyone else state a reason that this matter had to proceed under the circumstances. No compelling reason appears to suspend Mrs. Baioff's constitutional right to due process. In fact, no reason appears to suspend the Board's ten day notice rule. It is thus postulated that the insufficient notice deprived Mrs. Baioff of the following due process rights: 1. The right to reasonable notice. E.g., Atkins v. State ex rel. Shelton, 187 So.363 (Fla., 1939) . 2. The opportunity to be represented by counsel. Times Publishing Co. v. Burke, 375 So.2d 297 (Fla., 2nd DCA, 1979). 3. The right to have the witnesses against her cross - examined. Finkley v. John Raffa Lathing, 120 So.2d 9 (Fla., 1960). 4. The right to a full and fair hearing, after ample opportunity to prepare therefor. Knapp v. State, 370 So.2d 39 (Fla., 3rd DCA, 1979). The notice given at 4:35 on Wednesday, for a hear- ing on Thursday, obviously failed to provide counsel (even if he could have been present) an opportunity to prepare. In fact, the adjournment was for the osten- 1 0 sible purpose of compiling a list of additional in- formation that was to be sought, not to grant the Village a retrial of the cause (Transcript, 5/7/81, pages 66 -67). Mrs. Baioff's counsel would have been caught by surprise in any event, and have been entitled to additional time, as the Board did not reassemble to compile a list but to rehear the cause. Most decisions on notice speak in general prin- cipies rather than delineating time requirements. However, those cases which have specifically set forth the times involved have uniformly held such short notice as here to be insufficient. 955 N.E. 125th Street Corporation v. County National Bank of North Miami Beach, 349 So.2d 758 (Fla., 34d DCA, 1977); Southern Realty and Utilities Corporation v. State, 181 So.2d 552 (Fla., 3rd DCA, 1966); Atkins v. State ex rel. Shelton, 187 So.363 (Fla., 1939). As a cap on this issue the Appellant would restate that the record reflects a Board regulation that requires ten (10) days notice (Transcript, 5/7/81, page 67.) The Board is bound by its regulations as much as it iE bound by due process and cannot vio- late them with impunity. On this the cases are clear and unequivocal: Gulf and Eastern Development Corp- oration v. City of Fort Lauderdale, 354 So.2d 57 (Fla., 1978); Bubb v. Barber, 295 So.2d 701 (Fla., 11 2nd DCA, 1974); City of Miami Beach v. Consolo, 279 So.2d 76 (Fla., 3rd DCA, 1973), cert. denied, 292 So.2d 24 (1974); Florida Tallow Corp. v. Bryan, 237 So.2d 308 (Fla., 4th DCA, 1970). In Gulf and Eastern Development Corporation, supra, the Florida Supreme Court stated: "Furthermore, we hold that the City of Fort Lauderdale was bound by the procedural requirements imposed by its city charter and ordinances. See Rhodes v. City of Homestead and Florida Tallow Corporation v. Bryan, supra. Regardless of the operation of Section 176.051(1), Florida Stat- utes (1971), by Section 47 -32.7, Fort Lauderdale Code of Ordinances, the City of Fort Lauderdale promised property owners notification and a right to be heard when their lands would be affected by proposed zoning. Even if the City of Fort Lauderdale were not constitutionally and statu- torily obliged to extend the proce- dural due process set forth in Section 47 -32.7, nevertheless, once it has done so it should not be permitted to renege on its promise anymore than one of its private citizens would be entitled to do. Cf. Citizens of Flor- ida v. Mayo, 333 So.2d 1, 7 (Fla.1976) (Public Service Commission promise of procedural rights to a party, in not- ice of public hearing)." In this instant matter the Board's regulations and the Board itself promised ten days notice. As the Florida Supreme Court stated, "it should not be permitted to renege on its promise ". 12 ARGUMENT The Code Enforcement Board of Miami Shores Village erred in failing to apply the applicable Village Ordinances to the undis- puted facts and thus failed to permit the continuance of a valid and legal use; the same being a denial of the essential requirements of law. The Village brought this action before its ad- ministrative Board and thus had the burden of proof as the party asserting the affirmative (that Mrs. Baioff was operating a boarding house illegally). Florida Department of Transportation v. J.W.C. Com- pany, Inc., 396 So.2d 778 (Fla., 1st DCA, 1981); Bal- ino v. Dept. of Health and Rehab. Serv., 348 So.2d 349 (Fla., 1st DCA, 1977); State Dept. of Agriculture and Con. Serv. v. Strickland, 262 So.2d 893 (Fla., 1st DCA, 1972). Obviously included within that burden on the part of the Village is the obligation to prove that Mrs. Baioff was not performing a legal, permitted use (such as a home occupation, which will be discussed). Additionally, Mrs. Baioff claimed a valid pre- existing (nonconforming) use, which will also be discussed. A nonconfcrming use is universally a de- fense to an allegation of a zoning violation. Nichol- son v. Wyatt, 77 So.2d 632 (Fla., 1955); Fillmore City v. Reeve, 571 P.2d 1316 (Utah, 1977); Elgin v. Ripp- berger, 375 N.E.2d 170 (I11 App., 1978); Dandy Co. v. 13 Civil City of South Bend, 401 N.E.2d 1380 (Ind.App., 1980); State v. Breidenbach, 213 N.E. 2d 745 (Ohio App., 1964). Thus there are two obvious reasons, as the record shows, that Mrs. Baioff is not violating the Village's zoning ordinance. These are: 1) the taking in of tenants by Mrs. Baioff is a valid and legal, pre- existing nonconforming use; 2) the taking in of tenants is a valid presently permitted use; viz., a home occupa- tion as defined by the Village's own zoning ordinance. These will be separately discussed. 1. The nonconforming use. A nonconforming use is a use of property which was legal (permitted) when established, but which does not comply with present (amended) regulations. As stated, in Fortunato v. City of Coral Gables, 47 So.2d 321 (Fla., 1950), zoning regulations do not generally oper- ate to limit the right of a landowner to continue such uses since it would be unreasonable and an injustice to compel their suppression. The Miami Shores Village zoning ordinance contains a savings clause for nonconforming uses, which may be found at R.8 as Exhibit 4: "As to Non - Conforming uses "Section 524. Except for non -con- 14 forming signs as provided in Section 527, a building in which a non - conforming use is conducted may be "(a) Continued at the extent of occupancy of land and floor area and intensity of use at which it existed when it became non-con- forming . . . " Thus if Mrs. Baioff began renting to boarders when it was legal to do so and subsequently the ordinance was amended to prohibit such activity, the Village Code provides that it may be validly continued. Even the Village Code enforcement officer had to admit this. (Transcript, 5/7/81, p. 43) According to the testimony Mrs. Baioff began renting to boarders twenty -five (25) years ago. One Mrs. Moore so testified at Transcript, 5/7/81, p. 13. Another person who subsequently moved into the neigh- borhood (eight (8) years ago), testified that the rent- ing was occurring at that time and that he had no idea it was against the law (Transcript, 5/7/81, p. 4). He was correct: it was not against the law eight years ago. At that time the Village's zoning ordinance ( #220) for this district defined a "Family" (R.5 -6, Exhibit 2) in two alternatives, either as "(a) any number of persons related by blood or marriage, which group may also include not more than 2 roomers or boarders in not to exceed one room; or 15 "(b) not more than 4 persons not related by blood or marriage." The ordinance was amended in April, 1974, to eliminate roomers and boarders as to Section (a). The testimony reflects throughout the proceeding (Transcript, 5/7/81, pages 7, 8, 13, 15, 16) that what Mrs. Baioff had been doing legally under the ordinance before it was amended is exactly what she is doing today. She thus has a valid, legal, pre - existing non- conforming use that is in full compliance with the City Ordinance regulations on such uses and the City cannot prohibit her from continuing it. Bemas Corporation v. City of Jacksonville, 298 So.2d 467 (Fla., 1st DCA, 1974); Milling v. Berg, 104 So.2d 658 (Fla., 2nd DCA, 1958); City of Miami v. Lithgow, 12 So.2d 380 (Fla., 1943); Daoud v. City of Miami Beach, 7 So.2d 585 (Fla., 1942) . 2. The Home Occupation As one of its permitted uses in the zoning district applicable to Mrs. Baioff's property, the Village zoning ordinance lists and defines "Home Occupation ". (R.6, Exhibit 2) : "SECTION 220 Home Occupation: An occupation not otherwise permitted in the district, which is of a type customarily con- ducted entirely within a dwelling and carried on by the inhabitants thereof, (a) in connection with which occupation there. is no display visible from outside 16 the building, (b) which use is clearly incidental to the use of the dwelling for dwelling purposes and does not change the character thereof, and (c) in the conducting of which occupation no per- sons other than members of the house- hold are engaged. The conducting of an animal hospital, barbershop, beauty parlor, clinic, hospital, tea room, or any similar use shall not be deemed to be a home occupation." The Village's zoning official was questioned by Mrs. Baioff's attorney about the application of this permitted use to her property. (Transcript, 5/7/81, pages 19 -23). That offical had to admit that Mrs. Baioff met every one of the criteria to qualify as an operator of a home occupation.* Thus the Village official had to admit that Mrs. Baioff's home occupation is "of a type customarily conducted entirely within a dwelling "; "carried on by the inhabitants thereof" and "there is no display outside the building" (Id., pages 20 -21); the "use is clearly incidental to the use of the dwelling for dwel- ling purposes and does not change the character thereof" (self - evident); "and in the conducting of which occupa- tion no persons other than members of the household are engaged "'(Id., p. 22). The Village zoning offi- cial also had to admit (of course) that there were * The Random House Dictionary of the English Language defines "occupation" as "one's usual principal work or business, esp. as a means of earning a living." This is Mrs. Baioff's method of earning a living. 17 none of the proscribed uses of Section 220 present on the premises.(Id., pages 22 -23). Mrs. Baioff thus meets all of the listed criteria for a home occupation. The zoning official, however, wished to argue that the "intent" of the ordinance was to the contrary, notwithstanding its clear and unequiv- ocal, plain language meaning, (Transcript, 5/7/81, p. 21 -22). His own lawyer stopped him from testifying as to any issue of "intent ", thus there is no extrin- sic evidence in the record demonstrating that the legislative intent was something other than as plainly defined by the zoning ordinance itself. On this subject the law makes no exceptions: zoning authorities must enforce their zoning ordinances in accordance with the plain meaning of the words. Rinker Materials Corporation v. City of North Miami, 286 So.2d 552 (Fla., 1973); Purifoy v. State, 359 So.2d 446 (Fla., 1978); Van Pelt v. Hilliard, 78 So.693 (Fla., 1918). As stated by the Florida Supreme Court in Rinker Materials, supra, at page 553: "Since zoning regulations are in derogation of private rights of ownership, words used in a zoning ordinance should be given their broadest meaning when there is no definition or clear intent to the contrary and the ordinance should be interpreted in favor of the property owner. "(Emphasis supplied.) Interpreting the ordinance in favor of Mrs. Baioff, it 18 can be observed that she is using her property in the same manner today as she has been for twenty -five years. Her use of the premises is legal under the two pro- visions of the Village's existing ordinances: 1) as a nonconforming use; 2) as a livelihood derived from her home as defined in plain English under the home occupation section. 19 CONCLUS ION The Village has seriously injured Mrs. Baioff, by denying her: the right to counsel; the right to reasonable notice and a fair hearing; and the right to cross - examine witnesses for the Village, as well as present her own witnesses. The denial of these due process rights are discussed in the argument on the first issue. The Village, after denying due process, then ordered Mrs. Baioff to discontinue her valid and legal use of her property as set forth in argument on the second issue. It levied a continuing daily fine which will lead to a lien on her home and ultimately to a loss of her home through foreclosure. Section 166.059, Florida Statutes, provides such a procedure. Undoubt- edly the Florida Legislature did not contemplate that any such Board would use this statutory provision to deprive persons such as Mrs. Baioff of her constitutional rights and her home. Accordingly, the decision of the Board should be reversed and the complaint against Mrs. Baioff dis- missed with prejudice. NOTE ON THE REMEDY INVOLVED Section 166.061, Florida Statutes, is the least ably drafted legislation that one could expect 20 encounter outside a student body government. Ostensibly it provides the remedy to be sought by one aggrieved by decisions of Code Enforcement Boards. It states: "Appeals. An aggrieved party may appeal a ruling or order of the en orcement board by certiorari in circuit court. An appeal shall be filed within 30 days of the execution of the order to be appealed." Obviously the draftsman had no idea that an "appeal" (a review by right) differed from "certiorari" (a discretionary writ). Perhaps this is the raison d'etre for the constitutional system which provides that the Florida Supreme Court, and not the Legislature, controls Court Rules. In any event, your author has chosen to follow the Court Rules and thus in this case has submitted a notice of appeal and this Brief, rather than petition for a writ of certiorari. However, in an excess of caution, the two issues have been phrased so as to be apt in both appellate and certiorari terms. Steven L. Josias Co- counsel 3040 E. Commercial Blvd. Ft. Lauderdale, Florida 33308 (305) 771 -4500 21 (305) 665 -7521 Joh�h G. Fletcher AtiornOy for Appellant Suite 222 7600 Red Road South Miami, Florida 33143 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been mailed to William Fann, Esq., Attorney for Appellees, 9999 S.E. 2nd Ave., Miami Shores, Florida, 33138, this 6th day of November, 1981. Steve Josias, Esq. Co- counsel 3040 E. Commercial Blvd.' Ft. Lauderdale, Florida 33308 (305) 771 -4500 22 / i Johzi G. Fletcher At F orney for Appellant S ite 222 7 00 ;Red Road S64 Miami, Florida 33143 (305) 665 -7521 ELEVENTH JUDICIAL CIRCUIT 81- 190 -AP DADE COUNTY FLORIDA No APPEAL FROM MIAMI SHORES CODE ENFORCEMENT BOARD • (FINAL ADMINISTRATIVE ACTION) STATE OF FLORIDA, COUNTY OF DADE. TO THExIARNmA xxnx ..M.IAMI... SHORE.S...CODE..ENFORCEME.N.T...BOARIl LN AND FOR DADE COUNTY, FLA., GREETINGS: WHEREAS, lately in the in and for Dade County, Florida, in a cause wherein IN RE: ELSIE..EAI xxlmoommiNioiseirifmkma order �j: 7lR mdithj � gA aPf the said BOARD was rendered on the 4th day of June , A. D. 19 81 , as by the inspection of the transcript of record, which was brought into the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, by virtue of a notice of appeal agreeable to the laws of the State of Florida in such case made and provided, fully and at large, appears: and WHEREAS on the 10th day of December , A. D. 19 .. 8 2 , at a term of the said Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, holden at Miami, the said cause came on to be beard before the said Circuit Court on the said transcript of the record, and was argued by counsel; in 10 thdav of December oraer sidered, ordered and adjudged by said Circuit Court that the saidxpodgna ox of the BOARD b REVERSED consideration whereof, on the Mandate from Circuit Court aforesaid Board YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause as according to right justice, the judgment of said Circuit Court, and the laws of the State of Florida, ought to be had, the said or er itkclzritrg of the BOARD notwithstanding. WITNESS the Honorable MURRAY GOLDMAN, MICHAEL H. SALMON, THOMAS E. SCOTT, Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, and the seal of the said Circuit Court, this the 9th clay of February , A. D. 1c 83 CIF /CT /CRI 177 RICHARD P. LRINKER Clerk of the Circuit Court el the Eleventh Judicial Circuit of Florida. in and for DNd. County , A. D. 19 82 , it was con- NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF ELSIE BAIOFF, Appellant, vs. MIAMI SHORES VILLAGE, et. al., REVERSED Appellees. IN THE CIRCUIT COURT ELEVENTH JUDICIAL CIRCUIT OF FLORIDA APPELLATE DIVISION CASE NO.81 -190 AP • w Opinion filed December 10, 1982. An appeal from Miami Shores Village Code Enforcement Board John G. Fletcher, Attorneys for Appellant Co-counsel, Appellant William F. Fann, Jr., Attorney for Appellee Before GOLDMAN, SALMON, SCOTT PER CURIAM Although we are of the opinion that Appellants due process rights were probably violated by the procedures followed by the Miami Shores Village Code Enforcement Board, it is not necessary to decide this case on that point. The record discloses that Appellant cannot be prohibited from using her home as a rooming house because of the doctrine of Non- conforming use. See Bemas Corporation v. City of Jack- sonville, 298 So.2d 467 (Fla., 1st DCA. 1974), Milling v. Berg 104 So.2d 658 (Fla., 2nd DCA, 1958), City of Miami v. Lithgow, 12 So.2d 380 (Fla., 1943) , and Daoud v. City of Miami Beach, 780 2d 585 (Fla., 1942). REC 1 I 33 ri 1 794 RECORDED DEC 14 6362 RICHARD P. ERINKER CLERK In consideration of the issuance by MIAMI SHORES VILLAGE to the undersigned of a permit to construct improvements upon the property hereinafter referred to, the undersigned hereby agree that no part of the premises will be used for rental purposes, or for any purpose which is in violation of any of the ordinances of Miami Shores Village. It is further agreed that if the premises are used for a purpose contrary to the terms of said ordinances that an injunction may be applied for and granted forthwith and without notice to us, or those claiming under u s. The said property is described as follows: An existing two car garage converted to a storage building with toilet facilities - located to the rear of 1145 N.E. 92nd Street on Lot 24, Block 2 - Bay Lure Subdivision. Recorded in the public records of Dade County in Plat Book 44 - Page 63. STATE OF FLORIDA ) ) SS: COUNTY OF DADE ) WITNESS MY hand and seal this go day of State of Florida, County of Dade. day This instrument was Wed for record d in OFFI CIAL RECORDS 1967 a a:S� t. and duly 300 7/ on Page____11 -t - rte :f 67R E. b. LEhiHRMVMAN Clerk Ciicoi■ Court off (`1 d 1 1 �1�a✓Ni �, PAGEe�.�S��, MIAMI SHORES VILLAGE Florida Owners: /41-.) 1C9 Before me, the subscriber, a Notary Public in and for said State and County personally appeared the person, who signed the above agreement, who are well known to me and known to me to be the person described in said agreement and each of said subscribers acknowledged to and before me that executed the same freely and voluntarily for the purposes therein expressed. Notary Public, tale of lorida at Large My Commission expires: '67 NOV 20 AM 10 : 53 • 67R 1'79490 FILED FOR RECORD E. B. LEATHERMAN CLERK CIRCUIT COURT DADE CO. FLA. 4* jpEo OF DADE , " inetraii *ea Bled fa TOY Po 7967 tiL,A, TaCCADO 77.77.7 (9-7/oF PLAZA 4.3418 Member of awu sol 4 '11 I 11V o r 1 *ORI ' Inc l e 2 piera / 9( Complefe7raveleervice BISCAYNE BOULEVARD AT 80TH STREET MIAMI, FLORIDA 33138 1145 H.E. 92nd St. Eianii bhores, Fla. July 15 1966 Mr. W. 2® Bradford Building & Zoning Inspector Miami Shores Village Eiarai Shores, Fla. Teo Anne Farmer - 114 .E. 92nd St., E.S. Lot 24 Block 2 ° IT ubdivision Bay Lure Dear T•:r. - Radford Ac' :nowledging yours of June 29th re the above property with enclosures: Very trulyyours, 21,2-4e■ rT' ems/ Anne Farmer 1. Affidavit has been notarized, and an returning it to you for your perusal. 2. Application Por Building Permit is also filled out 'pest to my ability. I am still trying to find some- one who could install a garage door 9' reasonably. With so many on vacation, have not been able to obtain positive estimates, to be su'itted. :'r. ' 3adford as far as the single door is concerned, a Er. Jackson, well known in the area, day laborer, in- vestigated carefully and found that the height of the existing door now is only 5' llL "; which is low. He definitely says it can be cut to 6'6 ", as the tie beam can cut without hitting the 5/8 bar. A normal cement block is obviously showing which can be cut easily. 1 feel less than 6' door could be hazardous. Trust that this information is what you require. Thank -ou ioi your consideration, I am PLAZA 4 -3418