MAHMOUD SHEHATA

v.

THE CITY OF MIAMI

In the City of Miami, violating a code provision does not mean that a fine will necessarily follow. See, generally, City of Miami Code §§ 2-814 and 2-817. On the contrary, fines are only assessed after the property owner has been notified of the violation and has failed to take corrective action within the time allotted for correction. Id. In these instances, a code inspector or the city attorney, shall notify the Board that one of its orders has not been complied with. Id. The Board may then conduct a hearing and, where appropriate, order the violator to pay a fine. The fine, in a case like this one, shall not exceed $1,000 per day for a first-time offender, or $5,000 per day for a repeat violator. Id. [*3] at § 2-817(b)(2). The goal implicit in these "per day" fines is to compel compliance. If, however, the violation is of such a nature that it cannot be reversed, or otherwise brought into compliance, the Board may make a finding that the violation is "irreparable or irreversible in nature." Id. Only then may the Board issue a fine of up to $15,000 per violation.

When determining the amount of the fine--whether the maximum be $1,000 per day, $5,000 per day, or $15,000 per violation--the Board shall consider three factors-namely, (1) the gravity of the violation; (2) any actions taken by the violator to correct the violation; and (3) any previous violations committed by the violator. Id. at 2-817(c).

In this case, Appellant was given notice on December 15, 2024 that he was not permitted to engage in any short-term rentals without the appropriate certificates of use or occupancy. The notice afforded Appellant until December 26, 2024 to "correct said violations." Consistent with the City of Miami Code, the notice warned Appellant that he may be assessed a fine "if...found guilty and fail[s] to correct said violation(s)." The notice goes on to specify that any fine assessed will accrue per day "for each day the violation(s) remain uncorrected beyond the time period provided." [*4] At the hearing, the City called two witnesses. The first witness, a city code inspector, provided evidence of two short-term leases that predated the notice of violation. The second witness, a neighbor, testified that he had seen people with luggage at the property and recounted two specific instances-the first, a bachelorette party; the second, a woman who threw up by the elevator. This witness did not testify that these incidents occurred after the notice of violation or, more importantly, after the deadline for correction provided for in said notice. The neighbor did testify, however, that he had not seen anyone at the property recently and that the last time he saw someone there was about a month ago, "maybe, more or less."

There was, in short, no evidence that Appellant had failed to correct the alleged violation within the time provided for correction. On the contrary, Appellant testified that upon receiving the notice of violation, he ceased renting the property on a short-term basis, removed the rental listing, and hired a number of professionals to assist him in obtaining the necessary certificates of occupancy or use. This testimony was unrebutted, but also entirely dismissed by the Board who told Appellant that he was "not doing the right thing" and that he would [*5] never be able to obtain the very certificates of occupancy that the notice of violation told him he'd need to obtain.

For the duration of the hearing, Appellant was spoken to sarcastically, dismissively and in a manner that betrayed a predetermined outcome. For example, when Appellant indicated he was pleading not guilty, one Board member, in a sarcastic tone, said "not guilty? Okay. Good. I think that's great." Moments later, the City Attorney described certain documents which the City argued would show a violation had occurred. A Board member, unprompted, spontaneously stated, "admitted," before any documents had even been moved into evidence.

Then, after Appellant explained that he'd paid a lot of money to hire professionals to obtain the very certificates of use mentioned in the notice of violation, a Board member criticized Appellant for doing the very thing the Notice of Violation asked him to do and told him he'd never get the necessary certificates of use or occupancy. Specifically, the Board member said, You're violating Miami 21. You're violating the City of Miami rules on Airbnb on this particular building. You can think that you're doing things the right way, but you're not, and good for you, [*6] because you're spending all that money, and ityou're not going to get it, because...we're going to make sure our Code Enforcement is going to make sure that they enforce and they listen to all of these property owners, how we're doing today, because they're sick and tired of not being able to sleep. They didn't buy that condo for you to move in one year, or anyone else, to make an investment and have people there for less than thirty days, that they can't sleep, that they have-that the people are smoking pot, et cetera, et cetera, et cetera.² Whether Appellant would, or would not, ever be able to obtain the necessary certificates of use is beside the point. The undisputed evidence is that Appellant did what he was told. His unrebutted testimony was that he immediately stopped renting the property on a short-term basis and took costly steps toward obtaining a CO and/or CU he was now told he could never obtain.

When Appellant explained that he was "trying to do it [sic] the right thing," he was quickly interrupted by a member of the Board, who told him, "You're not doing the right thing, because what you're doing is not legal."

Again, Appellant tried to explain that "the picture is not painted the correct way." Appellant was referring to the manner in which this [*7] alleged violation occurred. Specifically, Appellant testified that he'd owned the property for approximately one year and had bought it with the understanding that he could engage in short-term rentals. Now that he'd learned that information was incorrect, he'd expended monies to correct the issue and ceased renting his property in the interim. But his comments were met with incredulity by one Board member who reminded him that the woman representing the City was the "City Attorney," and then asked Appellant rhetorically, and in a sarcastic tone whether what the City Attorney said was not correct.

One Board member then asked, "Okay. Can I go now? My ride is here." When the Board was reminded that Appellant had "said not guilty," you hear audible laughter that appears to come from a Board member. The Board member whose ride was there then said, Fine. I'm going to find the property guilty, immediate compliance, $10,000 of reparable [sic] fee due to the fact there are [sic] proof that the property has been a harm [sic] to the neighbors, especially with the testimony that we heard.

A second Board member asked, "No per diem?" To which the Board member whose ride was there responded, "Per diem, a thousand dollars [*8] per diem. He has immediate compliance." The motion was seconded and unanimously approved by the Board.

The purported "findings" by the Board, particularly as they pertain to irreparability, are not supported by any evidence.

First, the Board had to determine if there was a violation that had not been corrected by the date provided for correction. The Board failed to do this.

Second, assuming there had been any evidence to support a finding that a violation had gone uncorrected, the Board would have to determine if the uncorrected violation could be corrected-i.e., was it "irreparable or irreversible in nature?" If it was not irreparable or irreversible, the City would have then been free to impose a fine of up to $1,000.00 per day. In determining the precise amount of the daily fine, the City would have had to consider the three factors set forth abovespecifically, (1) the gravity of the violation; (2) any actions taken by the violator to correct the violation; and (3) any previous violations committed by the violator. If there was evidence that the violation was irreparable or irreversible in nature, then the City would be permitted to impose a fine [*9] of up to $15,000.00 per violation after considering the same three factors set forth above.

In this case, the City imposed a daily $1,000.00 fine, called for immediate compliance, and issued an "irreparable" fee "due to the fact there are [sic] proof that the property has been a harm to the neighbors."

This decision is nonsensical. It imposes a fee to compel correction of an alleged violation that the Board also found, without any evidence, was irreparable and irreversible and, therefore, incapable of correction. Additionally, the City incorrectly applied the three factors it is required to consider when determining the amount of a fine. In its Final Administrative Enforcement Notice - FEO Irreparable / Irreversible Violation Fine, the City stated as follows, The City has further found that the violation committed is of an irreparable and/or irreversible in [sic] nature based upon the gravity of the violation, the actions of the violator and any previous history.

These three factors do not determine whether a violation is irreparable or irreversible. These factors only come into play after a finding has been made that a violation is irreparable or irreversible. A [*10] serious violation, with disregard for the law, by a person who has previously violated the law may, nevertheless, be reversible and/or capable of repair. There is, in any event, zero evidence that the violation went uncorrected beyond the deadline for correction set forth in the notice of violation. There is, similarly, no evidence that any harm caused was irreparable or irreversible.³ Crossing paths with some women on a bachelorette party is not "irreparable or irreversible" harm to the property or neighbors.

Finally, Appellant was denied the due process of law. Any due process afforded Appellant in this case was illusory. Appellant was mocked for pleading not guilty, interrupted multiple times to be scolded or lectured, and issued fines with a complete disregard for what the law requires and for the analysis that must be undertaken prior to the assessment of said fines. No reasonable observer of this hearing would call this a fair hearing.

[*11] Appellant was, moreover, never informed that the hearing could result in an irreparable fine. The notice of violation specifically sets forth the fines that could be assessed if the alleged violations were not corrected. There is no mention of any irreparable violation. Appellant was not afforded the proper notice and could not have expected that he would be assessed a fine for a violation, which he was told he could avoid if he ceased engaging in short-term rentals of the subject property.

In summary, the record in this case is both disturbing and disheartening. The lack of decorum is troubling, the apparent prejudgment on the merits is unacceptable, and the imposition of any fine-but especially the $10,000.00 irrevocable fine-is entirely unsupported by any evidence. The Board afforded Appellant with nothing more than the mere illusion of due process. The behavior and actions of the Board fall well short of what is expected of officials representing a municipal government. For the aforementioned reasons, [*12] the two final administrative orders entered by the Board in this case are REVERSED.

TRAWICK AND DE LA O, JJ., CONCUR. 4 The Final Administrative Enforcement Notice and the Final Administrative Enforcement Notice FEO Irreparable/Irreversible Violation Fine. Both are dated March³, 2025.