Third District Court of Appeal
State of Florida
Opinion filed February 2, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1527
Lower Tribunal Nos. 20-AP-06-K; 20-AP-08-K
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Edwin Handte and Janice Handte,
Petitioners,
vs.
Monroe County, Florida
Respondent.
On Petition for Writ of Certiorari to the Circuit Court for Monroe County,
Appellate Division, Timothy J. Koenig, Judge.
Lee Robert Rohe, P.A., and Lee Robert Rohe, for petitioners.
Peter H. Morris, Assistant Monroe County Attorney, for respondent.
Before LOGUE, LINDSEY, and HENDON, JJ.
LOGUE, J.
We deny the petition for a writ of certiorari seeking review of the
decision of the circuit court in its appellate capacity. On second tier certiorari,
the “‘inquiry is limited to whether the circuit court afforded procedural due
process and whether the circuit court applied the correct law,’ or, as
otherwise stated, departed from the essential requirements of law.” Custer
Med. Ctr. v. United Auto. Ins. Co.,
62 So. 3d 1086, 1092 (Fla. 2010) (quoting
Haines City Cmty. Dev. v. Heggs,
658 So. 2d 523, 530 (Fla. 1995)). The
departure from the essential requirements of law necessary for granting
second tier certiorari “is something more than a simple legal error”: it must
involve the violation of “a clearly established principle of law resulting in a
miscarriage of justice.”
Id.
We discern no such departure from the essential requirements of law
in the circuit court’s decision affirming the decision of the administrative law
judge. The petitioners’ right to the non-conforming use of their properties as
vacation rentals did not preclude the County from subjecting that use to the
vacation rental permit and vacation rental manager license requirements
imposed by section 134-1 of the Monroe County Code.
We reject petitioners’ apparent argument that because they had a
vested right to a non-conforming use of their properties as vacation rentals,
the properties could not be subject to subsequently enacted lawful
regulations generally applicable to all such properties. See, e.g., New Port
Largo, Inc. v. Monroe Cnty.,
95 F.3d 1084, 1090 (11th Cir. 1996) (holding
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“there is no general constitutional right to be free from all changes in land-
use laws”). In so doing, we do not reach the issue of whether the vacation
rental permit and vacation rental manager license requirements imposed by
section 134-1 constitute violations of the Constitution, either facially or as
applied, because that issue is not properly before us.
Petition denied.
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