Amendment to county Zoning Code designed to help Code Enforcement officers prove cases of illegal short-term rentals

| August 1, 2017

By Rachel Brown Hackney
SarasotaNewsLeader.com

          As the No. 1 Beach rankings have brought more and more attention to Siesta Key since 2011, property owners have capitalized on increased demand from visitors for accommodations — including single-family homes, Sarasota County Code Enforcement officers say.

          “I get lots of emails [about illegal rentals],” Susan Stahley, the Code Enforcement officer for Siesta Key, told members of the Siesta Key Association (SKA) during their June meeting. She urged them, “Please call me any time,” because that is how she finds out about many of the situations.

          SKA Director Joe Volpe pointed out that he has communicated with Stahley “quite a few times” about illegal rentals in his neighborhood. “She does an excellent job, and she does an excellent job of following up.”

          The primary frustration in dealing with such violations, Stahley explained, has been enforcement. To that end, the Sarasota County Commission voted unanimously on July 11 to amend the language of the County Zoning Code relating to short-term rentals.

          A Jan. 31 memo from County Attorney Stephen DeMarsh to the County Commission explains that on Jan. 3, 12th Judicial Circuit Court Judge Brian A. Iten reversed penalty orders issued by Code Enforcement Special Magistrate Meg Wittmer regarding the recurrence of violations of the Zoning Code’s short-term rental regulations.

          The Code Enforcement staff had issued a Notice of Recurrence against Marian and Isabella Wierzchos of 7315 Captain Kidd Avenue — located on the Intracoastal Waterway east of Siesta Key — “for engaging in short term rentals of a single family residence that includes a small studio apartment,” DeMarsh added. The Zoning Code, he continued, prohibits the rental of dwelling units more than once in a 30-day period and further prohibits the rental of less than the entire residence.

          Iten’s ruling focused on language in the Zoning Code, “concluding it expressly ‘prohibited specified rentals but not attempts by property owners to arrange for such rentals,’” DeMarsh explained. “The penalty orders from the Special Magistrate relied, in part, on testimony [about] three separate telephone communications between Wierzchos and a code enforcement officer arranging a short term rental of the property. On all three occasions, the code enforcement officer confirmed rental dates with Wierzchos,” DeMarsh noted. However, Iten characterized those acts “as attempts to lease the property because the parties did not execute documents completing a lease agreement.”

          A June 6 memo to the County Commission from Sandra LeGay, manager of the Code Enforcement Division, pointed out that when Code Enforcement officers get complaints about short-term rentals, their first objective is to educate property owners about the county regulations and try to “obtain voluntary compliance.” If the latter effort does not work, LeGay noted, “the provisions of the code can be difficult to enforce,” especially in regard to the following:

• Securing leases and receipts to determine whether a short-term rental exists.

• Obtaining legitimate rental records from property owners.

• Proving that renters are not family members or friends.

• Getting a previous renter to testify in court.

• Proving that money has changed hands.

          LeGay added that staff has obtained advertisements for short-term rentals, but those are considered circumstantial evidence only. “Staff has also obtained information directly from renters,” she continued, but that is considered hearsay. Therefore, staff had tried to rent properties via telephone, so evidence would be available for Code Enforcement cases. Those efforts had been difficult, she pointed out, but until Iten issued his Jan. 3 ruling, they had been generally successful.

Therefore, to assist Code Enforcement staff in enforcing short-term rental regulations, her memo added, staff proposed an amendment to the ordinance: “Any attempt made to solicit, advertise, or commit the act of leasing a rental in a manner inconsistent with the provisions of this section [Residential Use Categories] shall constitute a violation.”

          The County Commission approved the language as written.

Aside from the court case …

          During Code Enforcement Officer Stahley’s appearance at the SKA meeting, she also discussed the difficulties of trying to prove illegal short-term rentals.

          For example, she said, with one recent case, she had taken nine different sets of photos, and she had talked with one renter of the property in early April and a second in late April. “There you have positively an illegal rental,” she pointed out, because of the violation of the 30-day regulation.

          Nonetheless, she said, the photos and her conversations were considered hearsay, “so [all] that was basically thrown out.”

          What did work, she added, were records she had compiled showing names of the renters and the time frames during which they occupied the home.

          In that case, she continued, she requested a Finding of Fact. Therefore, she said, if an illegal short-term rental occurs again at that dwelling, she can proceed straight to imposing a fine.

The 30-day rule

          Stahley also took time during the June SKA meeting to explain the Zoning Code language regarding the frequency of short-term rentals. Her predecessor on the island — John Lally — often entertained questions on the same issue when he came to SKA meetings.

          The key, Stahley pointed out, is single-family residential zoning. Anyone unsure of the zoning of his or her neighborhood may call the County Contact Center at 861-5000, she pointed out, and the staff member answering the call can check the zoning designation for the address.

          Subsection 5.2.3 of the County Code says, “Dwelling units may be rented as a whole and for periods of greater than 30 days provided that a dwelling unit shall not be rented more than once every 30 days.”

          The code also notes that, with the exception of units designed for “community residential” purposes, “any rental or lease of a single-family residence to more than one individual and his or her family or roommates is prohibited, unless all persons residing in the single-family residence have full access of the entire residence, including the single kitchen, accessory buildings, and associated property.”

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