EDWIN HANDTE AND JANICE HANDTE v. MONROE COUNTY, FLORIDA

• Court: District Court of Appeal of Florida
• Decided: February 2, 2022
• Docket: 21-1527
• Status: Published

Opinion

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 ________________

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

2 “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.