Wednesday, Oct 22, 2014
Local News

Avon Park building owners, city settle code case


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AVON PARK - After nine months of legal wrangling, a settlement has been made in a legal matter between the owners of a downtown building who wanted to turn it into a boarding house and the City of Avon Park.

For over a year, beginning in 2012, Fernando and Yudith Fernandez had sought city permits to operate a boarding house on the second floor of their two-story building, 1 W. Main St. After months of discussion and review of the appropriate parking requirements, it was determined that according to city code the building did not meet parking requirements.

According to Highlands County Clerk of Courts records, a notice of settlement was filed Jan. 10. City Manager Julian Deleon, a defendant in the case, said Wednesday the city's insurance company, Public Risk Management of Florida, Ft. Myers, settled the legal complaint with the Fernandezes. He said Public Risk Management has "reservation of rights" - intentionally retaining full legal rights to avoid later claims that those rights held under a contract, copyright law, or any other applicable law - were waived and decided to settle rather than further litigate the case in court.

Miami lawyer John De Leon of the Law Offices of Chavez & De Leon, P.A., who represented the Fernandezes, said the case was settled for $30,000. He said it would now go before the Avon Park's planning and zoning board so the owners could get an occupational license and open the boarding home. He said his clients were "satisfied" and further legal action would need to take place if they are denied their license.

"They're glad they should be able to go forward and be able to operate their home and also help the City of Avon Park improve the downtown area," he said. "They're looking forward to putting this behind them."

From the city manager's office, Deleon said basically, it was more economically feasible to settle rather than go to court.

"It's all part of doing business; nowadays, anyone can sue anybody. The one that makes the money is the lawyers - some people have good quarterbacks and others don't," he said.

In the original complaint filed May 13, 2013 in Highlands County's 10th Judicial Court, De Leon, who represented the Fernandezes, said they spent more than $46,000 on a fire sprinkler system and $30,000 on a fire alarm system for the building to comply with the city's requests to get a certificate of occupancy.

In addition to the city and Deleon, former Avon Park City Clerk Cheryl Tietjen was listed as a defendant in the case.

The case stemmed from months of discussion and review of parking requirements for the building and according to city code, those requirements weren't met. In August 2013, De Leon worked to mediate the case with the city and its attorney, George Belohlavek of Roper & Roper P.A., Apopka. Deleon and former Avon Park City Clerk Cheryl Tietjen filed a motion to dismiss the lawsuit the Fernandezes enacted under the corporate name of "Fern & Fern" Aug. 1, 2013. The motion stated the Fernandezes were denied a business tax license for failing to satisfy the "hotels and motels" code requirement of one parking space per unit.

In the original complaint, the Fernandezes said the expenditures were made to comply with city requests so they could attain a certificate of occupancy. The complaint stated Fern & Fern sought a court injunction to order the city to issue the licenses, permits and other documents required to allow them to open and operate their business.

At the time, the Fernandezes believed their property was exempt from the parking requirement, the motion stated. The city had determined that the exemption in the city code applies to "retail and commercial businesses" and not to residential-type business, including hotels, motels or boarding houses.

The Notice of Settlement from the 10th Judicial Court states the "matter has now been settled between all parties and request all scheduled matters be cancelled. Further documentation will be filed with the court upon finalization of settlement."

pcatala@highlandstoday.com

(863) 386-5855

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