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In the city of Miami, could working from home be breaking the law?

Pandemic may have brought to light need for clearer definitions after lawyer gets violation notice

MIAMI, Fla. – Someone anonymously complained to the city about attorney David Winker who has pending cases against the City of Miami. Now code enforcement is telling him he needs to obtain the proper paperwork to run a business out of his home. Winker maintains he is working at his kitchen table amid the pandemic like so many Miami residents. This incident has a city commissioner wondering if Winker’s case illustrates a need to better clarify related code pertaining to working from home amid the community’s ongoing effort to tamp down on transmission.

Winker has several pending lawsuits filed against the City of Miami on cases spanning developer setback rules enforcement to a petition to recall Miami City Commissioner Joe Carollo and ongoing court battles. “We’ve beaten him in court four times in a row,” said Winker.

On Friday, Winker said someone posted a notice on his door with four of the six code violations related to working from home.

Winker said that the notice threatens criminal arrest and fines up to $500 per day for operating a home office. “Imagine the abuela that gets this that is running her seamstress office,” Winkler said. “If I am out of compliance, I would venture to say hundreds of thousands of individuals in South Florida who are working from home are out of compliance.”

The City of Miami said code enforcement is complaint-driven and in Winker’s case, enforcing permitting rules on running a permanent business out of a home came after someone anonymously complained about him.

The complaint is sophisticated, with a detailed itemization of various “exhibits.” Under “Exhibit A” are screenshots of Winker’s social media posts about his cases to include those involving the City of Miami and pertaining to the Carollo legal incident.

“I think I am being targeted,” said Winker.

Local 10 sent an email to Commissioner Joe Carollo asking for a statement, but did not hear back.

Since March 1, 2020 the City of Miami has issued 24 violations to people running businesses out of their homes without the required permits. We are told examples include nail salons and a jet ski rental business.

“Your viewers simply need to know that if they have a legal workplace elsewhere (with its proper licensing, zoning, certificates, etc. ) and are working remotely during the pandemic, they do NOT need to worry,” stated Miami City Attorney Victoria Mendez.

The City of Miami is making a distinction between people working temporarily out of their home amid the pandemic and those running a business out of their home. Due to the pandemic, many have been forced to work from home as the community efforts ways to try to deal with the spread of the COVID-19 transmission.

There have also been many who lost their jobs during the pandemic that may be trying to make ends meet by running businesses out of their home. Right now, per the City of Miami, if you plan to run a business out of your home you need to obtain a $79 Accessory Use Permit and a $131 Business Tax Receipt. Those who plan to permanently run a business out of their home and don’t obtain the permits can be found in violation.

“This has brought to light that there may be a deficiency within our code during the pandemic,” said Miami Commissioner Ken Russell, who added that generally speaking, “there should be no weaponization of our code against any resident.”

Miami 21 Code defines a home office, in part, as a “devoted” space. In Winker’s case, he works from home from his kitchen table, he told Local 10. “So ‘devoted’,” explained Commissioner Ken Russell, “if you have a room in your house that maybe would have otherwise been a bedroom but you converted it into an office it seems that that is what it applies to, not a couch with a computer on it or a kitchen table.

Russell said he has asked the City Attorney and City Manager to provide clarity.

“It doesn’t say if it is your business, or your an employee of someone else’s business or whether you have clients coming so I think the code is a little vague and needs a little clarification to give peace of mind for residents right now.”

John Heffernan, deputy director of the Office of Communications, issued this statement, on behalf of the City of Miami:

“Since March 1, there have been 24 violations issued for illegally operating a business in a residential zone. In each case, the City issued the violations in response to complaints. These violations include homes in residential neighborhoods that were operating businesses such as nail salons, restaurants and jet ski rentals, among others. The City understands that thousands of residents have been forced to temporarily work from home (initially by City emergency order) – and not report to their normal, licensed workplace – due to the pandemic. This is different from operating a permanent business out of one’s home, irrespective of the current health emergency.

“For the past seven (7) years, Mr. Winker’s home address has been reflected as his corporate address with the Florida Division of Corporations. Additionally, his Florida Bar profile lists his home address as his mailing address. However, he has not secured an accessory use permit from the City to operate a permanent business from his home. As is always the case, residents have the right to appeal violations or remedy them directly with the City by coming into compliance with the relevant code.

Individuals who wish to open a permanent home-based business in the City of Miami must apply for an accessory use permit and a Business Tax Receipt/Occupational License to comply with the Miami 21 zoning code.”

About the Author:

Christina returned to Local 10 in 2019 as a reporter after covering Hurricane Dorian for the station. She is an Edward R. Murrow Award-winning journalist and previously earned an Emmy Award while at WPLG for her investigative consumer protection segment "Call Christina."