CITY OF CARMEL-BY-THE-SEA

CITY COUNCIL
Staff Report
SR 2017-087
June 6, 2017
Consent Agenda

TO: Honorable Mayor and City Council Members

SUBMITTED BY: Don Freeman, City Attorney

APPROVED BY: Chip Rerig, City Administrator

SUBJECT: Consideration of a resolution authorizing the Mayor to execute a legislative subpoena

to HomeAway, Inc. doing business as Vacation Rentals by Owner (VRBO)

RECOMMENDATION

Adopt a resolution authorizing the Mayor to execute a legislative subpoena to HomeAway, Inc. doing business
as Vacation Rentals by Owner (VRBO).

BACKGROUND / SUMMARY

Stoffer Jozef Wagelaar and Anna De Pasquale Wagelaar as Co-Trustees of the Wagelaar Revocable Trust are
the owners of residential real property commonly known as "Dutch Casetta" located at Guadalupe 2 ND of
Fourth in Carmel-by-the-Sea, California. The Wagelaars are in violation of CMC 17.08.060, City Ordinance 89-
17, by renting their residence for less than 30 days after numerous notifications of the violations by the City.

FISCAL IMPACT

There is no fiscal impact at this time.

PRIOR CITY COUNCIL ACTION

None.

ATTACHMENTS

1. Resolution
2. Legislative Subpoena
 CITY COUNCIL
CITY OF CARMEL-BY-THE-SEA

RESOLUTION NO ._ _

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA ISSUING A

SUBPOENA FOR CERTAIN RECORDS RELATED TO THE SHORT-TERM RENTAL OF A PRIVATE
RESIDENCE THROUGH THE ONLINE RENTAL BOOKING SERVICE HOMEAWAY, INC. DOING
BUSINESS AS VACATION RENTALS BY OWNER (VRBO)

WHEREAS, Government Code Section 37104 et seq. authorizes the City Council to issue a
Legislative Subpoena, "... requiring attendance of witnesses or production of books or other
documents for evidence or testimony in any action or proceeding before it."; and

WHEREAS, The City of Carmel-by-the-Sea Municipal Code Section 17.08.060, prohibits

transient, short-term rental uses in the City; and

WHEREAS, City staff have reviewed the VRBO.com website, and noted listings advertising
the short-term rental of residential real property in Carmel-by-the-Sea owned by Stoffer Jozef
Wagelaar and Anna De Pasquale Wagelaar, as Co-Trustees of the Joseph Wagelaar Revocable Trust
established by Declaration of Trust dated January 31, 2007, described as:

Lot No. 16, in Block Numbered 41, as said Lot and Block are shown in that certain Map
entitled, "Carmel City" filed in Volume 1 of Maps, "Cities and Towns" at Pge 52, Monterey
County Records. Commonly known as "Dutch Casetta". Assessor's Parcel #010-023-018

WHEREAS, the described property appears to be operating without any legal authorization
from the City; and

WHEREAS, the City Council finds that it is reasonably likely that VRBO.com has records of
the short-term rental transactions by the subject property owners in the City which will assist the
City in enforcing its Municipal Code; and

WHEREAS, THE City Council hereby determines that probable cause exists to issue a
Legislative Subpoena for any and all records in the possession ofVRBO.com relating to the subject
residential real property; and

WHEREAS, this Legislative Subpoena serves a lawful legislative purpose as the receipt of
the information sought herein will help the City Council to enforce the City's Municipal Code.

NOW, THEREFORE, BE IT RESOLVED that the City Council ofthe City of Carmel-by-the-Sea
does hereby:
 1. The City Council determines that the foregoing recitals are true and correct and
adopts the recitals as findings in support of this Resolution.

2. The City Council hereby issues a Legislative Subpoena commanding HomeAway, Inc.
doing business as Vacation Rentals by Owner (VRBO) to appear and/or produce on or before
September 5, 2017, certified copies of the following records covering the time period from July 1,
2015, through the date of response to this Subpoena, at the address indicated in the subpoena:

a. The username associated with the subject residential real property, that
username's email address, and other contact information; and

b. The dates and duration of stay for each time the residence associated with
that username was rented.

3. The Legislative Subpoena issued by this Resolution shall be in a form drafted by the
City Attorney. A draft subpoena form is attached to this Resolution as Exhibit A. The Legislative
Subpoena shall be signed by the Mayor and certified by the City Clerk. A copy of this Resolution
shall be attached to sub subpoena and shall be incorporated by reference into the subpoena. The
subpoena shall be served upon VRBO.com in the same manner as a subpoena in a civil action.

4. Failure to comply with the subpoena shall be subject to the remedies set forth in
California Government Code Section 37104 et seq. or otherwise provided by law.

5. The Mayor, City Clerk and the City Attorney are authorized to take all actions
necessary to issue, serve and enforce the subpoena.

6. This Resolution shall be in full force and effect as of the date of its adoption.

PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF CARMEL-BY-THE-SEA this
__ day of June, 2017, by the following roll call vote:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:

ATTEST: SIGNED,

ASHLEE WRIGHT, City Clerk STEVE DALLAS, Mayor

City of Carmel-by-the-Sea

In re: HOMEAWAY, INC. DOING
BUSINESS AS VACATION RENTALS
BY OWNER (VRBO)
- )
) LEGISLATIVE SUBPOENA
) (Government Code 37104)
)
) DATE: September 5, 2017
) TIME: 4:30 p.m.
) PLACE: Carmel-by-the-Sea City Hall
) Council Chambers
) Monte Verde Street between
Ocean and Seventh Avenues
Carmel-by-the-Sea, California

TO: HomeAway, Inc. doing business as Vacation Rentals by Owner (VRBO)

Attn: Melissa Pearson Fruge, Vice President and Custodian of Records

1. On June 6, 2017, the City Council of the City of Carmel-by-the-Sea, adopted Resolution No.
____ (incorporated by reference into this Subpoena). Accordingly you are hereby ordered
to produce certified copies of the Records identified in Section 3 below as follows:

(A) You are ordered to appear in person and to produce true and correct copies of the
records which you have in your possession described in Section 3 ("Records") at the City of Carmel-
by-the-Sea City Council meeting on September 5, 2017, at 4:30 p.m (or soon thereafter as the
matter may be heard), to be held at Council Chambers at City Hall, Monte Verde Street between
Ocean and Seventh Avenues, Carmel-by-the-Sea, California.

(B) Your personal attendance and the production of documents are required by this
Subpoena, unless alternative compliance occurs as set forth in Section 2. below.

2. You are not required to appear at the City Council meeting on the date and time set forth
above if, prior to September 5, 2017, you produce certified as true and correct copies of the
Records to Chip Rerig, City Administrator, City of Carmel-by-the-Sea, Monte Verde Street between
Ocean and Seventh Avenues, P.O. Box CC, Carmel-by-the-Sea, California, 93921. In addition to
certification ofthe documents, all copies of documents shall be accompanied by a declaration or
affidavit warranting to their accuracy and completeness. A declaration or affidavit meeting the
requirements of California Code of Civil Procedure 2020.430 shall be sufficient. The City of
Carmel-by-the-Sea will pay all reasonable fees associated with copying the Records, if approved
in writing in advance by the City Administrator.

3. The Records to be produced are pertaining to the transient or short-term rental for less
than 30 days of residential real property located Lot 16, in Block Numbered 41, Carmel-by-the-Sea,
California, Assessor's Parcel #010-023-018, commonly known as "Dutch Casetta" vested in the
name of Stoffer Jozef Wagelaar and Anna De Pasquale Wagelaar, either individually or as Co-
Trustees of their Declaration of Trust dated January 31, 2007. The records sought are for the time
period from July 1, 2015, through the date of response to this Subpoena. The Records sought are
as follows:
 (A) The username associated with the rental property, and that username's email
address, and other contact information, including the owners' name(s) as shown on your records;
and

(B) The dates and duration of stay for each time the residence associated with that
username was rented.

4. This Legislative Subpoena relates to the City's enforcement of its Municipal Code. This
Legislative Subpoena is authorized by Government Code 37104etseq. Failure to comply with this
Subpoena is subject to the penalties and procedures set forth in Government Code 37104 et seq.
and other provided by law.

CITY COUNCIL
CITY OF CARMEL-BY-THE-SEA

STEVE DALLAS, Mayor

ATTEST:

ASHLEE WRIGHT, City Clerk