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Home Rule powers & private property rights

February 7, 2020
Cape Coral Daily Breeze

The city of Cape Coral has joined the Florida League of Cities and many of its member municipalities in opposition to a House bill that would give the authority for vacation rental regulation to the state.

According to the league, which has more than 400 members, House Bill 1011 would preempt the rights of cities and towns to "make local choices about short-term rentals to directly address problems in their communities."

The legislation, which would place oversight within the state's Division of Hotels and Restaurants, is another usurpation of Home Rule powers by the state, according to the league, which adds, "What works for Key West or Miami may not work for Gainesville or Pensacola."

The city agrees on both counts.

"Home Rule has been under attack for two years and this is another onslaught into that. I would support our lobbyists to not allow the state to regulate vacation rentals. We want to maintain the ability here in the city to be able to make the best decisions here," Mayor Joe Coviello said at Monday's Cape Coral City Council meeting.

We support the rights of local government to govern.

But we also support the rights of those governed residents, in this case property owners, a driving force behind the effort for a consistent statewide standard of licensing, regulation, enforcement and fines.

As currently drafted, House Bill 1011 does not preempt local regulations affecting vacation rentals if those regulations apply uniformly to all residential properties, regardless of whether the property is used as a vacation rental.

This regulation debate is not new.

Legislation passed in 2011 prevents local governments from enacting any law, ordinance or regulation that restricts the use of vacation rentals; prohibits vacation rentals; or regulates vacation rentals based solely on their classification, use or occupancy. The state readdressed the issue in 2014 to clarify the preemption but, nonetheless, regulations since imposed at the local level have spawned both lawsuits and spiraling enforcement costs municipalities -- even large ones -- have found themselves unable to bear.

According to a State House analysis of HB 1011 there has been a plethora of filings by property owners who allege local ordinances have abridged rights guaranteed them by the Bert J. Harris, Jr., Private Property Rights Protection Act.

The city of Anna Maria, an example cited, passed a regulatory ordinance in November 2015. It has resulted in around 113 Bert Harris Act claims amounting to $38 million in potential damages.

That bill analysis dated Feb. 5 also uses Miami Beach, which passed its vacation rental regulation ordinance in 2016, as an example.

Miami Beach's ordinance established a first violation fine of $20,000 -- yes, $20,000 -- for a non-compliant property owner caught renting short-term. Subsequent fines increase by $20,000 up to $100,000.

"In June 2018, it was reported that Miami Beach had issued $12.1 million in fines, only $174,000 of which had been paid," the analysis states, adding that some owners had accumulated up to $60,000 in fines.

So costly lawsuits. And costly enforcement without much bang for the hoped-for buck.

A couple of things.

One, the state, if not its cities, recognizes that Florida is both a tourism state and a state that attracts a large number of property owners who choose to live here part time.

That combination, coupled with the ease of on-line rental transactions, has indeed driven the state's growing "vacation rental" market.

Add in the state's strong private property protection mandates, mix in the homeowner's association mentality of too many local governments and you have a perfect storm for costly Bert Harris litigation -- as Anna Maria and other cities and towns have painfully learned.

That brings us to two: It makes sense to vest regulation and enforcement with the experts who have the expertise and resources to do both.

The Division of Hotels and Restaurants, a division within the state's Department of Business and Professional Regulation, already licenses approximately 47,340 "public lodging establishments" -- everything from hotels and motels down to all vacation rental condominiums and homes in the state.

The division imposes application fees, license fees, late fees, fines, and provides mandatory standards for sanitation and occupant safety, fire safety and conduct by guests.

Duplicating those efforts means property owners within communities with their "own" regs pay twice. Possibly three times and dearly if those ordinances fail to pass legal muster -- something we've unfortunately seen here in the Cape more than once of late when simple citizen challenges have bested the city's big guns.

If the league and/or its members have issues with those state regs, absolutely, do propose to change them.

But at the state level, please.

It's the nature of this particular beast.

It's the best way to protect all those involved.

And it the least costly way to regulate an industry that continues to evolve.

- Breeze editorial



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