Limit of short-term rentals Subsection (7) of section 509.032

Florida is ready to vote on a new amendment which will affect not just hotels and larger owners of multiple rental units, but even the little guy, the one with only one unit that he rents out. Picture a retiree with an apartment in his home, or a second cottage—this proposed regulation will cause folks who have invested in real estate for rental income in their retirement, severe heartburn. Section 1. Subsection (7) of section 509.032, Florida. The exact wording of the new amendment follows in italics:

PREEMPTION AUTHORITY.— (a) The regulation of public lodging establishments and public food service establishments, including, but not limited to, sanitation standards, inspections, training and testing of personnel, and matters related to the nutritional content and marketing of foods offered in such establishments, is preempted to the state.

This subsection paragraph does not preempt the authority of a local government or local enforcement district to conduct inspections of public lodging and public food service establishments for compliance with the Florida Building Code and the Florida Fire Prevention Code, pursuant to ss. 553.80 and 633.206.

Supporters of the bill suggest safety issues are the main issue. Overloading a home by renting to too many people, or providing party houses that neighbors hate can now be regulated. But if legislators simply wanted to amend safety issues they would not be repealing the current bill House Bill 883 which protects the property rights in Florida of non-homesteaded owners.

The new law would move more rights away from local goveernments by shifting them to the state. It’s understandable that full time homeowners do not want weekly renters and strangers living next door to them.  Their solution has been to ask government to restrict rentals terms to a minimum of 30 days or even 6 months or 1 year. That is what Venice Florida and other areas have enacted to zone out vacation rentals.

Local governments have the ability to regulate health and safety matters under the existing law (House Bill 833).  The rule of law establishes that they simply can not "target" and "selectively enforce" against vacation rental owners who tend to be non-homesteaded and thus can not vote. Local governments can make laws to disallow a conversion of a garage to a rental for example.  And local governments can create occupancy laws per a house or a condo.

But this law preempts these regulations to the state. In the Orlando area where one week rentals are the norm, the bill would likely put the small short-term renters out of business, which obviously favors the hotel industry. See where this is going? More room-nights at Disney, or fewer tourists who can afford to come to the state, depending on the outcome.

A few years back counties like Sarasota began charging an onerous room tax on the little guys who rented for anything less than 6 months, and now it appears the state is planning to make short term rentals—except where zoning allows for hotel type business—illegal, state-wide.

 

Everyone who owns property and rents short term (or is considering purchasing property) should be deeply concerned of the consequences of this new bill if it passes. And the enactment could potentially raise the issue of a regulatory taking. Florida courts have traditionally held that such a regulation is constitutional, insofar as the results are to prevent new vacation rentals. But traditionally, local governments have grandfathered non-conforming uses to avoid this issue. There is no mandate that exists to require a local government to grandfather current vacation rentals, perhaps that could be added.

While the legislation advanced in committee Feb 4th on 10-3 VOTE, there are legislators willing to stand up and advocate for the rights of property owner. There are still 2 committees to go and there are 4 Representatives who have voiced for compromise. By voting to oppose legislation that unfairly targets vacation rentals, they have demonstrated support for the property rights of individuals and for an important part of Florida’s tourism sector. The legislators who apparently oppose this legislation are:

 

Senator Kelli Stargel                           Stargel.Kelli@flsenate.gov
Representative Mike La Rosa             Mike.LaRosa@myfloridahouse.gov
Representative Greg Steube               greg.steube@myfloridahouse.gov
Representative Carlos Trujillo             carlos.trujillo@myfloridahouse.gov

Dane Hahn is a professional Realtor working with Sarasota Realty Associates, in Venice. You can reach him at 941-681-0312 or by email at dane.hahn@gmail.com. See him on the web at www.danesellsflorida.com