Wednesday, September 30, 2020

Letter to the Editor: Hector C. Fernandez

 

 

Open response to City of Marco Island City Council and Marco Island Citizens,

I wanted to take a moment to clarify some points regarding the recent “Repeal to the formerly adopted “Rental Ordinance 15-01”. I was informed that an article I wrote for the Coastal Breeze under the recurring column of “Ask the Architect” titled “To Rent or not to Rent” was cited during City Council session. The article in question attempted to analyze the controversial on again, off again ordinance from a technical point of view as it relates to Zoning, Land Use and Deed Restrictions. Let me clarify that I made no reference or allusions to State Statute or Court Rulings. And for the record, I was unable to attend said meeting in person but have taken the time to watch the recording on Granicus.

That being said, let’s jump right in and see what the Florida State Attorney’s Office says on the matter as per an official “Opinion Paper” put out by their office on November 2014.

“1. Section 509.032(7)(b), Florida Statutes, as amended by Chapter 2014-71, Laws of Florida, allows a local government to regulate vacation rentals, but continues to preclude any local law, ordinance or regulation which would prohibit vacation rentals or restrict the duration or frequency of vacation rentals.[1] It would appear therefore, that zoning may not be used to prohibit vacation rentals in a particular area where residential use is otherwise allowed.”

 

So as per State Statute, a local government can indeed regulate the use of “vacation rentals” within its jurisdiction. It just cannot use Zoning to outright outlaw it. But the more interesting part is the next section of the Statute because it provides guidelines on how a “vacation rental” or “transient” property must be administered under State Law.

“2. Section 509.032(1), Florida Statutes, makes the Division of Hotels and Restaurants of the Department of Business and Professional Regulation the regulatory agency for transient lodging facilities.

Section 509.241(1), Florida Statutes, makes operation of such facilities without a license a misdemeanor of the second degree. The statute specifically recognizes that local law enforcement may provide immediate assistance in pursuing an illegally operating facility, but does not otherwise authorize a local government to prohibit the operation of a vacation rental without proper licensure by the state.”

 

What is more interesting is the confirmation from the State Attorney’s office regarding jurisdiction of a local authority to administer or regulate rentals so long as the local authority is not restricting usage and term limits of such use.

“5] Finally, the staff analysis prepared for an identical bill proposed in the House of Representatives, for which Senate Bill 356 was substituted, reflects that the bill “removes the preemption to the state for the regulation of vacation rentals” and recognizes that “[l]ocal governments may regulate vacation rentals, provided thoseregulations do not prohibit vacation rentals or restrict the duration or frequency of vacation rentals.”

So to clarify, a municipality cannot use Zoning, or other legal ordinance mechanisms to impede the ability of single family homes to be rented as “transient” or “vacation rentals” including non-restriction of time duration of said rentals. However the Statute does require that a property and property owner that is engaging in such rental practices must register themselves with the Florida Department of Business and Professional Regulation Division of Hotel and Restaurants and be licensed by said department. Failure to do so constitutes a violation of State Statute and will that party will be charged with a second degree misdemeanor.

“Section 509.261(1), Florida Statutes, provides:

“Any public lodging establishment or public food service establishment that has operated or is operating in violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license may be subject by the division to:

  • Fines not to exceed $1,000 per offense;
  • Mandatory completion, at personal expense, of a remedial educational program administered by a food safety training program provider approved by the division, as provided in s. 509.049; and
  • The suspension, revocation, or refusal of a license issued pursuant to this chapter.” (e.s.)

 Moreover, section 509.241(1), Florida Statutes, makes it a misdemeanor of the second degree to operate a public lodging establishment without a license. The statute further provides that local law enforcement shall provide immediate assistance in pursuing an illegally operating establishment. Where the Legislature has prescribed the manner in which something is to be accomplished, there is an implied prohibition against its being done any other way.[13]

 

The section further provides that any person who engages in any business covered by the chapter who does not pay the required tax within 150 days after the initial notice of tax due “is subject to civil actions and penalties, including court costs, reasonable attorneys’ fees, additional administrative costs incurred as a result of collection efforts, and a penalty of up to $250.”

 

Additionally the Statute allows for a municipality to require that said operators of such rental properties must be licensed through the State before they can operate within the City.

“[a] municipality or county may not issue an occupational license to any business coming under the provisions of this chapter until a license has been procured for such business from the [D]ivision [of Hotels and Restaurants].” Clearly, therefore, a municipality mayrequire through its licensing tax ordinance that a vacation rental obtain a license in order to conduct business within the municipality.[15] This would appear to be an appropriate regulation which the city could impose upon vacation rentals within its jurisdiction.

 

Also a City can require a “vacation rental” property to comply with regulatory provisions such as those outlined in the Florida Building Code and Florida Fire Prevention Code as related to “Hotel” or even “Assembly Use” spaces.

“(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 paragraph does not preempt the authority of a local government or local enforcement district to conduct inspections of public lodgings 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.

 

So if we consider the originally adopted ordinance, with the apartment properties exempt, one can say that the ordinance mirrors and addresses all of the regulatory guidelines outlined in the State Statute. One can even go further to say that by enacting such an “Ordinance” it would have provided a conduit for “illegal” property owners to comply with State Statute and thereby come into compliance. I guess it can even be argued that by vocally and publicly opposing to regulation (assuming one is not following the State Statute) that one is publicly admitting culpability to a second degree misdemeanor.

On a side note, it is interesting to note that the Statute falls silent on how the matter of Deed Restrictions pertain to the matter. The Statute appears to focus on City regulatory processes and ordinances but seems to fail to address private restrictions. Perhaps someone should reach out to the State Attorney’s office to ask for clarification on this matter?

You can read the Florida State Attorney’s Office position paper in its entirety at the following link:

www.myfloridalegal.com/ago.nsf/Opinions/5DFB7F27FB483C4685257D900050D65E

 

And remember if you have any questions, “Ask an Architect”… Or in this case “Ask the State Attorney’s Office”… www.myfloridalegal.com/ago.nsf/Opinions/5DFB7F27FB483C4685257D900050D65E

 

 

Thanks,

Hector C. Fernandez, AIA 239-331-8124

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