Florida’s state legislators have begun filing their initial bill proposals for the 2018 Legislative Session, and it looks like the battle over local government regulation of vacation rentals (a.k.a. “short-term” rentals) will heat up again after several opposing bills either died in committee or were withdrawn last year. On one side of the ongoing controversy are property owners who want greater freedom to use residential property for short-term rentals through website platforms like Airbnb, VRBO, HomeAway, Flipkey, and VacationRentals.com, to name a few. On the other side are mainly: (a) local governments wanting zoning control and the ability to regulate problems supposedly caused by residential vacation rentals such as noise, parking, garbage and safety, (b) property owners’ associations and homeowners who live near or next to “short-term” rentals, and (c) the hotel industry. At least two House Bills have been filed so far for the 2018 legislative session that affect vacation rentals, and we’ll look at those at the end of this post, but first, let’s take a look at the current status of the law.
Currently, Florida state law and local ordinances have created a “hodge-podge” of regulations affecting vacation rentals across the state. That’s because state law addressing vacation rentals has gone through several changes over the last seven years, which have allowed some local ordinances prohibiting or regulating vacation rentals to stay in place, while at the same time preempting local governments from adopting new ordinances regulating vacation rentals.
In 2011, the Florida legislature amended Section 509.032, Florida Statutes (2011), to add a new provision that preempted local governments from prohibiting vacation rentals or treating them differently than other residential property based on classification, use, or occupancy. Prior to that amendment becoming state law, local governments had the authority to regulate the use of residential properties as “short term rentals,” in just about any way they wanted – including completely banning them. However, this state preemption amendment (which took effect on June 2, 2011 with the Governor’s signature) included a “grandfather” provision so that any local ordinance that was in place by June 1, 2011 prohibiting or regulating vacation rentals would not be affected and could remain in force. Thus, the “hodge-podge.” As a result, knowing what regulations apply to the use of a residential property as a vacation rental really depends on examining the city or county ordinances where the property is located and when the ordinance was enacted.
Since 2011, the state legislature has continued to tinker with the wording of this statute as the debate over how vacation rentals should be regulated has raged on. Yet, as arguments for more local control have influenced lawmakers, this broad state preemption of local government regulation over vacation rentals has shifted slightly back in favor of local governments. Currently, local governments can enact some local ordinances or regulations dealing with vacation rentals so long as they do not completely prohibit vacation rentals or regulate the duration or frequency of their use. The grandfather provision remains in place for those local governments that already had prohibitions or regulations adopted by June 1, 2011. Read the full statute here. Go to subsection 509.032(7) regarding the state’s “Preemption Authority.”
New Bills Affecting Vacation Rentals for the 2018 Legislative Session
As mentioned above, two new House Bills have been filed as of the date of this post. They are:
HB 773 by Representative Mike LaRosa, Dist. 42 (Lake Wales/St. Cloud)
HB 773 would amend Section 509.032(7)(b), Florida Statutes to clarify how local governments may regulate vacation rentals while still maintaining the state preemption. Here is the text of the amendment (the underlined words would be added by the amendment):
(b) A local law, ordinance, or regulation may regulate activities that arise when a property is used as a vacation rental provided such regulation applies uniformly to all residential properties without regard to whether the property is used as a vacation rental as defined in s. 509.242 or a long-term rental subject to the provisions of chapter 83 or whether a property owner chooses not to rent the property. However, a local law ordinance, or regulation may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals. This paragraph does not apply to any local law, ordinance, or regulation adopted on or before June 1, 2011, including when the duration or frequency requirements of such law, ordinance, or regulation are being amended to be less restrictive.
HB 789 by Representative Cyndi Stevenson, Dist. 17 (St. Augustine)
HB 789 would amend Section 212.18, Florida Statutes which applies to the Florida Department of Revenue’s authority to administer state law and regulate the registration of real property owners who lease or rent their property. Subsection 212.18(3)(a) and (b) require that persons who engage in a business of leasing or renting property subject to paying taxes, must file an application with the Department of Revenue for a “certificate of registration.” Once issued to the property owner, it must be displayed in a “conspicuous place.” HB 789 would amend Section 212.18(3)(b) to add a requirement that persons renting or leasing property for use as a “vacation rental” (as defined in Section 509.242(1)(c), Florida Statutes) must also display the certificate of registration number in each rental listing or advertisement for the property.
This amendment has two significant ramifications. One is that owners of vacation rentals who are listing their properties on website advertisements would need to display “a valid certificate of registration number” obtained from the Department of Revenue in their internet advertisements. And two, if they failed or refused to register with the Department, they could be subject to the criminal and civil penalties listed in Subsection 212.18(3)(c).
HB 789 would also amend Section 212.18 to add new civil penalties. The amendment would impose a $50 per day penalty against owners who fail to display a certificate of registration number in a listing or advertisement until they complied by including it. Repeat offenders would be subject to a $100 per day penalty for each day they are not in compliance and the amendment would give counties the authority to collect the penalty (more than half of Florida counties have agreements with Airbnb for the payment and collection of taxes).
Report back to this blog as we continue to keep any eye on vacation rental regulations during the 2018 Legislative Session.