By Dale Martin
February 12, 2021
The next session of the Florida Legislature is scheduled to begin in less than a month. The rigorous exercise of annually combatting State pre-emption efforts, led in part by the Florida League of Cities, will begin again.
Florida’s system of local government is based upon the concept of Home Rule. The concept of Home Rule was approved by the citizens of Florida in a 1968 State Constitution amendment. The popular support for Home Rule was not fully implemented, however, until the State Legislature adopted the Home Rule Powers Act in 1973. The State Constitution now officially supports Home Rule: Article VIII, Section 2(b) states “Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise power for municipal purposes except as otherwise provided by law.” A specific exclusion to Home Rule is the power of taxation- all taxing power is reserved to the State.
Prior to the enshrinement of Home Rule, municipal officials had to petition the State for permission to enact local laws, individually or collectively. Thousands of these Special Acts would be filed annually on behalf of local governments. The provisions of Home Rule now enable local municipalities to enact local ordinances without the need for State review and approval.
Tension between the concept of Home Rule and State pre-emption occurs when it is perceived, rightly or wrongly by individuals or organizations, that municipalities have “over-reached” with their legislative authority. Two recent examples of this tension include local restrictions related to firearms and tree protections (which are again before the legislature, reducing local governments’ ability to regulate tree pruning and removal on private property). In both instances, the issues found support among sufficient legislators to lead to state legislation which thereafter restricted local authority on those issues.
The issue that will again rise to the forefront of concern is short-term rental regulation. In general, short-term rental properties are houses rented for limited periods to visitors. State legislation regarding this issue is somewhat muddled.
As the business model of short-term began to surge about a decade ago, local governments began to adopt regulations related to short-term rentals. As was bound to happen, the regulations varied significantly throughout the state as different communities had different perspectives on how those fledgling businesses should be regulated. Partly in response to the growing diversity of regulations, in 2011 the State Legislature pre-empted cities from regulating short-term rentals. The legislation, however, included a “grandfather” provision for regulations that had been adopted prior to June 1, 2011.
In 2014, as the short-term rental industry continued to grow and create issues (noise, parking, trash, and other public nuisances) in some areas that had historically been single-family residential neighborhoods, state legislatures recognized that some level of regulation was necessary and some regulatory authority was restored to local governments.
The changing technology and economy of short-term rentals has put communities such as Fernandina Beach (which does have “grandfathered” regulations that pre-date June 1, 2011) in a quandary. Some legal theorists believe that if “grandfathered” regulations are amended, the “grandfathered” status is lost. Because of that fear, many regulations associated with short-term rentals have become ineffective, obsolete, or incomplete due to the inability of local governments to revise their regulations.
Short-term rentals are permitted in Fernandina Beach primarily in the vicinity of the Atlantic Ocean beaches. Several additional conditions apply, so simply having a property in the applicable area does not necessarily convey the ability to legally operate a short-term rental (and, due to the “grandfathered” concerns described above, those conditions cannot be altered). Short-term rentals elsewhere in the City, such as downtown, are illegal. Because City officials are aware of illegal short-term rental activity, City staff is reviewing enforcement options.
Some people will argue that this issue is simply a matter of property rights- a private property owner should have the undeniable right to use his or her property without onerous restrictions. The counter-argument is that the neighboring property owners have inherent rights, too, that can be diminished by the use of properties in traditional single-family residential neighborhoods as “unregulated hotels.” The business of short-term rentals, once somewhat limited to small scale operations, is now a booming industry with large companies buying single-family homes to be solely used for short-term rentals, potentially disrupting the character of neighborhoods.
The pre-emptive efforts of the State Legislature will likely once again seek to unilaterally impose standard statewide regulations, registration, and enforcement. Fernandina Beach (and Nassau County) are different from other communities throughout the State, and the local leaders of our communities should retain the right to regulate short-term rentals based upon local community desires and issues.
Please urge our regional legislators to oppose efforts to regulate short-term rentals on a statewide basis.