Florida Zoning Appeals Law: Miami Beach ‘Ban’ on Short-Term Rentals Ruled Illegal
Bilzin Sumberg Baena Price & Axelrod LLP
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In recent years, online platforms like Airbnb and HomeAway have made it easier for landlords to enter the short-term rental market, allowing landlords to generate additional income and cover maintenance costs for their property. immovable. The emergence of this “industry”, however, has been met with resistance from neighboring landowners and local governments, fears that transient occupation will negatively impact property values, as well as general concerns about the community health, safety and well-being.
In response to these concerns, the city of miami beach (in the exercise of its police power) enacted two ordinances which, for all intents and purposes, prohibited short-term rentals in Miami Beach. Both orders prohibited the rental of properties for terms of six (6) months or less, with limited exceptions not relevant to the issues at hand. As a penalty, if a landlord has rented for a period of less than six (6) months and one (1) day in violation of the orders, then that landlord would be subject to increasing fines of $20,000.00 for the first violation, $40,000.00 for the second, $60,000.00 for the third, $80,000.00 for the fourth and $100,000.00 for all subsequent violations.
In a recent case, NATALIE NICHOLS, c. CITY OF MIAMI BEACH, FLORIDA, et al., the 11th Judicial Circuit Court in and for Miami-Dade County agreed with plaintiff, Natalie Nichols, and found that the two ordinances passed by the City of Miami Beach (the “City”) that imposed escalating fines for violations of the city’s ban on short-term rentals of residential properties was illegal and unenforceable.
Plaintiff attacked the city ordinances on the following three fronts: (1) the ordinances are unconstitutional under the equal protection provisions of Article I, Section 2 of the Florida Constitution because they prohibit rental short-term rental of the applicant’s properties, while allowing short-term rental – term rental of “properties in a similar situation”; (2) the orders violate Article I, Section 17 of the Florida Constitution, both ostensibly and as applied, because they impose “a grossly excessive punishment intended to deter people from ‘peacefully using their property for home sharing’; and (3) the orders conflict with Section 163.09(2)(d) of the Florida statute, which limits the fines municipalities can impose for code violations to “$1,000.00 per day for first violation and $5,000.00 per day for repeat violations”.
Since the third claim raised a claim for preemption on a purely legal and potentially determinative issue, the Court ordered the parties to file summary judgment counterclaims relating solely to this claim.
The court found that the orders were in fact contrary to Section 162.09(2)(d), FS, because the law limits fines to only $1,000.00 per day and, pursuant to the orders, a homeowner can be fined up to $20,000.00 per day. The Court said it was “clearly evident that the fines to which an offender is liable are markedly different under statute and ordinances, and the fact that in some hypothetical scenario, the legal fine could amount to more than the fine specified in the order is inconsequential.”
The court also rejected the city’s argument that the plaintiff did not have standing to seek declaratory relief because she had not breached the orders or been penalized and instead found that it did not there was no requirement that she first have to breach the orders before she could challenge their legality.
Finally, the court considered whether the city was authorized to impose fines greater than those authorized by Chapter 162 of the Florida statutes. The court held that the legislator, in the exercise of his power of the police, has clearly and unambiguously placed caps on the amount of fines that local governments can impose on citizens for violations of the code in chapter 162. Accordingly, the city must adhere to the limit established in chapter 162 because its ordinances were found to be illegal, resulting in a victory for the owner and the short-term rental companies.
Originally published December 6, 2019.
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