Marco Island’s proposed short-term rental ordinance goes to trial

By Judy J. Beasley Last updated Dec 23, 2022

A group of Marco Island vacation rental and business owners filed a lawsuit Thursday to stop a referendum on the Aug. 23 ballot or seek compensation for potential damages if the new rule is passed.

Residents will be asked to vote for or against a vacation rental registration, but plaintiffs say it will end short-term rentals on the island.

“It’s misleading to voters,” said attorney David Di Pietro of Di Pietro Partners in Fort Lauderdale.

Di Pietro says there are a plethora of things wrong with the order, and even Marco Island City Attorney Alan Gabriel outlined in a memorandum 19 items that could be legally challenged.

“The 19 things described; this as essentially a roadmap for the trial,” Di Pietro explained.

As well:A divided community as voting approaches for short-term rentals

Legal claims ordinance is confusing

The 57-page lawsuit is against the City of Marco Island and Jennifer Edwards, Supervisor of Elections for Collier County. The attorney says the article is illegally titled and worded on the ballot.

“The ballot question is asking voters to approve a rental registration, when in fact they would be approving a complex 17-page ordinance that will devastate the local economy, create new government agencies, drive down housing prices, drive up their taxes and reduce their property rights. ,” Di Pietro wrote in the lawsuit. “The referendum petition is a clear attempt to thwart short-term rentals on Marco Island under the guise of protecting the welfare of its residents.”

Di Pietro also says the order is confusing as to which properties are affected and violates state law.

“The legislature anticipates what the city can do and does not allow a city to regulate the length of a vacation rental,” he said. “This ordinance regulates the duration and frequency of rental of your property.”

If not removed from the ballot and approved, the lawsuit asks that the proposed order be declared invalid and unenforceable under applicable law. If that fails, they seek compensation from claimants for the loss of income they would incur by possibly not being able to rent out their homes.

A short-term vacation rental in the ordinance is defined as any home rented for less than 30 days, more than three times a year. Many owners are part-time residents who rent out their homes when they are out of town. Robert Ferrarie is one of the plaintiffs. He never wanted the issue to end in a trial. Instead, he asked the opposition to work with them to find a workable solution. City leaders also wanted to work with the petitioners.

“Mr. (Ed) Issler, (petitioner) came to the microphone and was asked if he was prepared to negotiate on some of these points and he said no,” Council President Erik Brechnitz recalled.

Ferrarie said since they refused to negotiate with the city or the owners, he was forced to be part of a lawsuit.

“My house is right there waiting to earn this money, and without it I couldn’t have the house that I have,” Ferrarie said. ” It’s really awesome. I hate to see it closed. This trial will stop them. Then we’ll come to the table and discuss our concerns and they can discuss their concerns.

Ferrarie’s concerns are the rules he believes will make it impossible to rent out his house. Some of these rules include:

A designated responsible party must be available 24/7 and respond on-site within an hour to resolve any issues with the property.
Have liability insurance coverage of at least $1 million.
Stricter noise restrictions for vacation rental properties compared to other properties located in RSF neighborhoods (residential single family). Specifically, no sound may be audible for more than one minute, 25 feet from the property line between 10 p.m. and 7 a.m., and 50 feet from the property line during the day.
No more than two people per room, no more than four children under 13, and no guests after 10 p.m.
No reservations after August 15, 2022, until they have completed the required registration and have a city and fire inspection.

The ordinance does not specify how long the city might take to review and approve the request. Owners in violation of the order would face fines, as well as suspensions for extended periods of at least 180 days.

Ferrarie says he has rented his house since 2009 and has never had a complaint.

“This is our home,” he said. “We rent to families. My house is still perfect because I need to get a five star rating. We don’t need people inspecting our house. They just make all these rules to make it very, very hard to do.

Issler is spearheading the political action committee that prepared the petition to have the article put on the ballot. He expects the order to pass and the lawsuit to collapse.

“There are no legitimate grounds for a lawsuit,” Issler stressed. “The Political Action Committee and the City of Marco Island have done everything in accordance with Florida State Election Laws and the City of Marco Charter.”

Issler faced the most contentious issues.

“You’re limited to 75 words,” he said of the ballot wording. ” It’s the law. You have to summarize. »

He said the 19 points in the city attorney’s letter are not illegal things.

“It was just areas of caution,” he explained. “He just took whatever was possible not to get stung himself. These are not real points; these are just areas where you have to be careful.

As for the big concern about not being able to rent after Aug. 24 pending inspections and certifications, Issler says that’s not true.

“We’ll take care of that,” he said. “The ordinance needs changes. Implementation – you cannot put this in the ordinance as the city charter does not allow you to do so as it is the responsibility of the city council. This is a key point.

Ferrarie is part of the lawsuit because he fears that many landlords will not be able to rent and that a large proportion of vacation rental owners need income to continue owning property on Marco.

“There are people for whom rental income was part of what they had planned when they got their mortgage,” he said. “I was able to pay for my house and improve it with the money. I want people like me to still have the opportunity and I want people to enjoy the island. The tenants go out to dinner, they go paragliding, the owners don’t do that. Where are companies going to attract people? »

Jim Chamberlin, owner of Marco Bike Rentals, agrees and says he is considering joining the lawsuit. It rents bikes, kayaks, and golf carts and offers jet ski tours. Its customers are tourists who rent.

“In a perfect world, lawsuits aren’t necessary,” Chamberlin said. “It would be great to take the gloves off and figure this thing out, but if you can’t get compromise, you can’t close these businesses. I think it will pass because the people who are going to vote yes don’t know what they are voting for. If there is no short-term rental, economically the island is closed. If and when it comes into effect, we will literally have to move. We should go somewhere where we can make a living.

The controversy began in February when the city received an affidavit from a political action committee, Take Back Marco, in support of a referendum petition, which proposed passing an ordinance to regulate the length of tenancies. rentals by implementing a rental registration program for properties in single-family neighborhoods.

Council members say the city had no choice but to put the article on the ballot, even though they disagree with it.

“We follow the charter and do what we have to do and if we didn’t we would be breaking the law,” Chairman Erik Brechnitz said. “It’s a soap opera.”

“Not only will this cause the town of Marco to lose tourist dollars, but it will cost the taxpayers of Marco Island in this lawsuit, so it’s a double whammy,” Councilwoman Becky Irwin said. “It’s going to cost a lot of money and it’s not good for Marco Island to be so divided when the orders we have in place, simple measures, are much better than all the complicated things that have been added to that.”

Yet the counselor understands why there is a trial,

“It’s ripe for a trial,” she said. “I’m glad it’s being challenged. It has so many legal flaws that it needs to be challenged. Do I want to lose and cost the city money? No. That’s why I want the people vote no.