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Flagler County Revises Vacation-Rental Rules as Lawmakers Propose Yet More Changes

| January 12, 2016

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A single-family home in the imagination of a short-term vacation renter’s mind. (© FlaglerLive)

To those who don’t live in neighborhoods rich in vacation-rental homes, the issue is usually of little or no interest. But to those who do, as in vast swaths of the Hammock—and to those who own or manage vacation rental homes—it’s been a dominant and divisive issue for the past three years, turning neighborhoods into zones of conflict, turning neighbors against neighbors, reaching courtrooms in the form of litigation and appeals, and occupying legislators for the past two and a half years.

In 24 hours since Monday, all concerned actors in this concentrated drama—residents, property owners, county government, courts and legislators—had significant says in the matter. The Flagler County Commission, to some pointed opposition but also some public support, passed an amended ordinance Monday evening regulating vacation rentals and worked toward severely stiffening fines to be levied on ordinance violators. The Fifth Circuit Court of Appeal upheld a June decision by Flagler County Circuit Judge Michael Orfinger that largely found the county’s regulations of the industry to be legal. And several legislators introduced bills that would in one way or another broaden local government power to regulate the industry.

The many and rapid changes underscore how unsettled the issue remains, and how today’s regulatory changes may yet become moot in a matter of months, or require yet more amendments.

One of those bills, sponsored by Rep. David Richardson, the Miami Democrat, would return regulatory power substantially to local governments, restoring what’s called home rule in the matter. That means local governments would again have the power to regulate the industry as they deem fit. The Legislature took that power away by passing a bill in 2011 that pre-empted local governments’ authority to regulate short-term rentals. The Legislature did so ostensibly to help homeowners struggling with debt after the housing bust. Rather than lose their homes, those property owners found a way out of debt by renting the homes as short-term rentals. At least that was the initial motivation behind the Legislature’s decision to, in effect, bar local regulations.

The Legislature’s act had unintended consequences. If the Hammock is any guide, it turned certain neighborhoods into quasi commercial hotel zones as huge mansions were turned over to short-term vacationers and property owners turned to building numerous other mansions to convert into vacation homes. The Legislature meant to save homeowners. Instead, it enabled an industry that alienated a large number of homeowners who thought they were living in residential zones, only to find themselves facing mini-hotels in the next lot.

Flagler County became a leader in reversing that course as proponents and opponents of the trend lobbied their lawmakers to change the law yet again. In 2014, the law changed, returning some regulatory authority, but also creating new gray areas for local governments to feel their way through. Flagler county government turned into the Lewis and Clark of those gray areas in the form of a new ordinance. The regulations imposed some rules and grandfathered some, allowing existing property owners, for example, to rent to up to 14 residents for three years, then limit it to 12 for three years, then to 10.

Changes that may not outlast the year as lawmakers continue to atone for a 2011 error.

Challenges from the vacation-rental industry were inevitable and swift, but so was the circuit court’s response: Orfinger, a known workhorse, handed down his ruling within five days. Several other counties and cities have followed Flagler’s lead, using its ordinance as a model for their own.

It hasn’t stopped the county from refining its own ordinance. That’s what it was proposing to do Monday evening. The latest amendments outlined several changes, some of them controversial. One of them removed the county’s authority to revoke a vacation renter’s county certificate. In County Attorney Al Hadeed’s view, the revocation did not enhance local authority when the state license to vacation renters pre-empts that instrument anyway: whether the local license is in place or not, it’s the state license that gives a renter the authority to operate, not the county license. So that renter could do so regardless, unless the county chose to litigate, a cumbersome and inefficient way of going about enforcing a local regulation, Hadeed said.

The county has a more coercive path, even beyond fines: liens on a property.

The proposal did not sit well with residents. “The bottom line is,” Ron Boyce told the county commission Monday, “the court upheld the original ordinance that was passed in February 19 of 2015. The bottom line was that suspension and revocation were vindicated in the ordinance and there’s no reason to remove them from the ordinance now. You still have the other options available to you. That’s the bottom line. They’re still available. There’s no reason to remove that.” Boyce was also skeptical about the requirement that property owners install emergency lighting based on an affidavit, since life-safety codes are already required under the state’s license. “You are giving them another year to come into compliance when they should have come into compliance already. This is wrong,” Boyce said.

Remedies should not be taken off the table, several residents said. A Palm Coast resident said the fines the county may impose on violators may seem steep to an ordinary, but “for what these people are collecting, they’re really insignificant.”

Mary Ann Peters said the power of revocation would speak loudest: “It is a very visual thing to not allow anyone to rent the house for a week or weeks,” she said, “and I think the rent that these people are earning is so substantial that our fines are not adequate. I would support the fact that these people are not allowed to rent if they continue to be or are offenders. I don’t know how that affects the litigation but I’d like you all to consider that having somebody not be able to rent their house, and then if they go ahead and do it, they are facing a lot of liability in case of an accident. If they had complied with the law, they don’t face as much liability, and I think that’s something they would think twice about.”

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“It almost calls into question, why get a license at all?” Jim Ulsamer, a Hammock resident, said.

The opposition prompted Commission Chairman Barbara Revels to remind residents where the issue originated. “I think that all of you realize how our hands have been tied here in the local community under home rule to enforce our zoning regulations,” Revels said, “and that all started two, three, four years ago. I can’t stress enough that the legislature is in session starting this week, you’ve got representatives, you have a representative for this community, they are the ones that can change this law where we could have a stronger ordinance, so call them, email them, visit them in Tallahassee. You have a mechanism there, if they hear iot long enough and hard enough from enough people.”

But it also prompted Commissioner Frank Meeker to propose stiffening the fines the county could levy against violators:

Meeker: code enforcement, $1,000 per day for the first violation, $5,000 per day for a repeat violation, and up to $15,000 per day per violation if the code enforcement board or a special magistrate were to find a violation to be irreparable or irreversible.

“I don’t want to beat people up with a thousand dollar fine on a first time violation on a garbage can being left out overnight or something. That doesn’t make any sense to me,” Meeker said. But if “there’s an intent to go out there to ignore the rule, those are the ones I want to go after, I want to make sure that the hammer is hard.”

Meeker proposed that schedule of fines as an amendment to the proposed ordinance. The commission unanimously approved. That means the county administration will take that proposal and rework it into the larger ordinance as an amendment, and bring it back to the commission for approval. The rest of the ordinance, however, including the revocation provision, passed unanimously.

The amended ordinance includes three significant new provisions. The owner who enjoys any vesting (that is, grandfather rights) is allowed to keep those rights and pass them on to the next home-owner in a sale of the property. Property owners are required to retain all rental agreements for one year, so if there’s any kind of enforcement issue the county can have access to those agreements. And homeowners are required to have a lighted exit from the house in case of an emergency power outage.

That’s where matters stand today. But given the numerous potential changes in law—none of which can be predicted—nothing is likely settled for good, or for long.

“It is a very interesting evolution of a public policy issue,” Hadeed said.


10 Responses for “Flagler County Revises Vacation-Rental Rules as Lawmakers Propose Yet More Changes”

  1. Ron says:

    I am urging all citizens in the State of Florida to call and write their Senator and Representative. There is a bill that has been introduced for the 2016 legislation it is House Bill 4045 by Representative David Richardson. This bill will end this circus that was created back in 2011 when the vacation rental industry lobby our representatives into passing Senate Bill 883 and removing home rule authority from our local officials to benefit a selected group of investors.

    This SB 883 caused numerous problems in our communities. It has removed local zoning from our municipalities. It has destroyed local communities where families have raised their children. It has allowed the business of operating a public lodging establishment just like a hotel, motel and bed and breakfast to operate without any over site in our single family communities . Your property rights for peaceful enjoyment of your property has been removed by Senate bill 883.

    Senate bill 354 that pass in 2014 fell short. It did not restore home rule. It gave some regulatory powers back but left the door open for abuse. In addition, when a well thought out ordinances was vetted by all stake holders this did not stop the law suites being from filed by these vacation rental managers and investors. The bottom line is they do not want any regulations. My question is what business operates without regulations?

    Let our local leaders take back control of these public lodging establishments. Urge them to pass HB 4045! Home rule has existed since 1973 why would our legislature removed that authority? One size does not fit all when it comes to regulating vacation rentals. Allow our local leaders to decide where these vacation rentals can operate.

    On another note, the editor stated that the passage of SB 883 was to help with the housing crisis. The truth is it did not. The homes that fell into foreclosure and short sells where quickly taken off the market by the vacation rental industry. In addition to taken control of these dwellings they transformed a four bedroom home to eight bedrooms without filing permits to increase their occupancy to lower the cost of the rental. They where advertising occupancies of 25 or more. Could you imaging living next to a transient dwelling with 25 people. In addition these dwellings are rented daily, weekly or for less than one month.

    The State of Florida only license these dwellings. They do not conduct inspections or require inspections. But they establish life safety requirements in fire prevention code 69A-43 that are unenforceable by local municipalities unless they created an ordinance after 2014 when SB354 passed.They also exempt them from sprinkler requirements. This was another factor when they approved SB 883 in 2011. I ask you what other businesses are exempt from inspections? You are allowing these dwellings to accommodate numerous occupants without applying the States minimum life safety codes.

    Another question for our representatives. What is the difference when you license a one family dwelling as a bed and breakfast? These dwellings require semi annual inspections by State Inspectors and are required in most cases to install sprinkler systems. These dwellings are restricted in residential communities by local zoning laws and are under direct control of the propitiator. Vacation rental dwellings where given a pass when SB 883 was passed in 2011. Vacation rentals have no staff on duty and are not regulated without local ordinances.

    Let’s restore home rule now! It is time to repeal Senate bill 883 and pass HB 4045 in 2016!

  2. Dave says:

    vacation rentals are the down fall of any neighborhood. Around me there is 5-10 people in a house that is only a 3 bed room 2 bath. They come and go all hours of the night and during bike week owners get a dose of loud motorcycles starting at 6am till midnight, Its loud, these people don’t care about the area, its just go to the beach and trash everything else. The owner could careless.

    There needs to be a limit of how many people can stay in a rental not to mention the loud noise. ps; I do not live in the “fancy’ gated hammock.

  3. Bc says:

    Agree we need laws. There’s a 3bedroom home on my street that now has 6- bedrooms it is vrbo for rent with a21 person limit it’s a 3k sq ft home the garage is now bedrooms WE NEED A LAW!!!

  4. PalmCoastPioneers says:

    How does the Federal Trade Commissions ‘ Consent Agreement ‘ F.T.C. C-2854 encumberances affect the 93,000 acres of Palm Coast Community Lands that comprise the Levitt & I.T.T.’s Gargantuan ‘ The Palm Coast Project?
    Additionally the Federally ORDERED ‘ distances Map ‘ required to be available and distributed to all prospective buyers never showed ‘ Mini Hotels’.
    I just looked at three of these distances Maps that I’m Steward of and no ‘mini hotels’. All this is in the Official Federal Records and Federal Registry – have the Integrity of them been compromised ?

  5. PalmCoastPioneers says:

    I just F.T.P. to the Editor – Mr. Pierre Tristam – Perhaps you can contact him as ask for a copies. I hope this is helpful to you – this way you can see what the Master Developer -Levitt & I.T.T. – planned for their design of the Massive ‘ The Palm Coast Project ‘ coupled with the Federal ORDERS for Palm Coast.

  6. Ron says:

    Dear palm Coast Pioneer,

    Here is the problem. The State of Florida is not treating these businesses as a business. They are still allowing these public lodging establishments to maintain a Certificate of Occupancy as a single family home. A single family dwelling license as a bed and breakfast is required to change it’s Certificate of Occupancy. The only requirement for a vacation rental is that they must obtain a license from the State to operate and comply with the minimum life safety code.

    Our local leaders must recognize that vacation rental dwellings are now transient public lodging establishments. They are a business and should be treated like any other business. The Certificate of Occupancy that was issue to these dwellings are for permanent occupancy use not transient. These dwellings occupancy classification should be added to the building code in Section 310. They should be listed as a Residential Occupancy R sub-classification number 1 Occupancy use transient just like a hotel, motel and bed and breakfast the conducts transient operations. These dwellings may have been constructed as a single family dwelling but their use has change.

    This is a major problem across the state. If your county or city did not have an ordinance in place prior to June 2011 you lost all ability to regulate. That includes zoning.

    The latest Senate Bill 354 that was past in 2014 still left the door open for abuse. Local governments still have no authority to enforce their zoning laws. We have public lodging establishments operating in our single family communities that where planned for 2.5 people per household with occupancy exceeding 20 people. Our water allocations where based on this occupancy 2.5 figure by our Water District. The water consumption rate was for 7500 gallons per month. These businesses are consuming water at a rate of 30,000 gallons to 52,000 gallons per month.

    This SB 883 also appointed a vacation rental industry representative to the Department of Professional and Regulations board that over see’s regulation for this operation. Yes this is a conflict of interest. The vacation rental industry continues to sue all parties that attempt to regulate this industry. I ask our local leaders what other public lodging establishment is not regulated or inspected?

    If we can not get our representatives to turn back the clock and repeal SB 883 this problem will only get worse.

    The voters in the City of Palm Coast need to contact your senator and Representative now! Ask them to Support House Bill 4045 and Senate Bill 1598 in this years 2016 session.

  7. PalmCoastPioneers says:

    Dear Ron – ‘ Thank You ‘ for your reply. From my perspective of analysis I would speculate that the ‘Encumberances’ pursuant 1975-ish F.T.C. C-2854, being Federal, trump everything at a lower level thereafter ?

  8. Ron says:

    Palm Coast Pioneer,

    If you feel it has substance please forward these documents to the county attorney. The Vacation rental companies are suing the county on the vacation ordinance.

  9. joe smo says:

    give it a break you old gray hairs and get a hobby instead of bothering people ,

  10. RD says:

    So, I curious. Who do you call when a VR is occupied by more people than is allowed? No that we have rules, let see if breaking the rules has consequences. I have seen no behavior changes for the Short term rentals in my area. Do any of the big management companies even tell the renters about the occupancy rules?

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