In a Victory for Flagler Government, Key Local Vacation Rental Regulations May Survive Yet Again

The bill that had cleared two previous Senate committees in the current legislative session would have abrogated that authority, pre-empting it to the state. It was the seventh attempt in the last seven years to do just that as the vacation-rental industry has been attempting to invalidate a 2014 law that had granted local governments authority to regulate their vacation rentals.

Flagler County had been at the origin of that law, its subsequent local ordinance regulating the industry serving as a template for numerous governments across the state.

“The local communities around our state once again have united with a common voice, that their local governments are in the best position to determine how to govern their residential neighborhoods,” Flagler County Attorney Al Hadeed, who’d written the 2014 ordinance, said today moments after the Senate committee’s vote. He cautioned that “the process is not over, but it’s certainly a good, obviously a great step.” The bill has yet to be reconciled with its House counterpart, with various options on the table, and may yet see more amendments.

Flagler government had once again included preserving vacation-rental regulation among its top legislative priorities, as it had since 2014.

“The Florida Constitution provides for Home Rule,” Hadeed said, with an eye to coming debates over the measure. “The Legislature has been chipping away at this basic principle with its steady stream of preemption bills. It’s entirely logical that traditionally local matters should be subject to the will of local citizens expressed through their locally elected officials. They are closer to the problems and their impacts on the community and also are more sensitive to the solutions needed at the local level. One size does not fit all of Florida when it comes to local zoning. It never has.”

Shortly into the debate over the bill today, Sen. Manny Diaz, a Hialeah Gardens Republican and the sponsor of the bill, himself introduced the key amendment that neutralized the pre-emption issue and gave local governments the flexibility to amend their current ordinances–as long as they make their regulations less restrictive–without risking losing their grandfathering status, while preserving other measures in the bill that have more to do with taxes, law enforcement and advertising. Those new measures are not likely to draw the ire of local governments and may even lighten the work load on local tax collectors.

“I opposed this bill and voted to oppose this bill in its first committee stop,” Sen. Ed Hooper, the Str. Petersburg Republican, said, “and would have continued to do that, except for a really good amendment that a lot of people sitting here today worked on.” He said lingering opponents may have misread or not understood the wording of the amendment. “What it does do, it at least gives the state the ability to register, regulate and make sure that the appropriate revenue taken from those rentals comes here. It does not require–I’m not a big platform guy–but it doesn’t require every city, every county, every homeowner’s association to go through that registration process and regulation process, collect the tax, make sure they’re doing it right and timely. I think it makes the bill better, and the fact that it does no further harm to my communities gives me great comfort that Sen. Diaz, you’ve turned a hard No into a pleasant yes on your bill.”

“We do maintain the local control as it is right now,” Diaz said. The Diaz amendment passed. The committee then voted 13-5 for the Diaz bill, with Sen. Travis Hutson, the St. Augustine Republican and a member of the committee, voting in favor both times.

Hutson credited Diaz for “putting this back to where it was,” before specifying: “In the amendment, line 47, ‘a local law ordinance or regulation may not prohibit vacation rentals or regulate the duration or frequency or rental of the vacation rentals.’ I’m very familiar with that language, because I was the one who put that in back in 2014, so I’m glad you went back there, but you also went a step further and you said anyone in 2011 that’s grandfathered in, should they want to change their ordinances to be les restrictive, they can do so, because we have a lot of these that felt like if they did that, they’d lose their grandfather clause.” He added: “I’m a big believer in property rights but I understand the home rule as well, and that’s the language we came up with back then to try to have that balance.”

It’s nevertheless notable that on attempts to weaken home rule authority in previous years, including on this same bill in a previous committee stop on Feb. 16, Hutson–who chairs the Regulated Industries Committee–had voted in favor of pre-empting local authority.

Some members of the committee, among them Gary Farmer, the Broward Democrat, were still not convinced that the bill respects home rule. While he acknowledged Diaz’s responsiveness and improvements in the bill, he said he shared “the philosophical concerns over pre-emption,” a concern that’s rankled local officials for years as state lawmakers have continued to extend their grasp of regulatory authority at the expense of local governments, not just on vacation rentals.




“Local rule is incredibly importante specially with something like this,” Farmer continued. “We are such a diverse state, and more rural areas have far different concerns than just less density than we have in maybe some of the more populated areas. In my district, two of the cities are two of the top 10 for vacation rental volume in the entire state. I kid you not, I had more phone calls before session started on vacation rentals than anything other than unemployment. I think zoning matters, and when you purchase a home in a single-family residential neighborhood, you have an expectation of solitude and peace and tranquility. I don’t care when a regulation was put in place at the local level. I just don’t think we should overturn what local communities are wanting to do. They should have full control over this issue. And yes, duration of stay has been shown to be the main factor when it comes down to problematic rentals.”

The hearing had none of the shrillness, tension or prolonged debates that the issue has generated in previous year: Kelli Stargell, the Lakeland Republican who chairs the committee, does so with a light hand, covid restrictions have limited attendance in the room, though people could speak from a video link, and the issue itself seems to have worn thin year after year, the attrition exacting a price on lawmakers’ patience, if not that of lobbyists: speaking cards were few, as were debating points. But those who spoke did so at times with the same passion that had animated hearings at the height of the controversy a few years ago.

“In 2006 my husband and i purchased a home in a small, rural neighborhood in Leon County,” Jean Hulse of Tallahassee said, as she prepared to tell a story that could have been just as easily told in Flagler County’s Hammock, whose homeowners originated the backlash against the surge of unregulated vacation rentals at the beginning of the last decade. “In total there were only six homes in our small neighborhood. In 2018, one of our neighbors began renting their home through a national short-term rental company. Due to the large size of the home and the acreage tract that it sits on, it very quickly became a high-occupancy, high-turnover party house. The homeowners advertises that the house sleeps 16 people, and nearly year-round it is occupied by that many people, and the additional guests that those short-term renters invite on to the property for various party functions. The negative impact to our quality of life and our dream home in what used to be a quiet, small neighborhood has been substantial. In 2019 we hired an attorney to help us with this issue. Our intent was to use the attorney to help us enforce the deed restrictions in our neighborhood, which clearly state that there could be no business activity conducted in any home in the neighborhood. Our attorney researched the matter and informed us at present, Florida courts currently interpret short-term rental activities as residential in [nature], and not a business activity. He advised the only option available to us was to work with our local government to adopt local standards that regulate short-term activities in Leon County.”




She described short-term “nightmares” as occurring not only in high-density vacation destinations, but also in isolated neighborhoods, and urged lawmakers not to interfere with local governments’ ability to regulate the issue. “This is the only recourse available to me and my family. Please, please, please do not take it away,” Hulse said. She described the Diaz amendment as “encouraging.”

Senate Bill 522 in its original form would have preempted all regulation of vacation rentals to the state, including the inspection, licensing and advertising of vacation rentals. Inspections and licensing authority is currently in the hands of local governments. The bill would also require advertising platforms to collect tax revenue generated from their rentals. Local governments could–in that original bill–still regulate the properties, but only if the same regulations apply to all residential properties, whether they are vacation rentals or not. That provision is deceptive, in the sense that it purports to preserve some regulatory authority in local governments’ hands when, pragmatically, it is impossible–and would most likely be unacceptable from permanent residents’ perspective–for local governments to inspect or license residential homes that aren’t rentals.

The state’s regulatory agency, for its part–the Division of Hotels and Restaurants division within the Department of Business and Professional Regulation known as DPBR–does not have the employee ranks to ensure that vacation rentals are inspected and overseen as rigorously as local governments do. “The DBPR has estimated it will need three full-time positions and $370,185 from the Hotel and Restaurant Trust Fund in order to process the estimated increase in licenses, complaints, and compliance cases,” a legislative analysis of the bill found–an almost insignificant staff increase, compared to the workload. (Hutson asked if the three staffers would be in addition to existing staff: they would be, but he did not ask what the current number of staffers is.)