Can a Florida city run a temporary pilot program allowing some vacation rentals, then snap back to its pre-2011 total ban once the pilot ends?

Subject

City pilot program for vacation rentals

Plain-English summary

Belle Isle's city attorney asked whether the city could test the waters on vacation rentals through a one-year pilot program, then sunset the pilot and revert to the city's 2008 blanket prohibition on short-term rentals (rentals under seven months). The Belle Isle Council was contemplating an "owner-occupied" pilot: rent out one or two bedrooms in your own home for periods of 30 days or less, with at least one primary resident living on-site during the visitor's stay, plus licensing, inspection, and safety standards.

The AG said no to the proposed snap-back after a pilot. Section 509.032(7)(b) preempts cities from prohibiting vacation rentals or regulating their duration or frequency, with a grandfather clause for ordinances enacted on or before June 1, 2011. Belle Isle's 2008 ordinance was protected. A new pilot provision that restored the prohibition for rentals it had allowed would be subject to current preemption. The AG separately said that reenacted provisions of the old ordinance could retain grandfather protection.

For the second question (about adopting a permanent allow-some-rentals ordinance), the AG concluded that the city could amend its existing ordinance to allow specified vacation rentals as long as the amendment did not "regulate" duration or frequency. The pre-2011 portion of the ordinance, where unchanged, remains protected by the grandfather clause as a continuation of the original.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Anyone planning a vacation-rental ordinance today should check the current version of section 509.032 before relying on this opinion's specific holdings.

Background and statutory framework

Florida's local-government home-rule authority comes from Article VIII, section 2(b) of the Florida Constitution and section 166.021(1), Florida Statutes. Cities can legislate on any subject the state could legislate, except where the legislature has expressly preempted the field.

Section 509.032(7)(b) is the preemption provision at the heart of this opinion. It says: "A local law, ordinance, or regulation may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals. This paragraph does not apply to any local law, ordinance, or regulation adopted on or before June 1, 2011."

The grandfather clause protects a pre-June 2011 ordinance. The opinion explains that reenacted provisions of such an ordinance can keep that protection after an amendment, while newly introduced provisions are treated as enacted when the amendment takes effect.

Belle Isle's 2008 section 7-30 said: "Short-term rentals, i.e., rentals for a term of less than seven months, are prohibited." It was enacted March 4, 2008, well before the June 1, 2011 cutoff. So it was protected.

The Florida Supreme Court's longstanding rule on amended statutes and ordinances treats unchanged portions of an amended law as a continuation of the original. The 3rd DCA applied this to vacation rentals in City of Miami v. Airbnb, 260 So. 3d 478, 482 (Fla. 3d DCA 2018), upholding a 2017 city resolution that prohibited short-term rentals because it was "identical in its material provisions" to the city's pre-2011 zoning code, while striking down a 2015 Zoning Interpretation that exceeded those restrictions.

Why the AG reached this conclusion

The proposed pilot would add new provisions allowing certain rentals. The AG said a provision sunsetting that pilot or reinstating the prohibition for those rentals would run afoul of current state preemption. That conclusion does not erase protection for materially unchanged portions of the 2008 ordinance.

On the second question, the AG applied the continuation rule stated in Sutherland and Perry to section 509.032(7)(b). Unchanged portions of an amended pre-2011 ordinance (text that remains "essentially and materially unchanged") retain grandfather protection. New provisions added by the amendment are evaluated under current state law. Belle Isle could amend section 7-30 to allow narrowly defined owner-occupied rentals while keeping its prohibition in force on properties not covered by the new exception. The opinion cited City of Miami v. Airbnb as a further example of applying the grandfather clause to materially unchanged provisions.

The proposed sunset could not restore Belle Isle's prohibition for properties opened to rentals during the pilot. Unaffected properties remained subject to the old prohibition under the AG's answer to the second question.

Common questions

Did this opinion say cities can never regulate vacation rentals at all?

No. The opinion addresses the statutory preemption of prohibitions and duration or frequency rules. It says Belle Isle's materially unchanged pre-2011 provisions remain protected by the grandfather clause. It does not decide which other local requirements might apply.

What counts as a "vacation rental" under section 509.032?

The opinion does not quote a general statutory definition. It describes Belle Isle's proposed owner-occupied pilot, in which a resident would rent one or two bedrooms for periods of 30 days or less while a primary resident remained on site.

Does adopting a temporary pilot ordinance "amend" the pre-2011 ordinance?

The AG analyzed the proposed pilot as adding new provisions to Belle Isle's existing zoning rules. New provisions regulating rental duration or frequency face current preemption. The opinion expressly says reenacted pre-2011 provisions can keep their grandfather protection.

Could Belle Isle just leave its 2008 prohibition in place and never test the pilot?

Yes. The opinion says the 2008 prohibition is grandfathered. It also says the pre-2011 portion remains in effect for properties unaffected by a permissible amendment allowing certain rentals. The proposed pilot could not later restore the prohibition for properties opened to rentals under the pilot.

What happens if a city amended its pre-2011 ordinance for unrelated reasons (renumbering, formatting)?

The AG says provisions that are essentially and materially unchanged are treated as continuations of the old ordinance, while new provisions are treated as enacted when the amendment takes effect. The opinion does not separately decide how renumbering or formatting changes would be treated.

Citations

• § 509.032(7)(b), Fla. Stat.
• § 166.021(1), (3)(c), Fla. Stat.
• Art. VIII, § 2(b), Fla. Const.
• City of Miami v. Airbnb, 260 So. 3d 478 (Fla. 3d DCA 2018)
• Norman Singer, 1A Sutherland Statutory Construction § 22:33 (7th ed., Nov. 2018 update)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/city-pilot-program-for-vacation-rentals-
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1464

Original opinion text

April 27, 2020

A. Kurt Ardaman
City Attorney, City of Belle Isle
1947 Lee Road
Winter Park, Florida 32789-1834

Dear Mr. Ardaman:

This office has received your letter on behalf of the Belle Isle City Council requesting an opinion regarding the effect of a proposed amendment to the City's zoning laws in the area of vacation rentals. I have rephrased your questions as follows:

1. May the City of Belle Isle enact an ordinance establishing a pilot program to allow certain owner-occupied vacation rentals and upon expiration of the program, revert to its 2008 blanket prohibition of vacation rentals?

2. If the City were to adopt an ordinance that allows certain owner-occupied vacation rentals without a trial period or pilot program, would the prohibition of vacation rentals under the City's 2008 ordinance remain in effect as to all properties that are not allowed to be vacation rentals in the new ordinance?

In sum:

1. Any provisions under a pilot program ordinance that would regulate the duration or frequency of vacation rentals would be expressly preempted by section 509.032(7)(b), Florida Statutes.

2. Amending an existing ordinance enacted prior to June 1, 2011, will not invalidate its protection under the grandfather clause with regard to provisions that are reenacted, but any new provisions that would regulate the duration or frequency of vacation rentals would be barred.

Section 7-30 of the Belle Isle Code of Ordinances provides, in full: "Short-term rentals, i.e., rentals for a term of less than seven months, are prohibited." The provision was enacted March 4, 2008, and is therefore protected from state preemption under section 509.032(7)(b), Florida Statutes, which provides:

A local law, ordinance, or regulation may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals. This paragraph does not apply to any local law, ordinance, or regulation adopted on or before June 1, 2011.

The City is currently considering whether to adopt an ordinance creating a temporary pilot program to determine the feasibility of allowing certain vacation rentals. The program would allow "owner-occupied rentals," meaning that the homeowner could rent out one or two bedrooms in his or her home for periods of 30 days or less, so long as at least one of the primary residents would be living on-site throughout the visitor's stay.1

The proposed ordinance establishes a licensing, inspection, and enforcement regime for authorized vacation rentals, along with safety and operational standards. The ordinance would be in effect for one year. The City would then have the option of taking several actions, including enacting a permanent ordinance or allowing the ordinance creating the pilot program to sunset. The City is concerned that if it wished to resume the total prohibition found in the existing section 7-30, it would be precluded from doing so under the preemption provision of section 509.032(7)(b).

Municipalities have home-rule authority to exercise any power for municipal purposes unless prohibited by law.2 Section 166.021(3)(c), Florida Statutes, grants each municipal governing body the power to enact legislation on any subject the state could also legislate, except, among other things, "[a]ny subject expressly preempted to state or county government by the constitution or by general law." Because section 509.032(7)(b) expressly preempts the power to prohibit altogether or to regulate the duration or frequency of vacation rentals, the City may not include any such provision in its pilot program ordinance. If the City were to allow vacation rentals by ordinance in the pilot program, it would be precluded from reverting to its pre-2011 prohibition ordinance, in part or in total. Accordingly, any ordinance provision sunsetting the pilot program or giving the City the ability to re-institute its prohibition on vacation rentals would run afoul of section 509.032(7)(b).

Regarding your second question, generally, when a civil statute or ordinance is amended, provisions of the original law that are essentially and materially unchanged are considered to be a continuation of the original law. "The provisions of the original act or section reenacted by amendment are the law since they were first enacted, and provisions introduced by the amendment are considered to have been enacted at the time the amendment took effect. Thus, rights and liabilities accrued under the original act which are reenacted are not affected by amendment."3

As stated by the Florida Supreme Court, this general rule "'sometimes becomes important, where rights had accrued before the revision or amendment took place.'"4

It is my opinion that an ordinance amending the existing prohibition to allow certain vacation rentals would not violate section 509.032(7)(b), Florida Statutes, as long as it does not "regulate" 5 the duration or frequency of such rentals. The pre-2011 portion of the ordinance would remain in effect as to properties unaffected by the amendment.

Sincerely,

Ashley Moody
Attorney General

_________

1 City of Belle Isle Ordinance 18-10, proposed sections 7-50, 7-57, 7-67 & 7-69. The number of bedrooms that could be rented in a dwelling would be capped at two, with a maximum of two occupants per bedroom. If there is more than one dwelling on a lot, the maximum number of occupants for all dwellings combined would be capped at six.

2 Art. VIII, §2(b), Fla. Const.; §166.021(1), Fla. Stat.

3 Norman Singer, 1A Sutherland Statutory Construction §22:33 (7th ed., Nov. 2018 update).

4 Perry v. Consolidated Special Tax School Dist. No 4, 89 Fla. 271, 276, 103 So. 639, 641 (1925) (quoting Cooley's Const. Lim., at 96-97 (7th ed.)). Accord Orange County v. Robinson, 111 Fla. 402, 405, 149 So. 604, 605 (1933). See also City of Miami v. Airbnb, 260 So. 3d 478, 482 (Fla. 3d DCA 2018) (concluding that a 2017 resolution prohibiting short-term rentals in a suburban zone was not preempted because it was "identical in its material provisions" to the City's 2009 zoning code, whereas provisions in a 2015 Zoning Interpretation that exceeded the restrictions in the 2009 ordinance were preempted).

5 Black's Law Dictionary defines the word "regulate" to mean, in pertinent part: "To control (an activity or process) esp. through the implementation of rules." Black's Law Dictionary (11th ed. 2019).