Can a Florida city use a zoning overlay to allow vacation rentals in only part of a residential neighborhood while banning them in the rest?
Plain-English summary
Florida Attorney General Ashley Moody ruled that cities cannot use creative zoning tricks to ban vacation rentals in some parts of a neighborhood while allowing them in others, even if their goal is to revitalize an area or limit rentals to a specific section.
Daytona Beach proposed an "overlay zoning district" that would have allowed vacation rentals in select residential properties within a designated tourism area, while keeping the existing ban for the rest of the same residential zone. The AG said this would effectively regulate the "frequency" of vacation rentals, which Florida law explicitly prohibits.
The opinion reinforces Florida's strong preemption of local vacation rental regulation: cities can't use zoning, distance requirements, density caps, or selective overlays to indirectly do what state law forbids them from doing directly.
What this means for you
Vacation rental owners in Florida
The AG read § 509.032(7)(b) to preempt the specific tactic Daytona Beach proposed: a zoning overlay that would have allowed vacation rentals in part of a residential zone while keeping them banned in the rest of that same base zone. The opinion treats that as regulating the "frequency" of rentals, which § 509.032(7)(b) bars except for ordinances adopted on or before June 1, 2011. Older AG opinions in the same line reached similar conclusions for outright zoning prohibitions (AGO 2014-09) and distance-separation requirements between rentals (AGO 2016-12).
Prospective buyers of short-term rental property
The opinion addresses what cities cannot do; it does not address what private deed restrictions, HOA covenants, or condominium declarations can do, and it does not displace pre-June 1, 2011 ordinances grandfathered by the statute. The AG explicitly assumed in this opinion that Daytona Beach's existing residential-zone restrictions were grandfathered under that 2011 date.
City officials, planners, and municipal attorneys
The AG reads § 509.032(7)(b)'s phrase "regulate the duration or frequency of rental" broadly. The opinion holds that a piecemeal overlay carving out a percentage of properties in a base zoning district while leaving the rest subject to a grandfathered prohibition has the effect of regulating frequency, and is preempted, even though it would expand where vacation rentals are allowed. The AG repeated its earlier reading (in AGOs 2014-09 and 2016-12) that the preemption captures ordinances whose effect is to regulate vacation rental frequency, not only ordinances that do so by their literal terms.
Homeowners near vacation rentals
The opinion is narrow. It addresses what § 509.032(7)(b) preempts at the local level. It does not address noise ordinances, general occupancy limits, parking rules, or HOA covenants, which are governed by other statutes and private agreements not at issue in this opinion.
Common questions
Q: What counts as a "vacation rental" under Florida law?
A: Per § 509.242(1)(c), it's a single-family home, two- to four-family house, condominium unit, or cooperative unit that's rented to guests more than three times per calendar year for periods less than 30 days. If it's advertised publicly as a rental, it qualifies.
Q: My city banned vacation rentals years ago. Is that still valid?
A: It depends on when the ordinance was passed. § 509.032(7)(b) grandfathers any local law adopted on or before June 1, 2011. Pre-2011 ordinances remain enforceable. Post-2011 ordinances that prohibit or regulate the frequency/duration of vacation rentals are preempted.
Q: Can a city require me to register or license my vacation rental?
A: Yes, generally. Registration, licensing, life-safety inspections, occupancy limits, and similar regulations are allowed as long as they don't effectively prohibit the rental or regulate frequency/duration.
Q: What about HOA or condo association rules against short-term rentals?
A: Those are governed by private covenant law, not this state preemption. If your HOA's declaration prohibits short-term rentals, that rule is generally enforceable regardless of state vacation rental law.
Q: Can a city use this opinion to eliminate an existing vacation rental ordinance?
A: This AG opinion specifically addresses what cities cannot enact. If your city has a grandfathered (pre-2011) ban, this opinion doesn't repeal it, but it does prevent the city from passing new restrictions.
Q: What about minimum stay requirements (e.g., requiring 7-night minimum)?
A: Those would regulate the "duration" of rental, which § 509.032(7)(b) explicitly prohibits. They are preempted unless adopted before June 1, 2011.
Background and statutory framework
In 2011, the Florida Legislature passed § 509.032(7)(b) to preempt local regulation of vacation rentals, recognizing that:
- Tourism is a major Florida economic driver
- Vacation rentals are a legitimate use of residential property
- Patchwork local restrictions were creating uncertainty for property owners
The legislature included a grandfather clause for pre-2011 ordinances, recognizing that some cities had already enacted comprehensive restrictions before the preemption took effect. But it broadly prohibited new local laws that ban vacation rentals or regulate their frequency or duration.
This 2022 opinion is the third in a series (alongside AGO 2014-09 and AGO 2016-12) where the AG's office has rejected creative workarounds. The pattern is clear: courts and the AG read the preemption broadly. If a regulation has the effect of limiting how often vacation rentals can occur in a residential area, it's preempted, regardless of how it's structured.
Citations and references
Statutes:
- § 509.032(7)(b), Fla. Stat. (Preemption)
- § 509.242(1)(c), Fla. Stat. (Vacation rental definition)
- § 509.013, Fla. Stat. (Definitions)
Cases:
- Mary L. Synk v. City of Daytona Beach, 300 So. 3d 657 (Fla. 5th DCA 2020), affirming validity of grandfathered ordinance
- Metropolitan Dade County v. Chase Federal Housing Corp., 737 So. 2d 494 (Fla. 1999), preemption interpretation
- Seagrave v. State, 802 So. 2d 281 (Fla. 2001), plain meaning rule for statutory interpretation
Related Florida AG Opinions:
- AGO 2014-09 (2014), Wilton Manors zoning to prohibit vacation rentals (preempted)
- AGO 2016-12 (2016), Wilton Manors distance-separation requirement (preempted)
Source
- Landing page: https://www.myfloridalegal.com/ag-opinions/vacation-rental-municipal-regulation-by-zoning-ove
- Original PDF: https://www.myfloridalegal.com/print/pdf/node/9385
Original opinion text
The full opinion as issued by Attorney General Ashley Moody:
Mr. Robert Jagger
Daytona Beach City Attorney
P.O. Box 2451
Daytona Beach, FL 32115
Dear Mr. Jagger:
On behalf of the City of Daytona Beach, Florida ("City"), you asked for an opinion addressing the following rephrased question:
Consistent with section 509.032(7)(b), Florida Statutes, which prohibits any "local law, ordinance, or regulation" that regulates the frequency of rental of vacation rentals, may the City superimpose an overlay zoning district in a designated area over only certain portions of one or more underlying base zoning districts, thereby authorizing vacation rentals not otherwise currently allowed?
As described by the City, the proposed zoning overlay ordinance would authorize a limited number, proportion, or percentage of vacation rentals to be located within a subset of properties that comprise neither "Tourist zoning districts" nor specifically designated "Redevelopment zoning districts," which are the only zoning classifications in which vacation rentals are currently allowed. All other properties located within the larger set of similarly designated base zoning districts, however, would continue to be subject to existing vacation rental prohibitions.
In sum:
By creating a limited geographical exception to the otherwise comprehensive base zoning district vacation rental prohibition, the proposed zoning overlay ordinance would "regulate the . . . frequency of rental" of vacation rentals in the underlying base zoning districts. Therefore, the City may not implement the proposed zoning overlay ordinance consistent with the constraints of section 509.032(7)(b), Florida Statutes.
Background
Section 509.032(7)(b), Florida Statutes, states: "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." Consistent with the City's request, for purposes of this opinion, I assume that housing units within the City that meet the statutory definition of vacation rentals but are not currently authorized for such use are subject to local restrictions grandfathered under section 509.032(7)(b).
The City identified a portion of its beachside area "commonly considered to be a core Tourism area" in which many "residential neighborhoods . . . have suffered from economic stagnation when compared to other traditionally residential areas of the City." The City proposes to "encourage residential redevelopment and enhance residential property values in this area" through the proposed Beachside Tourism Overlay (BTO) District.
Analysis
Section 509.242(1)(c) defines a vacation rental as "any unit or group of units in a condominium or cooperative or any individually or collectively owned single-family, two-family, three-family, or four-family house or dwelling unit that is also a transient public lodging establishment but that is not a timeshare project."
A "transient public lodging establishment," in turn, is defined as "any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests."
Section 509.032(7)(b), Florida Statutes, prohibits local governments from enacting any law, ordinance, or regulation that regulates the "duration or frequency of rental" of vacation rentals. This office has interpreted section 509.032(7)(b) to allow some regulation of vacation rentals as long as the regulation does not contravene the statute's terms.
In 2014, the City of Wilton Manors asked this office whether it could use zoning ordinances to regulate the location of vacation rentals. This office concluded that while a local government may regulate vacation rentals, it may not enact a local law, ordinance, or regulation which would operate to prohibit vacation rentals. To the extent a zoning ordinance addresses vacation rentals in an attempt to prohibit them in a particular area where residences are otherwise allowed, it would appear that a local government would have exceeded the regulatory authority granted in section 509.032(7)(b).
Later, in Attorney General Opinion 2016-12 (2016), this office considered that same city's proposed municipal zoning ordinance that "would set distance separation requirements between vacation rentals." The Attorney General concluded that such an ordinance would be inconsistent with section 509.032(7)(b), reasoning that an ordinance requiring certain distances between vacation rentals could result in a prohibition against using eligible units as vacation rentals when other existing units have already satisfied the spacing formulae.
The plain and ordinary meaning of the statutory phrase to "regulate the duration or frequency of rental" would include an ordinance that permits vacation rental uses in some areas while prohibiting vacation rentals in others for properties with the same base land use classifications. When the effect of a proposed ordinance is to limit the frequency of vacation rentals in a set of properties in designated base zoning districts containing units that, but for previously grandfathered prohibitions, would be eligible for vacation rental use, the proposed local government action is not consistent with section 509.032(7)(b).
Here, the City may not, consistent with section 509.032(7)(b), impose piecemeal zoning regulations that carve out a percentage of areas having the same underlying zoning district designations for relief from its grandfathered prohibition on vacation rentals, while leaving all other such areas subject to the preexisting use restrictions. The proposed ordinance would have the practical effect of allowing any eligible unit located in areas having the same base zoning district designations to be used as a vacation rental unless such unit is located outside the zoning overlay area. Although the proposed City zoning ordinance would allow a greater percentage of residential units within the City to be used as vacation rentals, it would do so in a disparate and limited manner, using differentiating criteria that the applicable statutory provisions do not authorize.
Conclusion
Accordingly, unless and until judicially or legislatively determined otherwise, it is my opinion that, because the proposed ordinance would have the effect of regulating the "frequency" of vacation rentals by exempting only a percentage of otherwise eligible housing units in the base zoning district designation categories from the preexisting, overarching prohibition against vacation rentals currently imposed by grandfathered base zoning district provisions, the City's proposed zoning overlay ordinance would exceed the regulatory authority granted in section 509.032(7)(b).
Sincerely,
Ashley Moody
Attorney General