If a Florida city had a pre-2011 ordinance regulating vacation rentals (which is grandfathered from the state's preemption statute), can it amend that ordinance to allow vacation rentals in additional zoning districts without losing its grandfathered protection?

Subject

Whether a Florida municipality with a pre-June 1, 2011 vacation-rental ordinance (and therefore grandfathered protection under § 509.032(7)(b), Fla. Stat.) may amend the ordinance to permit "resort housing units" (rental units of less than three months) in additional zoning districts where they were previously prohibited, while preserving grandfathered status.

Currency note

This opinion was issued in 2019. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Florida's vacation-rental preemption statute and grandfathering rule have been the subject of significant legislative and judicial attention. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule about your local ordinance.

Plain-English summary

Florida's 2011 vacation-rental preemption law (§ 509.032(7)(b), Fla. Stat.) bars cities and counties from prohibiting vacation rentals or regulating the duration or frequency of rentals. The same provision grandfathers any local ordinance "adopted on or before June 1, 2011," letting those existing ordinances continue to operate.

Crystal River had a 2005 Land Development Code that allowed "resort housing units" (defined as units made available for occupancy for less than three months) only in the city's Commercial Waterfront zoning district. The Code also said nightly rentals or rentals of less than one week were not permitted, capped density at 12 units per acre, and required occupational licenses for managers. The city wanted to amend its Code to allow resort housing units in other zoning districts as well, while keeping its grandfathered protections under the rest of the ordinance.

The AG analyzed two questions: (1) does amending a grandfathered ordinance destroy the grandfathering, and (2) does the specific change Crystal River wanted (expanding resort housing to additional zoning districts) violate § 509.032(7)(b)?

On amendment of grandfathered ordinances generally. AG Moody applied the standard Florida statutory-construction rule that reenacted provisions of an amended law are treated as continuously in operation since their original enactment, while new provisions take effect only on the amendment's effective date. The Florida Supreme Court applied this rule in McKibben v. Mallory, 293 So. 2d 48 (Fla. 1974), and Venice HMA, LLC v. Sarasota County, 228 So. 3d 76 (Fla. 2017). The Third District applied it specifically to a vacation-rental ordinance in City of Miami v. Airbnb, 260 So. 3d 478 (Fla. 3d DCA 2018), holding that a 2017 zoning interpretation "identical in its material provisions" to a 2009 ordinance was protected by the grandfather clause, while later additions that went "beyond the restrictions" of the 2009 ordinance were preempted.

So an amendment does not, by itself, destroy grandfathering for unchanged provisions. Each new provision must be evaluated separately.

On the specific change Crystal River proposed. The AG concluded that expanding resort housing units into new zoning districts would violate § 509.032(7)(b), and the path of reasoning was important. The City's existing Section 5.05.13(B) said: "Nightly rentals or rentals of less than a one-week period are not permitted." That was a duration restriction. By opening additional zoning districts to "resort housing units" (a defined term that includes the duration restriction), the City would be applying a duration restriction in zoning districts where one had not previously existed. That is "regulating" the duration of vacation rentals in those districts. The statute preempts that, even if the new restriction is less restrictive than what the City already had elsewhere.

The AG noted Black's Law Dictionary defines "regulate" as "[t]o control (an activity or process) esp. through the implementation of rules." Imposing the City's duration limits on vacation rentals in newly opened zoning districts would be "regulating" within that definition.

Practical takeaway as the AG framed it. A Florida city or county with a pre-2011 vacation-rental ordinance can keep that ordinance in force, including amendments that do not change its substance. But it cannot expand the ordinance's reach into new territory, new property categories, or new zoning districts in a way that creates new duration or frequency rules where none existed before, even if the resulting rule is gentler than what the city had elsewhere.

Common questions

Q: What does "grandfathered" mean for vacation-rental ordinances in Florida?

Florida § 509.032(7)(b) preempts cities and counties from prohibiting vacation rentals or regulating their duration or frequency. The preemption does not apply to local ordinances adopted on or before June 1, 2011. Those pre-2011 ordinances are "grandfathered" and remain enforceable.

Q: Can a grandfathered city update or amend its old ordinance at all?

Per the 2019 AG opinion's reasoning, yes, with caveats. Amendments that preserve the ordinance's existing substance retain grandfathering. New provisions that prohibit vacation rentals or regulate duration or frequency in territory or contexts the old ordinance did not cover are preempted, even if they are less restrictive than what the city has elsewhere.

Q: What about ordinances passed entirely after June 1, 2011?

Those are subject to the full preemption. They cannot prohibit vacation rentals or regulate the duration or frequency of rentals at all. They can address other matters (noise, occupancy, parking, registration) so long as they do not target vacation rentals specifically and so long as they do not effectively prohibit or duration-regulate them.

Q: Has this preemption statute changed since 2019?

The Florida Legislature has revisited vacation-rental regulation multiple times. The current version of § 509.032(7) and any related statutes should be checked before acting on this 2019 opinion.

Background and statutory framework

Florida § 509.032(7)(b) was enacted in 2011 (CS/CS/CS/HB 883) to preempt local regulation of vacation rentals, with grandfathering for ordinances on the books as of June 1, 2011. The grandfathering provision was a compromise between localities that already had vacation-rental rules and the state's interest in uniform statewide treatment.

The 2019 AG opinion built on AG Op. 2016-12, which interpreted the 2011 preemption based on the legislative history (House of Representatives Final Bill Analysis, CS/CS/CS/HB 883, dated June 28, 2011).

The continuing-operation rule for amended statutes is grounded in McKibben v. Mallory, 293 So. 2d 48 (Fla. 1974), and Venice HMA, LLC v. Sarasota County, 228 So. 3d 76 (Fla. 2017). The vacation-rental application of the rule is in City of Miami v. Airbnb, 260 So. 3d 478 (Fla. 3d DCA 2018).

Citations

Statutes:
- § 509.032(7)(b), Fla. Stat.

Cases:
- City of Miami v. Airbnb, 260 So. 3d 478 (Fla. 3d DCA 2018)
- Perry v. Consolidated Special Tax School Dist. No 4, 89 Fla. 271, 103 So. 639 (1925)
- Orange County v. Robinson, 111 Fla. 402, 149 So. 604 (1933)
- McKibben v. Mallory, 293 So. 2d 48 (Fla. 1974)
- Venice HMA, LLC v. Sarasota Cty., 228 So. 3d 76 (Fla. 2017)

Other Authority:
- AG Op. Fla. 2016-12 (citing House of Representatives Final Bill Analysis, CS/CS/CS/HB 883, dated June 28, 2011)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/vacation-rentals-municipalities-grandfather-provision
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/1476

Original opinion text

Jennifer C. Rey, Esq.

The Hogan Law Firm, as City Attorney

20 South Broad Street

Brooksville, Florida 34601

RE: VACATION RENTALS – MUNICIPALITIES – LOCAL GOVERNMENT – preserving grandfathered status under preemption provision when changing zoning district. § 509.032(7)(b), Fla. Stat.

Dear Ms. Rey:

This office has received your letter on behalf of the of the Crystal River City Council requesting an opinion regarding the effect of an amendment to the City’s zoning laws in the area of vacation rentals.

May a City change its table of permitted uses for zoning districts to allow vacation rentals within districts in which they were not allowed under the City’s pre-2011 ordinance, and still preserve the “grandfathered” status of its pre-2011 ordinance under section 509.032(7)(b), Florida Statutes (2018)?

In sum:

Amending an ordinance that was enacted prior to June 1, 2011, will not invalidate the grandfathering protection for those provisions that are reenacted, but new provisions would be preempted if they revise such language in a manner that would regulate the duration or frequency of rental of vacation rentals, even when such regulation would be considered “less restrictive” than the prior local law.

You indicate that the table of permitted uses in the City’s Land Development Code enacted in 2005 permits resort housing units only in the City’s Commercial Waterfront zoning district.[1] “Resort housing units” are defined in section 1.07.00 as dwelling units that are made available for occupancy for less than three months. Section 5.05.13 describes the permitted use as follows:

A. Resort housing units are permissible in the CW zoning district, subject to the district standards and the supplemental standards set forth below.

B. Nightly rentals or rentals of less than a one-week period are not permitted.

C. Density for resort housing units shall not exceed twelve (12) units per acre.

D. Resort housing units may be managed by the individual unit owner or by a property management company. An occupational license is required for the manager, whether an individual owner with a single unit, or a property management company.

Section 509.032(7)(b), Florida Statutes, 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.

Section 509.032(7)(b) allows the City to regulate vacation rentals so long as such regulation does not prohibit them or limit the duration or frequency of rental.[2] You ask, however, whether enactment of a less restrictive ordinance that would permit vacation rentals where they are now prohibited, by allowing resort housing units in other zoning districts, would eliminate the grandfathered protection of remaining ordinances that deal with vacation rentals.

When a law 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]

[W]here a statute has been repealed and substantially re-enacted by a statute which contains additions to or changes in the original statute, the re-enacted provisions are deemed to have been in operation continuously from the original enactment whereas the additions or changes are treated as amendments effective from the time the new statute goes into effect.[5]

This principle was operative in a recent case involving vacation rentals, City of Miami v. Airbnb. In the course of deciding the case, the Third District observed that a 2017 resolution interpreting zoning ordinances that prohibited short-term rentals in a suburban/residential zone was not preempted, because it was “identical in its material provisions” to the zoning code the City had enacted in 2009. In contrast, “to the extent the City’s 2015 Zoning Interpretation goes beyond the restrictions in [the 2009 ordinance], the Interpretation is preempted under section 509.032(7)(b).”[6]

Provisions in your amended ordinances that are essentially unchanged from the prior ordinances are deemed to have been in operation since 2005 and, thus, continue to be exempt from the preemption provision of section 509.032(7)(b), Florida Statutes. New provisions that act to prohibit vacation rentals that were not previously prohibited, or that “regulate”[7] the duration and frequency of vacation rentals, even if such provisions are less restrictive than the earlier provisions, are preempted by the statute. Changing the table of permitted uses to reflect that “resort housing units” would also be permitted in other zoning districts would conceivably expand the areas in which vacation rentals could be operated. But the duration and frequency restrictions in section 5.05.13(B), which would then apply to those zoning districts, would “regulate” resort housing units operated as vacation rentals.[8] Because the “resort housing unit” land use classification expressly regulates, and restricts, the duration or frequency of rentals of residential property that could be considered “vacation rentals,” amending the City’s table of permitted uses to permit resort housing units in other zoning districts would violate section 509.032(7)(b).

Sincerely,

Ashley Moody

Attorney General

[1] Section 2.03.02, Code of Ordinances, City of Crystal River, Florida, Appendix A – Land Development Code.

[2] See Att’y Gen. Op. Fla. 2016-12 (quoting from House of Representatives Final Bill Analysis, CS/CS/CS/HB 883, dated June 28, 2011).

[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).

[5] McKibben v. Mallory, 293 So. 2d 48, 53 (Fla. 1974). Accord Venice HMA, LLC v. Sarasota Cty., 228 So. 3d 76, 83 (Fla. 2017).

[6]City of Miami v. Airbnb, 260 So. 3d 478, 482 (Fla. 3d DCA 2018).

[7] 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).

[8] I note that section 5.05.13(A) of the City’s Land Development Code also expressly restricts resort housing units to the CW zoning district.