Legal Report, February 2019

General Counsel, Jennifer G. Ashton

1.         City of Miami v. Airbnb, Inc., 2018 Fla. App. LEXIS 17363, 2018 WL 6332240 (4th DCA 2018). Vacation rentals; Public comment.
This case involves two questions: (1) was the City of Miami’s ban of vacation rentals in its T3 Zoning District preempted by state statute; and (2) could the City require that all persons wishing to speak at a public hearing give their names and addresses, or did such rule violate First Amendment free speech rights?

With respect to the vacation rental issue, the City had an ordinance on the books in 2009 that only allowed residential uses consisting of “predominantly permanent housing” in the T3 Zone.  The City’s Planning Director testified that the T3 Zone was reserved for permanent housing and did not permit transient lodging like vacation or short-term rentals.  In 2016, the City revised its code regulating the T3 Zone, but the 2016 version had the same language about permanent housing as the 2009 version.  Additionally, the City adopted a zoning interpretation in 2015 and again in 2017 providing that all vacation and short-term rentals were prohibited in the T3 Zone.  Airbnb, Inc. and some owners of rental properties in the T3 Zone sued the City and argued that the City was preempted from banning vacation rentals pursuant to section 509.032(7)(b), Florida Statutes.  The Fourth DCA held that the City could regulate some short-term rentals, but was preempted from banning all such rentals in the T3 Zone.  The City’s requirement regarding permanent housing in the T3 Zone was in existence in 2009.  The statutory preemption only applied to regulations on short-term rentals that were adopted after June 1, 2011.  Therefore, the City’s regulation was grandfathered.  The City’s code revision in 2016 did not eliminate its grandfathered status because the 2016 language on permanent housing remained identical to the 2009 version.  The Court did not agree with the City, however, that all vacation rentals were prohibited.  The Court found that a property could have short-term rentals in the T3 Zone so long as the rental use did not become predominant over the permanent housing use.  The determination of whether a property lost its “predominantly permanent housing” status would have to be made on a case-by-case basis.

With respect to the First Amendment issue, the City Manager made comments at a public meeting that all those who spoke out against the City’s prohibition on short-term rentals in the T3 Zone were “now on notice” that the City would be looking at their properties for code enforcement violations.  Airbnb and the property owners argued to the trial court that these statements chilled free speech.  The trial court agreed and issued an injunction prohibiting the City from requiring members of the public, as a condition of their right to make public comment at City Commission meetings, from having to provide their names and addresses.  In other words, individuals could remain anonymous when giving public comment.  The Fourth DCA reversed the injunction order.  The Court held that it does not chill First Amendment rights to require names and addresses of speakers.  It provides an orderly process to conduct a public meeting without undue confusion or repetition.  Also, elected officials and other members of the public have a legitimate interest in knowing whether a speaker is a resident who will be impacted by the government action at issue.


2.         City of Jacksonville Beach v. BCEL 4, LLC, 2018 Fla. App. LEXIS 18245, 2018 WL 6615558 (1st  DCA 2018). Plat review and mandamus action.
The City of Jacksonville Beach and City of Jacksonville Beach Planning Commission (“City”) appealed an order from the circuit court granting a petition for writ of mandamus in favor of a developer.  On appeal, the First DCA reversed the order granting mandamus relief. The court held that the developer failed to establish that the City's decision to approve or deny its concept plan for plat application was a purely ministerial one. Mandamus is a remedy to command performance of a ministerial act in which there exists no room for the exercise of discretion. Therefore, in order to prevail in a mandamus action, the applicant must prove that the local government’s decision is purely ministerial.