Florida Vacation Rental STR Code
Are you compliant with the Florida statutes, when running your short term rental? An always changing political environment brings up questions of land use and state vs local control of vacation rentals. In 2011, the state began regulation of vacation rentals, except 75 local municipalities that were "grandfathered" with a previous ordinance. You have to search not only for your county, but for your specific municipality.
From the top down, if you are renting a property in Florida for less than six months, obtain a Florida Hotel license from the Florida Department of Business & Professional Regulation.
-Additionally, there is a county requirement for county tax payment.
https://www.floridaphoenix.com...
And from the county level, do a search online for your local municipality, to determine whether the local code allows short term rentals. The search may look something like this: code compliance or ordinance <locality>
Read below for the Florida Attorney General's answers to regulation of land use.
Mr. Kerry L. Ezrol
City Attorney
City of Wilton Manors
3099 East Commercial Boulevard
Suite 200
Fort Lauderdale, Florida 33308
RE: VACATION RENTALS – MUNICIPALITIES –
LOCAL GOVERNMENTS – LAND USE – regulation of vacation rentals by
municipalities. s. 509.032, Fla. Stat.
Dear Mr. Ezrol:
You ask the following questions:
1. Does section 509.032(7)(b), Florida Statutes, permit the city to regulate the location of vacation rentals through zoning?
2. May the city prohibit vacation rentals
which fail to comply with the registration and licensing requirements in
section 509.241, Florida Statutes?
In sum:
1. Section 509.032(7)(b), Florida Statutes,
as amended by Chapter 2014-71, Laws of Florida, allows a local
government to regulate vacation rentals, but continues to preclude any
local law, ordinance or regulation which would prohibit vacation rentals
or restrict the duration or frequency of vacation rentals.[1] It would
appear therefore, that zoning may not be used to prohibit vacation
rentals in a particular area where residential use is otherwise allowed.
2. Section 509.032(1), Florida Statutes,
makes the Division of Hotels and Restaurants of the Department of
Business and Professional Regulation the regulatory agency for transient
lodging facilities. Section 509.241(1), Florida Statutes, makes
operation of such facilities without a license a misdemeanor of the
second degree. The statute specifically recognizes that local law
enforcement may provide immediate assistance in pursuing an illegally
operating facility, but does not otherwise authorize a local government
to prohibit the operation of a vacation rental without proper licensure
by the state.
Question One
Section 509.032(7), Florida Statutes, as amended by Ch. 2014-71, Laws of Florida, provides:
"(a) The regulation of public lodging
establishments and public food service establishments, including, but
not limited to, sanitation standards, inspections, training and testing
of personnel, and matters related to the nutritional content and
marketing of foods offered in such establishments, is preempted to the
state. This paragraph does not preempt the authority of a local
government or local enforcement district to conduct inspections of
public lodgings and public food service establishments for compliance
with the Florida Building Code and the Florida Fire Prevention Code,
pursuant to ss. 553.80 and 633.206.
(b) 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.
(c) Paragraph (b) does not apply to any
local law, ordinance, or regulation exclusively relating to property
valuation as a criterion for vacation rental if the local law,
ordinance, or regulation is required to be approved by the state land
planning agency pursuant to an area of critical state concern
designation."
Prior to its amendment, the statute, in relevant part, provided:
"(b) A local law, ordinance, or regulation may not restrict the use of vacation rentals,
prohibit vacation rentals, or regulate vacation rentals based solely on
their classification, use, or occupancy. This paragraph does not apply
to any local law, ordinance, or regulation adopted on or before June 1,
2011." (e.s.)
This earlier provision was interpreted by
this office to preempt local regulation of the rental of vacation homes.
This office also advised that a local zoning ordinance for
single-family homes adopted prior to June 1, 2011, could not now be
interpreted to restrict the rental of such homes as vacation rentals,
when the ordinance did not restrict the rental of such property and the
county had no regulations governing vacation rentals prior to June 1,
2011.[2]
As originally introduced, Senate Bill 356,
repealed the provisions in paragraphs (b) and (c) of section 509.032(7),
Florida Statutes (2013), prohibiting local laws, ordinances, or
regulations affecting vacation rentals.[3] The bill was amended,
however, to reinstate the prohibition against local action which would
prohibit vacation rentals or regulate the duration or frequency of
vacation rentals.[4] The legislative analysis attendant to the
amendment states that the amendment "maintains the current prohibition
against local laws, ordinances, or regulations that prohibit vacation
rentals."[5] Finally, the staff analysis prepared for an identical bill
proposed in the House of Representatives, for which Senate Bill 356 was
substituted, reflects that the bill "removes the preemption to the
state for the regulation of vacation rentals" and recognizes that
"[l]ocal governments may regulate vacation rentals, provided those
regulations do not prohibit vacation rentals or restrict the duration or
frequency of vacation rentals."[6]
It is clear that municipalities may zone
land to pursue a number of legitimate objectives related to the health,
safety, morals, or general welfare of the community.[7] Municipalities
have the power to regulate the use of land and buildings within
prescribed districts through zoning.[8] Zoning is generally defined as
the legislative division of a region into districts with different
regulations within the districts for land use, building size, and the
like.[9] While a municipality may enact zoning ordinances and
regulations, a legislative enactment on the same subject matter
controls.[10] Therefore, to the extent a municipal ordinance conflicts
with a state statute in regard to the prohibition against any local act
which seeks to prohibit vacation rentals, the municipal ordinance must
fail.[11]
Thus, 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), Florida Statutes.
Question Two
A municipality has home rule powers to enact
legislation on any subject upon which the State Legislature may act,
except, among other things, any subject that is expressly prohibited by
the Constitution or any subject that is expressly preempted to state or
county government by the Constitution or by general law.[12]
Section 509.261(1), Florida Statutes, provides:
"Any public lodging establishment or public
food service establishment that has operated or is operating in
violation of this chapter or the rules of the division, operating without a license, or operating with a suspended or revoked license may be subject by the division to:
(a) Fines not to exceed $1,000 per offense;
(b) Mandatory completion, at personal
expense, of a remedial educational program administered by a food safety
training program provider approved by the division, as provided in s.
509.049; and
(c) The suspension, revocation, or refusal of a license issued pursuant to this chapter." (e.s.)
Moreover, section 509.241(1), Florida
Statutes, makes it a misdemeanor of the second degree to operate a
public lodging establishment without a license. The statute further
provides that local law enforcement shall provide immediate assistance
in pursuing an illegally operating establishment. Where the Legislature
has prescribed the manner in which something is to be accomplished,
there is an implied prohibition against its being done any other
way.[13]
This office has recognized that a
municipality has the authority to prescribe penalties for violations of
its ordinances, but derives no authority from its home rule powers to
exceed penalties prescribed by law.[14] Section 509.271, Florida
Statutes, provides that "[a] municipality or county may not issue an
occupational license to any business coming under the provisions of this
chapter until a license has been procured for such business from the
[D]ivision [of Hotels and Restaurants]." Clearly, therefore, a
municipality may require through its licensing tax ordinance that a
vacation rental obtain a license in order to conduct business within the
municipality.[15] This would appear to be an appropriate regulation
which the city could impose upon vacation rentals within its
jurisdiction.
Section 205.053, Florida Statutes, provides
the manner in which business tax receipts are to be sold, penalties
which may be imposed for delinquent taxes, and penalties which may be
imposed for failure to obtain a local business tax receipt. The section
further provides that any person who engages in any business covered by
the chapter who does not pay the required tax within 150 days after the
initial notice of tax due "is subject to civil actions and penalties,
including court costs, reasonable attorneys’ fees, additional
administrative costs incurred as a result of collection efforts, and a
penalty of up to $250."16 Where the Legislature has prescribed a
penalty for violation of a particular act, a city may not impose more
severe sanctions.
When discussing the effect of the amendment
to section 509.032, Florida Statutes, an example of how such regulation
might be implemented was a local ordinance requiring that the name and
contact information for a local representative be posted in a vacation
rental owned by out-of-state individuals.[17] The sponsor of the
amendment addressed the committee and emphasized that the changes would
remove the preemption on local government regulation of vacation rentals
and allow local ordinances to address local concerns.[18]
Accordingly, while the amendment of section
509.032(7), Florida Statutes, by Chapter 2014-71, Laws of Florida,
allows a local government to regulate vacation rentals, such regulations
may not impose penalties which conflict with those prescribed by law.
Sincerely,
Pam Bondi
Attorney General
PB/tals
______________________________________________________________________
[1] The statute continues to grandfather in any local law, ordinance, or regulation adopted on or before June 1, 2014.
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