Constitutional law firm may sue city over short-term rental ordinance

Mayor Tracy Upchurch and city attorney Isabelle C. Lopez were placed on notice this month that should the city attempt to impose weekly minimum rental requirements on short-term rentals, they will go afoul of state law and open the city to the cost of otherwise avoidable litigation.

In a communication dated January 2, 2020, Christina Sandefur, an attorney who litigates nationwide to protect private property rights, notified city officials and members of the City Planning and Zoning Board that the City of St Augustine should focus on enforcing existing laws against specific nuisance properties.

“We urge you to consider an approach that would avoid legal liability and foster the spirit of hospitality and respect for the rights of homeowners, while focusing on protecting quiet, clean, and safe neighborhoods,” Sandefur wrote as Executive Vice President on behalf of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute in Pheonix.  “You can achieve those goals by targeting specific nuisances instead of harshly punishing people who are not causing disturbances to their neighborhoods.”

St. Augustine already has existing ordinances that target specific wrongful behavior, such as nuisances or loud noise in residential areas. Sandefur points out that enforcing these ordinances resolves any legitimate concerns people might have about rental properties.

In Florida, “municipal ordinances are inferior to the laws of the state and must not conflict with any controlling provision of a statute.” Thomas v. State, 614 So. 2d 468, 470 (Fla. 1993).

“State law expressly provides that municipalities may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals,” Sandefur wrote.  “This statute applies to any local law, ordinance or regulation adopted after June 1, 2011. Since existing St. Augustine ordinances do not explicitly prohibit short-term rentals of less than one week, adopting an ordinance that imposes a weeklong minimum rental requirement would violate F.S.A. and could subject the City to legal liability.”

A few Historic City News readers commented Friday that the city commission is recklessly moving to waste taxpayer dollars on a lawsuit the City can not win.  They felt the city commissioners were not being good stewards of public resources.

Sandefur describes the City’s proposed ordinances, 2019-50 and 2019-51, as “needlessly punishing people who today rent their property responsibly, cause no nuisances, and comply with the City’s existing regulations.”