Judge backs Vero effort to regulate vacation rentals
Vero’s efforts to rid the city of short-term rentals in residential neighborhoods got a boost last week when Judge Paul Kanarek issued a strong opinion in Vero’s favor, seeming to validate the city code and recent ordinance changes.
Charles Fitz had appealed to the court after being cited by city code enforcement in April 2015 for renting out his property on Fiddlewood Road in Central Beach for less than 30 days.
Fitz and his attorneys challenged the city code, alleging that recent changes made to clarify and redefine terms related to short-term rentals – together with the city’s ramped-up enforcement – violated a state law preempting the power to regulate vacation rentals to the State of Florida.
Attorney J. Garry Rooney had filed a request for a summary judgment in the case, and Kanarek denied that request in his 11-page order. The case is expected to go to a full blown trial sometime in April.
City Manager Jim O’Connor said Kanarek’s denial of the request for summary judgment puts his code enforcement officers on better legal footing, affirming the hard line the city has taken since the controversy erupted in 2013, when then-Vice Mayor Tracy Carroll and her husband John were cited and fined $50 for renting out their Riomar home as a vacation rental.
When the Carrolls and their attorney Tom Tierney appealed the fine to the city’s Code Enforcement Board, that board ruled that the city’s own ordinance was too vague to be enforced. The city appealed the board’s decision, resulting in an affirmation of the code board’s vote.
That affirmation by the courts left Vero’s ability to enforce the code somewhat clouded and resulted in the code changes, eventually leading to the Fitz lawsuit.
In the document, issued late Friday afternoon, Kanarek wrote: “The court concludes that the City’s regulation of Fitz’s property as a ‘guest house and transient quarters’ and the prohibition of such land use in the residential zoning districts was well settled and existed in the Vero Beach Code at the time section 509.032(7)(b), Florida Statutes, became effective. Further, Ordinance 2015-02 (the code changes) did not make any substantive changes to the definition of ‘guest house and transient quarters.’ Therefore, Ordinance 2015-02 was not preempted by the statute.”
Kanarek’s order bolsters Vero’s argument that zoning regulations prohibit transient rentals as a land use in residentially zoned neighborhoods, as transient rentals are a commercial activity.
“This reinforces our right to enforce that code because we had it on the books prior to the law that the state passed,” O’Connor said Monday. “That’s been our position from the beginning.”
In addition to tweaking the language of the ordinance – which Kanarek says did not overstep the bounds laid out in 2011 by the Florida Legislature’s pre-emption of vacation rental regulation – the Vero Beach City Council also increased the fine for violations tenfold in 2015.
The fine, which used to be $50 per night of violation, was hiked to $500. Now, should the owner be found in violation of the code by way of evidence of advertising a vacation rental and evidence of renters occupying the dwelling, a homeowner could be fined up to $500 per night by the city for every night the home is rented out.
Despite Vero’s claims that this order goes a long way toward settling the matter, Rooney says the fight is not over. The case, instead of being somewhat curtailed by the summary judgment, will now wind down the long road of full-on litigation and likely appeal.
"We thank the judge for expeditiously issuing a ruling and analyzing the issues. We respectfully disagree with his decision and will be seeking a reversal through motion practice or the appeal process," Rooney said on Monday.
Rooney said his clients “have expected that this case would be a long battle likely to be ultimately resolved in the appellate courts,” adding that his firm, Vero Beach based Rooney and Rooney, also represents clients with similar interests in another, nearby city and will be filing “a similar action” in that case.
When Vero ramped up enforcement of the code and last year shifted the responsibility for citing homeowners to the Vero Beach Police Department, city officials initially allowed owners a short “grace period” to honor long-standing vacation reservations from people who had booked airline tickets or otherwise had relied upon executed rental contracts to come and stay in Vero.
“That is long past,” O’Connor said of the grace period.
With all the publicity the issue has gotten, owners presumably should be well aware that Vero is actively enforcing its interpretation of the code as recently massaged by the city council, and that renters may encounter uniformed police officers at their door asking for identification.
Renowned trial attorney John Frost of Bartow is representing the City of Vero Beach in this case.