AIR BNB UPDATE AND –REQUIRING THAT YOU INTRODUCE YOURSELF

 

A very interesting courtroom battle was decided at Florida’s 3rd District Court of Appeals last month.  In The City of Miami v. Air BNB, the facts were that the City of Miami was attempting to enforce provisions of its zoning code which would in effect tailor or prevent the right of residents in certain areas of the City to utilize the services of Air BNB, as a minimum 30 day rental would be required in that specific geographical area.  In addition, the City mandated that if you wanted to speak at a City Commission meeting, you needed to first introduce yourself and state your address.

 

At the trial court level, Judge Bernice Butchko did two things.  She issued an injunction against the City preventing short term rentals like Air BNB.   In addition, she enjoined the City from requiring residents to announce their names and addresses, if they wanted to speak.  On appeal, both of these decisions were reversed by the Appeals Court.

 

In regards to the Air BNB issue, the 3rd DCA said that while state law now prohibits a local government from banning or regulating vacation rentals, the preemption “does not apply to any local law, ordinance, or regulation adopted on or before June 1, 2011.”   The undisputed testimony at the hearing was that the 2016 version of the local code is identical in its material provisions to the zoning code in effect in 2009.  Therefore, the new state law does not apply or pre-empt here.

This is certainly a blow to Air BNB and the people that use it.

 

I really think the more interesting part of the decision however, has to deal with the ability of the City to require its citizens to state their name and address into the record if they want to be able to speak.

 

The trial court entered an injunction enjoining the City from requiring speakers at public hearings to give their names and addresses.  The trial court had a concern that comments by the City Mayor and Manager signaled an intent to take heightened enforcement measures against property owners who spoke in favor of vacation rentals thereby chilling the owner’s rights to free speech.

 

The 3rd DCA disagreed and stated that “There are many instances in which it is beneficial for a speaker at a public hearing to provide his or her name and address, and that practice does not chill the speaker’s First Amendment rights. Calling speakers up to the podium by name provides an orderly process to conduct a public meeting without undue confusion or repetition. This benefits both the elected officials and the members of the public. Moreover, at public hearings involving local government matters such as budgeting, taxation, zoning, law enforcement, and local regulations, both elected officials and 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. Finally, most public meetings do not offer the opportunity for governmental misuse of enforcement priorities that concerned the trial court when it issued the injunction.  In sum, the temporary injunction blocking the City from requiring the names and addresses of all speakers at all public hearings improperly “infringe[s] upon conduct that does not produce the harm sought to be avoided.”

 

 

 

I agree with the 3rd DCA.  Being required to give your name and address in order to speak should not have a chilling effect on anyone’s First Amendment rights.  We should not hand out anonymous numerical ticket stubs like at a deli counter and call the next ticket number when it’s their turn to speak.  As Board members and persons who live in community associations, I am curious as to what you think about the conduct of your own meetings.  Should persons who want to speak at your Board meetings or unit owner meetings be required to identify themselves and provide their address?  If they don’t, how do we even know they are owners and/or are even living in the community?

 

In addition, anonymous complaints are hardly ever taken seriously because they are more difficult to investigate.

 

What do you guys think?

 

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