Can a Florida county stop vacation rentals in a neighborhood zoned for single-family homes?

Subject

Vacation Rental Operations -- Local Ordinances

Plain-English summary

Flagler County saw a surge in homes being used as short-term vacation rentals, and permanent residents complained about the effect on their neighborhoods. The county attorney asked the AG whether the county could step in and stop vacation rentals in homes that, before June 1, 2011, were zoned only for single-family residential use. The county had no ordinance specifically regulating vacation rentals predating the 2011 legislation. The AG advised that the county could not.

The controlling statute is section 509.032(7). Paragraph (a) preempts the regulation of lodging establishments and public food establishments to the state. Paragraph (b) goes further: 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," and that bar does not apply to ordinances adopted on or before June 1, 2011. In other words, local governments that did not already regulate vacation rentals before that date lost the power to start.

The county had floated the argument that a transient vacation rental is a commercial, non-conforming use in a single-family zone, so the pre-2011 single-family zoning could serve as an existing prohibition. The AG agreed with the county's own conclusion that a residential zoning category, by itself, is not enough to count as a pre-existing prohibition of vacation rentals. A "vacation rental" under section 509.242(1)(c) includes a single-family house that operates as a transient public lodging establishment, so the statute plainly contemplates that single-family homes can be vacation rentals subject to state, not local, regulation. Because Flagler County had no qualifying pre-June 1, 2011 ordinance, section 509.032(7) precluded it from enacting a new one to restrict or stop the rentals based on their use.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Flagler County stop vacation rentals in its single-family neighborhoods?
According to this opinion, no. Without an ordinance regulating vacation rentals on or before June 1, 2011, section 509.032(7) preempted the county from enacting a later one to restrict or prohibit them based on use or occupancy.

Does single-family zoning count as a pre-2011 prohibition on vacation rentals?
The AG agreed with the county that a residential zoning category, by itself, is not a pre-existing prohibition of vacation rentals. So it could not be used to shut the rentals down after June 1, 2011.

Can a single-family home legally be a vacation rental in Florida?
Yes. Section 509.242(1)(c) defines a vacation rental to include a single-family house used as a transient public lodging establishment, regulated by the state.

What was the significance of June 1, 2011?
That is the cutoff in section 509.032(7)(b). Local vacation-rental ordinances adopted on or before that date were grandfathered; the preemption blocks new ones enacted afterward that regulate based on classification, use, or occupancy.

Background and statutory framework

Chapter 509 governs public lodging and food establishments. Section 509.032(7)(a) preempts their regulation to the state, and section 509.032(7)(b) bars local laws that restrict, prohibit, or regulate vacation rentals based solely on classification, use, or occupancy, while grandfathering ordinances adopted on or before June 1, 2011. Section 509.242(1)(c) defines "vacation rental," and section 509.013(4) defines "transient public lodging establishment" (rented to guests more than three times a year for periods under 30 days or one calendar month).

The AG relied on its own prior informal opinion reaching the same preemption conclusion and noted City of Venice v. Gwynn, where a city enforced a pre-existing short-term-rental ordinance against a non-conforming use, the kind of grandfathered regulation that survives the preemption.

Citations

• Chapter 509, Florida Statutes
• section 509.032(7), Florida Statutes
• section 509.032(7)(b), Florida Statutes
• section 509.242(1)(c), Florida Statutes
• section 509.013(4), Florida Statutes
• City of Venice v. Gwynn, 76 So. 3d 401 (Fla. 2d DCA 2011)

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/vacation-rental-operations-local-ordinances
• Original PDF: https://www.myfloridalegal.com/print/pdf/node/8106

Original opinion text

Mr. Albert J. Hadeed

Flagler County Attorney

1769 East Moody Boulevard, Building 2

Bunnell, Florida 32110

Dear Mr. Hadeed:

Thank you for contacting this office for assistance in determining whether Flagler County may intercede and stop vacation rental operations, as defined in Chapter 509, Florida Statutes, in private homes that were zoned, prior to June 1, 2011, for single-family residential use. Due to an increase in the number of homes being used as vacation rentals in Flagler County, many permanent residents in neighborhoods with vacation rentals have raised concerns about the negative effects such rentals have on their quality of life and the character of their neighborhood. You state that Flagler County has no regulations governing vacation rentals which predate the 2011 legislation.

In sum, absent the existence of a local ordinance on or before June 1, 2011, regulating the rental of vacation homes in Flagler County, section 509.032(7), Florida Statutes, preempts local regulation of lodging establishments and public food establishments to the state and precludes a local ordinance or regulation enacted after June 1, 2011, restricting the use of vacation rentals, prohibiting vacation rentals, or regulating vacation rentals based solely on their classification, use, or occupancy.

A number of county residents have argued that transient vacation rentals are a commercial activity which is a non-conforming use of a house constructed under a permit for a single-family residence and located in an area zoned for single-family residences. The county has considered this argument and concluded that a residential zoning category, in and of itself, is not sufficient to serve as a pre-existing prohibition of vacation rentals in private homes.

Section 509.032(7)(a), Florida Statutes, preempts the regulation of lodging establishments and public food establishments to the state. Subsection (b) of the statute states:

"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."[1] (e.s.)

A "vacation rental" is defined as "any unit or group of units in a condominium, cooperative, or time-share plan or any individual or collectively owned single-family, two-family, three-family, or four-family house or dwelling unit that is also a transient public lodging establishment."[2] (e.s.) Thus, the plain language of the statute recognizes that a single-family house or dwelling may be a "vacation rental" which is used as a transient public lodging establishment subject to regulation by the state. As this office has previously recognized, with the enactment of section 509.032(7)(b), Florida Statutes, the ability of a local government to regulate vacation rentals by enactment of an ordinance after June 1, 2011, has been preempted to the state.[3] While you have premised your question on the existence of a single-family zoning regulation in existence prior to June 1, 2011, you have also indicated that no county regulations of vacation rentals existed on that date.

This office agrees with the county’s conclusion that a local zoning ordinance for single-family homes existing on or before June 1, 2011, that did not restrict the rental of such property as a vacation rental, cannot now be interpreted to do so. The clear language in section 509.032(7), Florida Statutes, prohibits any local regulation on or after June 1, 2011, based upon the use of a residence as a vacation rental.

Sincerely,

Lagran Saunders

Attorney General

ALS/tsrh

[1] Section 509.032(7)(c), Fla. Stat., provides:

"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."

[2] Section 509.242(1)(c), Fla. Stat. See s. 509.013(4), Fla. Stat., defining "[p]ublic lodging establishment" for purposes of Ch. 509, Fla. Stat.:

"(4)(a) 'Public lodging establishment' includes a transient public lodging establishment as defined in subparagraph 1. and a nontransient public lodging establishment as defined in subparagraph 2.

1. 'Transient public lodging establishment' means any unit, group of units, dwelling, building, or group of buildings within a single complex of buildings which is rented to guests more than three times in a calendar year for periods of less than 30 days or 1 calendar month, whichever is less, or which is advertised or held out to the public as a place regularly rented to guests."

[3] Informal Op. to Marino, dated August 3, 2012. Cf. City of Venice v. Gwynn, 76 So. 3d 401 (Fla. 2d DCA 2011), in which a city’s code prohibited owners of single-family dwellings in residential neighborhoods from renting their property for short periods of times; the court affirmed the city’s administrative determination that owner’s non-conforming use of property as a vacation rental violated city’s ordinance regarding short-term rentals.