Konish: “Renters’ Rights” Ordinance will drive out small landlords

OPINION

BY JIM KONISH

CITY OF GAINESVILLE ORDINANCE No. 200249: “REGULATION OF RENTAL UNITS”

During a pandemic and moratorium on certain evictions, the City of Gainesville has enacted an unlawful, confiscatory, discriminatory, and intrusive new regulatory scheme for certain residential landlords. This could drive out small landlords who provide affordable housing, making way for more high-rent “infill.”

For those who submit to this scheme, which will take effect October 1, 2021, the new regime will be as follows:

1. The stated purpose of this new ordinance “is to eliminate substandard residential rental units” without compensation. Onerous minimum property maintenance and energy efficiency standards are prescribed in an arbitrary, capricious, and politicized manner.   
2. If anyone outside a vaguely, yet expansively, defined class of fellow “occupants” occupies a “rental unit,” the new regulations kick in. This applies whether “such occupancy is free or charitable or in exchange for monetary or other consideration.”
3. “Each regulated unit must have a current annual permit,” initially priced at $122.00 per unit (emphasis added). 
4. “The City will begin compliance inspections October 1, 2021.”
5. The ordinance falsely claims that “the City may obtain an inspection warrant pursuant to § 933.20” prior to conducting a forced inspection if either the “owner or occupant (as applicable) refuse to consent to the inspection” (sic) (emphasis added).
6. City revocation of a permit is purportedly a bar to occupancy by anyone outside the aforementioned exempt class of persons and the owner. 

DISCUSSION

There are a number of loopholes:

1. § 509 Public Lodging Establishments are expressly excluded. This classification includes both Nontransient and Transient housing. In recent discussions with the Florida Department of Business & Professional Regulation (DBPR), which administers § 509 Fla. Stat., I was told that:
   1. Each room with a private bathroom, rented in a multi-room building, is not a separate “unit” within a “Public Lodging Establishment.”
   2. A room with a shared bathroom in a multi-room building is likewise not a separate unit and is not within a “Public Lodging Establishment.” Such an arrangement is instead a “Rooming House,” which was said to have been deregulated by the state legislature approximately ten (10) years ago. Such facilities are thus subject to the new City regime!
   3. A § 509 “Public Lodging Establishment,” which the City expressly exempts from its new regulatory scheme, is “any unit, group of units, dwelling, building or group of buildings within a single complex of buildings which is rented to guests for periods of at least 30 days or 1 calendar month, whichever is less or which is advertised” as such. Transient housing is rental for less than 30 days.

The § 509 state regulatory scheme is a magic bullet for those who do not want to be regulated under the new and onerous City of Gainesville regime. The new City scheme applies to Nontransient housing only if you do not meet the definition of “Public Lodging Establishment,” i.e., “four rental units or less” (emphasis added). 

If you can get to five (5) “Nontransient Public Lodging” units, you escape City landlord licensing. The State does not define “unit.” The City correlates the number of “units” to the number of appurtenant kitchens. Contiguous buildings under common ownership can, and in fact must, be combined under one § 509 State DBPR license. 

2. The other main escape route would be for the owner to only allow the “regulated unit” to be occupied by such owner and the following persons, and/or their children:

“…age 18 or older… …and any one or more of the following natural persons who are living with and interrelated to the owner as: spouse, domestic partner, child, stepchild, foster child, parent, stepparent, foster parent, brother, sister, grandparent, grandchild, aunt, uncle, niece, nephew, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, legal guardian, or domestic servant, as evidenced by written documentation of such relationship, and excluding any temporary gratuitous guest of the owner defined as a natural person who occasionally visits the owner for a short period of time, not to exceed 30 calendar days within a 90 day period.”

Terms such as “domestic partner,” “gratuitous guest,” or “servant” are undefined. Likewise with “written documentation.” Such very personal documentation would become a “Public Record,” representing an affront to both the privacy and possibly security of an occupant. Victims of domestic violence, stalking, and harassment would have their addresses disclosed. Ownership by an LLC or other legal entity is not addressed. 

As I learned in a legal challenge to Gainesville City Commissioner Adrian Hayes-Santos’ “Residency Affidavit,” residency is merely a state of mind. 

Regulation by DBPR is not by the “unit.” It is by the complex. The DBPR inspections are mild and unobtrusive. They do not force their way in. The annual fee is $125.00 per complex of at least five (5) units.

3. An owner could also escape by virtue of a purely nonresidential use. 

CONCLUSION

Until now, owners and/or landlords have generally had a legal right to continue to occupy and/or allow others to occupy their habitable non-conforming properties as is. They are grandfathered in, so long as they do not “change the use.” The City purports to, by ordinance, divest property owners of their vested and grandfathered property rights without any compensation. The law in Florida does not envision this.

The constitutional right to privacy enjoyed by both the owner and any occupant is likewise to be trampled on. 

Ominously, the City is planning to enforce this on only certain small scale operators BY THE UNIT. The price of permits and inspections leading to unnecessary and costly upgrades and renovations to older and historic buildings will undoubtedly be passed on to tenants. The “enforcement” is certain to be selective. 

Finally, the City purports to be ready to seek judicial warrants to compel a forced inspection at gunpoint by law enforcement. However, § 933.18 severely limits issuance of search warrants for “private dwellings” in a way that prevents the forced, compulsory, and intrusive building inspections contemplated by the City.

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