Marco Island officials said they knew they would be sued when they passed the vacation rental ordinance, and now it is happening. Last week the Florida Association of Realtors filed a 143-page lawsuit against the city of Marco Island claiming that the ordinance is illegal.
The ordinance requires single family home rental properties to be used for less than 30 days at a time to be registered with the city and conform to a series of stringent regulations.
The Florida Association of Realtors had lengthy lists in the lawsuit of why they say it is illegal including:
The vacation rental ordinance only applies to single family homes in the residential (RSF) zoning making it an Equal Rights violation.
The noise ordinary is unreasonable when it calls for no noise to be heard within 50 feet during the day and 25 feet at night.
It requires annual fire inspections and exorbitant insurance policies, not required in homes rented for more than 30 days or for homeowners.
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The lawsuit states that local governments may not enact ordinances that prohibit vacation rentals or regulate the duration or frequency of these rentals.
The punishment program violates multiple provisions of Florida statutes because it authorizes special magistrates to impose penalties and fines without prior notice of violation or warning provided to the property owner. It does not provide the property owner with the right to correct the alleged violation to avoid penalties.
The property owner or the designated person must be physically on the property within one hour of a notification.
It is being challenged as unconstitutional and “depriving homeowners of the economic value and the reasonable and beneficial use and enjoyment of their properties”.
The requirement that the city attorney certify that the ordinance was legally sufficient, was removed.
Ed Issler, who spearheaded the ordinance, says he is confident the lawsuit will be dismissed.
“There are now over 100 cities and counties in Florida that have rental registration programs,” Issler stressed. “Some are less stringent and some are more stringent. This ordinance they are suing to stop the implementation of, was voted on by the City of Marco Island.”
Last year Issler and members of his group Take Back Marco got enough signatures on a petition to get the ordinance put on the August 23 ballot. Voters then approved the ordinance, 56.9% to 43.1 %, prompting City Council members to adopt it later in the year. But even as they adopted the ordinance, in a 4-3 vote, council members said it was ripe for lawsuits.
“I think it really boils down to, do we want to be sued now or get sued later?” Councilman Jared Grifoni stated at a council meeting.
“With all the illegalities in the ordinance that the city attorney just told us about, we know that there are lawsuits against the city forthcoming,” Councilwoman Becky Irwin said at a council meeting.
The problem is that if enough signatures are on a petition, it is required that it go on the ballot and if voters approve an item then council members need to implement it. So even though many council members believed it was faulty, they said they had no choice.
Before voting on the ordinance last year, councilman Erik Brechnitz said, “I opposed the ordinance from the start because I thought there were flaws and still think there are flaws. But as an elected official I am obligated to support an ordinance that voters vote for. As far as I am concerned, it’s still flawed, we may have court issues and a judge may tell us whether or not it’s legal, and that may be the only way to get resolution to this problem.”
Florida Realtors used these council members’ comments in their lawsuit along with many others from city council meetings. They quoted police Chief Tracy Frazzano who said the noise ordinance conflicts with the city’s noise control ordinance because instead of relying on calibrated noise meters, it would rely on witness accounts. The chief also said the ordinance would include dogs barking, babies crying, kids playing in a pool and even people talking. Under the city’s noise ordinance these are justifiable sounds during daytime hours.
The lawsuit quotes Grifoni saying, “What ordinance have we ever adopted in the history of Marco Island City Council where the city attorney’s signature is not at the bottom of the document. I would assume that’s because the city attorney is uncomfortable making an argument stating that the changes are legally sufficient. I cannot vote for an ordinance that our own city attorney won’t stamp. That’s just opening the city up to tremendous liability.”
Florida Association of Realtors, who filed the suit on March 28, is a trade association, based in Orlando, with 225,000 members.
“In recent years, a number of Florida cities and counties have adopted ordinances that dissuade, limit or prevent the ability of private property owners to exercise their right to rent their properties on a short-term basis,” stated Florida Realtors CEO Margy Grant. “The Marco Island City Council has recently adopted one such ordinance, despite warnings that it violates the law. As a strong voice for property owners and their rights, Florida Realtors has filed this lawsuit so the courts can decide on behalf of Florida property owners hurt by this illegal and burdensome ordinance.
The litigation is in process at this time. Florida Realtors has no further statement.”
Marco city attorney Alan Gabriel also had little to say about the lawsuit.
“I have not reviewed the complaint, the city has not yet been served. Once served, the City will proceed as usual,” he stated.
Council members had similar comments.
“We have not yet been served,” Brechnitz concurred. “I just know it appears to be a lawsuit by the Florida Realtors challenging the ordinance as to its constitutionality.”
“It addressed a lot of the things we addressed at city council meetings,” Irwin added.
Maria Schilke, owner of Marco Island Rental Properties, is glad to see a lawsuit being served that she said could help businesses on the island. Schilke has been doing rental real estate on Marco since 1991.
“Half my owners that own homes have decided to go monthly,” she described. “It means much fewer of the weekly rentals that we make more money on.”
She said she is having a tougher time now finding short term rentals for people.
“People want to come and rent a house for a week or 10 days,” she added. “Nobody wants to come in the summer and rent for a month.”
Schilke said this will affect many local businesses.
“Those people who come for a week are the ones who will buy the t-shirts and go to the restaurants and rent a boat,” she said. “Everybody that has a business on Marco Island is going to be affected. The people who come for a month or two, they don’t go out to eat every single night. They are not going to go to a breakfast place almost every day. If you are here for seven days that is what you are going to do.”
Deb Henry has been a Marco Island resident for 40 years and has a house that she rents to vacationers. She too is now hoping the lawsuit will prevail to make things easier for her.
“It is going to affect my guests,” Henry stressed. “My guests are the reason I bought it. I love bringing people to Marco to make Marco memories. It infers that my home is not safe without these rules. It will make it so they can make no noise. I make my house that I rent as safe and comfortable as my own home.”
Henry also spoke about how it will affect local businesses.
“If this goes through and it becomes unappealing to go to Marco what will happen to all these family businesses that have been on the island forever? she questioned? That is how they make their living.”
But Issler is confident that the Vacation Rental Ordinance is here to stay.
There is no question about that,” Issler said. “This is a no brainer. Their lawsuit has no basis in law. It is like they are being an afternoon loser.”
He listed many reasons why he is so confident.
“The state of Florida defines short term rentals as a business, so you are running a business in a residential neighborhood. That is why I am so confident,” he began. “On Marco Island we have died restrictions. The deed restrictions don’t allow the running of a business on residential property. That is why I am so confident.”
He also refuted many of the claims. For example, he said the reason that the ordinance targets single family homes is because condominiums and planned communities already have a homeowners association that regulates rentals.
Issler points to other cities in Florida that were sued over vacation rental rules and had unsuccessful lawsuits.
“The lawsuit is a good thing,” Issler said. “Even our city attorney and the chairman of the city council, they both said a lawsuit would be the best thing on the issue. And we will win. This lawsuit is like a spoiled child having something taken away from them.”
Griffini disagrees. He says a lawsuit is costly for the taxpayers and he tried to avoid that. Grifoni said it would have been easier to vote against the ordinance and face a lawsuit from Take Back Marco.
“I would have been more comfortable being sued by Take Back Marco because we could say we didn’t pass it because it wasn’t legal,” Grifoni said.
He said if it was a simple registration and not a lot of controversial rules, it would have been fine, but this was much more complicated. And he knew from the start that it would involve costly lawsuits.
“Anyone could have seen this coming from 100 miles away,” Grifoni said Thursday. “Every time it came up, myself and others brought up that it could lead to substantial lawsuits. As a councilman the last thing we want to do is waste taxpayer money. That is what we were trying to avoid.”
But Grifoni said no matter how he and some other council members tried, they couldn’t stop it from passing.
“It was an avalanche running down the hill and nothing was going to stop it, so it was just passing it through and seeing what happened. It was ‘see you in court.’ We know the consequences, and the taxpayers are paying for it. I was afraid we would end up here, and here we are.”
Feb 2022 – Take Back Marco Political Action Group sends Marco Island City Clerk an affidavit for a committee in support of a referendum petition that would place the vacation rental ordinance on the ballot.
May 2022 – Collier County supervisor of elections Jennifer Edwards certified that Take Back Marco had enough petition signatures from voters to place the item on the August 23 ballot.
May 2022 – City attorney Alan Gabriel sends city council a memo detailing 19 areas of concern. He advised that enacting the ordinance risked violating the equal protection clause of the US constitution and numerous Florida Statures.
August 2022 – Voters on Marco Island approve the Vacation Rental Ordinance, 56.9% to 43.1%.
December 2022 – Marco Island City Council votes 4-3 to adopt the ordinance.
March 2023 – Florida Realtors files a lawsuit claiming the ordinance is illegal.