City ordinances which impose escalating fines for violations of city’s ban on short-term rentals of residential properties, beginning with a fine of $20,000 for the first offense, are in conflict with Florida Statutes §163.09(2)(d), and are therefore illegal and unenforceable.
A Miami Beach property owner filed suit to overturn two Miami Beach Ordinances prohibiting the rental of residential properties for six months or less and imposing a $20,000 fine for the same. Plaintiff argued that the ordinances conflict with Florida Statute Section 163.09(2)(d), which limits the fines municipalities may levy for code violations to “$1,000.00 per day for the first violation and $5,000.00 per day for repeat violations.”
City Code § 142-905(b)(5), governs short-term rentals of single-family homes. City Code § 142-111, governs short-term rentals of townhomes, condominium, and apartments. Generally speaking, both ordinances prohibit the rental of properties for terms of six months or less, with limited exceptions that are not pertinent to the issues framed by the pending motions.
If a property owner rents for a period of less than six months and one day — and thereby violates either ordinance — they are subject to escalating fines of $20,000.00 for the first offense, $40,000.00 for the second, $60,000.00 for the third, $80,000.00 for the fourth, and $100,000.00 for all offenses thereafter. City Code §§ 142-905(b)(5)(a) and 1111(e)(1). A special master, however, has no ability to waive or reduce fines if a violation is found. City Code § 142.905(b)(5) (“the special master shall not waive or reduce fines”).
Article I, Section 18 of the Florida Constitution limits all administrative fines to those authorized by the Florida Legislature,” and no city may “adopt any fines that the legislature has not authorized it to adopt.” Florida Statute § 162.09 “limits municipal fines to $1,000.00 for the first offense and $5,000.00 for subsequent offenses.”
The Court rejected the City’s argument that the Plaintiff lacked standing to seek declaratory relief because she has not violated the ordinances and been penalized. Plaintiff is a property owner on Miami Beach who has — and wants to continue — leasing her real estate, but she is unable to do so because the challenged ordinances make it illegal. No precedent supports the proposition that she must first break the law and be fined $20,000.00 before she can challenge its legality. The law is in fact to the contrary, as it should be. See, e.g., Lambert v. Justus, 335 So. 2d 818 (Fla. 1976) (property owners had standing to bring “complaint seeking declaratory judgment as to the validity of certain restrictions on the use of their property”). These ordinances are prohibiting Nichols from renting her property now, and unlike the situations presented in the precedent cited by the City, this is not a case where a plaintiff is seeking an advisory opinion on a moot academic issue or a question that may never arise. See, e.g., Santa Rosa County v. Admin. Com’n, Div. of Admin. Hearings, 661 So. 2d 1190 (Fla. 1995) [20 Fla. L. Weekly S333a] (action seeking declaration as to the constitutionality of certain statutes was moot as parties had resolved their disputes by a “stipulated settlement agreement”); Apthorp v. Detzner, 162 So. 3d 236 (Fla. 1st DCA 2015) [40 Fla. L. Weekly D490a] (action challenging the qualified blind trust statute despite the fact that “no public officers” had ever used the type of trust authorized by the law); Florida Dept. of Ins. v. Guarantee Tr. Life Ins. Co., 812 So. 2d 459 (Fla. 1st DCA 2002) [27 Fla. L. Weekly D523b] (action challenging constitutionality of Florida Statute § 627.411 presented no actual controversy because plaintiffs rate filings had never been reviewed or denied “under that provision”).
Does Chapter 162, et. seq. Grant Municipalities the Right to Opt-Out of the Statutory Cap on Fines Imposed by § 162.09
This brings the Court to the only genuine issue: Does Chapter 162 authorize the City to impose fines greater than those authorized by §162.09? The short answer is no.
“[A] municipality cannot forbid what the legislature has expressly licensed, authorized or required, nor may it authorize what the legislature has expressly forbidden.” Rinzler v. Carson, 262 So. 2d 661, 668 (Fla. 1972). For that reason, “[m]unicipal ordinances are inferior to laws of the state and must not conflict with any controlling provision of a statute.” Thomas v. State, 614 So. 2d 468, 470 (Fla. 1993). That does not mean that the state and a municipality may not legislate concurrently. They can. But when a municipality legislates in an area addressed by the legislature, its “concurrent legislation must not conflict with state law.” Id., citing City of Miami Beach v. Rocio Corp., 404 So.2d 1066 (Fla. 3d DCA), review denied, 408 So.2d 1092 (Fla.1981). See also, City of Palm Bay v. Wells Fargo Bank, N.A., 57 So. 3d 226 (Fla. 5th DCA 2011) [36 Fla. L. Weekly D161a] (“[a]lthough a municipality has broad home rule powers to enact local ordinances, the ordinances may not conflict with a state statute”) (internal citations omitted).1
This long-settled rule of superiority/preemption is derived from the plain text of Article I, Section 18 and Article VIII, Section 2(b) of our Constitution. The first provides that no administrative agency — which the City admittedly is — may impose any penalty “except as provided by law.” Article I, Section 18, Fla. Constitution. The second provides that municipalities “may exercise any power for municipal purposes except as otherwise provided by law.” Article VIII, Section 2(b), Fla. Constitution. These provisions, in tandem with the “Municipal Home Rule Powers Act” codified at Chapter 166 of the Florida Statutes, make clear that a municipality “may enact legislation on any subject upon which the state legislature may act unless expressly prohibited by law.” Rocio Corp., 404 So. 2d at 1068; City of Venice v. Valente, 429 So. 2d 1241, 1243 (Fla. 2d DCA 1983) (“. . . a municipality may not exercise any power for municipal purposes which is expressly prohibited by law”). Local ordinances are “expressly prohibited by law” when they conflict with a state statute, and “must fail when [such] conflict arises.” Id. See also City of Kissimmee v. Florida Retail Fed’n, Inc., 915 So. 2d 205 (Fla. 5th DCA 2005) [30 Fla. L. Weekly D2457f] (“[w]hen the legislature enacts a statute, a local government cannot adopt or enforce an ordinance that conflicts with the statute”); Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309 (Fla. 2008) [33 Fla. L. Weekly S1002c] (“. . . in a field where both the State and local government can legislate concurrently, a county cannot enact an ordinance that directly conflicts with a state statute”); Hillsborough County v. Florida Rest. Ass’n, Inc., 603 So. 2d 587 (Fla. 2d DCA 1992) (“[i]f [a county] has enacted such an inconsistent ordinance, the ordinance must be declared null and void”); Masone v. City of Aventura, 147 So. 3d 492 (Fla. 2014) [39 Fla. L. Weekly S406a] (“. . . municipal ordinances must yield to state statutes”); Florida Retail Fed’n, Inc., supra, n.1.2
Section 162.09 of the Act — titled “Administrative fines; costs of repair; liens” then caps the fines that may be imposed by a code enforcement board or special magistrate. Section 2(d) — the portion of the Act at issue here — provides:
(d) A county or a municipality having a population equal to or greater than 50,000 may adopt, by a vote of at least a majority plus one of the entire governing body of the county or municipality, an ordinance that gives code enforcement boards or special magistrates, or both, authority to impose fines in excess of the limits set forth in paragraph (a). Such fines shall not exceed $1,000 per day per violation for a first violation, $5,000 per day per violation for a repeat violation, and up to $15,000 per violation if the code enforcement board or special magistrate finds the violation to be irreparable or irreversible in nature. In addition to such fines, a code enforcement board or special magistrate may impose additional fines to cover all costs incurred by the local government in enforcing its codes and all costs of repairs pursuant to subsection (1). Any ordinance imposing such fines shall include criteria to be considered by the code enforcement board or special magistrate in determining the amount of the fines, including, but not limited to, those factors set forth in paragraph (b).
The City — exercising its police power — decided to ban virtually all short-term rentals on Miami Beach. That is a policy decision the Court may not second guess or interfere with. See Benjamin N. Cardozo, The Paradoxes of Legal Science, 125 (1928) (“[w]hen the legislature has spoken, and declared one interest superior to another, a court must subordinate her personal belief to that so declared”); State v. Ashley, 701 So. 2d 338 (Fla. 1997) [22 Fla. L. Weekly S682a] (“. . . we have said time and again, the making of social policy is a matter within the purview of the legislature — not this Court”). But a municipality exercising its admittedly “broad authority to enact ordinances,” City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006) [31 Fla. L. Weekly S461a], may not legislate “in conflict with state law.” Thomas, supra at 470. As our appellate court put it as recently as this August, “although Florida municipalities are given broad authority to enact ordinances, municipal ordinances must yield to state statutes. Florida Retail Fed’n, Inc., supra.
The legislature — in the exercise of its police power — clearly and unambiguously imposed caps on the amount local governments may fine citizens for code violations. § 162.09, Fla. Stat. (2019). Those mandatory caps provide statewide uniformity and limit the exposure a citizen may face for violating local law. The caps set by the legislature, while hardly de minimis, may not in the City’s view be adequate to force (or motivate) Miami Beach’s wealthiest property owners to comply with these ordinances. The City may (or may not) be correct, but that is a matter it must take up in Tallahassee. In the meantime, and unless and until the legislature allows local governments to fine citizens in excess of $1,000.00 per day for code violations, the City must abide by the command of §162.09. See Rocio, supra at 1071 (“. . . the local ordinances must yield to state statutes if stability in government is to prevail”); Thomas, supra at 470 (‘[w]hile a municipality may provide a penalty less severe than that imposed by a state statute, an ordinance penalty may not exceed the penalty imposed by the state”).
The ordinances challenged here are in jarring conflict with § 162.09 and are therefore illegal and unenforceable.
NATALIE NICHOLS, Plaintiff, v. CITY OF MIAMI BEACH, FLORIDA, 27 Fla. L. Weekly Supp. 707a. An appeal has been filed and is pending. Case 2018-021933-CA-01 Miami-Dade County