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.
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.
certainly a blow to Air BNB and the people that use it.
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.
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 owners’ rights to free speech.
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
anonymous complaints are hardly ever taken seriously because
they are more difficult to investigate.