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Is a short term rental a business?

Town Council will discuss short term rentals again at its Nov. 9 meeting.

November 1, 2017
Jessica Salmond - News Editor ( , Fort Myers Beach Bulletin, Fort Myers Beach Observer

The debate on short term rentals and what to do about them is far from over.

It's an issue facing many of Florida's water-front communities, popular spots for vacationers.

In April, the Fort Myers Beach Town Council discussed the issue of tenants of some properties not following the code of conduct. In May, former Community Development Director Kara Stewart pointed out parts of the short term rental ordinance that weren't being followed and a program that was never implemented.

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Ron Martin, Executive Assistant Chief of Life Safety and Public Information Office for the Fort Myers Beach Fire District, and Captain Matt Powell of the Lee County Sheriff's Office attended the Estero Island Taxpayers Association to answer questions about short term rentals and calls for the code of conduct.

In August, the town got a draft revised ordinance to tighten restrictions, and in September, it got a barrage of emails and comments at a public meeting against the proposal.

But solutions are still coming forward.

According to a draft ordinance sent to Town Manager Roger Hernstadt from Town Attorney Jack Petersen, short term rentals could get a new definition: a business.

The draft, sent Oct. 13, outlines how short term rentals may be regulated as a business, a definition that may apply to any private home rented out for less than 365 days.

The draft contains some of the proposed changes from the August draft, such as how occupancy rates are determined. Currently, only five people who constitute a family by blood or marriage are allowed in any unit. The new amendment would change that to two people per bedroom, plus two additional people per household. So, a three bedroom home could fit eight people. The definition of "family" would be struck out.

The regulations in the draft state a registry of all short term rental properties shall be created, and the property must be registered by either the property owner or manager with an annual registration fee to be set by the council. Annual renewal fees would be set at 50 percent of the initial registration.

Under the draft, tenants of the rental could not park on the town right of way "unless the registrant has secured a right-of-way agreement with the town."

The registry would include an individual number per unit that would be used in advertising so the town could easily track the home's use, and requires the owner or manager to provide a 24/7 number at which they can be reached to resolve any complaint on the code of conduct against tenants within an hour - day or night.

The draft tightens the penalty for code of conduct violations; if a property has been in violation of the code of conduct by special magistrate twice in one year, the owner will be penalized with a renewal fee of $1,000, plus whatever fines imposed by the magistrate. A property with three violations will be subject to a $1,000 renewal fee for the following three years.

It's exactly the kind of action Estero Island Taxpayers Association's director, Beverly Milligan, was afraid of: commercialization of private homes rented to vacationers.

"That turns the homes on the island into businesses," she said at the Oct. 24 EITA meeting.

Hernstadt said this draft mocked up by Petersen is only an alternative suggestion that could be presented to council, but nothing's been decided.

"We don't know if (council) want to move forward at all, and we don't know how fast or slow they want to move," he said.

This draft follows another draft revision of the short term rental ordinance which was presented to council in August. It's been met with opposition from many short term rental management companies and property owners who rent, many of whom said the proposed rules were too hard to follow or not "government lite."

The council will discuss next steps, if any, at the Nov. 9 management and planning session. Hernstadt said any further decisions - including the business draft - "would be speculative" until the town has a chance to discuss the hot-button issue at the planning session and give direction to staff. The business draft may be presented then if the council is looking for alternatives.

No vote will be taken at the planning session. It is open to the public to watch, however there is no opportunity for public comment during the meeting.

The current ordinance passed in 2003 grandfathered in about 60 properties who were allowed to continue renting weekly in monthly-zoned areas. These properties had to register and then renew each year, and the number has gone down to about 16 since 2003.

According to the 2003 ordinance, a registration program for all short term rentals should have been implemented.

The underlying effect of the changes outlined in the draft is to place more of the responsibility of compliance onto the renter.

But how often are short term rentals a problem for the town?

From Oct. 1, 2016 to Oct. 26, 2017, the Town of Fort Myers Beach opened 18 cases involving short term rentals.

Thirteen of these cases were started by citizen complaint; the other five were observed by code enforcement staff. The majority of them concerned the rental of a home more than once in a month's time.

But of the 18, only three resulted in the findings of a violation by code enforcement.

Milligan said the town should focus on the current ordinance's regulations and more closely follow those for the next year to see if that will solve some of the problems before introducing something new.

She and others are afraid that changes to the 2003 ordinance could nullify the grandfathered group of weekly renters, and also could pose a hefty threat of lawsuits to the town.

Other counties in Florida have tried to pass more stringent rules on short term rentals; some have been successful but none have avoided a lawsuit. The City of Anna Maria in Manatee County tried to tighten its regulations; it's been slammed with lawsuits by vacation home renters claiming a violation of the Bert J. Harris, Jr., Private Property Rights Protection Act. The lawsuits total an amount in the multi-millions.

"I have no dog in this show. I don't own a rental and I'm not bothered by one," Rexann Hosafros, a former council member and attorney, said in a public meeting in September. "But someone is going to sue us, and Fort Myers Beach doesn't have the resources for this."

The town held a public meeting in September to discuss the ordinance with all concerned, but Milligan and others are saying that's not enough. The council chambers were full for that meeting, and a majority were concerned with the impacts the proposed changes could have.

"Let's create a dialogue and have more public engagement," Milligan said.

The Fort Myers Beach Fire District has a voluntary registration of short term rentals. Martin explained the program, saying the registration is a one-time interaction with one $25 fee to enroll. Home rental managers or owners provide contact information for emergencies and to get checked for fire code compliance, and Martin said the program has so far been successful with nearly 400 properties registered.

One of the most common complaints about the island's short term rentals is a problem with following the code of conduct and quiet hours; however, it's in the 2003 ordinance that the code of conduct must be posted in the home to inform the tenants of the rules.

Captain Powell told the members of EITA, as well as those of the public at the September meeting, that any noise violation could be called into the Sheriff's Office and the deputies will respond - the proposed changes would not affect their response. If a neighbor calls to complain about the noise level from someone nearby, the Sheriff's Office can go out, assess the problem and even use a sound meter to check if the noise is above the required decibel. But, Powell said they don't often have to use the sound meter.

"We usually go out with a warning first," he said. He added later that he or his deputies don't have to return "that much" after the initial warning.

"People are up late, they're on vacation," he said. "Sometimes they just need to be reeled back in."

A record of noise complaint calls to the Sheriff's Office from Fort Myers Beach could not be acquired before this article was published.

Vice Mayor Tracey Gore said she thinks the reason the Sheriff's Office or the Town's code record may not reflect the issue with rentals is that many people might choose to call their council member, rather than go "on record" with a formal complaint. There's also no method of communication between the Sheriff's Office and the town, whether it be a call to a short term rental or a residential home. If the deputies are called to shut down a party or quiet down a rowdy house, the town doesn't know, Gore said.

"Often times people won't complain to the Town because they've said in the past it doesn't do any good or they don't want to fight with their neighbors," Gore said in an email. "The issues we're facing today have been going on for a long time, which is why previous councils have struggled with how to enforce our codes."

Gore also said she believed the issue with the short term rental ordinance is being "blown out of proportion." She said she and the council are trying to create something that will help enforce the ordinance already in place, not make something entirely new.

"That seems to be what everyone wants - residents and rental places... just follow what was put on the books in 2003 - but as you see, it hasn't been done," she said.

The draft ordinance brought to staff in August was "not what we wanted," she added.

In the past year, the town has gotten four complaints about rentals sent to town emails. But in the last three months, the town's gotten 24 emails protesting against changes to the ordinance.

After the September public hearing and a barrage of comments, the town will be discussing what to do about the ordinance and its proposed changes at its Nov. 9 planning session.

"We're looking at the points that were made and looking at language that might address them," Town Manager Roger Hernstadt said. "We don't know which direction council will take, the council will let us know."



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