City of Miami v. Airbnb, Inc.

260 So.3d 478

CITY OF MIAMI, Appellant,

v.AIRBNB, INC., etc., et al., Appellees.

No. 3D17-1213

District Court of Appeal of Florida, Third District.

Opinion filed December 5, 2018.

Victoria Mendez, City Attorney, and John A. Greco, Deputy City Attorney, and Christopher A. Green, Assistant City Attorney, for appellant.

Berger Singerman LLP, and Mitchell W. Berger, Paul S. Figg, Paul A. Avron, and Fred O. Goldberg (Fort Lauderdale), for appellees.

Holland & Knight LLP, and Frances Guasch De La Guardia; Craig E. Leen, City Attorney, as amicus curiae for City of Coral Gables.

Before LAGOA, LOGUE, and LINDSEY, JJ.

LOGUE, J.

The City of Miami appeals the trial court's order granting the plaintiffs' emergency motion for temporary injunction. We conclude that Plaintiffs, Airbnb, Inc., Yamile Bell, Ana Rubio, Gary M. Levin, Toya Bowles, and Kenneth J. Tobin, have not met the elements for the broad temporary injunction entered by the trial court. Accordingly, we reverse.

Background

Airbnb, Inc., is an online hosting platform that matches guests with short-term rentals in different parts of the world, including Miami. At a March 2017 City Commission meeting, the City of Miami adopted a resolution on short-term rentals. The resolution was based on (1) the City Of Miami's zoning ordinance, Miami 21, which limits the T3 zone to permanent residential use, and (2) the City's 2015 Zoning Interpretation of Miami 21 that declares "using a Single Family residence or Two Family-Housing (a duplex) within a T3 transect zone to provide rental accommodations per night, week, or anything less than one month would constitute an activity in violation of Miami 21."

The resolution affirmed the City's zoning regulations "as they pertain to short-term/vacation rentals" and "direct[ed] the City Manager to continue vigorously enforcing regulations pertaining to lodging uses." In attendance at the Commission meeting were several City residents who opposed the resolution because they use the Airbnb platform to rent out their properties. The City Manager informed attendees that the City was "now on notice" of those who spoke out against the City's code, and that he "will be duly bound to request our personnel to enforce the city code."¹

After the Commission meeting, Airbnb and several City residents who rent their properties through Airbnb sued the City for declaratory and injunctive relief. They asserted that the City's vacation rental ban in its suburban residential T3 zone was preempted by State law. The complaint also alleged that the City Manager and Mayor expressed an intent to retaliate against the individuals who spoke in support of vacation rentals at the City Commission meeting. Accordingly, the complaint also sought to enjoin the City from initiating code enforcement proceedings against those individuals, and from requiring the names and addresses of those who wish to speak at Commission meetings. Plaintiffs then filed an emergency motion for temporary injunction which mirrored the complaint's request for injunctive relief.

On April 19, 2017, the trial court held an evidentiary hearing on the motion for temporary injunction. At the hearing, an Airbnb representative testified that Airbnb was being unfairly targeted by the City. And three of the individual plaintiffs who reside in the T3 zone explained the nature of the short-term rentals they offer through Airbnb.²

The City's planning director testified that the T3 zone was reserved for permanent housing and did not permit transient lodging. He explained, "It is the transient nature of the accommodation that makes it a lodging use, as opposed to the permanent residence nature of the use that makes it a single family dwelling." The City also presented the testimony of T3 zone residents who described negative experiences from living close to short-term rentals.³ And finally, the City Clerk testified regarding the City's practice in obtaining the names and addresses of individuals who speak at City Commission meetings.

At the end of the hearing, the trial court granted Plaintiffs' motion for temporary injunction. It concluded that Miami 21 does not prohibit vacation rentals and the City was therefore preempted under section 509.032(7)(b), Florida Statutes (2016) from enforcing its Zoning Interpretation and pronouncing any ban on short-term vacation rentals. Regarding the statements made by the City Manager and Mayor, the trial court found no evidence of retaliation. But it did find that the statements "have a chilling effect on the First Amendment rights of residents who wish to make public comments on any matter before the City Commission."

The temporary injunction enjoins the City in two respects. First, it enjoins the City from "enforcing any ban on or from instituting or enforcing its vacation rental ban in the City pending a final hearing ... which would include any enforcement against the individual Plaintiffs." Second, it enjoins the City from "requiring members of the public, as a condition of their right to make public comment at City Commission meetings, from having to provide their names and addresses, and that agents of the City shall advise residents that, if they wish to remain anonymous, they will still be allowed to speak." The City timely appealed.

Analysis

"A temporary injunction is an extraordinary remedy which should be granted only sparingly." Mercado Oriental, Inc. v. Marin, 725 So. 3d 468, 469 (Fla. 3d DCA 1999). A party moving for the temporary injunction must therefore demonstrate: "(1) the likelihood of irreparable harm if the temporary injunction is not entered; (2) the unavailability of an adequate remedy at law; (3) a substantial likelihood of success on the merits; and (4) entry of the temporary injunction will serve the public interest." Genchi v. Lower Fla. Keys Hosp. Dist., 45 So.3d 915, 918-19 (Fla. 3d DCA 2010). If the party seeking a temporary injunction fails to meet any of these requirements, the motion must be denied. Id.

Moreover, "[i]njunctions must be specifically tailored to each case and they must not infringe upon conduct that does not produce the harm sought to be avoided." Angelino v. Santa Barbara Enterprises, LLC, 2 So.3d 1100, 1104 (Fla. 3d DCA 2009). In other words, injunctions "should never be broader than is necessary to secure to the injured party relief warranted by the circumstances involved in the particular case." Chevaldina v. R.K./FL Mgmt., Inc., 133 So.3d 1086, 1091 (Fla. 3d DCA 2014).

Here, based upon the limited record before us, we conclude that Plaintiffs have failed to show that they have a substantial likelihood of success to sustain such broad injunctions.

A. The injunction against the City's "vacation rental ban" is overbroad.

Miami 21 is not preempted by State law because it places land-use restrictions on all properties located in the T3 zone, which include properties used as short-term or vacation rentals. The injunction here fails to recognize that under certain circumstances, Miami 21 may prohibit short-term or vacation rentals in T3. For that reason, we conclude that the injunction is overbroad and must be reversed.

The preemption statute at issue prohibits a local government from banning or regulating vacation rentals: "A local law, ordinance, or regulation may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals." § 509.032(7)(b). A "vacation rental" is a "condominium" or a "house or dwelling unit" rented on a transient basis.⁴ But the preemption "does not apply to any local law, ordinance, or regulation adopted on or before June 1, 2011." Id. The undisputed testimony at the hearing was that the 2016 version of Miami 21 is identical in its material provisions to the zoning code in effect in 2009.

Miami 21 places the City's core, single family neighborhoods in its T3 zone. The T3 zone is labeled "sub-urban," and the only use allowed by right is "residential." § 1.1, § 4, tbl.3, Miami 21. "Residential" is defined by Miami 21 as "land use functions predominantly of permanent housing." § 1.1 (emphasis added).

Because a vacation rental is not permanent housing—it is a short-term rental intended to serve as a guest's transient housing—Miami 21 prohibits short-term and vacation rentals in T3 that convert a property's use to something other than "predominantly of permanent housing." For example, a property owned by investors and used solely for short-term or vacation rentals would never be permitted in T3 because it does not constitute a use "predominantly of permanent housing." On the other hand, "predominantly of permanent housing" does not mean "exclusively of permanent housing." So where a T3 property's use remains predominantly of permanent housing, a mere incidental use for a short-term or vacation rental may not violate Miami 21.

As this discussion indicates, we conclude that to the extent the City's 2015 Zoning Interpretation goes beyond the restrictions in Miami 21, the Interpretation is preempted under section 509.032(7)(b). As previously noted, the City's Zoning Interpretation declares that "using a Single Family residence or Two Family-Housing (a duplex) within a T3 transect zone to provide rental accommodations per night, week, or anything less than one month would constitute an activity in Violation of Miami 21." This Zoning Interpretation suggesting a ban on all short-term rentals is itself overbroad because a short-term rental may not always alter a property's use as "predominantly of permanent housing."

In any event, the trial court here failed to recognize that Miami 21 is not preempted and prohibits certain short-term rentals that compromise the residential characteristic of T3 properties. We recognize that this "predominantly of permanent housing" analysis may create a fact-intensive, case-by-case inquiry. But the trial court here made no distinction between the types of rentals that may be permitted under Miami 21 and those that may violate the zoning restriction.

In so...