FL Appeals Court Holds Section of Ordinance Requiring Operators to Provide Written Notice to Guests of All Applicable Standards and Regulations Did Not Violate Constitutional Right to Free Speech

This post was authored by Matthew Loescher, Esq.

Management Properties operated a beachfront single-family property in Redington Shores, Florida, as a vacation rental. In August 2020, the Town adopted an ordinance creating section 90-116 of the Code of the Town of Redington Shores. On June 18, 2021, Management Properties filed an action for declaratory relief in Pinellas County challenging the validity of section 90-116, alleging that the provisions of section 90-116(D)(2)(a)-(b) requiring vacation rental operators to provide written notice to guests of the laws and regulations governing vacation rentals and to report violations of those laws and regulations constitute compelled speech. The court found that section 90-116(D)(2)(a) and (b) involved commercial speech and that the disclosure requirements in the ordinance survived under either intermediate scrutiny or rational basis review. The trial court made written order along with the final judgment from which Management Properties appealed.

The record reflected that the Town’s stated interest in promoting compliance with the laws and regulations governing vacation rentals sufficed under any level of constitutional scrutiny, particularly in light of the minimal burden imposed upon vacation rental operators, who were simply required to pass along this information to their guests. Accordingly, the court affirmed the entry of judgment on the pleadings as to this portion of Management Properties’ compelled speech claim. Notwithstanding this, the court was are unable to conclude from the face of the pleadings that the mandatory reporting requirement could withstand either level of heightened constitutional scrutiny. Specifically, the court was not persuaded that the Town’s stated interest of promoting compliance with the standards for vacation rentals by preventing violations of those standards from occurring, would be directly advanced by a mandatory requirement to report violations that have already occurred. Additionally, nowhere in the pleadings or attachments thereto had the Town suggested any other governmental interest that would be served by imposing upon vacation rental operators a duty to report any violation of the laws and regulations governing vacation rentals.

Next, the court noted that while the trial court made detailed oral findings on the compelled speech claim, it only specifically addressed that issue as it pertained to section 90-116(D)(2)(a)’s disclosure requirement. In so doing, the trial court may have failed to consider whether the speech regulated by the mandatory reporting provision differed from the speech regulated by the disclosure provision in any constitutionally meaningful way. Based on the aforementioned, the court held that further proceedings were necessary on this aspect of Management Properties’ compelled speech claim.

Management Properties, LLC v Town of Redington Shores, 352 SO 3d 909 (Fl. App. 12/5/2022)