Marco Island's controversial single-family home rental registration program tossed out

Marco Island single-family homeowners who rent their properties less than 30 days at a time no longer have to register with the city or be subject to the rules of an ordinance approved in 2022.

That's because it never happened as far as Florida is concerned. You can blame or thank Hurricane Ian.

A Florida law signed by Gov. Desantis in June affects local governments within 100-mile radius of Hurricane Ian, which made landfall Sept. 28, 2022, at Cayo Costa and then in Punta Gorda, as near Category 5. The law prohibits "restrictive or burdensome" amendments by local governments to land development or comprehensive plans until next October and nullifies any put in place after Ian hit.

Marco Island voters approved an ordinance to implement the single-family "home transient rental registration program" on Aug. 23, 2022. The referendum included restrictions that the ordinance wouldn't take effect until two readings with public hearings before the City Council. Those took place and the council approved the ordinance 4-3 on Dec. 5. The city bought software, a new vehicle and hired people to handle registration and enforcement.

"As if it never happened," City Attorney Alan Gabriel told City Council Monday night when he proposed a resolution to instruct the city manager to make the appropriate changes and announcements. Two attorneys, Gabriel and outside counsel Robert Pritt, gave opinions that Marco Island's vacation rental ordinance falls under the "restrictive and burdensome" category and therefore is rendered null and void. The law says the action is "null and void ab initio" or from the beginning.

More:Short-term rental registration initiative passes

What was the ordinance designed to regulate?

The ordinance included restrictions on occupancy, noise, trash and homeowner response time. It required homeowners to have a minimum of $1 million in liability insurance coverage and included fines of $1,000 a day and suspensions of up to 180 days. Four lawsuits were filed against Marco Island because of the ordinance. Registrations began in the spring and then Marco Island put enforcement of the rule on hold in May. The lawsuits are still pending, Gabriel said Monday.

Other rules in the ordinance:

• A designated responsible party to be available 24/7 and respond onsite within one hour to address issues with the property.
• Stricter noise restrictions for vacation rental properties compared to other properties located in the RSF (residential single family) districts. Specifically, no sound can be audible for over one minute, 25 feet from the property line between 10 p.m. and 7 a.m., and 50 feet from the property line during the day.
• No more than two people per bedroom, no more than four children under the age of 13, and no guests after 10 p.m.
• No bookings after Aug. 15, 2022, until they complete the required registration and have a city and fire inspection.

Some council members argued with Gabriel about the adoption date – referendum certification versus city council adoption date. In the end, the resolution was approved 5-2, with councilmen Joe Rola and Rich Blonna voting against it.

Even before the referendum, Gabriel outlined in a memorandum 19 items that could be legally challenged.

"We’re probably going to address this again in the future," Councilman Darrin Palumbo said of short-term rentals in single-family homes. But for now, he said," this vote is about taxpayers, and this is about listening to two attorneys. This is about two attorneys' opinions and doing the right thing today."

Council Chairman Folley said the council did the right thing last year in moving forward with the ordinance approved by voters. "I think trying to implement the will of the voters is a good thing."

Now though, he said, "we come up with a situation where the state has acted and acted fairly decisively."

Vice Chairman Jared Grifoni said the referendum and the ordinance never should have happened.

"This ordinance is illegal. There is no doubt about it," he said. "We’ve got money now that we now need to refund to people who paid in. This thing was a boondoggle."

Marco Island did collect some registration money – $45,600 as of August, Assistant City Manager Casey Lucius said in an interview. The city had spent $430,667 on the program at that point, according to an Internal Services report to the City Council.

According to the Vacation Rental Registration Status from Aug. 21, 2023, Marco Island Internal Services Report:

• Total registrations completed: 31
• Total registrations started: 224
• Pending fire inspection: 5
• Failed inspection: 11
• Total paid: 55 ($45,600)

Marco Island used its purchased software to identify 1,050 single-family home vacation rentals. Letters were sent to owners to tell them about the ordinance and how to register, Lucius said.

There was no discussion of how or when refunds will be made to registrants.