This commentary originally appeared in Forbes on August 1, 2016
Local governments are one of the most significant threats to liberty and prosperity in America today. Nowhere is the presence of the “nanny state” more apparent than inside city hall. For example, the City of Austin recently adopted an ordinance infringing upon the constitutional rights of persons that own and stay at short-term rentals (STR)–inserting itself into the bedrooms and backyards of weekend travelers.
The purpose of government is to preserve and protect liberty, not to imagine far-fetched hypotheticals to justify voluminous regulations that ensure against “what if” scenarios, Yet, this is the direction that government has gone. The concept of limited government has all but been abandoned.
What if for example when Twitter launched, government, at the behest of email companies, decreed that messages could not be limited to 140 characters, due to a claimed “legitimate government interest” in preserving proper grammar and spelling? Or what if, when food delivery began, government, at the behest of the restaurant industry, required that pizza guys be licensed as food handlers, due to a claimed “legitimate government interest” in ensuring public health because delivery vehicles are essentially mobile kitchens?
Austin is causing the very problem it claims to address
The City of Austin’s short-term rental ordinance is another step too far. Short-term rentals are nothing new. The term commonly defines a residential lease for less than 30 days. For decades, college students seeking summer sublets have shared residences for short periods of time or as weekend getaways. Now that companies like HomeAway and AirBnB exist and profit in connecting owners with guests, the City feels compelled to regulate a non-existent problem.
As Austin increases the regulatory burden required to obtain a STR license, it should come as little surprise that 57% of code complaints made against unlicensed short-term rentals were solely due to their lack of a current short-term rental license. The City is causing the very problem it claims to address.
In so far as the need for a STR regulation to address out-of-control, fraternity-style party houses, the data does not support the policymaking. Only 9.37% of the total complaints filed against all short-term rentals mention overcrowding or noise issues. Furthermore, only five compliance cases in Austin versus short-term rental units have been referred to Municipal Court for prosecution. All five involved operating without a permit.
Austin’s short-term rental ordinance must be struck down
In seeking to address a nonexistent problem, the City’s STR ordinance goes out-of-bounds in violating the Texas constitutional rights of short-term rental owners and guests. It violates protected rights of assembly in that it prohibits more than ten persons to be at a short-term rental at any time for any purpose; more than six cannot be outside. Both a seven-person backyard BBQ and a twelve-person indoor dinner party–at any time day or night regardless of the size of the property–subject both the owners of guests to fines up to $2,000.00.
The ordinance also prohibits group activities “other than sleeping” at a short-term rental after 10PM. Of course, the only way for the City to enforce this prohibition is for Code Compliance to start conducting bed checks, which is why the Austin’s STR ordinance also violates constitutional protections against unreasonable search and seizure by allowing officers to inspect the property at “any reasonable times.”
Austin’s egregious short-term rental ordinance goes way beyond the lawful scope of the City’s authority and purposefully infringes upon citizens’ fundamental constitutional rights. One does not forfeit their privacy simply by choosing to stay as a guest in a short-term rental. Nor does operating an otherwise lawful short-term rental cause you to have inferior property rights than your neighbor. The City’s short-term rental ordinance is patently unconstitutional, and must be struck down.