This commentary originally appeared in The Austin Business Journal on August 19, 2016.
The Austin City Council has declared war on short-term rental houses. The constitutional rights of owners and tenants are that war’s collateral damage.
With the rise of property taxes in the city, and the emergence of online companies like Home Away and Airbnb, short-term rentals have become an increasingly popular way for tourist to enjoy the city, and homeowners to cover increased tax bills.
Not so fast, says the City Council. In a virtually unprecedented act of regulatory overreach, the Council passed an ordinance this spring outlawing certain types of short-term rentals all together and attempting to regulate the remainder out of existence. Among other things, the new ordinance subjects tenants to arbitrary occupancy limits, warrantless searches, and a strict 10 p.m. bedtime for adults. Violations are punishable by a $2,000 fine.
The results of some of these restrictions are obvious. For example, the ordinance prohibits any “assembling” after 10 pm for any purpose “other than sleeping” and allows for warrantless searches to check for compliance—effectively authorizing the city to conduct bed-checks to make sure people staying at short-term rentals aren’t “fooling around” after 10 pm. The absurdity of other restrictions only become clear once the ordinance is applied. For example, the ordinance sets a 6-person cap on outdoor activities, regardless of the size of the rental. In practice, that cap prohibits 8 tenants legally renting a 5-bedroom house from being on the back patio at the same time. If they choose to have a backyard barbecue they would have to take turns walking to the grill.
The cap on indoor activities is equally ridiculous. The ordinance forbids more than 6 unrelated individuals (or more than ten related individuals) from congregating in the house for any purpose. Thus, a six-person family couldn’t invite a friend over for dinner without risking thousands of dollars in fines. An owner of a six-bedroom home wouldn’t even be able to rent his home to capacity.
So clearly, there must have been some unprecedented risk to public health and safety that prompted the City to adopt such onerous restrictions. Well, not really.
A recent public records request to the City shows that in the four-year period leading up to the adoption of the ordinance there were a grand total of 5 citations issued against short-term rental properties—all of which were for operating without a license. In that same period there wasn’t a single ticket issued to a licensed short-term rental for noise, trash, crowding, or other health and safety concerns.
And therein lies the problem. The Texas Constitution requires the government to show that there is a legitimate threat to the public before it can restrict the constitutional rights of its citizens. Even if such a threat exists, the Texas Constitution requires that the regulation not be more burdensome than necessary, given the threat at issue. Here, the City is trying using a nuclear bomb for a problem best suited for a fly swatter. A handful of citations over a four-year period do not justify the carpet-bombing of the constitutional rights of movement, privacy, assembly, and private property.
Soon the City will have an opportunity to explain its draconian approach. On June 17, 2016 the Texas Public Policy Foundation’s Center for the American Future filed a civil rights lawsuit on behalf of several short-term rental owners and tenants affected by the new regulations. When pressed for comment, spokesman for the City noted that “The Austin City Council spent many hours working through the significant issues related to short term rentals in the city, in order to best serve all citizens. The city’s lawyers are prepared to defend the ordinance in court.”
Of course, that is a non-answer. At the end of the day, it doesn’t matter how long the Council worked on the ordinance, or how popular it was. City governments do not have the authority to violate the Constitution. I’m sure the property owners who’s rights are violated by the ordinance take little comfort in the fact that the Council spent so much time figuring out how to regulate them out of business.
Chance Weldon is an attorney with the Center for the American Future at the Texas Public Policy Foundation