This commentary originally appeared in the Austin-American Statesman on July 18, 2016.
Austin bills itself as a hip and trendy town, but the city’s attempts to manage the sharing economy expose this as nothing more than myth.
Already, Uber and Lyft have been driven out of town thanks to municipal micromanagement and ballot language chicanery. Now, the short-term rental industry, which includes companies like HomeAway, Airbnb, and VRBO, also finds itself under assault from an overzealous city council hellbent on regulating every aspect of daily life.
Central in this skirmish is Austin’s new ordinance governing short-term rentals, or STRs. The ordinance, which was approved in February by an overwhelming majority of the Austin City Council by a 9-2 vote, is a near-perfect example of the nanny state run amok.
For starters, the ordinance prohibits outside assemblies of seven or more people between the hours of 7 a.m. and 10 p.m., effectively outlawing backyard BBQs and birthday parties at STRs.
The ordinance also bans inside gatherings of more than 10 people at any one time, regardless of a rental’s square footage or how many people the property can accommodate. This not only makes large family gatherings an unlawful affair, but also punishes owners of larger properties who can no longer legally rent to capacity.
Under the terms of the ordinance, owners and guests are also barred from having more than two adults per bedroom present between 10 p.m. and 7 a.m. Curiously, those same adults are also prohibited from engaging in any “group activity other than sleeping” while in their rooms, raising some intriguing questions about the types of behavior that the city is trying to clamp down on.
But as intrusive and inappropriate as these regulations are, it’s the city’s new enforcement powers that are truly unsettling.
To make sure that people are abiding by all of its new rules, Austin has given its code officials the ability to conduct warrantless searches, at all reasonable times, of “all buildings, dwelling units, guest rooms and premises” in search of possible code violations. And since some of the restrictions don’t go into effect until after 10 p.m., officials could well show up in the dead of night to search every nook and cranny of an STR looking for any sign of bad behavior — all without a warrant.
Giving city officials the power to search residential properties without a warrant is not just unwise; it’s downright un-American.
Americans have certain fundamental rights and freedoms guaranteed by the U.S. and Texas Constitutions. These are not forfeit simply because a person stays as a guest at a short-term rental. Nor are they surrendered because a person legally owns and operates a certain kind of investment property. Austin’s ordinance runs so far afoul of these basic tenets of American society that it deserves nothing short of total repeal.
And that’s where we step in.
Last month, the Texas Public Policy Foundation filed suit against the city of Austin seeking to strike down the ordinance in its entirety. The lawsuit, filed in Travis County District Court, finds no less than six constitutional rights and protections violated by Austin’s STR ordinance, including: the freedom of movement, the freedom of assembly, the right to privacy, economic liberty, equal protection, and protection from unreasonable search & seizure.
We’re confident that as the facts of the case, and the audacity of the ordinance, come to be fully known — both in court and in the court of public opinion — the right side will prevail and freedom restored. Perhaps then, Austin can more truthfully claim to be a fashionable place to work, live and share.
James Quintero is director of the Center for Local Governance and leads the Think Local Liberty project at the Texas Public Policy Foundation. He can be reached at firstname.lastname@example.org.