This commentary originally appeared in the Tennessean on November 27, 2016.
Cities around the nation are rushing to regulate the sharing economy.
In their haste to regulate something they don’t quite understand, local officials are trampling all over people’s constitutional rights. Take the city of Nashville, for example. Last year, the Metro Council passed an ordinance aimed at clamping down on short-term rental owners and operators, like Airbnb and HomeAway.
But as a judge found recently, this hastily-crafted ordinance was written so vaguely that “an ordinary person of average intelligence would not be able to understand” the law and thus it was deemed to be unconstitutional.
Even though the ordinance was found to be unconstitutionally vague, homeowners’ rights may still be in jeopardy. At least one At-large Council member has said that, in light of the judge’s ruling, the next step may be “outlawing them completely.”
It’s not just Nashville where property rights are under siege. In Austin, Texas, homeowners are battling an aggressive city council bent on imposing nanny state regulations in the short-term and eliminating them entirely in the next several years.
One of Austin’s more brazen short-term rental regulations is a ban on outside assemblies of seven or more people at any time between 7 a.m. and 10 p.m. That provision all-but-bars backyard barbecues with the family and birthday parties with the kids.
Inside assemblies are also regulated by the city. Austin’s ordinance forbids more than 10 people from congregating inside a short-term rental property at any one time, even if the property can accommodate many people. This not only presents a problem for large family gatherings, but also hits some STR owners in the pocketbook since they can no longer rent to capacity.
Austin city government regulating how many friends you can have over isn’t even the zaniest part of the ordinance. Owners and guests are also prohibited from having more than two adults per bedroom present during the hours of 10 p.m. and 7 a.m. And those same adults are outlawed from engaging in any “group activity other than sleeping” during those hours, raising some interesting questions about the kinds of activities that city officials are trying to regulate.
While these regulations are, by themselves, rather ridiculous, it’s the city’s new enforcement powers that are truly alarming.
Under the ordinance, code enforcement officials or their representatives have the authority to conduct warrantless searches, at any reasonable time, of “all buildings, dwelling units, guest rooms, and premises” to scope-out any potential violations. Worse, since some of the city’s regulations aren’t in effect until the evening hours, it’s conceivable that an official could show up at your door in the dead of night to search every nook-and-cranny of your home without ever having to obtain a warrant.
That’s not just bad policy — that’s un-American.
Austin has so bungled the homesharing issue that a group of homeowners, represented by the Texas Public Policy Foundation, have launched a lawsuit against the city seeking to have the ordinance completely overturned. The plaintiff’s case identifies at least a half-dozen ways in which the ordinance is unconstitutional and deserving of repeal.
All Americans are guaranteed certain inalienable rights by the U.S. Constitution. Those rights are fundamental to who we are as a nation and as a people. Those rights are not given up simply because a person participates in the sharing economy by staying in a particular house or using a certain app.
It’s important that we not only remember that, but fight for it too.
James Quintero leads the Think Local Liberty project at the Texas Public Policy Foundation. He may be reached at firstname.lastname@example.org.