Fla. Ass'n of Realtors v. Orange Cnty.
| Decision Date | 27 October 2022 |
| Docket Number | Case No. 5D22-2277 |
| Citation | 350 So.3d 115 |
| Parties | FLORIDA ASSOCIATION OF REALTORS d/b/a Florida Realtors and Florida Apartment Association, Inc., Appellants/Cross-Appellees, v. ORANGE COUNTY, Florida, Appellee/Cross-Appellant, and Bill Cowles, in his Official Capacity as Orange County Supervisor of Elections, Appellee. |
| Court | Florida District Court of Appeals |
Scott A. Glass and Erik F. Szabo, of Shutts & Bowen LLP, Orlando, and Daniel E. Nordby, Benjamin Gibson, and Eric Yesner, of Shutts & Bowen LLP, Tallahassee, for Appellants/Cross-Appellees.
Matthew J. Conigliaro, of Carlton Fields, P.A., Tampa, Amicus Curiae, for National Association of Realtors, for Appellants/Cross-Appellees.
Carly J. Schrader, Gregory T. Stewart, Elizabeth Desloge Ellis, and Kirsten H. Mood, of Nabors, Giblin & Nickerson, P.A., and Dylan Schott and Jeffrey J. Newton, of Orange County Attorney's Office, for Appellee/Cross-Appellant, Orange County, Florida.
Nicholas A. Shannin and Carol B. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellee, Bill Cowles, in his Official Capacity as Orange County Supervisor of Elections.
Florida Association of Realtors and Florida Apartment Association, Inc. (collectively, "the Association") and Orange County, Florida ("the County") both appeal the trial court's non-final order denying the Association's motion for temporary injunction to enjoin the County and the Orange County Supervisor of Elections Bill Cowles from implementing and enforcing the contents of a rent control ordinance. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(B). The trial court correctly concluded that the Association had a substantial likelihood of success on the merits of its two-pronged challenge to the County's rent control ordinance and the corresponding ballot summary. But it erred by allowing the matter to remain on the ballot for the people of Orange County to vote on an unconstitutional ordinance described by a misleading ballot summary. We therefore reverse the trial court's denial of the Association's motion for temporary injunction and remand this matter for its immediate entry.
Before we discuss the factual background of this matter, some discussion of the Florida Constitution and the specific law involved in this case is appropriate. The Florida Constitution "is the paramount expression of the law by the people of this State." See N. Fla. Women's Health & Counseling Servs., Inc. v. State , 866 So. 2d 612, 658 (Fla. 2003) (Quince, J., concurring). Accordingly, if a law is inconsistent with our constitution, it must fail. See Holley v. Adams , 238 So. 2d 401, 405 (Fla. 1970).
Florida counties that operate under county charters—like the one in this case—have the power of self-government. See Art. 8, § 1(g), Fla. Const. But the Florida Constitution limits this power. For example, local governments cannot pass an ordinance that is inconsistent with general and special laws enacted by the Florida Legislature. See id . Such an ordinance, by its nature, would be unconstitutional.
In 1977, the Florida Legislature passed a law limiting the ability of local governments to pass any measure imposing "controls on rents." See § 125.0103(2), Fla. Stat. (1977). This law remains in effect today, and it sets an extremely high bar if a local government wishes to pass a rent control measure. First, if a local government wants to impose rent controls, it must find and determine "that such controls are necessary and proper to eliminate an existing housing emergency which is so grave as to constitute a serious menace to the general public." Id . Second, any such measure may not be imposed for longer than one year. Id . § 125.0103(3). Third, certain types of properties, like second homes, are completely exempted from rent controls. Id . § 125.0103(4).
The law also requires a regimented process before a local government can pass a rent control ordinance. Id . § 125.0103(5). The local government's governing body must duly adopt the ordinance after notice and public hearing. Id . § 125.0103(5)(a). In the resulting ordinance, the local government must recite "its findings establishing the existence in fact of a housing emergency so grave as to constitute a serious menace to the general public and that such controls are necessary and proper to eliminate such grave housing emergency." Id . § 125.0103(5)(b). Finally, the local government's voters must approve the measure. Id . § 125.0103(5)(c). If the ordinance is ever challenged in court, the local government bears the burden of upholding its validity. Id . § 125.0103(6). So, in this case, the County must establish that its rent control ordinance is valid, even though the Association sued to enjoin its place on the ballot and its ultimate enforcement. With that overview, we turn to the matter at hand.
In April 2022, the County Commission discussed a proposal from one of its commissioners to enact a rent control measure. Thereafter, the County hired Community Solutions Group of GAI Consultants, Inc. ("GAI") to evaluate county housing costs and the effectiveness of rent control measures. Specifically, the County asked GAI to: 1) evaluate and document local housing conditions to determine whether they rise to the level of a housing emergency; 2) estimate the number of units that could be affected by rent control measures; and 3) comment on the likely effectiveness of those measures if implemented.
In June 2022, GAI presented its findings at a public meeting. GAI concluded that Orange County faced several pressing challenges relating to housing. For example, its population was growing, its housing inventory was falling, and its prices were increasing—all beyond historic levels. In addition, rents rose more than 25% from 2020 to 2021, and rental vacancy rates were at 5.2%, the lowest since 2000. GAI noted that rents were "spiking," and that Orange County's least affluent citizens bore a disproportionate resulting burden. It recognized that a significant portion of Orange County's population was spending a large percentage of income on housing costs.
But the County's hired consultant did not find a "housing emergency," which we have explained is one of several mandatory findings necessary for a local government to impose rent controls. GAI concluded that the issues driving rising housing costs in Orange County were "deeply structural and a product of regional and national market influences, likely beyond the control of local regulation," stemming mostly from "inadequate housing production over years which a temporary rent ceiling would do little to correct." GAI opined that if the County passed such a measure, it "may impede the objective of speeding overall housing deliveries as well as create a number of unintended consequences," rather than fulfilling its goal of eliminating a housing crisis. Instead, GAI recommended a well-funded, continuing, and comprehensive strategic approach to address these concerns. After this presentation, GAI had no further participation in the legislative process.
The County Mayor also directed the County Attorney to prepare an advisory legal opinion on the issues surrounding rent control ordinances in Florida. The County Attorney advised that Florida law imposed strict limits on the County's ability to enact such a measure, and that it was "unlikely that findings of an increase in the cost of living or inflation alone will be sufficient to meet the requirements of [ section 125.0103, Florida Statutes ]."
The County held three additional meetings to consider additional information that would ultimately inform the findings in its rent control ordinance. This additional information included data about evictions and home sale costs. The County also entertained public comment.
In August 2022, following a public meeting, the County adopted Ordinance 2022-29 ("the Ordinance") by a 3–2 vote. As required by section 125.0103(5)(b), the Ordinance listed findings supporting its contention that a housing emergency existed in Orange County "so grave as to constitute a serious menace to the general public and that such controls are necessary and proper to eliminate such grave housing emergency."
Specifically, the Ordinance described a housing shortage of 26,500 units in Orange County, and a population increase of 25% from 2010 to 2020. It noted that 39% of the housing units in Orange County are occupied by renters, and the current 5.2% rental vacancy rate is the lowest since 2000. It declared that "inflation, housing prices, and rental rates in Orange County are increasing, accelerating, and spiraling," citing a 43% increase in median home sales price from May 2020 to May 2022 and a 25% increase in asking rent per unit from 2020 to 2021, the highest increase since 2006 when it was 6.7%. It recited that 80.3% of households earning at or below the average median income in Orange County pay more than 30% of their household income for housing and may have difficulty affording other life necessities such as food, clothing, transportation, and medical care. It stated that Orange County has been in a housing crisis since before the pandemic. But the pandemic had worsened the housing crisis; the State awarded Orange County the most funds from its now-ended COVID-19 emergency rental assistance program, and the housing conditions continue to deteriorate. Finally, it disclosed 6,970 eviction case filings in the first half of 2022, a 70.1% increase over the same period in 2021.
To eliminate this stated housing emergency, the Ordinance outlined a rent control measure limiting the frequency and amount of rent increases. First, it would prevent any landlord from demanding, charging, or accepting a rent increase from a residential tenant more than once in a twelve-month period. Second, it would preclude any landlord from demanding, charging, or accepting a rent increase on any residential unit greater than the...
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