Loading...
HomeMy WebLinkAboutOrdinance 2022-4470 ORDINANCE NO. 2022-4470 AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 58 OF THE MIAMI BEACH CITY CODE, ENTITLED "HOUSING," BY AMENDING ARTICLE IV, ENTITLED "RENTAL HOUSING," BY AMENDING DIVISION 3, ENTITLED "TERMINATION OF TENANCY," BY AMENDING SECTION 58-386, ENTITLED "WRITTEN NOTICE OR TERMINATION OF TENANCY," BY ESTABLISHING THE REQUIRED NOTICE PERIOD, WITH WHICH ALL RESIDENTIAL LANDLORDS MUST COMPLY, PRIOR TO INCREASING THE RENTAL RATE OF CERTAIN TENANTS BEYOND A SPECIFIED PERCENT; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. WHEREAS, many tenants residing in the City may be unable to afford the purchase price, and the corresponding cost(s) of ownership, of a residential property in the City; and WHEREAS, due to a number of factors (including the ongoing Covid-19 pandemic), it has become increasingly difficult for potential renters to find suitable housing, at an affordable price,- and WHEREAS, many tenants who were previously able to find and secure a residential property, in which to reside within the City, have been surprised by landlords suddenly seeking to increase (and sometimes very substantially) the tenant's periodic rental payment, or seeking to amend other material terms of the lease agreement; and WHEREAS, such notice has all too often been provided by landlords, to their tenants, at the last possible moment, which has forced many tenants into precarious positions and being forced to move; and WHEREAS, pursuant to Florida Attorney General Opinion AGO 94-41, in conjunction with Florida Statute 83.575, the City has the legal authority to require that residential landlords provide up to 60 days' notice to tenants prior to amending or terminating a residential tenancy, and WHEREAS, the Mayor and City Commission hereby find it necessary, in order to better protect tenants in the City, to establish a required minimum notice period (with which all residential landlords must comply) prior to increasing the rental rate of certain tenants beyond a specified percent. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. That section 58-386 of Chapter 58 of the Code of the City of Miami Beach is hereby amended as follows: CHAPTER 58 HOUSING ARTICLE IV. RENTAL HOUSING Sec. 58-386. Written notice of amendment or termination of tenancy. (a) Required. A residential tenancy without a specific duration in which the rent is payable on a monthly basis may be terminated by either the landlord or tenant by giving not less than 30 days' written notice prior to the end of any monthly period. (b) A residential landlord that proposes to increase the rental rate by more than 5 percent at the end of a lease for a specific term, or during a tenancy without a specific duration in which the rent is payable on a monthly basis, must provide 60 days' written notice to the tenant before the tenant must either: (1) accept the proposed amendment; (2) reach an acceptable compromise; or (3) reject the proposed amendment to their tenancy. If the required 60 days' written notice has been provided and the tenant has not agreed to the proposed amendment or an acceptable compromise within 30 days of receiving the notice, (lithe landlord may impose the proposed amended term(s) at the end of the sixty- day notice period or (ii) in the case of an expiring lease, either party may terminate the tenancy at the conclusion of the lease term or (iii) in the case of a month-to-month tenancy, either party may terminate the tenancy by providing the 30 day notice of termination required by subsection (a) of this section. (c) Applicability of state law. Except for the notice provisions set forth in subsections (a) and b of this section, all other provisions set forth within F.S. Ch. 83, pt. II, governing residential tenancies shall apply to the rental of a residential dwelling unit within the city. (Ord. No. 94-2936, § 1, 7-28-94) SECTION 2. REPEALER. All ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed. SECTION 3. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. portions of this ordinance. SECTION 4. CODIFICATION. It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is hereby ordained that the provisions of this ordinance shall become and be made a part of the Miami Beach City Code. The sections of this ordinance may be renumbered or relettered to accomplish such intention, and the word "ordinance" may be changed to "section," "article," or other appropriate word. 2 SECTION 5. EFFECTIVE DATE. This Ordinance shall take effect on the 19 day of 2022. PASSED AND ADOPTED this 9 day of Fah�y 2022. v ATTEST: Dan Gelber, Mayor F E B 1 1 2022 Rafael E. branaclb, City Clerk (Sponsored by Commissioner Alex J. Fernandez) ..... =C:' Underline denotes additions 'i�a;,ic�; StFikethFawgh denotes deletions f �? Double Underline denotes additions made at First Reading denotes deletions made at First Reading APPROVFr)AS TO FCRK/I & LA\'�31YrE &FOFi EXECU-IiuiV ry-D- -). -- � - 2t Giiy AiioiTiy Dal© 3 Agenda Item: R5 C Date: 2-9-2022 MI AM BEACH City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Dan Gelber Members of the City Commission Second Readinq/Public Hearing N FROM: Rafael A. Paz, City Attorney I/ d DATE: February 9, 2022 SUBJECT: AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 58 OF THE MIAMI BEACH CITY CODE, ENTITLED "HOUSING," BY AMENDING ARTICLE IV, ENTITLED "RENTAL HOUSING," BY AMENDING DIVISION 3, ENTITLED "TERMINATION OF TENANCY," BY AMENDING SECTION 58-386, ENTITLED "WRITTEN NOTICE OR TERMINATION OF TENANCY," BY ESTABLISHING THE REQUIRED NOTICE PERIOD, WITH WHICH ALL RESIDENTIAL LANDLORDS MUST COMPLY, PRIOR TO INCREASING THE RENTAL RATE OF CERTAIN TENANTS BEYOND A SPECIFIED PERCENT; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE. The proposed Ordinance, which is sponsored by Commissioner Alex J. Fernandez, seeks to establish a required notice period of 60 days (with which all residential landlords must comply) prior to increasing the rental rate of certain tenants beyond a specified percent. Many tenants residing in the City may be unable to afford the purchase price, and the corresponding cost(s) of ownership, of a residential property in the City. Also, due to a number of factors (including the ongoing Covid-19 pandemic), it has become increasingly difficult for potential renters to find suitable housing, at an affordable price. Unfortunately, many tenants who were previously able to find and secure a residential property in which to reside within the City have been surprised by landlords suddenly seeking to increase (and sometimes very substantially) the tenant's periodic monthly rental payment. Moreover. such notice has all too often been provided by landlords. to their tenants. at the last possible moment, which has forced many tenants into precarious positions and being forced to move suddenly. As such, the proposed Ordinance would better protect residential tenants in the City by establishing a mandatory 60 day minimum notice period (which is the maximum time allowable under Florida law) to be given to a tenant by a residential landlord prior to increasing the rental rate beyond five (5) percent at the end of a lease for a specific term or during a tenancy without a specific duration if the rent is payable on a monthly basis. In support of the proposed Ordinance amendment. the City relies upon the legal basis set forth in Florida Attorney General Opinion AGO 94-41 (attached and incorporated herein as Exhibit "A"), in conjunction with Florida Statute 83.575, Commission Memorandum—Notice Period for Terminating or Amending a Residential Tenancy January 20, 2022 Page 2 On January 20, 2022, the Mayor and City Commission approved the proposed Ordinance on first reading. Rather than send the proposed Ordinance to the Neighborhood and Quality of Life Committee ("NQLC") between first and second readings as originally contemplated, the City Commission instead determined that the proposed Ordinance should proceed directly to second reading on February 9, 2022. Between First Reading and Second Reading, the City Attorney's Office worked with the sponsor to provide an amendment to the proposed language, included for Second Reading in double underline, that would make clear that a tenant would have thirty days after receiving notice of an intended rent increase of 5% or more to accept that increase or agree to a compromise. If the tenant did not do so, either party could terminate the tenancy effective in an additional 30 days, equaling a minimum total of 60 days between the original notice of rent increase and the time when the tenant must vacate the premises. RAP/RFR/MAF/bhs 1111/22,12 58 PM Advisory Legal Opinion-Ability to enlarge statutory min.notification periods Florida Attorney General Advisory Legal Opinion Number: AGO 94-41 Date: May 5, 1994 Subject: Ability to enlarge statutory min. notification periods Mr. Laurence Feingold Miami Beach City Attorney Post Office Box 0 Miami Beach, Florida 33119-2032 RE : LANDLORD AND TENANT--MUNICIPALITIES--LOCAL GOVERNMENTS--ability of municipality to enlarge statutorily prescribed minimum notification periods; municipal ordinance supplemental to state statute . Sections 83 . 57 and 166 . 021 , F. S. Dear Mr. Feingold: On behalf of the Mayor and the City Commission of the City of Miami Beach, you ask substantially the following question: May the City of Miami Beach by ordinance extend the notice provisions in section 83 . 57 , Florida Statutes, for the termination of residential tenancies without specific duration? In sum: A municipal ordinance that merely supplements the notice provisions in section 83. 57 , Florida Statutes, would not conflict with the statute and would, therefore, be valid. You state that present conditions in the City of Miami Beach create a hardship for tenants with month-to-month leases who are forced to vacate and relocate on fifteen days notice . The city commission is contemplating legislation that would require at least thirty days notice for the termination of residential tenancies of month-to-month or shorter duration. The question arises, however, whether the city would be preempted from legislating on this subject in light of the provisions in Part II, Chapter 83 , Florida Statutes , or whether such local legislation would conflict with the state statute applicable to residential tenancies. Chapter 166, Florida Statutes, the "Municipal Home Rule Powers Act, " grants to municipalities broad home rule powers . This statute provides that "municipalities shall have the governmental, corporate, and proprietary powers to enable them to conduct municipal government, perform municipal functions, and render municipal services , and may exercise any power for municipal purposes , except when expressly prohibited by law. " (1] www myfloridalegal com/ago nsf/pnnlview/671FAA1.At323AODE08525622000717851 EXHIBIT "A" 1/1V22, 12 58 PM Advisory Lega'Opmion-Ability to enlarge statutory min notifcalion periods Section 166 . 021 (4) , Florida Statutes, further provides that the statute is to be construed so as to secure for municipalities the broad exercise of home rule powers granted by the Constitution, general or special law, or in charter counties by the county charter, and to remove any limitations, judicially imposed or otherwise, on the exercise of home rule powers other than those expressly prohibited. Thus, municipalities may exercise any governmental power for municipal purposes except when expressly prohibited by law and may legislate on any subject matter on which the Legislature may act, except subjects preempted by statute to the state or county. [2] The municipal power to regulate, however, is subject to the state' s paramount power to regulate matters in order to protect public health, safety and welfare. A municipality' s attempt to regulate in an area preempted by the state or where the regulation is inconsistent with general law or regulations adopted by the state would be invalid. [3] In City of Miami Beach v. Rocio Corp_ [4] the court held that municipal ordinances are inferior to state law and must fail when conflict arises . The Rocio court acknowledged that local and state legislation may be concurrent in areas not preempted by the state, but state law prevails over conflicting concurrent legislation enacted by a local government. (5] In Jordan Chapel Freewill Baptist Church v. Dade County, [6] the district court reviewed a Dade County ordinance that imposed regulations on bingo operations more strict than those prescribed by state statute. In recognizing that local ordinances may not conflict with state law, the court discussed that "conflict" exists when compliance with a county ordinance requires a violation of state statute or renders compliance with a state statute impossible. [7] The Jordan court concluded that the state bingo statute constituted minimum regulations and contained no language that could be deemed a prohibition against additional stricter regulations by local government agencies . [8] Finding that the county ordinance merely supplemented the state statute, the court determined that compliance with the county ordinance was possible without violating the state law. [9] Chapter 83, Part II , Florida Statutes, the "Florida Residential Landlord and Tenant Act, " applies to the rental of a dwelling unit. (10] The act sets forth the rights and duties of landlords and tenants in the rental of dwelling units. There is no express preemption to the state of the regulation of residential tenancies. Section 83.57, Florida Statutes, however, states : "A tenancy without a specific duration, as defined in s . 83 . 46 (2) or (3) , may be terminated by either party giving written notice . . . as follows: (1) When the tenancy is from year to year, by giving not less than 60 days' notice prior to the end of any annual period; (2) When the tenancy is from quarter to quarter, by giving not less than 30 days ' notice prior to the end of any quarterly period; (3) When the tenancy is from month to month, by giving not less than 15 days' notice prior to the end of any monthly period; and (4) When the tenancy is from week to week, by giving not less than 7 days ' notice prior to the end of any weekly period. " (e.s . ) Thus, the Legislature has provided minimum notification rights to both the landlord and the tenant regarding the termination of a tenancy without a www.myfloridalegal.com/ago.nsf/printview/671 FAA A823AODE08525622000717851 1111/22 12:58 AM Advisory Legal Opinion-Ability to enlarge statutory min.notification periods specific duration. There is no language in section 83.57, Florida Statutes, that may be construed as a prohibition against more lengthy notice requirements by a local government. The enlargement of the notification period by the City of Miami Beach by passing an ordinance requiring at least thirty days notice before termination of a month-to- month or week-to-week tenancy by either party would be supplemental to the state statute and compliance with such ordinance is possible without violating section 83.57, Florida Statutes. [11] Accordingly, I am of the opinion that the City of Miami Beach may enact local legislation extending the notice requirements for the termination of a tenancy without a specific duration. Such action by the municipality would supplement the provisions in section 83.57, Florida Statutes, and compliance with the resulting ordinance would not violate section 83.57, Florida Statutes. Sincerely, Robert A. Butterworth Attorney General RAB/tls ---------------------------------------------------------------- [1] Section 166. 021 (1) , Fla. Stat. (1993) , implementing the powers granted in Article VIII, section (2) (b) , Florida Constitution. [2] See City of Tampa v. Braxton, 616 So. 2d 554 (Fla. 2d DCA 1993) (municipality opting for a code enforcement board under chapter 162, Florida Statutes, prohibited from enforcing its ordinances in any manner other than that described in chapter 162) . (3] See City of Miami Beach v. Rocio Corp. , 404 So. 2d 1066, 1070 (Fla. 3rd DCA 1981) , appeal dismissed and petition for review denied, 408 So. 2d 1092 (Fla. 1981) . [4] 404 So. 2d 1066 (Fla. 3d DCA 1981) . [5] Id. at 1070. [6) 334 So. 2d 661 (Fla. 3rd DCA 1976) . [7) Id. at 664. [8] Id. (9] Id. at 664-665. [10] Section 83.43 (2) , Fla. Stat. (1993) , defines " [d]welling unit" as: " (a) A structure or part of a structure that is rented for use as a home, residence, or sleeping place by one person or by two or more persons who maintain a common household. wwwmyfioridalegal com/ago.nsfipantviewl671FAA1A823AODE08525822000717851 3'4 1,11122 12 58 PM Advisory Legal Opinion-Ability to enlarge statutory min.notification periods (b) A mobile home rented by a tenant. (c) A structure or part of a structure that is furnished, with or without rent, as an incident of employment for use as a home, residence, or sleeping place by one or more persons . " (11] Rocio at 1070 (an ordinance that supplements a statute' s restriction of rights may coexist with that statute, whereas an ordinance that countermands rights provided by statute must fail) . www.myfloridalegal.com/ago.nsf/printview/671 FAA IA823AODE08525622000717851 414 Ordinances - R5 C MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Rafael A. Paz, City Attorney DATE: February 9, 2022 1:40 p.m. Second Reading Public Hearing SUBJECT:AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 58 OF THE MIAMI BEACH CITY CODE, ENTITLED "HOUSING," BY AMENDING ARTICLE IV, ENTITLED "RENTAL HOUSING," BY AMENDING DIVISION 3, ENTITLED "TERMINATION OF TENANCY," BY AMENDING SECTION 58-386, ENTITLED "WRITTEN NOTICE OR TERMINATION OF TENANCY" BY ESTABLISHING THE REQUIRED NOTICE PERIOD, WITH WHICH ALL RESIDENTIAL LANDLORDS MUST COMPLY, PRIOR TO INCREASING THE RENTAL RATE OF CERTAIN TENANTS BEYOND A SPECIFIED PERCENT; AND PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION,AND AN EFFECTIVE DATE. ANALYSIS See attached Commission Memorandum. SUPPORTING SURVEY DATA N/A Applicable Area Citywide Is this a "Residents Right Does this item utilize G.O. to Know" item, pursuant to Bond Funds? City Code Section 2-14? Yes No Legislative Tracking Office of the City Attomey Sponsor Commissioner Alex Fernandez ATTACHMENTS: Page 175 of 786 Description ❑ Memorandum ❑ Ordinance Page 176 of 786