Requirement That Landlords Report Violations of the Law May Be Unconstitutional Speech Compulsion

From Management Properties, LLC v. Town of Redington Shores, decided Monday by the Florida Court of Appeal (Judge John Stargel, joined by Judges Edward LaRose and Suzanne Labrit):

As pertinent to this appeal, section 90-116(D)(2)(a) [of the Code of the Town of Redington Shores] requires vacation rental operators to provide written notice to guests prior to occupancy of all vacation rental standards "and other applicable laws, ordinances, or regulations concerning noise, public nuisance, vehicle parking, solid waste collection, and common area usage" as well as to make such information available to each guest inside the property. Section 90-116(D)(2)(b) further requires that vacation rental operators "[e]nsure compliance with all provisions of" the Town's vacation rental standards and to "promptly address and report any violations of this section or of such other law or regulation of which the responsible party knows or should know to the Town or law enforcement." …

The court noted that, under the Court's commercial advertising precedents, "regulations mandating the disclosure of 'purely factual and uncontroversial information'" are constitutional "as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers." And it upheld the § 90-116(D)(2)(a) requirement that landlords inform tenants of various legal rules:

The Town's stated interest in promoting compliance with the laws and regulations governing vacation rentals suffices under any level of constitutional scrutiny, particularly in light of the minimal burden imposed upon vacation rental operators, who are simply required to pass along this information to their guests.

But the court concluded otherwise as to the requirement of reporting violations of the law "to the Town or law enforcement":

Turning to section 90-116(D)(2)(b), we disagree with the Town's argument that the mandatory reporting requirement, which bears no relation to commercial advertising, is subject to the lower standard of scrutiny under Zauderer. See Nat'l Ass'n of Mfrs. v. S.E.C. (D.C. Cir. 2015) (explaining that "the Supreme Court's opinion in Zauderer is confined to advertising" and "that the Court was not holding that any time a government forces a commercial entity to state a message of the government's devising, that entity's First Amendment interest is minimal").

We are unable to conclude from the face of the pleadings that the mandatory reporting requirement withstands either [the strict scrutiny applicable to most speech compulsions or the intermediate scrutiny applicable to speech compulsions as to commercial speech]. Specifically, we are not persuaded that the Town's stated interest of promoting compliance with the standards for vacation rentals, i.e., preventing violations of those standards from occurring, would be directly advanced by a mandatory requirement to report violations that have already occurred. And nowhere in the pleadings or attachments thereto has the Town suggested any other governmental interest that would be served by imposing upon vacation rental operators a duty to report any violation of the laws and regulations governing vacation rentals.

Further, section 90-116(D)(2)(b) is not limited to reporting violations of laws or regulations governing vacation rentals. It specifically mandates that those engaged in the business of vacation rentals "promptly address and report any violations of this section or of such other law or regulation of which the responsible party knows or should know to the Town or law enforcement." The record reflects no effort on the part of the Town to present any evidence regarding how a vacation rental operator must "address" such violations, nor has the Town provided sufficient evidence to meet its burden to compel such speech or actions.

Comments

[The Margrave of Azilia]

Is there a self-incrimination problem with all of this?

[ReaderY]

I would say there’s clearly a rational basis. Since it’s long been held that it’s rational to think punishing past conduct deters future conduct, it would also seem completely rational to think that reporting past conduct helps facilitate punishing past conduct, which in turn defers future conduct. The extra degree of attenuation doesn’t strike me as mattering for rational basis purposes. The relationship doesn’t have to be one of direct causality. It just has to be rational.

Of course, intermediate and strict scrutiny impose a higher burden. But the court’s statement that the Town hadn’t established ANY relationship between its ordinance and its legitimate interests strikes me as incorrect.

[Dr. Ed 2]

13th Amendment?

[David Nieporent]

25th flavor at Baskin Robbins?

[Rossami]

You are also assuming that it's rational to believe that reporting past conduct of violating vacationers - people who pretty much by definition have mostly left the jurisdiction before the conduct is even discovered - will result in any sort of punishment that could possibly deter future conduct.

Stacking of that many inferences may qualify as "rational basis" under the 'it's not absolutely barking mad' standard used by too many courts but that's not what "rational" is supposed to mean.

[SKofNJ]

What does this decision mean with regard to laws requiring the reporting of suspected child abuse by teachers and others and the requirement that doctors report gun shot wounds?

[Social Justice is neither]

Nothing. The teachers and shooters would presumably remain and the reporting serves to deter or apprehend them. Vacationers are likely not still in the jurisdiction so unless it's a dead body in your tub what's the point?

[Dr. Ed 2]

I can't speak to MDs and the GSW requirement, but the rationale for mandated reporting laws is that empowers teachers (aides, etc) to be able to report -- that "having to report" means that they can't be bullied into not doing so if they want to.

Besides, there is always the Sargent Shultz approach -- and prove that I didn't not see it....

[Dr. Ed 2]

The rationale I have heard for both is that it is a condition on the professional license(s) issued by the state, and the only enforcement I have really ever seen involves the suspension or revocation of the same -- at least in the field of education and for failure to report child abuse.

I have long wondered about the 13th Amendment in situations where I am expected to report on my own time, i.e. outside of professional employment or children I am aware of because of that. In other words, while most states don't, Massachusetts expects me to report *any* child abuse I observe, e.g. at the local Walmart.

It would be interesting if they wanted to pursue the fine alone -- which is "up to $1,000" -- and someone was willing to pay the $50,000 to fight it.