EDITORIAL: Judge looks askance at county short-term rental rules
Property owners don’t give up their constitutional rights when they enter the business.
February 22, 2023 - 9:00 pm
Clark County property owners don’t forfeit their constitutional rights once they go into the short-term rental business, a judge ruled this week.
It’s a victory for the Fourth Amendment and other protections against government overreach.
Lawmakers in 2021 approved an Assembly bill allowing the use of private homes for commercial lodging. Clark County had previously outlawed the practice.
In response to the legislation, county commissioners moved to regulate the nascent industry. The ordinance they crafted included licensing limits, fees, various rules governing the business and legal consequences for noncompliance. In response, the Greater Las Vegas Short-Term Rental Association — representing about 1,700 homeowners — filed suit, arguing that the requirements went too far.
District Court Judge Jessica Peterson agreed.
“The court specifically finds,” the judge wrote, “that certain provisions with the ordinance are unconstitutionally vague and overbroad and fail to provide notice sufficient to enable a person of ordinary intelligence to understand what conduct is prohibited.”
Judge Peterson cited as problematic a requirement that applicants sign “a declaration under penalty of perjury” that they wouldn’t break the rules. Such a stipulation forces homeowners to expose themselves to current and even future liability. In addition, she concluded, restrictions on certain “parties” and limits on the “emission” of noise, light, smoke and odors were poorly defined and left too much discretion to the authorities.
But the most egregious misstep by the attorneys who drafted the proposal was a provision in the ordinance that allowed county officials to conduct searches of short-term rental properties at their discretion.
“The plain text of these sections,” Judge Peterson observed, “means that Clark County, through its employees, may subject an applicant to an inspection of their proposed short-term rental unit, i.e., their home, without any basis whatsoever.”
The Fourth Amendment declares, “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated” absent a warrant issued upon probable cause. Government officials can’t demand that those in the short-term rental business give up their constitutional rights as a condition of doing business.
The judge didn’t rule on a handful of the association’s other objections, including limits on the number of licenses and the procedure by which they’re awarded. But her order prevents the county from enforcing the provisions she identified as constitutionally suspect. Good. Time for county commissioners to revisit the dubious regulatory scheme they imposed on the owners of short-term rentals.