The city attorney’s office on Thursday let slip three civil defendants who had offended the city’s claims on their private property through its short-term vacation rental district scheme.
One is Rebecca Little, a young woman whose family runs a bed and breakfast and who just the day before had passed the bar exam, a great hurdle before entering a field opened to her from several years of litigation with the city over property rights.
By David Tulis / 92.7 NoogaRadio
Two other defendants also had civil claims against them dismissed by city inspectors. Pamela Cobb, a single mom with a 10-year-old daughter with a house in Hixson from which she would like to draw sustenance.
Miss Cobb says she was told she can do 30-day rentals, but none for fewer days. That’s ruinous. Airbnb-type rentals are far more lucrative than longer-term ones. Look at the city’s complaint against Miss Cobb.
The third person is Dr. Charles Fussell, a dentist with an office in Brainerd. He says his property is 15 blocks from the magical district, and had not been zoned previously — or rezoned previously — to allow him to rent out a house by the day or week through Airbnb, VRBO, FlipKey or HomeAway.
“I can go through the process of getting the house OK’d, but I’m still not in the map,” Dr. Fussell says. He says he cannot get into the district apart from a political act of his council member, who might try to redraw the map.
Calls to the city attorney’s office are not being returned.
The ordinance is an embarrassment to Mayor Andy Berke, charged with executing it. Prior to its passage, Mr. Berke said nothing against the ordinance, even though he is an attorney licensed to practice law in Tennessee and able to sniff out troubled statutes and ordinances.
He refused to side with the free market and constitutional liberty during the debate. Mayor Berke consented to city council’s banning hundreds of families and property owners such as Dr. Fussell from profiting privately through Airbnb.
Now Mr. Berke is supposed to enforce the measure, to suppress economic development through his economic development office, headed by Donna Williams.
It’s good for the first batch of defendants that the city is nolle prosequi — not prosecuting. But keeping defendants from getting before the judge spares the ordinance a gentle nudge of objection — all it would take for Judge Paty to rule it unconstitutional.
That’s bad for the city as a whole.
If enforcement falters, the ordinance avoids a direct challenge, and the city can keep out in the cold these hundreds of families who might want to share in the great public service of hosting out-of-town and out-of-country guests in their private residences for a fee. These people don’t know the law is illegal, and live in fear under its false pretense, yielding their God-given rights to governmental deceit.
Not prosecuting may seem like a mercy to these three defendants — and apparently one other, who has hired an attorney. But Mayor Berke’s kindness keeps the ordinance standing.
It is people like Miss Little or Miss Cobb who can wreck the ordinance.
They have standing to ask the judge to throw it out.
What’s wrong with Internet ban?
The ordinance is up for review Oct. 1. The city has been slow to prosecute those people allegedly non-compliant, and perhaps for good reason.
The ordinance creating the so-called overlay map is unconstitutional on its face. It creates an arbitrary and capricious distinction among like parties. As the map runs down streets, it separates neighbors whose mailboxes wave at each other from opposite curbs. One householder is allowed to rent his home to an Airbnb-type platform, have guests who pay him and turn a stagnant asset into a money maker.
The other family cannot.
In the law, this distinction is called an arbitrary and capricious.
A second area of fault is the fining system — the purported coercive power claimed by the rule.
Two supreme court cases, Chattanooga v. Davis and Chattanooga v. Meyers, hold that cities do not have punitive power. They can fine but they cannot punish. These rulings make clear that Chattanooga cannot enforce the ordinance past a F$50 limit. The teeth in the ordinance are only apparent. They are not real. Its bite is a gummy nibble. It’s cat-o-nine-tails whip is merely a wet noodle.
The ordinance says:
Any violation of this article, including failure to obtain a certificate, she’ll be punishable by a fine of not less than twenty-five dollars ($25.00) or more than fifty dollars ($50.00) per violation. Each day that the violation continues shall be a separate offense.
At its best, the constitution and the statute allow a municipal offender to be fined a single time for a single offense, no more than $50. The city pretends that it can use the same offense and multiply the fine per day.
That is not possible.
For the city to extract more than F$50 from an assertive homeowner, it would have to file a separate case for each day or each offense. Whatever the violation — whether one day or 20 days or 30 — the limit is F$50. The city cannot repeatedly penalize someone for the same offense.
That is called the doctrine of res judicata, or “a matter [already] judged,” which says once decided already decided. The city is barred by law from relitigate an issue.
It could theoretically litigate each day or each set of days as a separate offense, but requiring Melinda Foster or some other lawyer in the city attorney’s office to file a new case for each effort to grab $50 limit is impractical.
City of innovators?
A final problem with the ordinances is its slap at the Internet itself and the stodgy practice of harassing people for taking part in the innovation and entrepreneurial economy that city officials promote in program and speech.
How is it that the city that markets itself as a hip, entrepreneurial destination with a digital edge is making war with the digital economy, and with economic development?
“We want to unleash the potential of everyone in our city,” Mr. Berke told a reporter after his 2015 state of the city speech.
“We share a special place in God’s creation, a place of great beauty, where earth and water meet in spectacular fashion. When we call ourselves the Scenic City, it may sound like postcard pablum, but it’s true. We have been given gifts that no other city has.”
Mr. Berke recognizes what attracts people about the city, and what keeps people here. He wants no prosperous activity to be left behind.
“I’m proud of Chattanooga’s success and I’m eager to see things get even better,” he says in his 2018 speech. “But I know all this positive news also means costs continue to rise. If you have been left out of our growing prosperity, you are falling even further behind.”
The Internet economy lets a homeowner create his own little innovation district. For people like single mom Amanda Cobb, the Internet staves off the prospect of her property falling to disrepair and blight. “To have a thriving City, we must capitalize on all of our assets,” the mayor said in 2015, announcing a Mayor’s Council for Women, “and unleash the potential of everyone in our community.”
Mayor Berke and Mrs. Williams appear to have no heart for prosecution. The city cares so much about the Internet economy that it helped create a program to give poor families “a faster connection than Park Avenue millionaires at a fraction of the cost,” as the mayor put it.
And it wants to harass people taking advantage of the Web to pay their bills?
The answer lies not in non-enforcement, but in a courageous citizen helping out the Berke administration by getting an act of defiance and liberty before Judge Paty, who will rightly throw out every part of the ordinance that is unconstitutional and pull open the curtains for new prosperity for all.
Susan Biro laments the city’s ban on Airbnb. She charges F$40 a night for people to stay in her modest residence, and uses the money to support herself and her husband, who gets social security but is suffering from congestive heart failure, and hurting financially. (Courtesy 92.7 NoogaRadio.