Taking effect this week in Chattanooga is city government’s so-called short-term vacation rental ordinance, one that is illegal on several grounds — including a new one that comes into view on a closer reading.
By David Tulis / Noogaradio 92.7
The ordinance is unconstitutional on several grounds. The most significant violation of law is its being arbitrary and capricious in its division among city residents into two camps. In one group are those who may participate in the free market economy in the rentals of their houses via internet platforms such as Airbnb. In the other group: Those who may not. The so-called map overlay or short-term vacation rental “district” crafted by the council is capricious because it has no rational grounds by which to separate neighbors, some who may rent out their houses in the online “Gig City” market and others who are forbidden from doing so without means of recourse.
Because it is arbitrary and capricious, it violates due process requirements of constiutionality.
The ordinance is also unconstitutional because it pretends that people who are not corporations and not in commerce may not use their private houses and residences for their private purposes for profit, pretending that they must act in commerce and corporately when they are in fact acting privately and not in commerce, though their houses are listed at Airbnb and other such portals as being available for rental. The supreme court ruling that makes this point about private capacity is the most cited in American jurisprudence, Hale v. Henkel, 1906. (http://caselaw.findlaw.com/us-supreme-court/201/43.html)
Now, to the minor illegalities
The penalty provision of the ordinance is also illegal and unconstitutional. City attorney Wade Hinton, who effectively controls city council for his authority about the law, intends to let council members Chip Henderson, bill sponsor, and supporters such as Darrin Ledford get away with bluff and intimidation of homeowners in the erstwhile free market.
The error emerges when one considers the legal doctrine of res judicata or claim preclusion. This doctrine says that once a matter has been decided, it cannot be relitigated. Another term for the protection is estoppel. The penalty provision of the city council’s enacted paperwork boldly ignores this ancient rule of legal practice.
Here is the provision:
Section 38-538. Penalties.
Any violation of this Article shall be punishable by a fine of not less than twenty five dollars ($25.00) or more than fifty dollars ($50.00). Each day that the violation continues shall be a separate offense. ***.
The rule of res judicata would require a separate case for each day an offense occurs, a separate civil case and a separate finding by the judge that each day is a new offense. For each day a homeowner lives out his protected liberties, the city would have to file a new case, complete with due process and notice requirements observed and proper filings in city court. Each day would require its own case for there to be a F$50 penalty each day. But here, too, res judicata comes to the rescue.
Res judicata would not allow the city to file a new case against a homeowner if a judge found the party guilty of the violation of the first day claimed.
Plain and simple, the city ordinance violates judicata. All the city can do against a “violator” is impose a single fifty dollar fine — and that’s it. The ordinance, like much American positivist law, is a cancer, spreading lawless civil authority and wild ultra vires claims by a state actor against the so-called “free people” living in the State of Tennessee.
Saved by $50 fine rule
Even worse for the city if forced to defend its ordinance, the provision is unconstitutional because it violates the rule in the Tennessee constitution that forbids city governments from imposing punishments past “fifty dollars.”
The constitution, at article 6, section 14, limits the power of cities to punish or fine offenders. “No fine shall be laid on any citizen of this state that shall exceed fifty dollars, unless it shall be assessed by a jury of his peers, who shall assess the fine at the time they find the fact, if they think the fine should be more than fifty dollars.”
Cities are state-chartered civil corporations that do not have authority in criminal matters, do not have capacity to call jury trials. City judicial departments that operate city courts are part of the state’s system of inferior courts, charged with enforcing ordinances and limited to fines of $50. Criminal authority and the power to punish is limited to county government and its grand jury.
Two controlling high court opinions that explain the limits of municipal power are City of Chattanooga v. Myers, 787 S.W.2d 921 (1990), and City of Chattanooga v. Davis, 54 S.W.3d 248, 276- 77 (2001)
Mr. Ledford says he appreciates my analysis of the ordinance but that I’m not really living in the real world. He is a pragmatist and says that no one has complained about his vote and that in fact people outside the district are petitioning their city council person to get inside the district.
That may be but representative government is not simply doing what people want and what city attorney’s allow. Being a part of representative government means representing and defending the Liberties in law to the people in support of a no vote on the ordinance, which is plain out unconstitutional in several parts and offensive of the liberties of people in Gig City.
The anti-AirBnB ordinance is a Beijing wall to keep out visitors and strangers and to intimidate innocent homeowners. It is a digital condom enforced by Mayor Andy Berke and his pretended economic development office, with Donna Williams charged with surveillance, screengrabbing AirBnB postings and sniping at homeowners through a broken window on the third floor of city hall. It is retrograde, part of legacy thinking, patronizing and regressive. Pragmatists such as Messrs. Henderson and Ledford should represent the people, with their rights as protected in the law as first and foremost in their thinking.
Black’s Law Dictionary, Eighth edition
American Jurisprudence, Quieting Title and Determination of Adverse Claims
Amendment to Chattanooga City Code, Part II, Chapter 38, Zoning Ordinance, Section 38-2.http://www.chcrpa.org/Chattanooga%20Proposed%20Short%20Term%20Vacation%20Rental%20Ordinance.pdf
Here is Davis: http://caselaw.findlaw.com/tn-supreme-court/1126421.html