Sept. 4 2014 Letter to Supervisors on Plan. Comm. Recommendations

 Dear Supervisor:

 

I am writing to express the views of Home Sharers of San Francisco to the Preliminary Recommendation of the San Francisco Planning Commission (“Commission”) to adopt the recommendations contained within the Report of the San Francisco Planning Department (Case Number 2014.0707T), adopted on August 7, 2014 (“Report”) (“Recommendations”). 

 

These Recommendations relate to the proposed Ordinance to amend the Administrative Code to provide an exception for permanent residents to the prohibition on short-term residential rentals under certain conditions, introduced by President of the Board of Supervisors David Chiu (Board File 140381) (“Chiu’s Bill”).

 

I.  Home Sharers of San Francisco (“Home Sharers”)

 

Home Sharers was formed two years ago as a support group of and for the community of San Francisco residents engaging in home sharing or short-term or vacation rentals.  Members principally share their home or part of their home through an online platform like Airbnb, although many use other websites as well.  Since forming, membership has grown to over 1,100 members.  Members meet at least once a month.  Recently, our activities have included the promotion of fair legislation to update San Francisco laws regarding home sharing.  As such, we have partnered with Peers.org and Airbnb to form FairToShareSF.org in furtherance of this effort for fair legalization legislation.  In addition, Home Sharers has produced a report with recommendations on Chiu’s Bill.  This Position Paper can be seen and downloaded at: 

 

https://sites.google.com/site/hspositionpaper

 

II.  The Recommendations

 

As to these Recommendations, the following are the views of Home Sharers:

A.  Privacy, Security and Safety.

While Home Sharers recognize the concern expressed in the Report that there should be adequate procedures in place to ensure enforcement of the proposed provisions in Chiu’s Bill, we are deeply concerned that these enforcement Recommendations go too far both in terms of violating the privacy rights of home owners and hosts, and imperil their personal safety.


For example:

Recommendation 2 suggests “that the proposed city-run registry tracks the number of nights a unit has been rented.”[1]  The Report goes on to explain that this entails either that the hosting platform provides “data on how often a unit is rented” or an alternative that would “require the permanent resident to report the dates a unit is to be rented to the City prior to the rental.”[2]  Recommendation 3 similarly would impose a duty to report the rented dates to the Department.

Recommendation 4 would mandate the identification of “units that are on the Short-Term Registry in the Department’s Property Information Map.”[3]

 

Recommendation 6 would require “the registration number from the City-run registry to accompany all short-term rental posting.”[4]

 

The combined effect of the above Recommendations, if passed into law, would mean that the general public easily would be able to discern online: (a) the pattern of occupation from historical data, and dates on which the unit will be vacant; (b) exactly where the unit is located; and (c) what the inside of a host’s private home looks like, by matching the registration number with the online listing. 

 

We are highly concerned that in its zeal to ensure ease of enforcement, these Recommendations sacrifice and put at significant risk, the personal safety of San Francisco residents and homeowners.

We therefore respectfully request that Supervisors do NOT take up these Recommendations to make private data of hosts publicly available online to the general public.  This personal data must be kept secure.  The Department’s ability to enforce is not enhanced by making this data publicly available online, thereby putting our safety and security at severe risk.  Whatever enforcement provisions are finally adopted should be balanced against the privacy, safety and security of San Francisco residents.  We fear that the Report has paid insufficient attention to this balance.

 

B. Civil Liberties.

Home Sharers is also concerned about those Recommendations that infringe on the civil liberties of San Francisco residents. 

Specifically, if passed into law, Recommendation 5 would provide that “a posting on a short-term rental site without first registering with the City constitutes a violation that can be assessed a penalty, even if the unit was not rented.”  As currently drafted, the penalties under Chiu’s Bill include criminal penalties consisting of a misdemeanor that is “punishable by a fine or not more than $1000 or by imprisonment in the County Jail for a period of not more than six months, or by both.”[5]

Home Sharers feel strongly that a San Francisco resident should not be exposed to these kinds of criminal sanctions merely by exercising a speech right – “ posting on a short-term rental site without first registering with the City.” 

In our view, most San Franciscans would consider the threat of six months imprisonment for merely listing a spare room online (without having communicated with any interested renters, or before actually entering into any rental agreement, or accommodated anyone for even one night) to be an extreme and unconstitutional measure.

Similar to our above comments, we are also alarmed that this also reflects the Report’s preference for enforcement norms over the rights and liberties of San Francisco residents and homeowners. 

 

We respectfully urge Supervisors to reject this Recommendation 5 as being too extreme and hostile to the Civil Liberties and Constitutional Rights of San Franciscans.

 

III.  The Modifications

 

In addition to the Recommendations, at the conclusion of the August 7, 2014, the Commission voted to adopt modifications and additional recommendations to the Recommendations (“Modifications”).

 

As at the date of this letter, the Minutes of that meeting have not yet been posted on the Commission website so the precise wording of those modifications is unclear.  However, they have been reported to include [6] -  

 

1.     A rejection of the 90 day cap on non-shared hosting (where the host is not present in the Primary Residence during the rental period) and replacing that cap with a cap “somewhere between 90 and 364 days.”

2.     A “clause that property owners must be notified and given 30 days to object when their units are listed with the new city registry for short-term rentals.”

3.     A “provision to encourage the supervisors to provide funding and other resources for enforcement.”

4.     “Provisions that would bar single-room occupancy hotels from offering vacation rentals and suggested that supervisors consider limits on below-market-rate units.”

 

As to Modification 1 above regarding hosted sharing (that is, where the Permanent Resident is present in her Primary Residence for the duration of the short-term rental), Home Sharers urge Supervisors to support the position that the original provision in Chiu's Bill (where there is no restriction on the number of shared hosted days) should not be modified, but if it is, the cap should be as high as possible.

As to Modification 2, we note that a provision of Chiu’s Bill already provides the primacy of the obligations contained in rental agreements and HOA rules over the legalization effects of registration in Chiu’s Bill.[7]  Thus, any lease provision between the owner/landlord and the renter (including any restriction on short-term rental) is not affected by Chiu’s Bill.  As such, Modification 2 is unnecessary.  Home Sharers respectfully requests Supervisors to adopt this view and reject Modification 2 as unnecessary.

Home Sharers support Modification 4 above and urge Supervisors to put it into effect in the provisions of the final legislation.

 

IV.  Conclusion

 

Home sharing brings many benefits to ordinary San Franciscans who struggle to live in the city we love and call home.  Home sharing allows many residents to share our value of hospitality to visitors to our city and neighborhoods.  Home sharing economically benefits small businesses in all neighborhoods, including those not traditionally served by tourism.

 

Home Sharers is supportive of efforts by Supervisors to update the City Ordinances to ensure there are fair laws that recognize these benefits, while making sure there are reasonable regulations to this vital activity.

 

While some of the Recommendations and Modifications of the Commission further these values, others raise serious concerns for the safety and rights of the hosting community.  We urge Supervisors to ensure there is a more balanced approach in drafting the final provisions of this legislation.

 

We stand ready and willing to discuss these, and other related, issues with any of the Supervisors and/or members of their staff.  Please feel free to contact Peter Kwan at homesharers@gmail.com or by phone on (415) 260 1073.

 

Yours Sincerely,

 

 



 



[1] Report, at page 9.

[2] Id. at page 10 (emphasis added).

[3] Id. at page 9.

[4] Id.

[5] Chiu’s Bill, Section 41A.5(e)

[6] See Carolyn Said, “S.F. planners support, toughen ‘Airbnb law’” SFGate, August 9, 2014 (http://www.sfgate.com/realestate/article/S-F-planners-support-toughen-Airbnb-law-5677368.php)  Quotes appearing below refer to passages from this article.

[7] Section 41A.5(g)(4) states in part that the legalization effect of registration “does not confer a right to lease, sublease, or otherwise offer a residential unit for short-term residential use where such use is not otherwise allowed by law, a homeowners association agreement or requirements, a rental agreement, or any other restriction, requirement, or enforceable agreement.” Note: the drafter of Chiu’s Bill incorrectly numbered this (5) at page 18.