Palm Springs Vacation Rentals: Was there a “Failure of Enforcement” Under the Previous Ordinance?

Part 3 in a Series on Vacation Rentals in Palm Springs

In the discussion and debate around vacation rentals in Palm Springs, a refrain is commonly heard: That there was (or might have been) a “failure of enforcement” with respect to nuisance complaints (such as those around noise). And, as a result, that we should desire first and foremost for there to be improved handling of complaint calls fielded by the Vacation Rental Hotline.

Both vacation rental advocates and anti-vacation rental activists generally agreed that such a move would make sense. Some argued that improved enforcement of existing rules should be tried before adopting additional regulations. Some argued that improved enforcement should be combined with additional regulations.

What is it that Might have “Failed”?

The “failure of enforcement” idea is well represented in a Desert Sun editorial by City Council members Geoff Kors and J.R. Roberts from November 26, 2016 where they wrote:

We are also recommending major changes in enforcement. The current ordinance established a hotline for complaints that sends the complaint to the property owner/manager to address. This self-enforcement has failed as many violations do not result in citations even when residents are being awoken at night.

While this is a succinct way of describing the situation Kors and Roberts are trying to address, it implies that owner/managers did something wrong or that they did not perform the duties expected of them by the previous ordinance. It also might suggest to the casual reader that a lack of citations is the fault of property owners and managers and evidence of some type of “failure” on their part.

However, the enforcement approach embodied in the previous vacation rental ordinance (the 2014 Vacation Rental Ordnance, №1848) essentially de-emphasized citations:

  • Owner/managers were simply tasked with promptly resolving disturbances (they weren’t empowered to issue citations, of course) and were required to respond to Hotline calls first, before any potential follow-up by City staff.
  • Should the City follow-up on complaints and their resolution, and find the nuisance still occurring or that the manager failed to address it in a timely manner, City responders could then issue a citation.

I think what the council members were really trying to say is this: “Reported nuisances that are found to rise to the level of a citeable offense should not simply be resolved. They should also result in a citation.”

To achieve such a goal would, of course, require a rather different approach than what was adopted for Ordinance №1848. The “failure of enforcement” idea is actually a criticism of the design and implementation of the enforcement provisions of the previous ordinance, not necessarily a criticism of how individuals tasked with enforcement performed their duties. (Though there were also some concerns voiced about that specific issue, which I’ll touch on later.)

How Did the Previous Enforcement System Work?

The last part of the claim made by Kors and Roberts is particularly problematic. They conflated “complaints,” “violations,” and “citations” in a way that many (on both sides of the vacation rental debate) did at the time and in a way that many continue to do. To unpack their specific example:

A resident is awakened at night by a noise. Believing that the source of noise is a nearby vacation rental, they report it to the Vacation Rental Hotline. They mention that they were awakened and that they also hear music. This is a complaint.

That a violation of the vacation rental ordinance has occurred is not yet established. To establish a violation, someone needs to respond. Under 1848, it would happen this way:

The property manager for the reported address is contacted by the Hotline. That “local response contact” was required to contact the responsible renter (the person who signed the rental agreement) via phone and/or respond on-property within 45 minutes as required to assess and remedy the reported situation. Let us assume that the property manager in this case visits the property within minutes as required.

Upon arrival, they may find any number of scenarios, including (but in no way limited to):

  1. Guests are outside talking loudly and enjoying the pool and spa. While they are not actually playing music, they are being rowdy enough that, were a code enforcement or PSPD officer visiting, that official would have found the noise to be a violation of the noise ordinance at that hour and might choose to issue a citation — manager advises guests to keep it down and take it inside, which they do.
  2. Guests are found throwing a full-on late night pool party with a DJ, in violation of both their rental agreement and the “zero tolerance” prohibition on outdoor amplified music — manager evicts them on the spot. If a City responder had arrived at the same time they would definitely have found a violation and definitely issued a citation.
  3. Guests are outside talking quietly (at a level which a City responder would find does not violate the noise ordinance and they probably would not issue a citation) — even so, the manager advises them to take it inside, which they do.
  4. Manager arrives to find all quiet at the residence but that there is, in fact, a different nearby home (which is not a vacation rental) that may be the source of noise — manager can’t do anything about that except to advise the Hotline of the actual source of disturbance. The awakened caller may be referred to the PSPD if they desire action taken on the noise at the non-vacation rental house.
  5. Manager arrives and finds the property and the surrounding area all quiet — manager reports this back to the Hotline.
  6. Manager arrives and finds the immediate area quiet, but there is a high level of ambient noise from, for example, the wind, a not-so-nearby concert or other City-permitted event, etc. Again, there is nothing the manager can do except report this back to the Hotline.
  7. The manager reports that the property is owner-occupied at the moment. Owner is in fact having small gathering and may in fact be quietly playing music outside. (When City responders follow up they will find all of this to be true, they will further find that music is being played at a level that does not violate the City’s noise ordinance.) As the property is not occupied by vacation rental guests, the “zero-tolerance” prohibition on outdoor music does not apply.

In all the above scenarios (which are not hypothetical, by the way: we see examples of all of these in Hotline reports — some more frequently than others), the manager has fulfilled their obligations and resolved the situation. When City officials follow-up a short time later, in all cases they find the situation resolved and there is no citeable offense. There is nothing now going on that warrants a citation. They, too, have fulfilled their obligations.

Under Ordinance №1848, all of these scenarios would be a successful resolution of the neighbor’s noise complaint. (But no citation would have been issued in any of them.)

Again, the design of 1848 de-emphasizes citations. In fact, if all nuisance complaints were resolved perfectly — as our hypothetical manager does in the above example(s) — we should expect that the number of citations issued should be… zero.

Since suspension of a property’s permit under 1848 depends on the property garnering 4 citations in a 24-month period, we should also expect that (if managers execute their duties perfectly), we would see zero permit suspensions.

(This also assumes that properties garner no administrative citations, such as for “failure to post permit number” in advertising. We will also ignore for the moment the issue of unregistered properties that might be cited for “failure to register”. We’re just talking about complaints against registered VRs and resulting on-property nuisance citations.)

Potential Problems with this Approach and Anxiety around “What Ifs”

Now, one might feel that in some of the scenarios described above (particularly #1 and #2) a citation should have been issued (or, at least it could have). One might further say, “I’m not so sure about scenario #3, either. Can we really trust that the property manager accurately assessed the situation?”

I believe these are the issues that the City Council’s Vacation Rental Subcommittee was trying to address. In extreme situations, we can see that the previous approach to enforcement has some serious potential downfalls:

“What ifs” #1: What if the neighbor who was awakened makes these types of calls on a regular and ongoing basis? What if, every time, the local manager successfully resolves the situation? (And let’s assume further that the caller is accurately and truthfully reporting what’s going on —that is, scenarios like #1 and #2 are actually happening with regularity.)

This property will never be issued a nuisance citation. As a result, it will never reach the criteria for suspension (which under 1848 was 4 or more violations in a 24 month period).

While every situation has been handled to the letter of the law, have we failed to address an ongoing chronic nuisance?

“What ifs” #2: What if the neighbor who was awakened makes these types of calls on a regular and ongoing basis… But the local manager never finds scenarios like #1 and #2? What if there’s never (or rarely) anything that needs any sort of action on their part to resolve? Is the neighbor engaged in some form of harassment? If they are, should the owner or manager have some sort of recourse?

While we may or may not feel any sympathy for the long-suffering manager in this scenario, we should at least be concerned about City resources expended to address such situations.

Anxieties about these two types of scenarios were at the heart of changing the City’s approach to vacation rental enforcement — including changes to how Hotline response should be handled, how and when citations should be issued, and how citations should relate to permit suspension.

What was the Evidence for a Failure of Enforcement Under Ord. 1848?

The previous discussion was hypothetical, but there was evidence to support both types of anxiety I described:

  1. Hotline reports from this period show that managers often found no issue upon responding to a complaint. They were allowed to resolve single-call issues by phone, for example, and might simply say that they contacted the responsible renter, advised them of the complaint and that guests either stated they weren’t engaging in disruptive behavior, agreed to keep it down, take it inside, or whatever. It’s unclear how many single-call incidents like this might have been “resolved” over the phone versus an in-person visit.
  2. Subsequent calls about a given guest stay required the property manager to follow-up in person. Again, often they would report successful resolution of the issue. For example, “guests had music outside, but it is now off.”
  3. It does appear that City responders — such as code enforcement, PSPD or a private security service employed by the City — did not always follow-up to confirm successful resolution of the call. Such follow-up seems to have been somewhat discretionary and was clearly limited by then-available resources. (This may also indicate that a high-level of manager trust was assumed in certain cases.) It’s pretty hard to assess what percentage of manager-resolved calls were not follow-up, in person, by City staff. But from examining monthly Hotline call summary reports from 2016, we see that City staff were not always dispatched to follow up.
  4. There were cases where local managers did not respond within the required timeframe when contacted by the Hotline. In those cases, City responders would be the first to remediate the situation. While the property manager would be cited in those cases for “Failure to Respond”, that is of course not the same as successfully resolving the complaint. One might argue that the delay in response in such cases may have resulted in a lower citation rate than we might expect.
  5. There were addresses that seemed to get regular and ongoing complaints. It wasn’t clear if they might be examples of anxiety #1 (the “party house” that escapes suspension), anxiety #2 (the well-managed home that’s victim of harassment), or something in-between.

So what we had was a situation where: (1) manager response to Hotline complaints was good but not perfect; (2) City follow-up on resolutions was resource-limited and not perfect; and (3) one could reasonably express concerns about the veracity and accuracy of reports, their resolutions, and the rate of citation issuance.

Various questions arose: If an official with the authority to issue citations for nuisance disturbances isn’t always available to follow up, are we failing to catch some violations that should have resulted in citations? Should citation rates be higher?

And, of the homes that receive regular and ongoing complaints: Were these “problem houses” or “party houses” or not? If so, how would we know without an objective observer?

These are reasonable questions to ask. And I believed then (as I do now) that these questions demanded an answer. The only way to know would be to change the way we respond to Hotline complaints.

I’ll explain the modified approach to enforcement under the 2017 Vacation Rental Ordinance (Ordinance №1918) — and the effect of those changes — in the next article in this series.

A New Approach to Enforcement

Council members Kors and Roberts proposed the following steps should be taken. First:

We are proposing that the city create a new department to respond to complaints and issue citations. This is an extraordinary measure as no other tourist lodging requires this type of enforcement to control their guests. However, as the industry has been unable to prevent these problems, this is the only way to proceed without banning STRs. All costs of this department will be paid for by STR owners through permit fees.

And this, in fact, was done. It’s important (and interesting) to note that this step was related to, but not actually a part of, the drafting of an updated Vacation Rental Ordinance to replace Ordinance 1848. (More on that in a minute.)

I think the language here is again hyperbolic and not-entirely-accurate (and it was probably phrased this way in part to appease anti-vacation rental activists), but I agreed with the need for City-first response and that vacation rental permit holders should be responsible for funding it. Support for that idea was very broad.

However, implying that a lack of permit issuance was somehow due to a failure of manager-first response in general, or the specific actions of managers doesn’t make any sense. It’s unclear what, exactly, it was that the council members were objecting to:

  • Was it that, despite having an enforcement regime, complaint calls still happened? Should we not expect and encourage use of the Hotline in appropriate cases?
  • Was the objection that there were houses that received complaints, but not enough citations to warrant suspension under the previous ordinance? (Again, were enforcement of the rules under 1848 perfect, we would expect zero citations and zero suspensions… regardless of the number of complaints.)
  • Was the objection that citations were issued in volumes that should have resulted in permit suspensions, but those suspensions didn’t happen (or were ineffective)? That would be a very different issue — and responsibility for that would land more squarely on the City, would it not?

The points I’m making here are not academic. The confusion and consternation expressed in these comments points to the complexity of the issue.

While the council may have been confused about what, exactly, they were trying to address, the new enforcement approach that was adopted actually does address all of the more subtle issues I mention above (and more).

For example, secondly they suggested:

We are also proposing that any home that has three violations in 12 months have their license revoked.

This modification was also adopted and made part of Ordinance 1918. In addition, suspension periods were lengthened to two years.

The Early Effects of Improved Enforcement

As I mentioned, building a new and improved Vacation Rental Compliance Department happened well in advance of any new ordinance.

Under the then-existing Ordinance, vacation rental permit fees were raised to $900 per year (starting December 2016), providing a vastly enhanced budget for the Vacation Rental Compliance Department — and paid for entirely by short-term rental owners, as envisioned by Kors and Roberts.

These funds were used to expand the (then rather small) Vacation Rental Compliance Department by such things as: hiring new department heads, hiring code enforcement staff, and generally better-equipping the department so they could be first-responders to Hotline complaints.

Preparing for City-first response (which the Council assumed would be part of any new ordinance they adopted) actually seems to have started in the very earliest parts of 2017, in advance of enforcement of what would become Ordinance 1918 (which didn’t come into effect until April 16, 2017).

Several things happened in the period from 2/5 to 4/16:

  1. The VRCD started compiling Hotline summary reports weekly and posting these on their website. This began with the week starting February 5, 2017. This was right at the same time that I had imagined my Hotline map project and the weekly reporting was extremely helpful in making that project possible. The weekly reports were also much more informative and consistent in the information that they provided.
  2. Based on those reports, we can see that beginning on 2/5/17, even though managers were still tasked with responding to Hotline complaints first, City responders followed up, in person, to every actionable call. The importance of these two changes can’t be stressed enough. We immediately started getting better visibility into how manager-first response was working and could start anticipating how things might be different under City-first response.
  3. I wrote about this at length in an article from May 2017, so I’ll refer you there for more detail, but the 10 week period from 2/5 to 4/15 gave us a unique opportunity to understand what enforcement was like under Ordinance 1848.

Establishing a Baseline for Enforcement Measurement

The only way we can understand if enforcement is improving (or even just “changing”) over time is if we know what things were like before. Discussions around changes to the Vacation Rental Ordinance were conducted in the absence of hard data about complaints and how they were handled. There were a lot of claims made that weren’t (or maybe even couldn’t have been) supported by any objective measurement.

However, we do have a glimpse into Ordinance 1848 enforcement, at least in hindsight…

The ten weeks from 2/5/17 to 4/15/17 gave us what you might call an ideal view into enforcement of Ordinance 1848. I say “ideal” because we know that every one of the actionable calls in this period was followed up by an in-person visit from City responders, as they should have been under “perfect” enforcement of Ordinance 1848.

Sometimes those visits seem to have been simultaneous with manager response, sometimes they were after manager response and sometimes they were instead of manager response (i.e., in those cases where the manager failed to respond to the Hotline).

From examining the Hotline summaries from that time, we learn some possibly surprising things.

How Do Various Claims Stack Up against the Data?

Before continuing, let’s summarize some of the more common claims about Palm Springs vacation rentals that were made at the time (some of these claims continue to be made).

These types of claims are anecdotal. And, as I’m fond of pointing out, anecdotes are not data: Anecdotes are an expression of our subjective experience of the world. Data can inform us as to whether those experiences are common, unusual, or somewhere in-between.

A claim was commonly made, particularly by independent (self-managed) short-term rental owners, that they had never been the subject of a complaint, much less a citation. And they seemed perplexed in many instances about why so much angst was being expressed about vacation rentals. (Their neighbors didn’t complain to them, nor to the Hotline.)

Some VR owners and managers related a different experience: Some of their properties were the subject of large numbers of complaints, few or none of which were valid. They claimed harassment.

Many people (not just those with vacation rental permits) expressed the idea that “it’s maybe something like 10% of homes that are causing all the problems.” Some of those non permit holding neighbors also seemed perplexed by complaints directed against vacation rentals. They, personally, hadn’t had any issues. Others related stories of having had the rare problem, but that it was dealt with swiftly.

At the same time, other residents painted a picture of being practically besieged by the short-term residents who sometimes shared their neighborhoods. Their view seemed to be that all vacation rentals must cause huge volumes of problems. (They also expressed frustration about citation rates — why so many calls, but so few citations?)

What explains these vast differences of experience? I’m not sure that we can truly ever answer that question, but looking at the data from this period, we can get some insights into how this might have occurred.

Hotline Calls were Not Particularly Frequent

First, we saw that the Hotline doesn’t receive a very large number of calls. In those 10 weeks there were about 318 calls about registered vacation rentals. That’s an average of 4.5 calls per day.

Compared to the number of registered VRs (which was then over 2000), this feels surprisingly low. Personally, I wondered things like: Was the Hotline underutilized? Would use of the Hotline increase over time? I’ve continued to watch trends around this.

Most Registered VRs Didn’t Generate any Complaints

The experiences of various residents, VR owners and managers who claimed that they never had a problem is backed up by the data:

The number of unique VRs reported over those 10 weeks was, in fact, a pretty small percentage of permitted VRs overall. The 318 calls about registered VRs related to just 153 registered VRs. With about 2088 registered VRs during that time, that works out to 7%-8% of all VR permitted homes.

Conversely of course, this means that 92% of registered VRs weren’t the subject of any complaints. Of course, I wondered how this might change over longer time frames, or under the new ordinance.

Of the addresses reported, some had received multiple calls… and some of them received “many” multiple calls.

A Small Number of Homes Generated an Unusually High Number of Complaints

At the same time, the claims of (at least some) residents who say they have issues with VRs “all the time” were also backed up by the data:

Out of the 153 registered VRs reported in that 10 weeks, 12 properties (about six tenths of one percent of registered VRs) accounted for more than 28% of call volume (91 calls). Each of those 12 properties was the subject of 5 or more calls. Four of those properties had 5 calls each. Three of those properties had 6 calls each. Two of those properties had 7 calls. One had 8 calls. One had 12 calls. And one was the subject of a whopping 19 reports.

At the time, I didn’t fully understand the significance of this finding. But it certainly raised some interesting questions:

  • Were these the “problem houses” or “party houses”? They certainly seem to a problem for somebody.
  • Their numbers seemed incredibly low. Fewer than 1% of all registered VRs. Would we see this number rise substantially over time as we accumulated more data?
  • Whatever’s going on with these VRs, are these the type of properties that would end up being suspended under the new ordinance? One of them, it turns out, was already on suspension.

In contrast, there were 121 VRs in this period that were the subject of just 1 or 2 calls (that is, that roughly 6% of registered VRs accounted for 47% of call volume).

Citations Seemed to be Rare… and Oddly Distributed

I’ve already mentioned how some people seemed to feel that the number of citations issued was inordinately low. Of course, in the absence of anything to compare it to, we can’t say if the citation rate at that time was “too low” or “too high.”

We might have a feeling about it one way or the other, but really all we can say is “here is what the citation rate was during the ‘ideal’ Ordinance 1848 period.” (Well, we might remind ourselves that, if managers executed their duties perfectly, the citation rate could theoretically drop to 0%.)

Out of the 318 calls, about 43 or 44 calls generated a citation. That’s a citation rate of under 14%. (Another way to think about this is that about 86% of calls at that time didn’t result in a citation.)

Keep in mind that this is probably the highest that the citation rate ever reached during Ordinance 1848’s enforcement. I say this because all calls in this period had at least a chance of generating a citation, because we know that — while managers responded to most calls first — City responders followed up on each and every one. We can’t say the same for other periods as we observed that at least some portion of calls before 2/5/17 did not get on-property follow-up by the City.

Some observations about the 44 citations in this unique period:

  1. The most common type of citation during this period was for “failure to respond” — 28 were issued. That means that managers failed to respond promptly to more than 8% of calls. That was a shocker to me. Though I never heard anyone raise this point with respect to having the City respond to calls first, it definitely argues for that approach. (As I had expected, after the City became the first responder to calls, the number and percentage of “failure to respond” citations dropped to zero. Since 4/16, there’s only been 1 failure to respond citation issued.)
  2. Another weirdness about “failure to respond” citations: Because the manager didn’t respond, in these 12 calls, City personnel were the first responders. Only one of those calls resulted in an on-property citation (and it was for “over-occupancy” in addition to the “failure to respond” citation).
  3. Of course, the number of calls we’re talking about in point #2 is so small as to nearly be meaningless. However, I would have expected this number to be higher based on the theory that managers would typically resolve a problem first, thus keeping the City from being able to issue a citation. I didn’t know what to make of that — but suspected that it might indicate that we should temper our expectations about how much citations rates might increase after the City became first responder.
  4. By way of comparison, 12 citations were issued for noise or music violations. (These were, and continue to be, the most common type of complaint and on-property citation.)
  5. 1 citation was issued for over-occupancy (this is the same citation I described in point #2).
  6. 3 citations were issued for “failure to register” — that is, 3 unregistered properties seem to have been identified by Hotline calls. The way this number has changed over time is interesting and could easily be the subject of its own article. Let it suffice to say that it is still not very common for unregistered properties to be identified by Hotline calls.
  7. There were a significant number of calls (17) that mentioned too many cars or parking issues. Some of these also mentioned noise. However, before 4/16 the number of cars associated with a vacation rental permit wasn’t limited. So most of those calls — while managers or the City may have helped to resolve the issue — could not possibly have resulted in a citation. I theorized that after 4/16, these complaints might often result in citations and contribute to raising the overall citation rate.
  8. There was one more finding that struck me as really weird: Homes with a large number of calls have a lower citation rate. Remember those 12 addresses with 5 or more calls? The 91 calls about them generated only 8 citations — about an 8% citation rate.
  9. In contrast, homes with fewer than 5 calls had a citation rate of about 16% (37 cites out of 232 calls). Looking just at homes with 1 or 2 calls found a citation rate of about 15% (24/159). I wondered if this was just a statistical fluke or whether this phenomenon would continue after Ordinance 1918. (Spoiler alert: It did. And I think that has a lot to tell us.)

Next in this Series

Having taken a look at how enforcement worked under older versions of the Palm Springs Vacation Rental Ordinance, let’s see how the new ordinance is working today.

For Further Reading

Other articles in this series:

As other articles in this series are released, I’ll link to them here.