IN THE CIRCUIT COURT OF

DAVIDSON COUNTY, TENNESSEE

TWENTIETH JUDICIAL DISTRICT AT NASHVILLE

RACHEL AND P.J. ANDERSON, )

)
)
Plaintiffs,
)
)
)
v.
)
)
)
)
THE METROPOLITAN
)
GOVERNMENT OF
)
NASHVILLE AND
)
DAVIDSON COUNTY,
)
)
Defendant.
)

Case No.
The Honorable
COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

COMPLAINT

I.
Introduction
1.

This civil rights lawsuit seeks to vindicate the rights of Rachel

and Paul John (P.J.) Anderson (the Andersons) to list their home on
Airbnb.com free from vague, arbitrary and irrational government regulation.
The Andersons want to continue to provide a unique, affordable and safe way
for people to enjoy Nashville by staying in the Andersons home. The
Andersons are alleviating the problem of a lack of bed space in the downtown
area that has been used to justify millions of taxpayer dollars in recent years
to attract hotels. Standing in their way is an arbitrary cap on the number of
1

permits to operate short-term rental properties (STRPs) in their

neighborhood that is part of Metropolitan Nashvilles (Metro) new law
regulating STRPs.
2.

The STRP ordinance creates an artificial scarcity and an

effective government sponsored monopoly for permit holders who may hold
their licenses in perpetuity, indiscriminately bestowing a lucrative benefit on
some Nashvillians, but not others. Worse, the STRP ordinance goes out of its
way to also implicate the Andersons free speech rights with a categorical ban
on any form of signage advertising their home, as well as their right to be
free of an unreasonable search and seizure with a requirement that they keep
records on their guests and surrender them to the police without a warrant or
any form of judicial supervision.
3.

By crafting a vague and incomprehensible ordinance, and by

preventing the Andersons from obtaining a non-owner occupied permit to

operate an STRP, Metro violated the Andersons right to both due process
and equal protection guaranteed under Tennessee and U.S. Constitutions, as
well as Tennessee constitutional prohibition of monopolies. Also, the
ordinance is an impermissible burden on the Andersons commercial, free
speech rights, and the separate requirement that they keep and turn over
records to the police without a warrant violates the right to freedom from
unreasonable searches and seizures under the Tennessee and U.S.
Constitutions.

II.
Jurisdiction and Venue
4.

The Andersons bring this civil action under Metro. Code

6.28.030 and Tenn. Code Ann. 29-14-102. This action is also lodged under
the First, Fourth, and Fourteenth Amendments to the U.S. Constitution, and
Article I, Sections 7, 8, 19, 22 and Article XI, Section 8 of the Tennessee
Constitution.
5.

The Andersons further bring this action under 42 U.S.C. 1983

to redress the deprivation under color of law of rights secured by the U.S.
Constitution. This Court has concurrent jurisdiction over the federal
constitutional claims as held in Martinez v. California, 444 U.S. 277 (1980).
6.

This Court has jurisdiction and venue over the Andersons and

their constitutional claims pursuant to Tenn. Code Ann. 16-10-101, et seq.,

29-1-101, and 29-14-102(a).
7.

This Court has authority to enter a declaratory judgment and to

provide permanent injunctive relief pursuant to Tenn. Code Ann. 29-1-101,

29-14-102(a), 29-14-103 and Tenn. R. Civ. P. 65, et. seq.
III.
The Parties
8.

PLAINTIFF RACHEL ANDERSON resides at 1623 5th Ave. N.,

Nashville, TN 37208 with her family. When they are not home, they list their

residence on Airbnb.com. She is a U.S. citizen and a resident of the State of

Tennessee.
9.

PLAINTIFF P.J. ANDERSON also resides at 1623 5th Ave. N.,

Nashville, TN 37208. He is married to Rachel and together they raise two (2)
minor children. He is a U.S. citizen and a resident of the State of Tennessee.
10.

DEFENDANT

METROPOLITAN

GOVERNMENT

OF

NASHVILLE AND DAVIDSON COUNTY (Metro) is a political subdivision

of the State of Tennessee. Metro can be served at Metro Courthouse, Suite
108, P.O. Box 196300, Nashville TN 37219-6300.
IV.
Factual Background
A. Airbnb.com
11.

The sharing economy has made entrepreneurs out of a whole

new generation. Airbnb is a website for people to list, discover, and book
homes and apartments in other cities. Homeowners list information about
their home on the website, along with pictures, nightly rates, and other
pertinent information. Guests can search these homes, then contact the hosts
through the website to book a stay in the home for a short period of time. To
analogize, Airbnb is a sort of Uber for peoples homes.
12.

As an alternative to traditional hotels, Airbnb is often cheaper

and typically offers a more unique experience (i.e., staying in a traditional,

residential neighborhood, having more space including a kitchen for cooking,
etc.).

13.

Airbnb is the picture of a successful start up business. According

to its website, Airbnb, in existence since only 2008, is in over 34,000 cities,
190 countries, and has over 35 million total guests.
14.

Airbnb is built on information sharing. Both hosts and travellers

on Airbnb rate and write reviews of the experience. These are then available
for other potential customers to review. The rating system is based on a star
system, with a maximum of five (5) stars. Those ratings are broken down into
the following categories: accuracy, communication, cleanliness, location,
check in, and value.
15.

Airbnb verifies personal profiles and listings. It offers an

enhanced verification procedure called Verified ID that indicates that Airbnb

has verified offline and online identification, profile photographs, email
addresses, and phone numbers. Verified ID, or the absence of it, is available
for users to inspect and consider.
16.

Airbnb also maintains and manages a safe platform to collect

and transfer payments.

17.

Airbnb has seen tremendous growth, especially in Nashville.

Local media outlets report that Nashville is among the fastest growing
markets in the country.
18.

Airbnb has been beneficial to individual Nashvillians. It has

supplemented the incomes of thousands middle class citizens and introduced

the independence and satisfaction that comes from entrepreneurship to

many.
19.

Airbnb has been beneficial to Nashville as a whole. It has

introduced countless tourists to the city. Those tourists then spend money in
other sectors of the Nashville economy. Airbnb also increases the number of
rooms available for guests in the city, thus alleviating an oft-cited hotel
shortage that has been used to justify millions of taxpayer subsidies to
increase hotel supply.
20.

Metro passed a law governing STRPs and began enforcing it on

July 1, 2015. It is codified at Metro. Code 6.28.030.

B. The Anderson family
21.

Rachel graduated college in 2005. She is now 32 years old.

22.

P.J. graduated college in 2002. He is now 35 years old.

23.

In 2005, Rachel and P.J. both lived in the Chicago area. P.J. was

a youth minister in a local church. He also played music on the side. Rachel
was just beginning her career in graphic design.
24.

They met that year. PJ and his band were performing in a bar in

the Wrigleyville neighborhood. Rachel saw him play. They instantly were
drawn to each other. They married in 2010.
25.

In 2010, shortly after getting married, Rachel became pregnant

with their son.

26.

Rachel had very serious complications late in her pregnancy.

She was hospitalized for three and a half (3 1/2) weeks before she finally gave
birth to a son. He had to remain another sixteen (16) days in the neonatal
intensive care unit before the Andersons were able to bring him home. He is
now a healthy four (4) year old.
27.

During the time of her hospitalization, P.J. took time off work to

tend to Rachel and their son. Due to his extended work absence, P.J. lost his
job as a youth minister.
28.

P.J. decided make music his career. Naturally, the Andersons

moved to Nashville.
29.

In 2012, the Andersons arrived in Nashville. P.J. began to work

professionally in the music genre as a Christian singer-songwriter. Rachel

continued in the graphic design field.
30.

In June 2013, the Andersons had a second child, a little girl. She

is now two (2).

31.

On or about August 16, 2013, they moved into 1623 5th Ave. N.,

Nashville, TN. Their home is located in Salemtown, a neighborhood in

historic Germantown just north of downtown Nashville.
32.

Their home is a modern three (3) bedroom home.

33.

Although zoning would permit the Andersons to have a second

home on their lot like some of their neighbors, there is only one (1) home on
the lot.

34.

To grow his music career, P.J. travels often. Rachel and the

children travel with him when they can, leaving the house vacant. With it
empty and in need of income, on or about November of 2013, the Andersons
decided to put the home to good use by listing it on Airbnb.
35.

The Andersons had immediate success on Airbnb. They have no

difficulty finding people willing to stay in their home. Their home has
immense appeal for Airbnb guests for the same reason that the Andersons
relocated there: proximity to shopping, restaurants, entertainment and an
easy trip to downtown Nashville.
36.

Because of the children and their dogs, the Andersons are not

able to host on Airbnb except when they travel. In other words, even though
they live in the home and Metro legally classifies it as owner-occupied
(explained in more depth below), the Andersons rarely, if ever, actually
occupy the home when guests stay there.
37.

Nevertheless, even in these limited number of days, the

Andersons were able to make enough money to materially alter their

financial outlook. Among other benefits, they no longer had to worry about
how to pay the mortgage, they can save, and they have extra money to spend.
38.

Metro Nashville has benefitted as well. Airbnb has attracted

countless tourists who can only experience Nashville like the locals do
through Airbnb. Airbnb guests also generate state and local sales taxes, as
well as the Hotel Occupancy Tax, as of July 1, 2015.

39.

Perhaps more importantly, Nashville benefitted by the addition

of bed space in the downtown area with no expense to the taxpayer. Metro
has been forced to spend millions of taxpayer dollars to attract hotels because
of this problem, while Airbnb offers not only a free solution, but a revenuegenerating solution to this supply issue.
40.

The Andersons have received high ratings on Airbnb. They have

been reviewed forty (40) times. They are rated with five (5) stars, the highest
possible rating. The comments are overwhelmingly positive.
C. The Andersons home
41.

The Andersons home is zoned R6, with an urban zoning overlay

(OV-UZO), under Metros zoning title.

42.

Under Metros zoning code, R6 is medium density residential. It

is classified as single-family or duplex residential. It requires a 6,000 square

foot lot. Single and two-family dwellings are permitted. Under Metros Code,
R6 is the most permissive and dense zoning classification under the singlefamily class.
43.

Under Metros zoning code, OV-UZO was intended to promote

reinvestment into older neighborhoods (pre-1950s) by eliminating standards

that could add unnecessary expense, while preserving and protecting existing
development patterns.
44.

Germantown is a neighborhood with a distinctly urban feel. The

Nashville skyline towers over Germantown. It is an easy walk to restaurants,

coffee shops, the newly constructed Nashville Sounds baseball stadium, the
Nashville Farmers Market, and fast food establishments. New construction
and condominiums line the street.
45.

The Andersons neighborhood is diverse. It has affluent

residences. It also has houses with boards in the windows. A Nashville rescue
mission and a public housing project (Cheatham Place) are several blocks
away. Industrial buildings along the Cumberland River are also nearby.
46.

Germantown was attractive to the Andersons precisely because

the neighborhood is vibrant and diverse. They appreciate that it is walk-able.

They often walk to shops, restaurants, baseball games and the Farmers
Market.
D. Metro. Code 6.28.030 (the STRP ordinance).
47.

Prior to on or about February 26, 2015, Metro had no

regulations that pertained to short-term rentals.

48.

On or about February 26, 2015, Ordinance No. BL2014-951

pertaining to short-term rental property (STRP) was signed into effect.

Enforcement of the law began on July 1, 2015. The law can be found at
Metro. Code 6.28.030.
49.

The ordinance, broadly speaking, requires operators of an STRP

to obtain a permit from the Metro Department of Codes and Building Safety
(Codes), provide proof of liability insurance coverage, and obey certain fire
safety requirements and noise restrictions.

10

50.

The ordinance also places a number of restrictions on the use of

the property, as well as a cap on the number of non-owner occupied STRPs in

a particular census tract.
51.

Hotels, bed and breakfasts, boarding houses, and motels are

exempt altogether.
52.

The challenged portions of the ordinance are as follows:

a. Only three percent (3%) of the residences within a particular
census tract may obtain a permit for non-owner occupied shortterm rentals. Metro. Code 6.28.030(Q). This means that under
some circumstances, a property owner may be forbidden from
renting his or her property on a short-term basis even though
others in the neighborhood do or, as in the Andersons case, they
had previously been doing.
b. The STRP ordinance forbids advertising the STRP in any form
until issuance of the permit. Metro. Code 6.28.030(C). Even
after the property owner obtains the permit, the ordinance
categorically bans any form of signage on the property
advertising its availability as an STRP. Metro. Code
6.28.030(E).

53.

The ordinance does not cap the overall number of STRPs in a

particular census tract. The cap only applies to the number of non-owner

11

occupied permits. There are an unlimited amount of permits available to

those seeking to rent their home short-term if they live in the residence.
54.

Metro possesses no credible evidence that STRPs presented an

actual harm, or at least any harm that warranted differential regulatory

treatment from other, similar situations.
55.

The selection of a cap of three percent (3%) was arbitrary.

56.

Metro possesses no credible evidence that the three percent (3%)

cap advances any legitimate government interest.

57.

Metro possesses no credible evidence that it advances any

legitimate government interest to treat a person who had an owner occupied

permit differently once they try to obtain a non-owner occupied permit.
58.

Additionally, the ordinance places a number of requirements on

the operator of an STRP. It also contains enforcement mechanisms. This

lawsuit challenges none of these requirements:
a. Permit holders must have a responsible party within twenty-five
(25) miles of the property who will respond to any maintenance
or safety concerns. Metro. Code 6.28.030(D)(1).
b. Permit holders must have fire, hazard and liability insurance of
not less than one million dollars ($1,000,000). Metro. Code
6.28.030(D)(12).
c. The property must meet state and local building and safety
codes. Indeed, the property must exceed those requirements

12

because it requires underwriter approved smoke alarms be

installed throughout the house. Metro. Code 6.28.030(G). As
part of the application process, the property is physically
inspected for compliance.
d. Permit holders must abide by existing noise and waste
restrictions. Metro. Code 6.28.030(F). Three (3) or more
complaints within a calendar year will trigger an investigation
by the codes administration and can result in the permit being
revoked. Metro. Code 6.28.030(R)(2).
e. Permit holder must answer calls twenty-four (24) hours a day,
seven (7) days a week for the duration of the rental period.
Metro. Code 6.28.030(M).
f. The penalty for operating without a permit is a fifty dollar ($50)
fine and a one (1) year waiting period to become eligible for a
permit. Metro. Code 6.28.030(R)(6).
g. The permit holder must collect sales tax and hotel taxes of six
percent (6%) of the consideration charged, plus $2.50 per night
of the stay. Metro. Code 5.12.020, 5.12.120, 6.28.30(O).
59.

The stated purpose of the law was four (4) fold: 1) to provide a

flexible housing and safe housing stock for tourists; 2) to assist homeowners
in difficult economic times; 3) to generate hotel occupancy taxes to be used to

13

promote tourism; and, 4) to balance the needs of long-term residents and

short-term rentals. Metro. Ordinance No. BL2014-951.
60.

Subsequent to the passage of the STRP ordinance, Metro

decided to use the tax proceeds from STRPs to serve priorities unrelated to
promoting tourism when it passed Ordinance No. BL2015-1056, designating
the Hotel Occupancy Tax proceeds from STRPs to the Barnes Fund for
Affordable Housing that offers taxpayer incentives to real estate developers
to build affordable housing.
61.

In the zoning title and elsewhere, Metro Code has restrictions on

signage, noise, garbage, nuisances, and parking. None of these are

challenged.
62.

Upon information and belief, Metro also takes the position that

STRPs are subject to the tax on tangible personal property used by

businesses and found at Tenn. Code Ann. 67-5-901, et seq. If so, operators of
an STRP would be required to list all of the tangible personal property found
in the home and submit it to Metro on an annual basis to be taxed.
E. Metro. Code 5.12.020 (the Hotel Occupancy Tax)
63.

The Hotel Occupancy Tax, Metro. Code 5.12.020, assesses a

privilege tax of six percent (6%) of the consideration charged. Additionally, it

assesses a charge of $2.50 per night. It must be collected by the operator.
64.

This ordinance employs the following definitions:

14

a. Hotel - any structure, or any portion of any structure, which is

occupied or intended or designed for occupancy by transients for
dwelling, lodging or sleeping purposes and includes any
place in which rooms, lodgings or accommodations are furnished
to transients for a consideration. Metro. Code 5.12.010.
b. Occupancy - the use or possession or the right to the use or
possession, of any room, lodgings or accommodations in a hotel
for a period of less than thirty days.
c. Operator - person operating the hotel whether as owner, lessee
or otherwise.
d. Transient - person who exercises occupancy or is entitled to
occupancy for any rooms, lodgings or accommodations in a hotel
for a period of less than thirty days. Id.
E. Metro. Code 6.28.010 (the Hotel Records ordinance).
65.

Also impacting anyone housing transients is a records law found

at Metro. Code 6.28.010. It requires that every person operating a hotel or

engaged in the business of lodging transients keep a book of information on
all of their guests, including, name, address, dates of arrival and dates of
departure. Metro. Code 6.28.010(A).
66.

This ordinance then mandates that the proprietor provide this

information to the police upon a written request. Notably, there is no warrant

15

requirement or judicial review of any kind before the demand for records
must be met.
F. Impact of the law on the Andersons
67.

The Andersons obtained an owner-occupied permit for their

home after the passage of the STRP law. They have continued to safely and
satisfactorily host guests on Airbnb when they travel as they did long before
Metro passed the ordinance.
68.

They have never received any complaints about the use of their

home as a STRP.
69.

Rachel continues to work as a graphic designer out of the home.

She is a high performer. Her company has discussed promoting her. A

promotion would mean a relocation back to Chicago, at least for a few years.
70.

P.J. continues to work professionally as a Christian singer-

songwriter. He tours often. When not on the road, he is a stay-at-home dad.

71.

On August 17, 2015, Rachel emailed a Metro zoning examiner,

asking if she could temporarily place a sign no larger than 18x12 inches in
her yard that advertised that the home was available for rent on Airbnb,
along with a website link to the listing. She specified that the sign would be
up only for three days during Germantowns annual Oktoberfest event
(October 9-11).
72.

She also asked in the same email if she would be permitted to

place a small, 4x4 inch Airbnb sticker in the front door window to notify

16

upcoming guests that they had arrived at the right home. The sticker would
only be placed in the window on the date of the guests arrival.
73.

Even though the Andersons possessed a lawful owner-occupied

permit, Metro denied Rachels request because all signage advertising a

short-term rental is categorically prohibited.
74.

At the time they obtained their existing, owner-occupied permit,

the Andersons had no plans to move from their home.

75.

The Andersons wish to continue owning their home even if they

have to move to Chicago so that they can maintain their Nashville roots and
have a place to stay when they return to the city.
76.

In the Andersons census tract, there are 942 units that could be

used as a STR. This means that there should be twenty-eight (28) permits
available for non-owner occupied usage due to the three percent (3%) cap.
77.

The Andersons decided to get a non-owner occupied permit in

case they have to move to Chicago, which would allow them to keep their
home. On August 19, 2015, the Andersons simply tried to convert their
owner-occupied to a non-owner occupied permit. But the three percent (3%)
cap had been reached in the Andersons census tract. They were denied a
permit on that date.
78.

On August 19, 2015, Metro had actually issued thirty (30)

permits in the Andersons neighborhood, that is, two (2) more than the
alleged cap allowed.

17

79.

Metro advised that it would have issued the Andersons the

permit that would have authorized them to continue to rent on Airbnb but for
the cap.
80.

Apart from the hard cap on the number of non-owner occupied

permits, the Andersons are ready, willing, and able to meet all of Metros
requirements to safely accommodate guests as indeed they have done from
the beginning.
81.

The Andersons want to keep their home but cannot afford two

(2) mortgages. The income they make from Airbnb would permit them to keep
their home and move.
82.

Because they cannot obtain a permit, the Andersons are in a

bind. If they want to continue to list the home on Airbnb, they must remain
owner occupied, meaning they can never move.
83.

And even if they sold the house, the Andersons may be unable to

receive full value because a future purchaser cannot expect to obtain a nonowner occupied permit either.
84.

The Anderson familys choices are deeply affected by their

inability to transfer their permit. If the Andersons cannot move, then Rachel
cannot accept a promotion. It would also mean that their family can never
graduate from their first home into their second.

18

G. Harm to Nashville residents

85.

As one of the most desirable cities in the country to visit and

enjoy the amenities, especially those present in neighborhoods like

Salemtown, Nashville needs safe, reliable and affordable options for visitors.
86.

Many tourists seek out the unique experience of visiting

Nashville and staying in a neighborhood that can only be offered through a

short-term rental. Others may be unable to pay the growing rates for a hotel
room downtown.
87.

Metros limitation on the number of non-owner occupied permits

arbitrarily and unnecessarily deprives the public of affordable places to stay

when visiting the city.
88.

Short-term rentals offer a tax-dollar free solution to the lack of

bed space downtown.

89.

The cap perpetuates this problem, making it more likely that

tax dollars will be needed to attract hotels to the downtown area.

90.

The cap runs counter to the stated goals that justified the

passage of the law.

91.

Furthermore, by subsequently passing another law designating

the tax proceeds to provide tax incentives to real estate developers, Metro
also undermined the stated goal of using that revenue to promote tourism.
92.

The cap also arbitrarily deprives young families like the

Andersons of the economic opportunity and freedom to operate on Airbnb.

19

V.
Claims
A. Claim One-The STRP law does not apply to the Andersons
because they qualify for the exemption.
93.

The Andersons hereby repeat all of the preceding allegations

and incorporate them here by reference as though fully set forth herein.
94.

The STRP ordinance applies to any residence housing transients

used for rent to transients for under thirty (30) days.

95.

The ordinance exempts hotels, bed and breakfasts and

boardinghouses.
96.

Legally, as those terms are defined, the Andersons home may

also qualify as either a hotel, bed and breakfast, or boardinghouse, or all

three.
97.

In sum, the Andersons both fall under the ordinance and are

exempted out of the ordinance.

B. Claim Two-Violation of Article I, Section 8 of the Tennessee
Constitution and the Fourteenth Amendment of the U.S.
Constitution (Vagueness).
98.

The Andersons hereby repeat all of the preceding allegations

and incorporate them here by reference as though fully set forth herein.
99.

The Due Process clauses in the Fourteenth Amendment of the

U.S. Constitution and Article I, Section 8 of the Tennessee Constitution

contain a right to be free from laws that are so vague that no ordinary person
exercising ordinary common sense could sufficiently understand and comply.

20

100.

Assuming, arguendo, that Claim One fails, then the ordinance is

unconstitutionally vague. For the reasons explained in Claim One, no

ordinary person could know if the law covers their activity or if they are
exempt.
101.

Amidst this backdrop, enforcement is sure to be arbitrary.

C. Claim Three-Violation of Article I, Section 19 of the

Tennessee Constitution and the First Amendment of the
U.S. Constitution (Commercial Speech).
102.

The Andersons hereby repeat all of the preceding allegations

and incorporate them here by reference as though fully set forth herein.
103.

The right to engage in free speech is guaranteed by Article I,

Section 19 of the Tennessee Constitution and the First Amendment of the

U.S. Constitution.
104.

Protections of speech extend to the commercial setting.

105.

The STRP ordinance categorically bans signs of any kind, even

signs that otherwise meet Metros signage regulations. This is overbroad, and
an impermissible burden on the Andersons right to free expression.
Furthermore, the ban on short-term rental signs constitutes viewpoint
discrimination with no legitimate basis.
106.

Furthermore, there is no legitimate reason for banning signs

that would otherwise be permitted under Metros signage scheme but for the
fact that they advertise short-term rentals.

21

107.

The STRP ordinance also prohibits advertising the property

until obtaining a permit. This too is overbroad, and an impermissible burden

on the Andersons free speech rights. The advertising ban is viewpoint
discrimination that is not related to a legitimate governmental interest.
D. Claim Four-Violation of Article I, Section 8 and Article XI,
Section 8 of the Tennessee Constitution and the Fourteenth
Amendment of the U.S. Constitution (Equal Protection).
108.

The Andersons hereby repeat all of the preceding allegations

and incorporate them here by reference as though fully set forth herein.
109.

As citizens of Tennessee and the U.S., the Andersons have a

fundamental

right

to

equal

protection

under

the

law.

Tennessees

constitutional guarantees of equal protection are found in two different

clauses of the state constitution. The first is found in Article I, Section 8. The
second is found in Article XI, Section 8. The U.S. Constitution guarantees
equal protection under the Fourteenth Amendment.
110.

Because

the

STRP

ordinance

implicates

fundamental,

enumerated constitutional rights, namely free speech and the right to be free
from a warrantless search, this Court must apply strict scrutiny.
111.

Under any standard, however, the cap violates equal protection.

112.

The three percent (3%) cap treats similarly situated persons

differently and violates state and federal guarantees of equal protection

under the law.
113.

There is no legitimate basis for the classification.

22

114.

Nor does the cap further any legitimate governmental interest.

115.

The protectionist, arbitrary and irrational cap on the number of

non-owner occupied permits protects those existing permit holders who were
fortunate enough to need and obtain a non-owner occupied permit at the time
they were issued by denying the Andersons the opportunity to also operate on
Airbnb when their life circumstances changed.
116.

Existing permit holders now possess this valuable permit for so

long as they care to as the law allows for them to renew it without limit.
117.

Hotels and other businesses engaged in providing room

occupancy to transients are also protected. They do not face an arbitrary cap
on their numbers.
118.

Protectionism is not a legitimate reason to prohibit the

Andersons from operating on Airbnb.

E. Claim Five-Violation of Article I, Section 8 of the Tennessee
Constitution and the Fourteenth Amendment of the U.S.
Constitution (Substantive Due Process).
119.

The Andersons hereby repeat all of the preceding allegations

and incorporate them here by reference as though fully set forth herein.
120.

As citizens of Tennessee and the U.S., the Andersons have a

fundamental right to substantive due process. The Tennessee constitutional

guarantee is found in Article I, Section 8. Referred to as the Law of the
Land Clause, Tennessees provision derives directly from the ancient Magna

23

Carta. The U.S. Constitution guarantees substantive due process under the
Fourteenth Amendment.
121.

Because

the

STRP

ordinance

implicates

fundamental,

enumerated constitutional rights, namely free speech and the right to be free
from a warrantless search, this Court must apply strict scrutiny.
122.

Under any standard, the cap violates the right to substantive

due process.
123.

The cap denies the Andersons the right to operate on Airbnb free

from arbitrary and unreasonable regulation and does not further a legitimate
governmental interest.
124.

Protectionism is not a legitimate basis for prohibiting the

Andersons.
125.

The cap denies the Andersons the opportunity to operate on

Airbnb, a right they previously enjoyed that harmed no one.

F. Claim Six-Violation of Article I, Section 22 of the Tennessee
Constitution (Anti-monopoly).
126.

The Andersons hereby repeat all of the preceding allegations

and incorporate them here by reference as though fully set forth herein.
127.

As citizens of Tennessee, the Andersons have a right to be

protected from monopolies. This right is protected by Article I, Section 22 of

the Tennessee Constitution.
128.

The cap creates a monopoly. A permit holder may renew his or

her permit for an indefinite period of time. Those who own homes in in

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demand neighborhoods like the Andersons may never be permitted to enter

the marketplace. The permit is now an exclusive right, granted to a few, of
something that was before a common right.
129.

Monopolies are contrary to the genius of a free state.

130.

The cap has no legitimate relation to any valid public purpose.

G. Claim Seven-Violation of Article I, Section 2 of the

Tennessee Constitution and the Fourth Amendment of the
U.S. Constitution (Unreasonable search).
131.

The Andersons hereby repeat all of the preceding allegations

and incorporate them here by reference as though fully set forth herein.
132.

As citizens of Tennessee and the U.S., the Andersons have a

right to be free from unreasonable searches and seizures. This right is

protected by Article I, Section 7 of the Tennessee Constitution and the Fourth
Amendment of the U.S. Constitution.
133.

The requirement in Metro. Code 6.28.010 that every person

operating a hotel or engaged in the business of lodging transients keep a

book of information on all of their guests, including, name, address, dates of
arrival and dates of departure and then surrender this information to the
police upon a written request is unconstitutional.
134.

This requirement legally constitutes an administrative search.

135.

The Andersons are not operating an intrinsically dangerous

business.

25

136.

The law lacks any opportunity for pre-compliance review before

a neutral decision maker.

137.

The police must obtain some judicial authorization or this

amounts to an unreasonable search.

138.

Moreover, operators of an STRP are not, unlike operators of a

traditional hotel business, involved in a closely regulated industry. They may

not be compelled to keep records under either the U.S. or Tennessee
Constitution.
139.
protections

Even if they were a closely regulated industry, the additional

provided

under

the

Tennessee

Constitution

prohibit

requirement that operators of an STRP keep records on their guests.

140.

Even though no police officer has asked the Andersons for

records, the requirement that they must one day be forced to comply violates
the Andersons right to be free from unreasonable searches and seizures.

26

VI.
Relief Sought
WHEREFORE, PLAINTIFFs requests that this Court:
A.

Enter a declaratory judgment that either the STRP ordinance

does not apply to the Andersons or anyone else. Or, in the alternative, that
the question regarding who is covered is unconstitutionally vague in violation
of the Fourteenth Amendment of the U.S. Constitution and Article I, Section
8 of the Tennessee Constitution.
B.

Enter a declaratory judgment that Metro has violated the First,

Fourth, and Fourteenth Amendments of the U.S. Constitution, and Article I,

Sections 7, 8, 19, 22 and Article XI, Section 8 of the Tennessee Constitution.
C.

Enter an order permanently enjoining Metro from enforcing the

three percent (3%) cap.

D.

Enter an order permanently enjoining Metro from enforcing the

signage ban and prohibition on advertisement.

E.

Enter an order permanently enjoining Metro from requiring

operators of an STRP to keep records on their guests.

F.

Enter an order permanently enjoining Metro from requiring

anyone engaged in the business of lodging guests to keep and surrender

records to the police.
G.

Award costs, expenses and reasonable attorneys fees according

to 42 U.S.C. 1988, Tenn. Code Ann. 29-14-111 and any other applicable
laws.

27

H.

Award

any

other

relief

as

is

appropriate

under

the

circumstances.
Dated: August 26, 2015.
Respectfully submitted,

BRADEN H. BOUCEK
B.P.R. No. 021399
BEACON CENTER OF TENNESSEE
P.O. Box 198646
Nashville, TN 37219
Tel.: 615.383.6431
Fax: 615.383.6432
[email protected]
Counsel for plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing was served
upon the following, by the following means:
Counsel
Counsel for
Saul Solomon
Director of Law
Metro Nashville
Metro Courthouse
Ste 108
P.O. Box 196300
Nashville, TN 37219-6300
615.862.6341
[email protected]

Via
United States mail,
postage prepaid
Hand delivery
Fax
Email
Fed Ex
CM/ECF

On this date, August 26, 2015

BRADEN H. BOUCEK

29