42 F.4th 1231
11th Cir.2022Background
- In 2014 Miami Beach police discovered a 13-year-old human-trafficking victim forced to dance nude at Club Madonna, the City's only fully nude strip club; the City suspended then reinstated the Club's licenses subject to compliance steps.
- The City enacted ordinances requiring nude-dance establishments to obtain two forms of photo ID, keep logs (check‑in/check‑out), maintain sworn statements that performers are 18 and performing voluntarily, verify immigration/work authorization, and make records available "for inspection by the city upon demand," with escalating civil fines and possible temporary closure.
- Club Madonna sued, raising First Amendment, Fourth Amendment, federal (IRCA) and Florida state preemption claims among others; the case returned to district court after this Court’s earlier opinion reinstated several claims.
- The district court granted summary judgment for the City on the First and Fourth Amendment claims, granted summary judgment for the Club on federal preemption (IRCA) as to the employment‑verification provision, and dismissed the Club’s state preemption claim; both parties appealed.
- The Eleventh Circuit affirmed: (1) the Ordinance implicates the First Amendment but survives intermediate scrutiny as a Renton-style time/place/manner regulation; (2) the adult-entertainment industry is closely regulated and the inspection provision, narrowly read, satisfies the administrative-search (Burger) test; (3) the immigration-verification clause requiring verification of work authorization for "any worker or performer" is conflict-preempted by IRCA and severed; (4) Florida state‑law preemption challenges fail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment — Does the Ordinance implicate and unconstitutionally burden expressive conduct? | Club: the recordkeeping and repeated check‑in/check‑out requirements unduly burden protected nude-dance expression. | City: under Arcara the law is neutral (incidental effects only) or, if implicated, is a reasonable time/place/manner restriction narrowly tailored to prevent trafficking. | Court: Ordinance implicates the First Amendment (targets a narrow expressive industry) but passes intermediate scrutiny under Renton (advances substantial interests; not substantially broader than necessary; leaves open alternatives). |
| Fourth Amendment — Do warrantless inspections violate the Fourth Amendment? | Club: the Ordinance authorizes unfettered, warrantless, at‑any‑time searches and lacks adequate temporal/scope limits. | City: adult entertainment is a closely regulated industry; administrative‑search exception (Burger) permits warrantless, surprise inspections. | Court: adult-entertainment is closely regulated; the inspection clause can be read narrowly ("upon demand" during business hours/when staff present) and satisfies Burger's three prongs. |
| Federal preemption (IRCA) — Does the employment‑verification requirement conflict with federal law? | Club: IRCA and DHS regulations/legislative history exempt independent contractors and casual hires from employer verification; municipal requirement to verify "any worker or performer" conflicts with IRCA. | City: savings clause (Whiting) preserves some state/local licensing measures; facial challenge fails under Salerno because some applications may align with federal law. | Court: Section 18‑913(1)(b) is conflict-preempted by IRCA (Congress intentionally excluded independent contractors/casual hires); sever that provision from the Ordinance; Whiting/savings clause and Salerno arguments rejected. |
| State law preemption (Florida) — Do Florida statutes preempt the Ordinance’s penalties? | Club: Florida statutes (e.g., §775.083(1), §787.29, §162.09) cap or govern penalties and thus preempt the City’s fines/penalty scheme. | City: municipal penalties are distinct; relevant Florida statutes do not bar municipal enforcement or the fine scheme. | Court: Club's state preemption claims fail — §775.083’s noncriminal-violation cap excludes municipal ordinances; §162.09 argument was untimely; no Florida statute preempts the Ordinance’s penalties. |
Key Cases Cited
- Arcara v. Cloud Books, 478 U.S. 697 (1986) (First Amendment not implicated when conduct contains no expressive element)
- Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (1983) (law singling out press for special burden triggers heightened First Amendment scrutiny)
- United States v. O’Brien, 391 U.S. 367 (1968) (intermediate scrutiny for regulations of conduct that combine speech and non‑speech elements)
- City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (time, place, and manner test for zoning regulations addressing secondary effects of adult businesses)
- New York v. Burger, 482 U.S. 691 (1987) (administrative‑search exception for closely regulated industries: substantial interest; necessity; adequate substitute for warrant)
- City of Los Angeles v. Patel, 576 U.S. 409 (2015) (struck down warrantless administrative inspection statute for hotels where statute lacked adequate limits)
- Arizona v. United States, 567 U.S. 387 (2012) (IRCA manifests federal preemptive field/obstacle concerns in immigration/employment regulation)
- Chamber of Commerce v. Whiting, 563 U.S. 582 (2011) (interpreting IRCA's savings clause for state licensing laws)
- Lozano v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013) (local employment‑verification ordinance conflict‑preempted by IRCA)
- Chamber of Commerce v. Edmondson, 594 F.3d 767 (10th Cir. 2010) (state law requiring verification of independent contractors conflict‑preempted by IRCA)