CLUB MADONNA INC., a Florida corporation d.b.a. Club Madonna v. CITY OF MIAMI BEACH, a Florida municipal corporation
No. 20-14292
United States Court of Appeals For the Eleventh Circuit
August 1, 2022
[PUBLISH]
D.C. Docket No. 1:16-cv-25378-FAM
Before NEWSOM and MARCUS, Circuit Judges, and STORY,* District Judge.
MARCUS, Circuit Judge:
Over and over, laws regulating adult entertainment establishments have raised constitutional questions. The law at issue today is no different.
After a thirteen-year-old victim of human trafficking performed at the City of Miami Beach (the City)s only fully nude strip club, Club Madonna, Inc. (the Club), the City came down hard on the Club. It enacted two closely intertwined ordinances (collectively, the Ordinance) that required all nude strip clubs to follow a record-keeping and identification-checking regime in order to ensure that each individual performer is at least eighteen years old -- the records of which the City could demand to see at any time -- or face stiff penalties. The passage of the Ordinance
The Clubs challenges implicate several questions of first impression. The Club says that the Ordinance violates the First and Fourth Amendments, and that it is partially preempted by federal and state law. The district court ruled for the City at summary judgment on the Clubs first two claims, ruled for the Club on its federal preemption claim at summary judgment, and ruled for the City on the Clubs state law preemption claim at the motion-to-dismiss stage for failure to state a claim. The Club now appeals the courts rulings on its First Amendment, Fourth Amendment, and state law preemption claims. Meanwhile, the City cross-appeals the district courts ruling on the Clubs federal preemption claim.
We affirm on all counts. First, although the Ordinаnce implicates the First Amendment because it singles out an industry that engages in expressive activity for special regulation, we still affirm because the Ordinance satisfies intermediate scrutiny. Second, the Ordinances warrantless-search provision does not violate the Fourth Amendment because the adult entertainment industry is a closely regulated industry for Fourth Amendment purposes, and the warrantless-search provision satisfies the administrative-search exception because it can be narrowly read to avoid Fourth Amendment concerns. Third, the Ordinances employment-verification requirement that any worker or performer [i]s either a U.S. Citizen, legal resident, or otherwise legally permitted to be employed within the United States of America is preempted by federal
I.
The story of this case starts with a tragic set of facts. On January 6, 2014, City law enforcement officers discovered that a thirteen-year-old victim of human trafficking was being forced to dance nude at the Club after she ran away from home and was taken by four adult captors. The City issued an emergency order that suspended the Clubs occupational licenses for six months, but it reinstated the licenses after the Club agreed to issue written security standards, hire a Chief Compliance Officer, check at least two fоrms of identification before letting a performer dance, and maintain records of which performers could dance at the Club.
This detente ended quickly. The Club repeatedly failed to follow its agreement with the City, and the City was not pleased. To put teeth in its regime, the City passed the Ordinance. We previously described the Ordinances requirements this way:
First, Section 18-913 requires nude dancing establishments such as the Club to check the age and work eligibility of any worker or performer by requiring that they provide proof of an original, lawfully issued state or federal photo identification, and one additional form of identification. The owner or manager of the establishment must also [v]erify the accuracy of the documents by making a sworn statement . . . confirming that the individual performer is at least 18 years of age. In the same sworn statement, the owner or manager must [c]onfirm that the worker is performing of her or his own accord, and is not being forced or intimidated into performing or working.
Code of the City of Miami Beach § 18-913 . Section 18-913 also requires the business to keep a log of workers as they enter and exit the premises and to make all of the required documentation available for inspection by the city upon demand. Id.. . .
Finally, Section 18-915 describes the penalties for failure to comply with the requirements of Sections 18-913. . . . For a first, second, and third offense within specified time periods, a business shall be fined $5,000, $10,000, and $20,000, respectively. For a second offense within three years, the City will shut down the business for three months. And a third offense allows the City to exercise its discretion to close the business for up to a year.
Code of the City of Miami Beach § 18-915 . An establishment charged withviolating the ordinance has a right to an administrative hearing and may appeal the decision to a court of competent jurisdiction. Id.
Club Madonna, Inc. v. City of Miami Beach, 924 F.3d 1370, 1376 (11th Cir. 2019) (hereinafter Club Madonna I). Along with verifying that the performer or worker is at least eighteen years old, the Ordinance requires that nude dancing establishments confirm she [i]s either a U.S. Citizen, legal resident, or otherwise legally permitted to be employed within the United States of America.
II.
Unhappy with this development, the Club sued the City of Miami Beach in the Southern District of Florida on December 30, 2016, challenging the constitutionality of the Ordinance and the Citys use of its emergency powers to suspend the Clubs business license. In its Complaint, the Club threw the kitchen sink at the Ordinance: It challenged the Ordinance under the First Amendment, the Fourth Amendment, the Fourteenth Amendment (raising both Due Process Clause and Equal Protection Clause claims), and the Eighth Amendment, and on Contract Clause and Supremacy Clause grounds.1 The City moved to dismiss on many grounds
(including failure to state a claim, standing, mootness, and ripeness), and the district court granted the Citys motion. The Club
Like the Citys renewed Motion to Dismiss, the district court referred the Motion for Summary Judgment to the magistrate judge. The magistrate judge, in his Report and Recommendation (R&R), concluded that the Ordinance (1) violated the Clubs First Amendment rights because it overburdened the Clubs protected speech; (2) violated the Clubs Fourth Amendment rights because, although the Clubs business fell into the category of a closely regulated industry, the Ordinances unfettered warrantless-search provision was unnecessary to further the Citys interest in preventing human trafficking; and (3) was conflict preempted by the Immigration Reform and Control Act of 1986 (IRCA),
After receiving objections to the R&R, the district court ruled on the parties cross-motions for summary judgment. Although the district court adopted the magistrate judges findings on the Clubs federal preemption claim, the district court declined to adopt his conclusions about the Clubs First and Fourth Amendment claims.
The court began by rejecting the R&Rs conclusions about the Clubs First Amendment claim. First, it determined that the First Amendment did not apply at all because the Ordinance did not target expressive conduct. Citing the Supreme Courts decision in Arcara v. Cloud Books, 478 U.S. 697 (1986), the district court reasoned that since the Ordinance does not single out First Amendment expression, the First Amendment does not apply -- even if the law has incidental effects on the Clubs freedom of expression. The court also explained that even if the Ordinance had targeted expressive conduct, it was narrowly tailored and not overly burdensome. The district court concluded that the Ordinance was a reasonable time, place, and manner restriction on the Clubs protected activities under the First Amendment.
Second, the trial court also rejected the magistrate judges determination about the Clubs Fourth Amendment claim. For starters, it reasoned that nude dancing clubs are closely regulated for Fourth Amendment purposes because of their history of pervasive regulation. The court also found that the Ordinances
Finally, the district court concluded that the requirement the Club verify that the performer or worker is a U.S. Citizen, legal resident, or otherwise legally permitted to be employed within the United States of America is conflict preempted under the Immigration Reform and Control Act of 1986. The district court reasoned that Congress deliberately intended to exempt casual hires and independent contractors from the IRCA, so the City could not enact an ordinance that requires the verification of employment eligibility of all workers.
The Club timely appealed the dismissal of its state law preemption claim and the entry of summary judgment for the City on its First and Fourth Amendment claims. The City cross-appealed the district courts order on the Clubs federal preemption claim.
III.
We review a district courts order on summary judgment de novo, applying the same legal standards used by the district court[,] Yarbrough v. Decatur Hous. Auth., 941 F.3d 1022, 1026
We begin with the Clubs First Amendment claim. The district court dismissed it because the Ordinance did not implicate the First Amendment under Arcara, and even if it did, the Ordinance was narrowly tailored to achieve a substantial interest. Our first task is to determine if the First Amendment is even implicated. The First Amendment prevents the government from abridging the freedom of speech,
The Supreme Court disagreed, holding that the First Amendment was not implicated at all. It explained that unlike the symbolic draft card burning in O‘Brien, the sexual activity carried on in this case [prostitution] . . . manifest[ed] absolutely no element of protected expression. Id. at 705 (first alteration added). The Court emphasized that First Amendment values may not be invoked by merely linking the words sex and books. Id.
The Court also considered -- and distinguished -- Minneapolis Star & Tribune Company v. Minnesota Commissioner of Revenue. Id. at 704 (citing 460 U.S. 575 (1983)). In Minneapolis Star, the Court struck down a state use tax2 that specifically targeted the sale of large quantities of newsprint and ink because it had the specific effect of singling out newspapers. 460 U.S. at 592-93. Because the burden of the tax inevitably fell disproportionately -- in fact, almost exclusively -- upon the shoulders of newspapers exercising the constitutionally protected freedom of the press, the legislation imposed a greater burden of justification on the State. Arcara, 478 U.S. at 704.
Arcara distinguished Minneapolis Star because the bookstores closure did not disproportionate[ly] burden a specific speaker. 478 U.S. at 704. Since the law at issue in Arcara was a rule of general application -- a statute criminalizing prostitution -- the store could not claim special protection . . . simply by virtue of [its] First Amendment protected activities. Id. (explaining that if the store was closed due to fire code or health code violations, the First Amendment would not aid the owner of premises who had knowingly allowed such violations to persist). Tipping its hat to Minneapolis Star, the Court explained that the First Amendment is implicated when a law that regulates nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity. Id. at 706-07.
Arcara and Minneapolis Star require us to perform a searching analysis to determine whether the statute or ordinance at issue -- which does not directly regulate speech or expressive activity -- is a neutral law of general application. That is, even if the law does
With these essential precedents in mind, we conclude that the Citys Ordinance implicates the First Amendment. For starters, the law is not one of general applicability. Unlike the general law criminalizing prostitution in Arcara, the Citys Ordinance applies exclusively to nude dancing clubs in the City, out of which the Club is in a class of one. Although there could bе additional nude dancing establishments in the City of Miami Beach, the law still targets a specific industry, and a very limited one at that, much like how the use tax in Minneapolis Star specifically targeted newspapers.
Moreover, the law is not neutral because it implicates expressive conduct in a real way. The Ordinance imposes significant record-keeping and identification-verification requirements on the Club that do not directly touch on expressive conduct. But these requirements are part of the Ordinances enforcement mechanism. The object of the Ordinance is to prescribe and regulate who can and who cannot dance nude -- a form of expressive conduct that, under binding precedent, is protected by the First Amendment.
We cannot accept the Citys premise that by holding the First Amendment implicates the Ordinance, we are manufacturing an exception to Arcara. On the contrary, Arcara itself suggests todays result. The Court explained in Arcara that laws that singl[e] out or disproportionate[ly] burden those engaged in protected First Amendment activities implicate the First Amendment. 478 U.S. at 703-04. This Ordinance is such a law because it targets nude dancing establishments for special regulation, and it regulates who can dance.
Nor are we persuaded by the Citys concern that this conclusion would prevent the government from curtailing unlawful conduct in industries that just happen to engage in First Amendment activities, or that the City would otherwise have to impose these regulations on all businesses in order to avoid First Amendment scrutiny. Merely saying that a statute implicates the First Amendment is a far cry from concluding that the First Amendment proscribes such regulations, or even that these regulations are subject to strict scrutiny. In Barnes v. Glen Theatre, the Supreme Court upheld the law under intermediate scrutiny, 501 U.S. at 567, and we have similarly upheld countless regulations targeting nude
Our first step then would normally be to determine whether intermediate or strict scrutiny applies, but the parties make that easy for us because they both agree (as they must here) that the Ordinance should be evaluated under intermediate scrutiny. However, they disagree about what kind of intermediate scrutiny applies. The Club says that the intermediate scrutiny test derived from O‘Brien should apply, while the City claims that the time, place, and manner test, which the Supreme Court employed in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), should control.
The O‘Brien test is used to evaluate regulations of expressive conduct -- conduct that contains both speech and nonspeech
The tests enunciated in Renton and O‘Brien fall under the general umbrella of intermediаte scrutiny, and [a]s a practical matter, there is little difference between them. Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11 F.4th 1266, 1297 (11th Cir. 2021); see also Barnes, 501 U.S. at 566 (explaining that both tests embody much the same standards). However, in Lady J. Lingerie v. City of Jacksonville, we observed that the tests are not the same, and they may lead to different results. 176 F.3d at 1364. We suggested that the time, place, and manner test provides more breathing room to the government because the O‘Brien test requires slightly more narrow tailoring than the time, place, and manner test. See id. at 1364. The O‘Brien test is slightly more searching because it evaluates laws that regulate expressive conduct, while the time, place, and manner test analyzes laws that regulate speech indirectly.
Lady J. Lingerie also guides us in deciding which test is preferable. There, a panel of this Court considered a city ordinance
[The] Renton test is appropriate because the rules we consider today . . . regulate time and place in the time, place, or manner sense. They affect, but do not directly regulate, the expressive conduct that is the basis of the plaintiffs First Amendment challenges: nude dancing. The draft card burning statute in O‘Brien and the indecency law in Barnes regulated the how of expressive conduct, as opposed to the where or the when, and they did so in a way that made the messages less potent. The hours of operation and 1000 square foot rules are different.
Id. at 1364-65 (emphasis in original); see also Renton, at 475 U.S. at 47-48 (emphasis in original) (explaining that when the predominate concerns of a regulation are the secondary effects of adult theaters, and not [ ] the content of adult films[,] then the goal of the ordinance is unrelated to the suppression of free expression).
Since the Club challenges the Ordinances compliance mechanism, the time, place, and manner test is the better fit. These regulations relatе more to the where or when of the expressive conduct than the how because the repetitive identification-verification and log-in and log-out requirements -- which are the focus of the Clubs ire -- delay when the Clubs dancers can perform, much like the citys hours requirement in Lady J. Lingerie. The
When applying the time, place, and manner test, we consider whether the regulation (1) advances a substantial interest, (2) is not substantially broader than necessary to achieve the governments interest, and (3) leaves open reasonable alternative avenues of communication. Lady J. Lingerie, 176 F.3d at 1365 (quoting Ward, 491 U.S. at 800). As for the first consideration, the City must point to specific evidence it relied upon when drafting the Code that supports the conclusion that the Code advances its interest in preventing negative secondary effects. Stardust, 3007 LLC v. City of Brookhaven, 899 F.3d 1164, 1174 (11th Cir. 2018). If the City satisfies this inquiry, the burden shifts to the Club to cast direct doubt on this rationale. Id.
The history of the Ordinance amply reveals that the drafters passed it in order to prevent human trafficking in strip clubs and minors from dancing nude on a public stage. See, e.g., Doc. 150-1 at 3-5 (the Citys Chief Deputy Attorney explaining at a City Commission Meeting that the Ordinance seeks to curb human trafficking, and that it requires two IDs as safeguards against the rampant use of counterfeit IDs in the City); Doc. 150-2 at 3-4 (a City Commissioner explaining at a City Commission Meeting that the Ordinance is just [about] . . . safe guarding and keeping young kids from stripping at [the Club]). The Club counters that the Ordinance has nothing to do with human trafficking because it is merely an elaborate record-keeping law which could easily be
The next step in our analysis is narrow tailoring. In this exercise, we do not scrutinize the law too closely. Instead, [t]he government need only have a reasonable basis . . . for believing that its policy will indeed further a legitimate interest. Zibtluda, LLC v. Gwinnett Cnty. ex rel. Bd. of Comm‘rs of Gwinnett Cnty., 411 F.3d 1278, 1286 (11th Cir. 2005) (quotation marks omitted). A reasonable basis can consist of the experience of other cities, studies done in other cities, caselaw reciting findings on the issue, as well as [the officials] own wisdom and common sense. Id. (alteration in original) (quotation marks omitted). Whether the statute survives narrow tailoring turns on the reasonableness of the government regulation in light of the available evidence and requires deference to the reasoned judgment of a governmental entity. Flanigan‘s, 596 F.3d at 1279.
Lady J. Lingerie illustrates the substantial discretion, the breathing room we afford the government. In evaluating an ordinance that closed an adult entertainment store from the hours of 10:00 a.m. to 12:00 p.m., we explained that we would not analyze the specific hours during which the ordinance closed such businesses as closely as the plaintiffs would have us do:
If we were to side with the plaintiffs here, the next litigants would argue whether evidence of secondary
Turning to the text, the Ordinance consists of two sets of requiremеnts: one applying at the start of the performer or worker‘s employment, and another when the performer or worker enters the establishment each day. First, the strip club must require that each person produce two forms of identification confirming she is at least eighteen years old and is “working or performing” of her own accord.3
Second, whenever the worker or performer “enter[s]” the establishment, the establishment must “[m]aintain a check in/check out procedure and log” whereby the worker or performer presents copies of her two forms of identification to the establishment‘s management, and she must “log[] in.”
Although the Ordinance‘s requirements are significant and time-consuming, they are not “substantially broader than necessary” to achieve its aim of preventing minors and victims of human trafficking from performing. See Ward, 491 U.S. at 800 (emphasis added). The Ordinance‘s core identification and recоrdkeeping requirements are necessary to achieve the City‘s stated and obviously important interests in preventing human trafficking and barring
The Club protests that the requirement that a worker or performer complete the check-in/check-out procedure each time she enters or exits the establishment -- even if she had completed the procedure at the beginning of the day -- is unnecessary to accomplish the aim of preventing human trafficking.4 The City cannot provide a completely satisfying explanation for why a performer or worker could become a minor or a victim of human trafficking if
But the Ordinance‘s minor overreach does not make it “substantially broader than necessary” to achieve its desired ends. See Ward, 491 U.S. at 800. Again, judges are not policymakers, and the Ordinance will not be struck down “simply because a court concludes that the government‘s interest could be adequately served by some less-speech-restrictive alternative.” See id. As we explained in Lady J. Lingerie, parsing this point too finely would force us to engagе in a “line-drawing [exercise that] is inconsistent with a narrow tailoring requirement that only prohibits regulations that are ‘substantially broader than necessary.‘” 176 F.3d at 1365 (quoting Ward, 491 U.S. at 800). We decline the invitation here because the narrow tailoring prong of Renton‘s time, place, and manner test must afford the government some breathing room.
Finally, it is beyond question that the Ordinance leaves open reasonable alternative avenues of communication because the law does not regulate the Club‘s ability to engage in protected expression. Even if the paper process takes some time to complete each
In short, even though the Ordinance implicates the First Amendment, the law is narrowly tailored enough to satisfy intermediate scrutiny under Renton‘s time, place, and manner test.
IV.
Next up is the Club‘s argument that the Ordinance‘s warrantless-search provision violates the Fourth Amendment. The district court concluded that the provision is constitutional because (1) the nude dancing establishment industry is a closely regulated industry for Fourth Amendment purposes, and (2) the requirement is reasonable under the administrative-search test for closely regulated industries.
Let‘s start with the basics. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
One of those exceptions is when the industry at issue is “closely regulated.” In City of Los Angeles, California v. Patel, the Supreme Court explained that it has identified four closely regulated industries: liquor sales, firearms dealing, mining, and running an automobile junkyard. Id. at 424. In Patel, the Court declined to extend the closely regulated designation to the hotel industry. 576 U.S. at 424–25 (explaining that the fact that hotels are required to “maintain a license, collect taxes, conspicuously post their rates, and meet certain sanitary standards” does not reflect “a comprehensive scheme of regulation that distinguishes hotels from numerous other businesses”). Even though closely regulated industries are the exception and not the rule, id. at 424, the lower federal courts have recognized a number of additional industries as being closely regulated, including pharmaceuticals, the medical profession, food, nuclear power, storing and dispensing gasoline, construction, day care centers, nursing homes, asbestos removal, solid waste disposal, credit unions, pawnshops, banking, insurance, commercial trucking, purchase of precious metals and gems, casinos, adult entertainment stores, and massage parlors. Note, Rethinking Closely Regulated Industries, 129 HARV. L. REV. 797, 805–06 (2016) (collecting cases).
Whether an industry is closely regulated for Fourth Amendment purposes essentially turns on whether the industry has “such a history of government oversight that no reasonable expectation of privacy . . . could exist for a proprietor over the stock of such an enterprise.” Marshall v. Barlow‘s, Inc., 436 U.S. 307, 313 (1978).
These principles translate well to the adult entertainment industry. Adult entertainment businesses have been heavily regulated historically. See, e.g., Erie, 529 U.S. at 299, 302 (2000) (holding that an ordinance barring full nudity at nudе dancing clubs does not violate the First Amendment); Flanigan‘s, 596 F.3d at 1269 (upholding an ordinance barring adult entertainment businesses from selling alcohol); Lady J. Lingerie, 176 F.3d at 1365 (upholding an hours limitation and minimum square footage requirement for adult entertainment businesses). These regulations “[c]ombat[] the harmful secondary effects of adult businesses, such as increased crime and neighborhood blight.” See Lady J. Lingerie, 176 F.3d at 1361 (citing Renton, 475 U.S. at 50–52; Barnes, 501 U.S. at 583–84 (Souter, J., concurring)). The Fifth Circuit also has concluded that “sexually oriented businesses” are closely regulated under the Fourth Amendment. FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298, 1306 (5th Cir. 1988), aff‘d in part, vacated in part on other grounds, 493 U.S. 215 (1990) (“Communities long have been concerned about the effects of sexually oriented businesses and have attempted to cope with those effects through regulation. . . . We [therefore] hold that sexually oriented businesses face a degree of regulation that renders the inspection provision presumptively reasonable.”).
Nevertheless, the Club offers two reasons why adult entertainment clubs should not be considered closely regulated. First, it says that several other industries -- such as day cares, dry cleaners, gas stations and “an endless list of other enterprises” -- are subject to special laws, yet those industries are not considered closely regulated. Second, the Club contends that adult entertainment clubs are subject to special treatment because they are entitled to First Amendment protections.
Neither argument is convincing. For one, those other industries are not before this Court. Moreover, apart from day care centers, which the Ninth Circuit has held is a closely regulated industry, see Rush v. Obledo, 756 F.2d 713, 720 (9th Cir. 1985), the Club provides no evidence that those other industries have a history of pervasive regulation. Regulations implicating dry cleaners and gas stations are much more likely to fall into the camp of rules that the Court rejected in Patel because they tend to be generic requirements that apply to all businesses. In contrast, the special rules that
Since the Club operates in a closely regulated industry, we apply a more relaxed standard for interpreting whether a warrantless-search ordinance is constitutional. The Supreme Court explained in Burger that the government must satisfy three criteria under the more relaxed administrative-search test:
[1] [T]here must be a substantial government interest that informs the regulatory scheme pursuant to which the inspection is made . . . [2] the warrantless inspections must be necessary to further [the] regulatory scheme . . . [and] [3] the statute‘s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.
482 U.S. at 702 (cleaned up).
“It is by now axiomatic that a court must examine the totality of the circumstances in order to determine whether a search or seizure is reasonable under the Fourth Amendment.” United States v. Lewis, 674 F.3d 1298, 1303 (11th Cir. 2012). “To meet the test of reasonableness, an administrative screening search must be
Both parties agree that the first two requirements of the Burger test have been satisfied because curbing human trafficking and barring underage persons from dancing nude on a public stage are substantial governmental interests. And the Club, in its opening brief, does not seem to contest the City‘s argument that warrantless, surprise inspections are necessary to further the objects of the Ordinance‘s regulatory scheme. The only issue that remains is whether the Ordinance‘s warrantless-search provision provides “a constitutionally adequate substitute for a warrant.”
On the third prong of this test, Burger explained:
[T]he regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers. To perform this first function, the statute must be sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes. In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be carefully limited in time, place, and scope.
The Club‘s chief argument is that the Ordinance does not satisfy the third prong because it does not have reasonable temporal restrictions, and warrantless-search provisions that lack these restrictions do not provide a constitutionally adequate substitute for the warrant requirement. But in United States v. Ponce-Aldona, we concluded that the lack of temporal restrictions in warrantless, surprise searches “is insignificant in the context of regulation of the commercial trucking industry.” 579 F.3d 1218, 1226 (11th Cir. 2009). And in Crosby v. Paulk, we held that a statute authorizing warrantless administrative searches of a liquor store “at any time” was constitutionally permissible, since providing a more definitive period would “frustrate[] the purpose of the administrative search[.]” 187 F.3d 1339, 1348 (11th Cir. 1999) (quotation marks omitted).
For further guidance, we return to Supreme Court precedent. The Court has upheld warrantless-search requirements when the searches were necessary to further the regulatory scheme at issue. In Donovan v. Dewey, the Court sustained warrantless searches of mines, which were limited to at least two annual searches of all surface mines and four annual searches of all underground mines, because the searches were necessary due to the
In Patel, the Court concluded that a statute that authorized warrantless searches of a hotel‘s guest records, with the only caveat being that the searches should be conducted “at a time and in a manner that minimizes any interference with the operation of the business” whenever possible, violated the Fourth Amendment because the justification -- preventing falsification of records or avoiding administrative burdens -- was not sufficient to satisfy the third prong. 576 U.S. at 412–13, 427–28 (quotation marks omitted) (distinguishing Dewey and Burger because, althоugh those decisions upheld regulatory schemes that had some temporal limitation, the statute at issue “imposes no comparable standard”).
Applying these principles to the Ordinance, we offer these observations. For starters, the lack of strict temporal limitations is essential to the effectiveness of the City‘s regulatory scheme. Plainly, the City needs to access the Club‘s records with surprise inspections in order to ensure continuous compliance, particularly since the Club has been caught sleeping before, and the consequences may be so serious for underage performers. On the other
We need not wade into these waters because we construe the statute more narrowly than the capacious reading the Club offers. The Ordinance‘s warrantless-search provision provides that the documents and logs that the statutory scheme requires the Club to maintain “must be available for inspection by the city upon demand, and the nude dancing establishment shall not refuse access to these documents for inspection by the city.”
“We begin our construction of [a statutory provision] where courts should always begin the process of legislative interpretation, and where they often should end it as well, which is with the words of the statutory provision.” Harris v. Garner, 216 F.3d 970, 972 (11th Cir. 2000) (en banc). Demand means, “[t]o claim as one‘s due; to require; to seek relief.” Demand, BLACK‘S LAW DICTIONARY (11th ed. 2019). But, based on the clear context, the demand from the City is a demand for the Club to produce the documents discussed in the statutory scheme. A “demand to produce” is “[t]he assertion of a right to have someone provide or bring forward
The constitutional avoidance canon also provides that “[a] statute should be interpreted in a way that avoids placing its constitutionality in doubt.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 247 (2012). The Supreme Court has explained that this canon “is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381 (2005).
Our narrower and plausible reading of the Ordinance‘s warrantless-search requirement avoids the Fourth Amendment problem we‘ve discussed. The Supreme Court struck down the regulation in Patel precisely because it lacked any reasonable temporal
When read this way, we are satisfied that the Ordinance meets each prong of the administrative-search test under Burger and that it complies with the Fourth Amendment.
V.
Unlike its First Amendment and Fourth Amendment claims, the Club won on its federal preemption argument in district court. The City has cross-appealed on this issue. The Club‘s principal conflict preemption argument is that Congress explicitly intended to exempt employers from verifying the employment eligibility of contract workers or casual hires in the IRCA. See
The doctrine of federal preemption derives its power from the Supremacy Clause. “[T]he Supremacy Clause provides a clear rule that federal law ‘shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.‘” Ariz. v. United States, 567 U.S. 387, 399 (2012) (quoting
Federal law can preempt state law through express preemption, conflict preemption, or field preemption. Id. Express preemption occurs when “the text of a federal statute explicitly manifests Congress‘s intent to displace state law.” United States v. Ala., 691 F.3d 1269, 1281 (11th Cir. 2012). “Conflict preemption occurs either when it is physically impossible to comply with both the federal and the state laws or when the state law stands as an obstacle to the objective of the federаl law.” Fla. State Conf. of N.A.A.C.P. v. Browning, 522 F.3d 1153, 1167 (11th Cir. 2008). “Field preemption occurs when a congressional legislative scheme is ‘so pervasive as to make the reasonable inference that Congress left no room for the states to supplement it.‘” Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).
As we explained in United States v. Alabama, we follow two considerations when determining whether a federal statute preempts state law. First, we look at Congress‘s purpose in enacting the federal law. Ala., 691 F.3d at 1282. Second, we are guided
With these principles in mind, we consider the Club‘s three preemption challenges. First, the Club says that Section 18-913(1)(b) is conflict preempted because it requires nude dancing establishments to verify the immigration status of independent contractors. Second, it claims that Sections 18-913(1)(b), 18-915(a), and 18-915(c) are expressly preempted under the IRCA because they impose sanctions for failure to verify immigration status, which are specifically prohibited by federal law. Finally, the Club argues that Section 18-913(1)(b) is conflict preempted because it disallows certain forms of identification that are acceptable under federal law.
Because the district court reached its decision solely on the Club‘s first conflict preemption claim, we begin there.
To guide our conflict preemption analysis, we turn to the Supreme Court‘s treatment of a similar preemption claim in Arizona v. United States. There, the Supreme Court considered a conflict preemption challenge to an Arizona law that made it a misdemeanor for “an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor” in the state. Ariz., 567 U.S. at 403 (quoting
“We use our judgment to determine what constitutes an unconstitutional obstacle to federal law, and this judgment is ‘informed by examining the federal statute as a whole and identifying its purpose and intended effects.‘” Ala., 691 F.3d at 1281 (quoting Crosby v. Nat‘l Foreign Trade Council, 530 U.S. 363, 373 (2000)). To that end, we examine the statutory text, its regulatory framework, and, if necessary, the legislative history of the IRCA to determine whether Congress made a deliberate choice to exclude independent contractors and casual hires from the employment-verification process. Then we examine whether the Ordinance‘s verification requirements stand as an obstacle to that objective.
Let‘s start with the federal statute. The IRCA specifically prohibits the “hir[ing], or [ ] recruit[ment] . . . for employment in the United States an alien knowing the alien is an unauthorized alien . . . with respect to such employment, or . . . hir[ing] for employment . . . without complying with the requirements” of the
The IRCA‘s regulatory framework, promulgated by the Department of Homeland Security (“DHS”), corroborates our interpretation of the statute. For example, the regulations exclude “independent contractor[s]” and “those engaged in casual domestic employment” from the definition of “employee” under the IRCA.
If the statutory text and the DHS regulations weren‘t enough, the IRCA‘s legislative history makes it crystal clear that the omission of independent contractors and casual hires from the IRCA‘s employment-verification requirements was intentional. Specifically, the House Report reveals that Congress explicitly intended to exempt casual hires or independent contractors from the employment verification process. See H.R. REP. NO. 99-682, at 57 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5661 (“It is not the intent of this Committee that sanctions would apply in the case of casual hires (i.e., those that do not involve the existence of an employer/employee relationship).”). In other words, Congress made
Seeing that the City‘s Ordinance instructs nude dancing establishments to verify that “any worker or performer” is “legally permitted to be employed within the United States,” see
We are not alone in reaching this conclusion. Considering similar conflict preemption challenges to comparable state and local laws, the Third and Tenth Circuits both concluded that such statutes are conflict preempted by the IRCA. Thus, for example, in Lozano v. City of Hazelton, the Third Circuit determined that a city ordinance was conflict preempted because it required employers to verify the employment status of independent contractors. 724 F.3d 297, 313 (3rd Cir. 2013). The court explained that “[i]n striking the intricate balance that [led] to the enactment of IRCA, Congress deliberately excluded independent contractors and other non-employees from the scope of the restrictions contained in the statute.” Id. at 306. The court reached this conclusion largely based on the textual provisions and the legislative history of the IRCA that we have referenced, which show that “Congress explicitly declined to sanction employers based on the work
The Tenth Circuit reached the same conclusion in Chamber of Commerce of the United States v. Edmondson. See 594 F.3d 767 (10th Cir. 2010). The court held that an Oklahoma statute that required entities to verify the work eligibility of independent contractors was conflict preempted. 594 F.3d at 750. Upon reviewing the same statutory text and legislative history of the
We can discern no reason to depart from the reasoning found in Lozano and Edmondson. Not only does the statute‘s text and its regulatory framework exempt employers from verifying the employment status of independent contractors or casual hires, but also the statute‘s legislative history removes any doubt over whether that decision was a calculated choice on the part of Congress. We see no daylight between the laws at issue in Lozano and Edmondson and Section 18-913(1)(b). Each requires the employer
The City offers two arguments in rebuttal. First, the City says that the Ordinance‘s regulation falls within the
The City‘s Whiting argument goes nowhere fast because the
Next, the City‘s claim that the Club needs to show that the law is invalid in all circumstances misstates the law governing facial challenges. It is true that when a plaintiff raises a facial challenge to a statute, she generally “must establish that no set of circumstances exists under which the [law] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987) (emphasis added). “[T]his rule, known as ‘the Salerno rule,’ has been subject to a heated debate in the Supreme Court, where it has not been consistently followed.” United States v. Frandsen, 212 F.3d 1231, 1235 n.3 (11th Cir. 2000) (collecting cases from the Supreme Court). The City seems to interpret Salerno to require that the Club prove that there is no hypothetical situation in which the Ordinance could be validly applied. Because thе Club‘s performers are purportedly employees, and not independent contractors, under the
We are not persuaded. Even applying Salerno‘s no-set-of-circumstances test here, the question that Salerno requires us to answer is whether the statute fails the relevant constitutional test (in this case, the standard for federal conflict preemption discussed above). As the Tenth Circuit explained in Doe v. City of Albuquerque, when it rejected a similar construction of the Salerno standard, ”Salerno is correctly understood not as a separate test applicable to
The larger problem with the City‘s application of Salerno is that its “approach would reject a conflict preemption claim in a facial challenge whenever a defendant can conjure up just one hypothetical factual scenario in which implementation of the state law would not directly interfere with federal law.” Lozano, 724 F.3d at 313 n.22. States and municipalities could consistently sidestep facial challenges and the unambiguous command of federal law so long as they crafted some instance when the state or municipal law at issue aligned with federal objectives. Lozano says that can‘t be right, and we agree.
The City asserts that we should follow the Ninth Circuit‘s decision in Puente Arizona v. Arpaio, 821 F.3d 1098 (9th Cir. 2016), instead of Lozano and Edmondson, but we find the City‘s reliance on that decision to be misplaced. In Puente Arizona, the Ninth Circuit applied Salerno to a facial preemption challenge based on the
We also find it suggestive that the Supreme Court declined to strictly adhere to Salerno‘s rigorous facial challenge requirements in Arizona. The Court struck down an Arizona statute that empowered state officers to make warrantless arrests of individuals whom they had probable cause to believe were removable. 576 U.S. at 410. In doing so, the Court recognized that Congress had “put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances.” Id. (emphasis added). The Arizona law created “an obstacle to the full purposes and objectives of Congress” by “nonetheless authorizing state and local officers to engage in these enforcement activities as a general matter.” Id. (emphasis added). Even though Arizona recognized that the state law at issue sometimes aligned with federal law, the Court still
In sum, we conclude that Section 18-913(1)(b) is conflict preempted by the
Finally, the Club appeals the district court‘s dismissal of its state law preemption claim, arguing that three state laws preempt the Ordinance‘s penalty scheme. We find no error in the district court‘s disposition of each of these state law preemption challenges.
State law preemption under Florida law mirrors the federal preemption framework. Just like federal preemption, Florida state law can expressly or impliedly preempt local ordinances. Masone v. City of Aventura, 147 So. 3d 492, 495 (Fla. 2014). Express preemption occurs when “a statutory provision stat[es] that a particular subject is preempted by state law or that local ordinances on a particular subject are precluded.” Id. By contrast, “[i]mplied preemption is found where the state legislative scheme of regulation is pervasive and the local legislation would present the danger of conflict with that pervasive regulatory scheme.” Sarasota All. for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886 (Fla. 2010). Even when “concurrent state and municipal regulation is permitted because the state has not preemptively occupied a regulatory field, ‘a municipality‘s concurrent legislation must not conflict with state law.‘” City of Palm Bay v. Wells Fargo Bank, N.A., 114 So. 3d 924, 928 (Fla. 2013) (quoting Thomas v. State, 614 So. 2d 468, 470 (Fla. 1993)). Under state law, conflict preemption occurs when “the local enactment irreconcilably conflicts with or stands as an obstacle to the execution of the full purposes of the statute.” Id. (quotation marks omitted). An example of conflict preemption at
On appeal, the Club makes three arguments about its state law conflict preemption claim. The first two are that Sections 775.083(1) and 787.29 of the Florida Statutes preempt the Ordinance. Third, it claims that the district court abused its discretion by refusing to consider the Club‘s argument that Section 162.09 of the Florida Statutes preempts the fines imposed by the Ordinance. Had the district court properly considered its Section 162.09 argument, the Club says, the cоurt would not have dismissed its conflict preemption claim.
First up is the Club‘s Section 775.083(1) conflict preemption argument. Section 775.083 sets out limits for penalties for criminal and noncriminal violations. Section 775.083(1)(e) provides:
(1) A person who has been convicted of an offense other than a capital felony may be sentenced to pay a fine in addition to any punishment described in s. 775.082; when specifically authorized by statute, he or she may be sentenced to pay a fine in lieu of any punishment described in s. 775.082. A person who has been convicted of a noncriminal violation may be
sentenced to pay a fine. Fines for designated crimes and for noncriminal violations shall not exceed: . . .
(e): $500, when the conviction is of a misdemeanor of the second degree or a noncriminal violation.
Although on its face, the statute limits “noncriminal violation[s]” to $500 in fines, the statutory definition of a “noncriminal violation” creates an insurmountable hurdle for the Club‘s legal argument. The statute defines the term as:
any offense that is punishable under the laws of this state . . . by no other penalty than a fine, forfeiture, or other civil penalty. A noncriminal violation does not constitute a crime, and conviction for a noncriminal violation shall not give rise to any legal disability based on a criminal offense. The term “noncriminal violation” shall not mean any conviction for any violation of any municipal or county ordinance. Nothing contained in this code shall repeal or change the penalty for a violation of any municipal or county ordinance.
Second, the Club argues that Section 787.29, which requires in part that “strip club[s] or other adult entertainment establishment[s]” display human trafficking public awareness signs, preempts the Ordinance because its statutory penalty is limited to $500 under Section 775.083. See also
Third, the Club claims that the district court abused its discretion in ignoring the Club‘s argument that Section 162.09 preempts the Ordinance‘s penalty scheme. The Club says that a Florida appellate court‘s interpretation of Section 162.09 in City of Miami Beach v. Nichols, 314 So.3d 313 (Fla. 3rd DCA 2020), shows that Section 162.09 established a penalty maximum for a broad range of code enforcement matters,10 so the City cannot pass an ordinance that exceeded those statutory caps. Because Nichols, in the first instance, was decided after the Club‘s briefing at the motion-to-dismiss stage and before the magistrate judge issued his R&R, the Club pleads that it had no other opportunity to apprise the district court of its argument. As a result, the district court‘s failure to consider the Club‘s argument was purportedly reversible error.
The problem with the argument is that district courts are afforded broad discretion when making these kinds of decisions. A “district court has discretion to decline to consider a party‘s argument when that argument was not first presented to the magistrate judge.” Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009).
The district court did not abuse its discretion by declining to consider the Club‘s argument, even though Nichols was decided after the Club‘s briefing had been completed, because the Club had never previously argued that Section 162.09 preempted the Ordinance. The district court found this especially problematic because the litigation had been ongoing for three years, and the Club had likewise claimed that Section 775.083(1)(e) preempted the Ordinance for the same reasons that Section 162.09 allegedly preempted the Ordinance. In the district court‘s view, considering the new argument would have been unfair to the City and would have undermined the purpose of the magistrate system. We see no error in this analysis, let alone an abuse of discretion.
Because the Club could not identify a single statute that preempted the Ordinance‘s penalty structure, and because the district court did not abuse its discretion in ignoring the Club‘s
VII.
The only provision of the Ordinance that we find unlawful is Section 18-913(1)(b). Our last task is to determine whether this provision is severable from the rest of the Ordinance.
“Severability of a local ordinance is a question of state law.” Coral Springs St. Sys. v. City of Sunrise, 371 F.3d 1320, 1347 (11th Cir. 2004) (citing City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 772 (1988)). Florida law recognizes “the obligation of the judiciary to uphold the constitutionality of legislative enactments where it is possible to strike only the unconstitutional portions.” Ray v. Mortham, 742 So. 2d 1276, 1280 (Fla. 1999). “Severability is not possible, however, when ‘the taint of an illegal provision has infected the entire enactment, requiring the whole unit to fail.‘” Coral Springs, 371 F.3d at 1347 (quoting Schmitt v. State, 590 So. 2d 404, 414 (Fla. 1991)).
We see no issue with severing Section 18-913(1)(b) from the rest of the Ordinance. That section is distinct from the rest of the Ordinance‘s commands because the Ordinance aims to accomplish goals separate from verifying an individual‘s employment authorization: preventing victims of human trafficking and minors from performing at strip clubs. Like the district court, we conclude Section 18-913(1)(b) is severable and strike it from the Ordinance.
The City passed a serious law to combat even more serious conduct. Not even the Club questions the legitimacy of the City‘s concerns about preventing human trafficking and stopping minors from dancing nude at strip clubs. But the Club raises serious federal and state law claims against the City‘s strategy of achieving those ends, and those challenges to the Ordinance -- despite the City‘s noble aims -- merit our careful review.
We hold that the City is entitled to summary judgment on the Club‘s First and Fourth Amendment challenges and dismissal of the Club‘s state law preemption claims. We also conclude that the Club is entitled to summary judgment on its federal conflict preemption claim.
In short, we affirm on all counts.
AFFIRMED.
Club Madonna Inc. v. City of Miami Beach
No. 20-14292
United States Court of Appeals, Eleventh Circuit
August 1, 2022
NEWSOM, J., Concurring
I cоncur in the Court‘s judgment and join Parts I, II, III, VI, and VII of its opinion. I also join Part IV, save for its discussion of the “constitutional avoidance canon.” For reasons I‘ll explain, although I agree with the Court‘s bottom-line conclusion regarding federal preemption, I arrive by a different route, and so do not join its Part V.
I
First, though, a few brief words about a Part of the Court‘s opinion I do join—and, in particular, aspects of the First Amendment doctrine that the opinion faithfully (and correctly) applies.
I begin in what may seem an odd place. I recently expressed the view that courts should assess Second Amendment challenges solely by reference to that provision‘s text and history, rather than through resort to amorphous means-ends balancing tests. See United States v. Jimenez-Shilon, 34 F.4th 1042, 1050–52 (11th Cir. 2022) (Newsom, J., concurring). At the same time, I lamented the fact that many other areas of constitutional law are so “choked” with judge-made doctrine “that one sometimes forgets what the constitutional text even says.” Id. at 1053. Not long thereafter, the Supreme Court itself expressly embraced a text-and-history-only approach to Second Amendment cases and eschewed reliance on any sort of interest-balancing analysis. See N.Y. State Rifle & Pistol Ass‘n v. Bruen, 142 S. Ct. 2111, 2126 (2022). Notably, in so doing,
That would be terrific—if, as I said in Jimenez-Shilon, deciding a First Amendment case consisted of “inquir[ing] what ‘the freedom of speech’ meant to the Founders and then ask[ing] whether the challenged law ‘abridg[es]‘—i.e., ‘lessen[s]’ or ‘diminish[es]‘—that freedom.” 34 F.4th at 1053 (Newsom, J., concurring) (some alterations in original) (quoting Noah Webster, American Dictionary of the English Language 4 (1st ed. 1828)). But at least for us middle managers serving on “inferior courts,”
This case, it seems to me, is Exhibit A for the sort of “exhausting” doctrinal bloat that I described in Jimenez-Shilon. 34 F.4th at 1054 (Newsom, J., concurring). The Court‘s analysis of Club Madonnа‘s First Amendment challenge spans some 16 pages. And not without justification. There‘s a lot of doctrine to slog through, and the Court does so methodically, carefully, and I think correctly. But again, there‘s just so much—so many standards, so many tests, so many factors. Speaking for myself, it can all begin to feel a little, well, made up. And if there is any fixed star in my own constitutional constellation, cf. W. Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), it‘s that unelected, unaccountable federal judges shouldn‘t make stuff up.
In Jimenez-Shilon, I surveyed the doctrinal landscape and counted at least five different balancing tests that the Supreme
Understandably, even the Supreme Court seems to get tripped up when trying to implement the dueling intermediate-scrutiny formulations. In Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984), for instance, the Court considered the constitutionality of a municipal ordinance that prohibited the posting of signs on public property. Given the subject matter, one
It‘s bad enough that we have two different intermediate-scrutiny standards vying against one another, but to make matters worse, they are, to an extent, internally problematic. Most notable, of course, are the “judge-empowering” buzzphrases—“not substantially broader than necessary,” “no greater than is essential,” etc. See Jimenez-Shilon, 34 F.4th at 1054 (Newsom, J., concurring). And even within the individual strands, there seem to be fairly obvious incoherences. To take just one example, the Supreme Court has said that the O‘Brien standard does not require (buzzphrase alert) a “least restrictive means analysis.” City of Erie v. Pap‘s A.M., 529 U.S. 277, 301–02 (2000) (plurality op.); see also Turner Broad.
To be clear, I don‘t think the Court here has misapprehended or misapplied First Amendment doctrine. To the contrary, I think it has properly understood and applied it to correctly decide the free-speech issues in this case. My concern is with the doctrine itself, which, with each passing day, seems increasingly made up—
II
On, then, to the more conventional piece of the concurrence. I agree with the Court that the City‘s Ordinance is preempted by federal law—in particular, the federal Immigration Reform and Control Act of 1986 (IRCA), see
As the Court accurately summarizes, federal law can preempt state or local law under any of three different sub-doctrines: (1) “express” preemption; (2) “conflict” preemption; and (3) “field” preemption. See Maj. Op. at 36. There‘s no argument here about field preemption, so the remaining contenders are express and conflict preemption. As its label implies, express preemption applies when “the text of a federal statute explicitly manifests Congress‘s intent to displace state law.” United States v. Alabama, 691 F.3d 1269, 1281 (11th Cir. 2012). Conflict preemption is slipperier. It can occur either when “it is impossible for a private party to comply with both state and federal law” or, separately, when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Crosby v. Nat‘l Foreign Trade Council, 530 U.S. 363, 372–73 (2000) (quotation omitted). No one here suggests that it would be literally “impossible” to comply with both the Ordinance and IRCA, so, by
I‘m less confident than the majority in obstacle preemption—both generally, as a sub-sub-doctrine, cf. Wyeth v. Levine, 555 U.S. 555, 594–604 (2009) (Thomas, J., concurring in the judgment), and more particularly, as it applies here. Discerning whether obstacle preemption exists is a notoriously unpredictable enterprise. What counts as “a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects.” Crosby, 530 U.S. at 373. In assessing obstacle preemption, reviewing courts rely not just (or even primarily) on the text of duly enacted federal statutes, but on “legislative history, broad atextual notions of congressional purposes, and even congressional inaction.” Wyeth, 555 U.S. at 594 (Thomas, J., concurring in the judgment); see also Maj. Op. at 38–39 (reviewing “the federal statute,” the “regulatory framework,” and “legislative history” to determine whether obstacle preemption applies).
Despite my lingering uncertainty, I recognize, of course, that obstacle preemption is a thing. And I recognize, as the Court notes, that both the Third and Tenth Circuits have held that IRCA conflict-preempts state and local laws requiring businesses to verify independent contractors’ work eligibility. See Maj. Op. at 40–42. In Lozano v. City of Hazleton, for instance, the Third Circuit held that “[i]n striking the intricate balance that [led] to the enactment
Even assuming that those courts were сorrect to conclude that applying work-eligibility requirements to employees but not independent contractors was an important part of IRCA‘s underlying purpose, the question remains whether Miami Beach‘s Ordinance counts as a “sufficient obstacle” to that purpose. Crosby, 530 U.S. at 373. And in at least one important respect bearing on that question, the Ordinance is different from the laws that the Third and Tenth Circuits considered. Unlike those laws, the Ordinance doesn‘t require all businesses to verify the work-eligibility of independent contractors; rather, it applies only to “nude dance establishments“—and, effectively, only to one such establishment, Club Madonna. It‘s not self-evident, to me anyway, that enforcement of a targeted municipal ordinance, whose object is to combat human trafficking rather than to prevent the employment of illegal aliens, would so frustrate IRCA‘s purposes as to trigger so-called obstacle preemption. And that is doubly so if we assume, as I think is
All of which is simply to say that while I‘m by no means certain that the Court‘s assessment of conflict preemption is wrong, I‘m dubious. Even so, I too believe that the Ordinance is preempted by federal law—expressly so. IRCA contains the following preemption provision, in which is embedded a parenthetical savings clause: “The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.”
The pivotal question for express-preemption purposes, then, is whether the Ordinance qualifies as a “licensing [or] similar law[]” within the meaning of the preemption provision‘s savings clause. For the following reasons, I don‘t think it does.
In Chamber of Commerce v. Whiting, the Supreme Court rejected a preemption challenge to an Arizona statute that penalized businesses that employed unauthorized aliens—but only after concluding that the state law was a “licensing . . . law[]” under IRCA‘s savings clause. 563 U.S. 582, 611 (2011). IRCA, the Court noted, “preserved state authority over a particular category of sanctions—those imposed ‘through licensing and similar laws.‘” Id. at 607 (plurality op.) (quoting
What, then, of the Miami Beach Ordinance? To begin with the obvious, its subject matter isn‘t the granting or revocation of business licenses—it‘s ID verification and recordkeeping to combat human trafficking. Moreover, the Ordinance‘s primary enforcement mechanism is a system of graduated monetary penalties. Section 18-915(a) is titled “Civil fine for violators” and imposes a series of escalating fines for first, second, and third offenses. True, § 18-915(c) provides for “enhanced penalties” that bear some resemblance to licensing restrictions—a three-month closure of any club found to have offended twice within three years, and a one-year revocation of a club‘s “business tax receipt” or “certificate of use” for a third offense. But I don‘t think that those enhanced penalties transform the Ordinance as a whole into a “licensing or similar law[]” such that its civil fines count as sanctions “impos[ed] . . . through licensing [or] similar laws” for purposes of IRCA‘s savings clause.
Notes
Club Madonna I, 924 F.3d at 1376-77. Our own precedent on this issue is (perhaps unsurprisingly) confused and confusing. In Daytona Grand, Inc. v. City of Daytona Beach, for example, we said (seemingly following the Supreme Court‘s lead) that ”O‘Brien does not impose strict scrutiny‘s familiar ‘least restrictive means’ requirement.” 490 F.3d 860, 885 (11th Cir. 2007). But in decisions issued both before and after Daytona, we have said just the opposite. See, e.g., Sammy‘s Ltd. v. City of Mobile, 140 F.3d 993, 996 (11th Cir. 1998) (“Under [O‘Brien], an ordinance is constitutional if . . . there is no less restrictive alternative.” (citing O‘Brien, 391 U.S. at 377)); Flanigan‘s Enters. v. Fulton County, 596 F.3d 1265, 1277 (11th Cir. 2010) (similar).Counts I through VI all concern the Citys actions in response to the execution of the search warrant and challenge
laws existing at that time, before the enactment of the new Ordinance. More specifically, Count I presented a facial challenge to the ordinances that authorized the City to close the Club on an emergency basis and asserts that they impose an unlawful prior restraint under the First Amendment; Count II lodges the same argument, only as applied to the Club. And Count III alleges that these ordinances are facially unconstitutional under the Due Process Clause. Count IV contests the facial constitutionality of the Citys post-deprivation procedures in particular under the Due Process Clause; Count V makes the same argument as applied to the Club. Count VI asserts that the Citys use of the local laws to suspend its business license violated the First Amendment and the Due Process Clause because, according to the complaint, the City acted in bad faith and for retaliatory reasons. Counts VII through XVI concern the legality of the Ordinance enacted in the wake of the police investigation. Count VII contends that the Ordinance imposes an unconstitutional burden on the Clubs First Amendment rights. Count VIII alleges that the Ordinance is an unconstitutional tax on speech. Count IX challenges the Ordinance as a violation of the Equal Protection Clause. Count X argues that the Ordinance is unconstitutionally vague. Count XI posits that the Ordinance violates the Contract Clause. Count XII takes issue with the penalty provision, claiming it violates the Eighth Amendment. Counts XIII, XIV, and XV allege that the Ordinance is preempted by state and federal laws. And finally, Count XVI contends that the inspection provision of the Ordinance violates the Fourth Amendment.