Club Madonna Inc v. City of Miami Beach
Filing
165
ORDER granting in part and denying in part 112 Motion for Summary Judgment; granting in part and denying in part 116 Motion for Summary Judgment; adopting only in part Report and Recommendations re 144 Report and Recommendations. Closing C ase. Motions Terminated: 112 MOTION for Summary Judgment filed by Club Madonna Inc, 144 REPORT AND RECOMMENDATIONS re 112 MOTION for Summary Judgment filed by Club Madonna Inc, 116 MOTION for Summary Judgment filed by City of Miami Beach, 116 MOTION for Summary Judgment filed by City of Miami Beach. Signed by Judge Federico A. Moreno on 11/10/2020. See attached document for full details. (zgz)
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
Miami Division
Case Number: 16-25378-CIV-MORENO
CLUB MADONNA, INC. dlb/a CLUB
MADONNA,
Plaintiff,
vs.
CITY OF MIAMI BEACH,
Defendant.
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I
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO
COUNTS 7 AND 16, GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
AS TO COUNT 13
THE MATTER was referred to the Honorable Jonathan Goodman, United States Magistrate
Judge, for a Report and Recommendation on the parties' motions for summary judgment. The Court
has review~d the entire record and de novo reviewed the issues raised in the cross-objections the Report
and Recommel)dation. The Court finds that the City of Miami Beach's Ordinance requiring age
verification for employees does not violate the First or Fourth Amendment. The Court further finds
that the Ordinance's citizenship requirement is invalid and that severing that provision from the
Ordinance is appropriate.
BACKGROUND
Club Madonna is a fully nude strip club in Miami Beach. On January 6, 2014, City law
enforcement officers executed a search warrant at the Club and discovered that a 13-year-old victim
of human trafficking was being forced to dance nude at the Club. The victim began performing at the
fully nude strip club after she ran away from home and was taken by four adult captors. The
City
rescued the victim and arrested her captors. Even though the victim performed at the Club on multiple
occasions, the Club never asked her to provide any identification to verify her age. The City of Miami
Beach issued an Emergency Order temporarily suspending the Club's Occupational Licenses for six
months after finding that the Club was engaged in conduct constituting an "actual threat to the public
health, welfare and safety of residents of Miami Beach." The City reinstated the licenses after the Club
agreed to enact written security standards, hire a Chief Compliance officer, check at least two forms
of identification before allowing a performer to dance, and maintain records of who it let dance.
To prevent any similar incident from ever happening again, the City Commission enacted
Ordinances 2015-3917 and 3926 (codified as§ 18-913-915). The City of Miami Beach Human
Trafficking Ordinance requires all nude dance establishments in the City to check the age and work
eligibility of "any worker or performer," ensure through sworn statements that they are working of
their own accord, and indefinitely maintain records of the documents and verification for inspection
by the City upon demand. Club Madonna filed a complaint against the City, challenging the
constitutionality of the Ordinance (Counts VII-XVI) and the suspension of the Club's Certificate of
Use for 17 days (Counts I-VI).
This Court granted the City's initial Motion to Dismiss and dismissed all counts with prejudice.
The Club appealed the dismissal of Counts 111-V, VI (as to Due Process claim only), and Counts VIIXVI. On appeal, the Eleventh Circuit issued a Mandate that affirmed dismissal of Counts III-VI, X,
and XII, and reversed dismissal of Counts VII-IX, XI, XIII-XVI. The City filed
a renewed Motion to
Dismiss, and this Court granted the motion with respect to Counts VIII, IX, XI, XIV, XV, leaving
Counts VII, XIII, and XVI to now be resolved on summary judgment.
The Court finds the City is entitled to summary judgment on Counts VII (freedom of speech),
Count XVI (Fourth Amendment), and the City is entitled to summary judgment on Count XIII (federal
preemption). Thus, only Sec. l 8-913(l)(b) is found unconstitutional and stricken and severed. The rest
of the Ordinance stands. For reference, the Ordinance reads, in relevant part:
Sec. 18-913. - Proof of identification for workers and performers, and shift logs required.
All nude dance establishments as defined in section 142-1271 of the city Code, and as such section
may be amended from time to time, must:
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( 1) Require any worker or performer entering the nude dance establishment to provide proof of an
original, lawfully issued state or federal photo identification, and one additional form of
identification that confirms he or she is:
(a) Eighteen years of age or older; and
(b) Is either a U.S. Citizen, legal resident, or otherwise legally permitted to be employed
within the United States of America.
(2) Confirm that the person is working or performing of his or her own accord and is not being forced
or intimidated into working or performing at the nude dance establishment. The confirmation as set
forth within this subsection shall be pursuant to, and in compliance with subsection (4); and
(3) Maintain copies of those documents required in subsection (1) and (2) herein, and those
documents must at all times be on the premises of the nude dance establishment for the duration the
worker or performer is employed, hired or contracted at, or is permitted to work or perform at the
nude dance establishment; and
(4) Verify the accuracy of those documents required in subsection (1) and (2) by preparing and
retaining a sworn statement from the owner or manager of the nude dance establishment confirming
that the individual performer is at least 18 years of age, is performing of her or his own accord, and is
not being forced or intimidated into performing or working; and
(5) Maintain a check in/check out procedure and log whereby the documents referenced in subsection
( 1) are presented by the worker or performer upon entering the nude dance establishment, and the
worker or performer logs in upon entering and logs out prior to exiting the nude dance establishment.
The log shall indicate:
(a) The name(s) of the manager(s) of the nude dance establishment on duty at the time of the
log in and log out;
(b) The worker or performer's actual name; a unique identifier, if any (e.g., employee number
or stage name); the job title or role at the nude dance establishment (e.g., performer,
employee, server, bartender); the log in and log out times; and
(b) The manager who confirmed that the identifications referenced in subsection (1) were
inspected and verified.
The documents referenced in subsections (1) through (5) must be available for inspection by the city
upon demand, and the nude dance establishment shall not refuse access to these documents for
inspection by the city. No person shall be allowed to enter or perform at the nude dance establishment
or who has not been presently verified consistent with those provisions identified within subsections
18-913(1) through (5).
Legal Standard
"The court shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter oflaw. The court should state
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on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a). Thus, the Court
may enter summary judgment "against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will bear the burden of
proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986).
COUNT VII - FIRST AMENDMENT - BURDEN ON SPEECH
In Count VII, the Club alleges that the Ordinance's provisions that require daily check-in and
verification procedures for all workers and indefinite record keeping impose unconstitutional burdens
on the Club's freedom of speech in violation of the First Amendment. Magistrate Judge Goodman
recommends that the Court grant summary judgment to the Club on its First Amendment claim because
the City did not use substantially less restrictive and precise methods to achieve its stated goal of
preventing human trafficking, and the repeated identification verification (for age and employment
eligibility) requirement is not narrowly tailored, and thus burdens speech in violation of the First
Amendment.
As a threshold matter, the City objects that First Amendment analysis is unnecessary because
the Ordinance does not burden expressive conduct. The City argues the Ordinance does not regulate
the stripping itself and is thus not a regulation of speech at all. The Court agrees. The expressive
conduct at issue here is the nude dancing itself. Both parties agree that nude dancing is owed at least
some First Amendment protection because of the erotic message it conveys. Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 566 (1991). But the Ordinance does not regulate nude dancing; it regulates the
unlawful conduct of human trafficking and child labor. The Supreme Court has held that a party that
engages in First Amendment-protected conduct is not exempt from potentially burdensome laws
merely because they are in the business of expression. In Arcana v. Cloud Books, an adult bookstore
that sold sexually explicit material and had private booths available for viewing the material was
searched pursuant to a report about illicit sexual activity on the premises. Law enforcement personally
observed solicitation of prostitution and other illicit sexual acts, all of which were in full view of the
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business' owner. 478 U.S. 697, 698-99 (1986). The bookstore was then sued under the applicable New
York public health laws. In Cloud Books' complaint against the government, it alleged that
enforcement of the health laws against it would violate the First Amendment because of the impact on
Cloud Books' protected bookselling activities. The New York Court of Appeals agreed, applied
scrutiny appropriate for a regulation aimed at nonspeech activity but having an incidental effect on
speech, and found that the closure of the store was broader than necessary under the First Amendment.
Id. at 701-02.
The Supreme Court granted certiorari and reversed. Id. In holding that First Amendment
scrutiny was inapposite when reviewing a law that does not single out First Amendment expression,
the Court stressed the "fallacy of seeking to use the First Amendment as a cloak" for unlawful conduct
by the "diaphanous device of attributing protected expressive attributes to that conduct." Id. at 705.
The Court went on to compare the public health law at issue to a neutral tax law that happened to apply
to a newspaper or shutting a bookstore down for fire code violations. Id. Ultimately, the Court held the
New York Court of Appeals misapplied the O'Brien test. Id. ("First Amendment values may not be
invoked by merely linking the words 'sex' and 'books.'"). Here, identically, First Amendment scrutiny
does not apply to an ordinance ensuring the Club does not violate widely applicable laws against human
trafficking and child labor simply because the Club and its employees express a protected message in
their day-to-day business.
The Club argues thatArcara cannot apply here because the holding is limited to laws of general
application, and here, the Club asserts, nude dance establishments bear a disproportionate burden under
the Ordinance. True, the Ordinance only applies to nude dance establishments, but what the Ordinance
actually requires the Club to do should be familiar to all businesses that present ample opportunity for
illegal activity involving minors. For example, all patrons must show identification before entering a
bar or a casino. Eleventh Circuit precedent does not compel a different conclusion. Cases such as Lady
J Lingerie v. City ofJacksonville or Peek-A-Boo Lounge ofBradenton, Inc. v. Manatee Cty., Fla. apply
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First Amendment Scrutiny to content-neutral laws regulating nude dance establishments, but the
regulations at issue in those cases are hour and zoning regulations respectively; they clearly are "time,
place, manner" restrictions that the Supreme Court evaluates under the test delineated in City ofRenton
v. Playtime, Theatres, Inc., 475 U.S. 41 (1986). Even though such restrictions are content neutral, they
can still severely limit First Amendment expression-for instance, a law that restricts nude dance
establishment operating hours to Noon-5 P .M. But the Ordinance at issue here has nothing to do with
how the dancers dance, when the Club can be open, the areas of the City in which it is allowed to
operate, or any similar restriction that is remotely tied to the expressive message of erotic dancing.
Rather, the Ordinance simply requires the Club to verify its employees' identities and ages, and make
those records available for inspection.
Even if First Amendment scrutiny were to apply, the Ordinance is narrowly tailored and not
unduly burdensome. The City objects that Magistrate Judge Goodman misreads the Ordinance to
require Club Madonna to make copies of identification every time and write out the sworn statement
every time, when, in reality, the copies and sworn statement only need be made once and then checked
against the identification presented every time. The Court agrees with the City's objections on this
point. The Ordinance must be read reasonably and with an understanding of how it has been enforced
thus far. The City states in the record and at oral argument that copies need not be made and a sworn
statement need not be prepared every time an employee comes to work. Rather copies would be made
upon hiring and then checked against two forms of identification each day. Likewise, the City
represented that the Ordinance is a reasonable check-in/check-out procedure-it would not be enforced
to require the Club to re-do their procedures each time an employee stepped out to grab something
from the car. Indeed, records produced by the Club in discovery show that it did not copy two forms
of identification or prepare a sworn statement before every performer's shift. Rather, the performers'
files, while often incomplete, contained single copies of the identifications and a sworn statement, and
the Club used the same log-in sheet it had been using for years to document that the performers' age
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had been verified before each shift. (D.E. 115 ,r,r 19-20; D.E 115-10.)
The Club further objects that the Ordinance is substantially broader than necessary to serve the
City's interest. The Court disagrees. A content-neutral regulation aimed at conduct unrelated to the
expression must pass a less stringent constitutional test than if it regulated the content of the expressive
speech itself. Ward v. Rock Against Racism, 491 U.S. 781, 798-99 (1989); see also City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 47 (1986); see, e.g., City of Erie v. Pap's A.M, 529 U.S. 277
(2000), 289-90; Texas v. Johnson, 491 U.S. 397, 403 (1989). See also United States v. O'Brien, 391
U.S. 367, 377 (1968). Magistrate Judge Goodman thoroughly explained that "a regulation is narrowly
tailored as long as 'the means chosen are not substantially broader than necessary to achieve the
government's interest," (D.E. 144 at 17 (citing Ward, 491 U.S. at 800)), and thus the Ordinance "need
not be the least restrictive or least intrusive means of doing so," id. (citing Daytona Grand, Inc. v. City
of Daytona Beach, Fla., 490 F.3d 860, 885 (11th Cir. 2007)). The Club argues that the Ordinance is
not narrowly tailored because there are readily available alternatives to the Ordinance's requirements
that would serve the City's interests equally well without infringing on its First Amendment rights so
severely. In support, the Club pointed to ordinances in Jacksonville, Gainesville, Brevard County, and
Bay County that do not require adult nightclubs to verify the age and employment status of a dancer
or any other employee every time he or she comes to work. However, this Court's role is not that of a
legislative body, but simply ruling on the constitutionality of what the City enacted.
The City meets its burden of narrow tailoring if the regulation promotes a substantial
government interest that would be achieved less effectively absent the regulation. Ward, 491 U.S. at
798-99. See also Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee Cty., Fla., 337 F.3d 1251, 1273
(11th Cir. 2003) (noting that despite the [government's] burden, "the District Court should be careful
not to substitute its own judgment for that of the County. The County's legislative judgment should be
upheld provided that the County can show that its judgment is still supported by credible evidence,
upon which the County reasonably relies."). The Eleventh Circuit later explained that this
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determination "requires deference to the reasoned judgment of a governmental entity." Flanigan 's
Enter., Inc. of Ga. v. Fulton Cty., Ga., 596 F.3d 1265, 1279 (11th Cir. 2010); see also Daytona Grand,
Inc. v. City of Daytona Beach, Fla., 490 F.3d 860, 880 (11th Cir. 2007) ("[A] city must have latitude
to experiment, at least at the outset, and ... very little evidence is required."). There is no dispute that
the Ordinance furthers the City's goal ofreducing human trafficking and child labor, and now the Court
agrees with the City that the Ordinance is not substantially broader than necessary to meet that
objective. It is not the role of the courts to engage in line-drawing exercises. Lady J. Lingerie, at 1365
(declining to find that a time, place, manner restriction was not narrowly tailored because the strip club
must close between 2 A.M. and Noon, rather than just 2 A.M. and 10 A.M.). Additionally, the
Ordinance leaves ample alternative avenues of expression. All the Club or a dancer must do is comply
with common-sense verification requirements. Id. ("Since the rule also leaves open reasonable
alternative avenues of expression ... it is valid."). Finally, Magistrate Judge Goodman found that the
repeated identification verification was not narrowly tailored because the City did not use far-less
restrictive means, and he cites FF Cosmetics FL, Inc. v. City of Miami Beach, 866 F .3d 1290, 1301
(11th Cir. 2017). There, however, there was evidence the City deliberately chose the more restrictive
means because the City had already adopted the less restrictive version for similar conduct, and the
City itself offered alternatives for the trial court's consideration. Id. The FF Cosmetics panel explicitly
noted "there is a significant distinction between failing to employ less-restrictive means and completely
disregarding obvious less-burdensome alternatives." Id. The Court is not presented with a situation
where the City considered and rejected obviously less-burdensome alternatives, nor is it presented with
a situation in which the burden on speech is anything more than minimal. For those reasons, the Court
does not adopt the Magistrate Judge's Report and Recommendation, and grants summary judgment to
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Miami Beach on Count VII. 1
COUNT XVI- FOURTH AMENDMENT-ADMINISTRATIVE SEARCH
In Count XVI, the Club brings a facial challenge on Fourth Amendment grounds alleging the
Ordinance unconstitutionally allows the City to conduct warrantless administrative searches and
seizures at any time without the Club's permission and does not give the Club an opportunity for
precompliance review before a neutral decisionmaker. The Ordinance's relevant provision provides,
"[t]he documents referenced in subsections (1) through (5) must be available for inspection by the city
upon demand, and the nude dance establishment shall not refuse access to these documents for
inspection by the city."§ 18-913.
Under the Fourth Amendment, "searches conducted outside the judicial process, without prior
approval by a judge or a magistrate judge, are per se unreasonable ... subject only to a few specifically
established and well-delineated exceptions." City ofLos Angeles, Calif. v. Patel, 135 S. Ct. 2443, 2452
(2015) (internal citation omitted). "[I]n order for an administrative search to be constitutional, the
subject of the search must be afforded an opportunity to obtain precompliance review before a neutral
decisionmaker." Id. For example, if a business refused an administrative search of its records, the
business owner "must be afforded an opportunity to have a neutral decisionmaker review an officer's
demand to search the [records] before he or she faces penalties for failing to comply." Id. at 2453. The
"availability of precompliance review alters the dynamic between the officer and the [business] to be
searched, and reduces the risk that officers will use these administrative searches as a pretext to harass
business owners." Id. at 2454. Such review is not provided for here.
However, precompliance review is not necessary for administrative searches of "closely
regulated" industries. Owners of closely regulated businesses have reduced expectations of privacy
1
The City did not move for summary judgment in writing, but the Court may grant summary judgment sua sponte
under Federal Rule of Civil Procedure 56(t), and both parties agree that this case is to be decided as a matter oflaw
as there are no factual disputes.
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given the pervasive government regulation, and the interests of the government are heightened given
the inherent risks of these businesses. Thus, a warrantless inspection of commercial premises is more
likely to be reasonable within the meaning of the Fourth Amendment. N. Y. v. Burger, 482 U.S. 691,
702 (1987). Laws that allow for administrative searches of those industries are evaluated under a less
demanding three-part constitutional test, discussed below. See Patel, 576 U.S. 409, 426 (citing N. Y. v.
Burger, 482 U.S. 691, 702-703 (1987)).
The Supreme Court has recognized four such industries: liquor sales, firearms dealing, mining,
and operating an automobile junkyard. The Club argues that this Court should interpret this to mean
that closely regulated industries are expressly limited to those four industries. That argument ignores
the fact that the lower federal courts and state courts have recognized a bevy of other closing regulated
industries including pharmaceuticals, the medical profession, food, nuclear power, storing and
dispensing gasoline, construction, day cares and 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.2 As Justice Scalia noted in
Patel, the four industries recognized by the Supreme Court tells us "more about how the Court
exercises its discretionary review than it does about the number of industries that qualify as closely
regulated." Patel, 576 U.S. at 2461 (Scalia, J., dissenting).
Nude dancing clubs like Club Madonna have long been pervasively regulated. See City of Erie
v. Pap's A.M, 529 U.S. 277,299,302 (2000) (upholding ordinance barring full nudity at nude dancing
club); see also Flanigan 's Enters., Inc. ofGa. v. Fulton Cty., Ga., 596 F.3d 1265, 1269 (11th Cir. 2010)
(upholding ordinance barring the sale of alcohol at adult entertainment establishments); FWIPBS, 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."). Indeed, the City of
2
Rethinking Closely Regulated Industries, Note, 129 Harv. L. Rev. 797, 805-06 (2016) (collecting cases).
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Miami Beach itself heavily regulates adult entertainment. For example, it requires a cabaret license,
and places special zoning limitations on clubs to ensure
they are not too close to churches, parks, or schools. See Miami Beach Code§ 142-1272 (requiring
adult entertainment establishments are at least 300 feet from "house of worship, school, public park or
playground). Further, to combat the harmful secondary effects associated with mixing
nudity and liquor, the City Code prohibits the sale of alcohol in fully nude dance establishments. Miami
Beach Code§ 6-40 ("Total nudity and sexual conduct prohibited"). Any business owner that gets into
the adult entertainment business would surely have a diminished expectation of privacy as a result. In
sum, Magistrate Judge Goodman capably analyzes this question, and the Court refers readers to the
Report at 39-41 for fuller exploration. The Court agrees with the Report's finding that the Eleventh
Circuit would likely find adult entertainment clubs to be closely regulated if presented with the
question. R&R at 41.
Under the more relaxed closely regulated industry test, the Ordinance would need to satisfy the
following criteria: (1) there 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 provide a constitutionally adequate substitute for a warrant. Patel,
135 S. Ct. at 2456 (citingN.Y. v. Burger, 482 U.S. 691, 702 (1987)). Both parties agree the City has a
substantial government interest in curtailing human trafficking and in ensuring that the Club maintains
accurate and complete records verifying the age of its employees.
With respect to the second requirement, the Court disagrees with Magistrate Judge Goodman
that the surprise inspections allowed under the Ordinance are not necessary to further the goals of the
Ordinance. The City presents evidence that while surprise inspections were in use, Club Madonna did
not violate the Ordinance. However, when those inspections were no more, the Club fell out of
compliance. (D.E. 115 11 19-21.) Although this is a facial challenge, these details are still relevant- 11 -
they provide important color as to why surprise inspections are necessary to achieving the City's
worthwhile objectives. Surprise inspections for closely regulated businesses have been endorsed by
other courts, including the Eleventh Circuit. See, e.g., United States v. Biswell, 406 U.S. 311, 316
( 1972) ("[I]f inspection is to be effective and serve as a credible deterrent, unannounced, even frequent,
inspections are essential. In this context, the prerequisite of a warrant could easily frustrate inspection;
and if the necessary flexibility as to time, scope, and frequency is to be preserved, the protections
afforded by a warrant would be negligible."); Crosby v. Paulk, 187 F.3d 1339, 1347 (11th Cir. 1999)
("Requiring inspectors or other law enforcement agents to obtain warrants before conducting an
investigation might alert nightclub and bar owners to the impending inspection, which would defeat
the purpose of the inspection: to investigate for violations of the Georgia Department of Revenue
statutes relating to alcohol."); Heffner v. Murphy, 745 F.3d 56, 68 (2014) (noting that surprise
inspections prevent unscrupulous funeral practitioners from bringing their establishments into
regulatory compliance prior to an inspection, only to let them fall below prescribed standards when the
threat of detection passes). Just one day of work for an underaged nude dancer is one day too many.
The City reasoned that random, surprise inspection was necessary to combat such harms, and this Court
believes that is an appropriate assessment.
Finally, as to the third requirement, the certainty and regularity of the Ordinance's application
provides a constitutionally adequate substitute for a warrant. The goal of this prong is to ensure the
Ordinance is "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." Burger, 482 U.S. at 703 (citations omitted). "The 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." Id. The Ordinance does both. It clearly puts nude dance establishments that
searches are authorized by City law, and it limits the object of the search to the records mandated
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earlier in the Ordinance. City enforcement officers do not have free reign to search any other part of
the Club. The Eleventh Circuit has found warrantless search statutes to sufficiently cabin discretion
when the regulation specifically describes the type of object or document to be searched. United States
v. Ponce-A/dona, 579 F.3d 1218, 1226 (11th Cir. 2009). The Ordinance is even more specific here. It
not only identifies categories that will be searched, but it delineates the specific documents.
The Report relies on the Supreme Court's Patel decision to find that the Ordinance is deficient
under the certainty and regularity prong. The law in Patel was unconstitutional because it failed to
constrain police officers' discretion where there was no limitation on which hotels out of thousands
would be searched, nor how often. But, as the City notes in its objections, there are important
differences between the Los Angeles regulation at issue in Patel and the Ordinance that make the case
inapposite here. The Los Angeles regulation concerned around 2,000 hotels and subjected a much
larger group of private guest records to inspection. (See D.E. 150 at 16-18.) Here, on the other hand,
the City argues that the Ordinance is very specific about which documents may be demanded (the
identification verification and check-in logs) and limits searches to nude dance establishments (there
is only one in Miami Beach). Additionally, the Eleventh Circuit has no requirement that the Ordinance
be temporally limited as the Club and Magistrate Judge Goodman suggest. United States v. PonceAldona, 579 F.3d 1218, 1224 (11th Cir. 2009) ("We rejected this argument, citing other courts who
had reasoned that imposing time limits on searches of commercial vehicles would eviscerate the search
scheme and render it meaningless. Additionally, we noted that this circuit had previously approved an
administrative search scheme with no time limits."). Thus, the Ordinance's lack of a time restriction is
not fatal.
It also must be noted that the records that are the object of the City's inspections are themselves
creatures of the Ordinance. Without the Ordinance, there would be nothing for the City to inspect.
Indeed, these records are the only things the City can inspect pursuant to this Ordinance. Surely such
a circumscribed inspection of records the City has the authority to ask the Club to create in the first
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place gives the Club enough notice and sufficiently cabins officer discretion as to be a constitutionally
adequate substitute for a warrant.
Thus, the Court does not adopt the Report and Recommendation on Count XVI, and grants
summary judgment to the City.
COUNT XIII- FEDERAL PREEMPTION UNDER THE IMMIGRATION
REMOVAL AND CONTROL ACT
In Count XIII, the Club alleges that the Ordinance violates the Supremacy Clause of the
United States Constitution because Sec. 18-913(1)(b) is expressly and impliedly preempted by the
Immigration Reform and Control Act of 1986. Magistrate Judge Goodman found that the section is
conflict preempted by the Act and thus recommends that the Court grant summary judgment to the
Club.
Conflict preemption occurs where compliance with both federal and state regulations is
physically impossible. Ariz. v. United States, 567 U.S. 387, 399 (2012) (citations omitted).
The City objects that the Ordinance cannot be conflict preempted because the Ordinance falls
within the Act's savings clause, which states that licensing laws and laws similar to licensing laws are
not expressly preempted by the Act. The Immigration Reform and Control Act "expressly preempts
'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."' Id.
(citing § 1324a(h)(2)) (emphases added). Neither party argues that the Ordinance is expressly
preempted because the Ordinance deals with verification rather than hiring.
Even though the Act only mentions express preemption, the City argues that because the
Ordinance should be considered a "licensing [or] similar law," that it cannot be conflict preempted
either. This is not so. Assuming without deciding that the Ordinance is a "licensing [or] similar law,"
and thus falls within the savings clause, the Court still finds the Ordinance to be conflict preempted.
The savings clause saves the Ordinance from express preemption, but not all preemption. Geier v. Am.
Honda Motor Co., 529 U.S. 861, 869 (2000) ("We now conclude that the saving clause (like the express
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pre-emption provision) does not bar the ordinary working of conflict pre-emption principles.")
Now, onto conflict preemption. The City objects that the savings clause, even though it is not
an absolute barrier to conflict preemption, should inform our conflict preemption analysis because
"[g]iven that Congress specifically preserved such authority for the States, it stands to reason that
Congress did not intend to prevent the States from using appropriate tools to exercise that authority."
Chamber of Commerce of US. v. Whiting, 563 U.S. 582, 600-01 (2011) (D.E. 150 at 19.). The Court
agrees. But the tools still must be appropriate. In other words, they must not be conflict preempted by
the Act (or any other federal statute for that matter). As Magistrate Judge Goodman explained, under
the Ordinance, the Club is required to verify that "any worker or performer" entering the establishment
provide proof confirming that she "is either a U.S. Citizen, legal resident, or otherwise legally
permitted to be employed within the United States of America." See§ 18-913(1) (emphases added).
By requiring the Club to verify whether any worker or performer is legally permitted to be employed
within the United States the Ordinance conflicts with the Act because "Congress purposefully excluded
independent contractors and other non-employees from the scope of the restrictions contained in the
IMMIGRATION REMOVAL AND CONTROL ACT." See 8 U.S.C. § 1324a(a)(l)(A); see Chamber
of Commerce of US. v. Edmondson, 594 F.3d 742, 769 (10th Cir. 2010) (stating Congress has
"intentionally excluded independent contractors from verification obligations"); see also Lozano v.
City of Hazleton, 724 F.3d 297, 306 (3d Cir. 2013) (citing H.R. Rep. No. 99-682(1), at 57, 1986
U.S.C.C.A.N. 5649, 5661) ("Congress explicitly declined to sanction employers based on the work
authorization status of 'casual hires (i.e., those that do not involve the existence of an
employer/employee relationship).'").
On the other hand, the Supreme Court's decision in Whiting describes a prime example of a
state using appropriate tools to take advantage of the authority left to them by Congress. "The Arizona
law provides that '[k]nowingly employ an unauthorized alien' means the actions described in 8 United
States Code § 1324a,' and that the 'term shall be interpreted consistently with 8 United States Code §
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1324a and any applicable federal rules and regulations."' Whiting, 563 U.S. 582. at 602-03 (emphasis
added) (internal quotations omitted). Crucially, by incorporating by reference the federal definition of
"employee," Arizona exempts independent contractors and casual hires from its statute and thus avoids
frustrating Congress' objectives-namely, excluding independent contractors from the statute's
purview and keeping the cost of making casual hires low. See 8 C.F.R. § 274a.l(f) (excluding
"independent contractor" from the definition of "employee").
It is clear that Congress intended to exempt casual hires from the Immigration Removal and
Control Act. See H.R. Rep. No. 99-682(1), at 57, 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"). The Court agrees with the Third Circuit's
analysis in Lozano v. City of Hazelton. Finding the city's employment law preempted, the Third Circuit
wrote, "[g]iven the intricate framework of the Immigration Removal and Control Act, we cannot
assume that the distinction is immaterial. Rather, it appears to be a deliberate distinction that Congress
included as part of the balance it struck in determining the scope and impact of the Immigration
Removal and Control Act's employer sanctions. However, Hazleton's ordinance does not distinguish
between employees, on the one hand, and independent contractors or casual hires, on the other." 724
F.3d 297, 307 (2013). Neither does the City's. 3 Thus, it is preempted by federal law and cannot stand
under the Supremacy Clause.
The City also objects that Magistrate Judge Goodman erred in concluding that the Ordinance
obstructs the objectives of the Immigration Reform and Control Act by "declin[ing] to consider the
3
The Court recognizes neither Tenth nor Third circuit precedent is binding, but it finds those
Court's rationales persuasive. The Eleventh Circuit, too, has found the Immigration Removal and
Control Act's "lengthy legislative history" to be persuasive in finding state law preempted, even
though the conflict preemption was not clear from the Immigration Removal and Control Act's
text. See US. v. Alabama, 691 F.3d 1269 (2012). Granted, this decision did not concern the
independent contractor vs. employee distinction, but rather the Act's preemption of state
penalties on unauthorized alien employees in addition to Congress' penalties on employers. Id. at
1300.
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distinction between the Ordinance's comprehensive scheme to prevent human trafficking in strip clubs
and regulations expressly designed to regulate immigration" in Lozano and Edmondson. The Court
again disagrees. As Magistrate Judge Goodman explained, "[t]he City's purpose in enacting the
Ordinance is irrelevant because the Ordinance still requires verification of the eligibility of all workers,
including independent contractors and other casual hires, which conflicts with Congress's intent to
limit the Immigration Removal and Control Act's application to the employer/employee relationship."
(D.E. 144 at 34 (emphasis added).)
Magistrate Judge Goodman further noted that the City did not provide "any case law supporting
the notion that a municipality's intent to not conflict with federal objectives will save an otherwise
conflict preempted ordinance" or showing that "a more-noble purpose (i.e., preventing human
trafficking, as opposed to the preventing the hiring of unauthorized aliens) can somehow save local
legislation otherwise invalid because of conflict preemption." Id. The City's objections suffer the
same deficiency.
Finally, the City objects that Magistrate Judge Goodman disregarded the City's argument that
the Club's dancers are employees, not independent contractors. The Court finds no error. Magistrate
Judge Goodman aptly explained that this argument by the City "is irrelevant to Club Madonna's facial
challenge" because "[f]urther factual development cannot assist in resolution of these facial challenges,
which raise purely legal issues." (D.E. 144 at 33 n.15 (citing Club Madonna, Inc. v. City of Miami
Beach, 924 F.3d 1370, 1380 (11th Cir. 2019).) For all these reasons, the City's objections are
OVERRULED. Sec. 18-913(1)(b) should be removed from the Ordinance.
SEVERABILITY
Finally, Court finds the preempted provision may be severed. Severability of a local ordinance
"is a question of state law." Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1347 (11th
Cir. 2004). "Florida law requires [a Court] to sever any provisions of [an] [o]rdinance that it finds
unconstitutional, while allowing valid portions to stand, but only if problematic provisions can be
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distinguished and clearly separated from the remainder." Cafe Erotica of Fla., Inc. v. St. Johns Cnty.,
360 F.3d 1274, 1292 (11th Cir. 2004) (citation omitted).
To recap, the Court has found only Section 18-913(1)(b) to be unconstitutional. Where
severance is possible and the municipality has "expressed [a] legislative desire to keep as much of its
ordinances as it can," to decline to apply the doctrine of severability "would seriously infringe on the
notion of legislative autonomy[.]" Coral Springs, 371 F .3d at 1349. Here, the City agrees that although
the now severed provisions "are important to the Ordinance's purpose and enforcement scheme,
severance would leave minimum safety protocols to still help accomplish its anti-human trafficking
purposes." (D.E. 152 at 17.) The rest of the provisions can surely stand on their own. They aim to
accomplish goals separate from verifying citizenship status and have their own enforcement
mechanism.
CONCLUSION
With the benefit of the parties' briefs, Magistrate Judge Goodman's Report and
Recommendation, and oral argument, for all the reasons explained above, it is
ADJUDGED that the Objections to the Report and Recommendation (D.E. 147, 150) are
OVERRULED IN PART, the Report and Recommendation (D.E. 144) is ONLY ADOPTED IN
PART, Defendant's Motion for Summary Judgment on Counts VII and XVI (D.E. 116) is
GRANTED, and Plaintiffs Motion for Summary Judgment on Count XIII (D.E. 112) is GRANTED.
DONE AND ORDERED in Chambers at Miami, Florida, this
..LP
/l-
of November 2020.
UNITED STATES DISTRICT JUDGE
Copies furnished to:
United States Magistrate Judge Jonathan Goodman
Counsel of Record
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