Club Madonna Inc. v. City of Miami Beach

Decision Date01 August 2022
Docket Number20-14292
Citation42 F.4th 1231
Parties CLUB MADONNA INC., a Florida corporation d.b.a. Club Madonna, Plaintiff-Appellant-Cross Appellee, v. CITY OF MIAMI BEACH, a Florida municipal corporation, Defendant-Appellee-Cross Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Daniel R. Aaronson, James Scott Benjamin, Peter T. Patanzo, Benjamin Aaronson Edinger & Patanzo, PA, Fort Lauderdale, FL, Gary Scott Edinger, Gary S. Edinger, PA, Gainesville, FL, Benedict P. Kuehne, Kuehne Davis Law, PA, Miami, FL, for Plaintiff-Appellant-Cross Appellee.

Enrique Daniel Arana, Scott Everett Byers, James Samuel Czodli, Rachel Ann Oostendorp, Richard J. Ovelmen, Carlton Fields, PA, Miami, FL, Aleksandr Boksner, Donald Mark Papy, Robert F. Rosenwald, City Attorney's Office of Miami Beach, Miami Beach, FL, for Defendant-Appellee-Cross Appellant.

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 sparked a years-long legal fight between the Club and the City, which reached this Court once before and is before us again.

The Club's 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 Club's first two claims, ruled for the Club on its federal preemption claim at summary judgment, and ruled for the City on the Club's state law preemption claim at the motion-to-dismiss stage for failure to state a claim. The Club now appeals the court's rulings on its First Amendment, Fourth Amendment, and state law preemption claims. Meanwhile, the City cross-appeals the district court's ruling on the Club's federal preemption claim.

We affirm on all counts. First, although the Ordinance 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 Ordinance's 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 Ordinance's 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 immigration law because federal law exempts businesses from verifying the employment eligibility of independent contractors and casual hires -- the type of workers that the Ordinance directly targets -- so the statute's penalty scheme for enforcing that employment-eligibility requirement stands as an obstacle to the federal regulatory system. And finally, the Club's state law conflict preemption claim fails because there is no Florida law that cabins the City's ability to levy fines against the Club for violating the Ordinance's requirements.

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 Club's 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 forms 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 Ordinance's 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 with violating 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." Code of the City of Miami Beach § 18-913(1)(b).

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 City's use of its emergency powers to suspend the Club's 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 City's motion. The Club appealed to this Court, and we affirmed in part and reversed in part, reinstating the Club's First Amendment, unconstitutional tax, Contract Clause, Equal Protection Clause, federal preemption, state preemption, and Fourth Amendment claims because they were ripe for adjudication. Club Madonna I , 924 F.3d at 1383. On remand, the City again moved to dismiss the Club's claims, and after referring them to the magistrate judge, the district court granted the City's motion only for the Club's unconstitutional tax, Equal Protection Clause, Contract Clause, and state preemption claims, leaving the Club's First Amendment (Count VII), federal preemption (Count XIII), and Fourth Amendment (Count XVI) claims to be resolved at summary judgment.

Like the City's 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 Club's First Amendment rights because it overburdened the Club's protected speech; (2) violated the Club's Fourth Amendment rights because, although the Club's business fell into the category of a closely regulated industry, the Ordinance's unfettered warrantless-search provision was unnecessary to further the City's interest in preventing human trafficking; and (3) was conflict preempted by the Immigration Reform and Control Act of 1986 ("IRCA"), 8 U.S.C. § 1324a et seq. , because the federal statute excludes independent contractors and casual hires from the requirement that any worker or performer is "legally permitted to be employed within the United States[.]"

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 judge's findings on the Club's federal preemption claim, the district court declined to adopt his conclusions about the Club's First and Fourth Amendment claims.

The court began by rejecting the R&R's conclusions about the Club's 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 Court's decision in Arcara v. Cloud Books , 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986), the district court reasoned that since the Ordinance does not single out First Amendment expression, the ...

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