Club Madonna Inc. v. City of Miami Beach ( 2022 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14292
____________________
CLUB MADONNA INC.,
a Florida corporation d.b.a. Club Madonna,
Plaintiff-Appellant-
Cross Appellee,
versus
CITY OF MIAMI BEACH,
a Florida municipal corporation,
Defendant-Appellee-
Cross Appellant.
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2 Opinion of the Court 20-14292
____________________
Appeals from the United States District Court
for the Southern District of Florida
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 estab-
lishments have raised constitutional questions. The law at issue
today is no different.
After a thirteen-year-old victim of human trafficking per-
formed 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 or-
der 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
* Honorable Richard W. Story, United States District Judge, for the Northern
District of Georgia, sitting by designation.
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20-14292 Opinion of the Court 3
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 im-
pression. 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 im-
plicates 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 Amend-
ment concerns. Third, the Ordinance’s employment-verification
requirement that any worker or performer “[i]s either a U.S. Citi-
zen, legal resident, or otherwise legally permitted to be employed
within the United States of America” is preempted by federal
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4 Opinion of the Court 20-14292
immigration law because federal law exempts businesses from ver-
ifying the employment eligibility of independent contractors and
casual hires -- the type of workers that the Ordinance directly tar-
gets -- so the statute’s penalty scheme for enforcing that employ-
ment-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 Or-
dinance’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 se-
curity 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 pre-
viously described the Ordinance’s requirements this way:
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First, Section 18-913 requires nude dancing es-
tablishments such as the Club to check the age and
work eligibility of “any worker or performer” by re-
quiring that they “provide proof of an original, law-
fully 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 per-
former 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 ac-
cord, and is not being forced or intimidated into per-
forming or working.” Code of the City of Miami
Beach § 18-913. Section 18-913 also requires the busi-
ness to keep a log of workers as they enter and exit
the premises and to make all of the required docu-
mentation available “for inspection by the city upon
demand.” Id.
...
Finally, Section 18-915 describes the penalties
for failure to comply with the requirements of Sec-
tions 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 sec-
ond offense within three years, the City will shut
down the business for three months. And a third of-
fense allows the City to exercise its discretion to close
the business for up to a year. Code of the City of Mi-
ami Beach § 18-915. An establishment charged with
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violating the ordinance has a right to an administra-
tive 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 veri-
fying 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 Amend-
ment, the Fourth Amendment, the Fourteenth Amendment (rais-
ing both Due Process Clause and Equal Protection Clause claims),
and the Eighth Amendment, and on Contract Clause and Suprem-
acy Clause grounds.1 The City moved to dismiss on many grounds
1 We described these claims in detail in our first review of the case:
Counts I through VI all concern the City’s actions in
response to the execution of the search warrant and challenge
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(including failure to state a claim, standing, mootness, and ripe-
ness), and the district court granted the City’s motion. The Club
laws existing at that time, before the enactment of the new Or-
dinance. More specifically, Count I presented a facial chal-
lenge 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 unconstitu-
tional under the Due Process Clause. Count IV contests the
facial constitutionality of the City’s post-deprivation proce-
dures in particular under the Due Process Clause; Count V
makes the same argument as applied to the Club. Count VI
asserts that the City’s use of the local laws to suspend its busi-
ness license violated the First Amendment and the Due Pro-
cess 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 Or-
dinance enacted in the wake of the police investigation. Count
VII contends that the Ordinance imposes an unconstitutional
burden on the Club’s First Amendment rights. Count VIII al-
leges 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 un-
constitutionally vague. Count XI posits that the Ordinance vi-
olates the Contract Clause. Count XII takes issue with the pen-
alty 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 vio-
lates the Fourth Amendment.
Club Madonna I, 924 F.3d at 1376–77.
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appealed to this Court, and we affirmed in part and reversed in part,
reinstating the Club’s First Amendment, unconstitutional tax, Con-
tract 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 re-
mand, 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 preemp-
tion (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 reg-
ulated industry, the Ordinance’s unfettered warrantless-search pro-
vision was unnecessary to further the City’s interest in preventing
human trafficking; and (3) was conflict preempted by the Immigra-
tion 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
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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. Alt-
hough 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 Amend-
ment 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 deci-
sion in Arcara v. Cloud Books, 478 U.S. 697 (1986), the district court
reasoned that since the Ordinance does not single out First Amend-
ment expression, the First Amendment does not apply -- even if the
law has incidental effects on the Club’s freedom of expression. The
court also explained that even if the Ordinance had targeted expres-
sive 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 Club’s protected activi-
ties under the First Amendment.
Second, the trial court also rejected the magistrate judge’s
determination about the Club’s Fourth Amendment claim. For
starters, it reasoned that nude dancing clubs are closely regulated
for Fourth Amendment purposes because of their history of perva-
sive regulation. The court also found that the Ordinance’s
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warrantless-search provision was constitutionally reasonable un-
der the administrative-search test the Supreme Court articulated in
New York v. Burger, 482 U.S. 691, 702 (1987), because surprise in-
spections were necessary to ensure the Club complied with the Or-
dinance, and the certainty and regularity of the Ordinance’s appli-
cation provided an adequate constitutional substitute for a war-
rant.
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 Immi-
gration Reform and Control Act of 1986. The district court rea-
soned 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 el-
igibility 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-ap-
pealed the district court’s order on the Club’s federal preemption
claim.
III.
We review a district court’s 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
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(11th Cir. 2019) (quotation marks omitted), and we also review a
district court’s dismissal for failure to state a claim de novo. Star-
ship Enters. of Atlanta, Inc. v. Coweta Cnty., 708 F.3d 1243, 1252
(11th Cir. 2013).
We begin with the Club’s First Amendment claim. The dis-
trict 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,” U.S. CONST. amend. I, but not all govern-
ment action implicates the First Amendment. Two Supreme
Court cases illuminate the issue. In Arcara, the Supreme Court
considered whether a county’s closure of an adult bookstore, be-
cause there was documented evidence that individuals were solic-
iting prostitution on the bookstore’s premises, violated the
bookstore’s First Amendments rights. 478 U.S. at 700–03. The
New York Court of Appeals concluded that the First Amendment
was implicated, applying the Court’s reasoning in United States v.
O’Brien. Id. at 701 (citing 391 U.S. 367 (1968)). In O’Brien, the
Supreme Court said that when a law targets both speech and non-
speech elements that are combined in the same course of conduct,
the law will be upheld if (1) the law is grounded in a substantial
governmental interest, and (2) the incidental restriction on speech
is no broader than necessary to further that interest. Id. at 478 U.S.
at 702–03 (citing 391 U.S. at 376–77). Because the bookstore’s
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closure would have an incidental effect on its freedom of expres-
sion (selling adult books), the New York Court of Appeals reasoned
that O’Brien applied. Id. at 702.
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 in-
voked by merely linking the words ‘sex’ and ‘books.’” Id.
The Court also considered -- and distinguished -- Minneap-
olis Star & Tribune Company v. Minnesota Commissioner of Rev-
enue. Id. at 704 (citing 460 U.S. 575 (1983)). In Minneapolis Star,
the Court struck down a state use tax 2 that specifically targeted the
sale of large quantities of newsprint and ink because it had the spe-
cific 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.
2 The Court explained that a use tax “requires the resident who shops out-of-
state to pay a use tax equal to the sales tax savings. . . . Thus, in general, items
exempt from the sales tax are not subject to the use tax.” Minneapolis Star,
460 U.S. at 581–82.
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The Court explained the difference between the use tax and
generally applicable regulations, which do not implicate the First
Amendment. Minnesota “created a special tax that applies only to
certain publications protected by the First Amendment . . . [and]
singl[es] out publications for treatment that is . . . unique in [its] tax
law.” Minneapolis Star, 460 U.S. at 581. The Court suggested that
the object of the law related to the suppression of the state news-
papers’ expressive conduct -- a goal that “is presumptively uncon-
stitutional.” Id. at 585.
Arcara distinguished Minneapolis Star because the
bookstore’s 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 ac-
tivity.” Id. at 706–07.
Arcara and Minneapolis Star require us to perform a search-
ing 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
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not regulate speech on its face, the law may raise First Amendment
concerns if it is aimed at, or if it involves the suppression of speech
or expressive conduct. See id. at 703–04; see also Church of
Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 540–45 (1993)
(concluding that a series of municipal ordinances regulating animal
sacrifice, a religious practice that is a principal form of devotion for
members of the Santeria faith, were not neutral laws of general ap-
plicability and were therefore subject to strict scrutiny for burden-
ing the plaintiff’s religion in violation of the Free Exercise Clause).
With these essential precedents in mind, we conclude that
the City’s Ordinance implicates the First Amendment. For starters,
the law is not one of general applicability. Unlike the general law
criminalizing prostitution in Arcara, the City’s Ordinance applies
exclusively to nude dancing clubs in the City, out of which the Club
is in a class of one. Although there could be additional nude danc-
ing 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 ex-
pressive 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 Ordinance’s 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.
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See Barnes v. Glen Theatre, 501 U.S. 560, 566 (1991) (plurality opin-
ion). The City has made a policy choice that those dancers who do
not have the requisite paperwork whenever they enter adult enter-
tainment establishments cannot perform. By taking aim only at
nude dancing establishments and by proscribing who may dance,
the City has waded into First Amendment waters.
We cannot accept the City’s premise that by holding the
First Amendment implicates the Ordinance, we are manufacturing
an exception to Arcara. On the contrary, Arcara itself suggests to-
day’s 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 City’s concern that this con-
clusion would prevent the government from curtailing unlawful
conduct in industries that just happen to engage in First Amend-
ment activities, or that the City would otherwise have to impose
these regulations on all businesses in order to avoid First Amend-
ment 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 sub-
ject 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
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dancing industries under the same standard of review. See, e.g.,
Flanigan’s Enters., Inc. v. Fulton Cnty., 596 F.3d 1265, 1269 (11th
Cir. 2010) (upholding an ordinance barring adult entertainment
businesses from selling alcohol); Lady J. Lingerie, Inc. v. City of
Jacksonville, 176 F.3d 1358, 1365 (11th Cir. 1999) (upholding an
hours limitation and minimum square footage requirement for
adult entertainment businesses). It may be inconvenient for mu-
nicipalities to defend their regulations in court, “[b]ut that is beside
the point” because “[t]he First Amendment is often inconvenient.
. . . Inconvenience does not absolve the government of its obliga-
tion to tolerate speech.” See Int’l Soc’y for Krishna Consciousness
v. Lee, 505 U.S. 672, 701 (1992) (Kennedy, J., concurring). The long
and short of it is that this Ordinance implicates the First Amend-
ment.
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. How-
ever, they disagree about what kind of intermediate scrutiny ap-
plies. 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 expres-
sive conduct -- conduct that contains both ‘speech’ and ‘nonspeech’
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elements.” Lady J. Lingerie, 176 F.3d at 1364 (quoting O’Brien, 391
U.S. at 376)). In contrast, the time, place, and manner test outlined
in Renton has generally been used to “review restrictions on ex-
pression taking place in public fora . . . [and] evaluate the validity
of zoning regulations.” Lady J. Lingerie, 176 F.3d at 1364. Renton
instructs us that a “time, place, and manner” regulation must be
narrowly tailored to serve a substantial governmental interest,
while still allowing for reasonable alternative avenues of expres-
sion. See 475 U.S. at 49–54.
The tests enunciated in Renton and O’Brien fall under the
general umbrella of intermediate scrutiny, and “[a]s a practical mat-
ter, 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 re-
quires 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 con-
duct, while the time, place, and manner test analyzes laws that reg-
ulate speech indirectly.
Lady J. Lingerie also guides us in deciding which test is pref-
erable. There, a panel of this Court considered a city ordinance
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that, among other things, limited the hours of operation of nude
dancing clubs and required that rooms in such establishments be at
least 1,000 square feet in size. Id. at 1365. We explained:
[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 chal-
lenges: 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 opera-
tion and 1000 square foot rules are different.
Id. at 1364–65 (emphasis in original); see also Renton, at 475 U.S. at47–48 (emphasis in original) (explaining that when the “predomi-
nate 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 Ordinance’s compliance
mechanism, the time, place, and manner test is the better fit. These
regulations relate more to the “where or when” of the expressive
conduct than the “how” because the repetitive identification-veri-
fication and log-in and log-out requirements -- which are the focus
of the Club’s ire -- delay when the Club’s dancers can perform,
much like the city’s hours requirement in Lady J. Lingerie. The
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Ordinance’s enforcement mechanism does not delineate how per-
formers may dance or what they must wear.
When applying the time, place, and manner test, we con-
sider whether the regulation (1) advances a substantial interest,
(2) “is ‘not substantially broader than necessary to achieve the gov-
ernment’s interest,’” and (3) leaves open reasonable alternative av-
enues of communication. Lady J. Lingerie, 176 F.3d at 1365 (quot-
ing 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 inter-
est 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 di-
rect 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 City’s Chief Deputy Attorney explaining at a City Com-
mission Meeting that the Ordinance seeks to curb human traffick-
ing, and that it requires two IDs as safeguards against the “ram-
pant” 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 Ordi-
nance has nothing to do with human trafficking because “it is
merely an elaborate record-keeping law which could easily be
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complied with by a diligent human trafficker.” Appellant’s Br. at
24. But the Club provides no evidence that the goal of the Ordi-
nance was to simply punish or needlessly burden the Club. The
City has satisfied the first Renton factor.
The next step in our analysis is narrow tailoring. In this ex-
ercise, we do not scrutinize the law too closely. Instead, “[t]he gov-
ernment 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 reasona-
ble 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 orig-
inal) (quotation marks omitted). Whether the statute survives nar-
row tailoring turns on “the reasonableness of the government reg-
ulation 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 ordi-
nance 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 busi-
nesses “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
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20-14292 Opinion of the Court 21
effects at 6:15 in the morning justifies requiring adult
businesses to close at 9:30, or whether evidence from
9:30 justifies requiring them to close at 10:45. That
sort of line-drawing is inconsistent with a narrow tai-
loring requirement that only prohibits regulations
that are “substantially broader than necessary.”
176 F.3d at 1365; see also Ward, 491 U.S. at 800 (alteration omitted
and quotation marks omitted) (“The validity of time, place, or
manner regulations does not turn on a judge’s agreement with the
responsible decisionmaker concerning the most appropriate
method for promoting significant government interests or the de-
gree to which those interests should be promoted.”).
Turning to the text, the Ordinance consists of two sets of
requirements: 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 Code of the City of Miami Beach § 18-913(1).
The nude dancing establishment must then make copies of her
forms of identification and her statement confirming she is
3 The Ordinance also requires that the Club verify that the performer or
worker “[i]s either a U.S. Citizen, legal resident, or otherwise legally permitted
to be employed within the United States of America,” but, as we explain be-
low, that provision is conflict preempted under federal law and, therefore, we
sever it from the Ordinance. See infra at Section V, VII.
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22 Opinion of the Court 20-14292
“working or performing” of her own accord, and it must “maintain
copies of those documents” on its premises “at all times.” Id. § 18-
913(2)–(3). To confirm the accuracy of this information, the nude
dancing establishment’s manager must prepare and retain “a sworn
statement . . . confirming that” the worker or performer is at least
eighteen and performing of her own accord. Id. § 18-913(4).
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 establish-
ment’s management, and she must “log[] in.” Id. § 18-913(5). The
performer must also “log[] out” upon “exiting” the establishment.
Id. The log must include several other pieces of information, in-
cluding: “[t]he name(s) of the manager(s) . . . on duty at the time of
the log in and log out”; “[t]he worker or performer’s actual name;
a unique identifier, if any. . . ; the job title or role at the nude danc-
ing establishment . . .; the log in and log out times”; and “[t]he man-
ager who confirmed that the [above] identifications . . . were in-
spected and verified.” Id. § 18-913(5)(a)–(c).
Although the Ordinance’s requirements are significant and
time-consuming, they are not “substantially broader than neces-
sary” 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 recordkeeping re-
quirements are necessary to achieve the City’s stated and obviously
important interests in preventing human trafficking and barring
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20-14292 Opinion of the Court 23
minors from dancing nude on a public stage. The requirement that
workers or performers produce two forms of identification instead
of just one -- which the Club says is unnecessarily burdensome --
combats the “rampant use” of counterfeit forms of identification
on Miami Beach and reduces the likelihood that a victim of human
trafficking or a minor will perform onstage. Given the significant
latitude we afford policymakers, and our obligation to defer to a
legislative body’s reasoned judgment, we hold that these core iden-
tification-verification and record-maintenance requirements are
reasonable when measured against the statute’s aims. See
Zibtluda, 411 F.3d at 1286; Flanigan’s, 596 F.3d at 1279.
The Club protests that the requirement that a worker or per-
former 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 accom-
plish 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
4 As an aside, although we may question the need to require all of the Club’s
workers -- including janitors and deejays, who are likely not minors or victims
of human trafficking -- to comply with the Ordinance’s identification-verifica-
tion requirements, the Club has not made this argument in district court or on
appeal, so we will not consider it here. See Access Now, Inc. v. Sw. Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (holding that arguments that were
not raised at the district court in the first instance cannot be raised on appeal);
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (concluding that a party
waives an argument if she does not raise it in her initial brief).
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24 Opinion of the Court 20-14292
she were to reenter after stepping out during her shift for a smoke
break or a cup of coffee. 5
But the Ordinance’s minor overreach does not make it “sub-
stantially 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 con-
cludes that the government’s interest could be adequately served
by some less-speech-restrictive alternative.” See id. As we ex-
plained in Lady J. Lingerie, parsing this point too finely would force
us to engage 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 (quot-
ing 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 expres-
sion. Even if the paper process takes some time to complete each
5 The City argues that it enforces the statute consistent with its reading of the
Ordinance (that the log-in/log-out procedure need only happen once per day),
however the text reads on its face. That may be so, “[b]ut the First Amend-
ment protects against the Government; it does not leave us at the mercy of
noblesse oblige. We would not uphold an unconstitutional statute merely be-
cause the Government promised to use it responsibly.” United States v. Ste-
vens, 559 U.S. 460, 480 (2010).
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20-14292 Opinion of the Court 25
day, as the Club argues, the process still leaves the Club with plenty
of hours in the day and night for its dancers to perform. At bottom,
the First Amendment does not prevent the Club from dealing with
administrative inconvenience -- it protects the dancers’ mode of ex-
pressive activity.
In short, even though the Ordinance implicates the First
Amendment, the law is narrowly tailored enough to satisfy inter-
mediate scrutiny under Renton’s time, place, and manner test.
IV.
Next up is the Club’s argument that the Ordinance’s war-
rantless-search provision violates the Fourth Amendment. The dis-
trict 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 regu-
lated industries.
Let’s start with the basics. The Fourth Amendment protects
“[t]he right of the people to be secure in their persons, houses, pa-
pers, and effects, against unreasonable searches and seizures.” U.S.
CONST. amend. IV. Under the Fourth Amendment, “searches con-
ducted 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 excep-
tions.” City of Los Angeles v. Patel, 576 U.S. 409, 419 (2015)
(cleaned up).
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26 Opinion of the Court 20-14292
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 regu-
lated 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 compre-
hensive scheme of regulation that distinguishes hotels from numer-
ous 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 profes-
sion, food, nuclear power, storing and dispensing gasoline, con-
struction, day care centers, nursing homes, asbestos removal, solid
waste disposal, credit unions, pawnshops, banking, insurance,
commercial trucking, purchase of precious metals and gems, casi-
nos, adult entertainment stores, and massage parlors. Note, Re-
thinking Closely Regulated Industries, 129 HARV. L. REV. 797, 805–
06 (2016) (collecting cases).
Whether an industry is closely regulated for Fourth Amend-
ment 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).
USCA11 Case: 20-14292 Date Filed: 08/01/2022 Page: 27 of 66
20-14292 Opinion of the Court 27
“The element that distinguishes these enterprises from ordinary
businesses is a long tradition of close government supervision, of
which any person who chooses to enter such a business must al-
ready be aware.” Id.These principles translate well to the adult entertainment in-
dustry. Adult entertainment businesses have been heavily regu-
lated historically. See, e.g., Erie, 529 U.S. at 299, 302 (2000) (hold-
ing that an ordinance barring full nudity at nude dancing clubs does
not violate the First Amendment); Flanigan’s, 596 F.3d at 1269 (up-
holding 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 at1361 (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 con-
cerned 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 rea-
sonable.”).
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28 Opinion of the Court 20-14292
Based on a substantial history of heavy regulation, we con-
clude that the nude dancing and adult entertainment industry is
closely regulated for Fourth Amendment purposes so that no rea-
sonable expectation of privacy could exist for the proprietor. From
limitations concerning the hours of operation, to zoning re-
strictions, to prohibitions on their ability to serve alcohol, to rules
governing the very size of the establishments, adult entertainment
businesses are routinely -- and pervasively -- regulated by cities and
municipalities.
Nevertheless, the Club offers two reasons why adult enter-
tainment 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 reg-
ulated. 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 indus-
tries are not before this Court. Moreover, apart from day care cen-
ters, which the Ninth Circuit has held is a closely regulated indus-
try, 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 require-
ments that apply to all businesses. In contrast, the special rules that
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20-14292 Opinion of the Court 29
govern the operation of adult entertainment clubs are unique to
these kinds of clubs and diminish the negative secondary harms
that these businesses may impose on the community. Moreover,
the Club can point to no caselaw suggesting that simply because
adult entertainment clubs are entitled to some First Amendment
protections, they should not be considered closely regulated under
the Fourth Amendment.
Since the Club operates in a closely regulated industry, we
apply a more relaxed standard for interpreting whether a warrant-
less-search ordinance is constitutional. The Supreme Court ex-
plained 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] regula-
tory scheme . . . [and] [3] the statute’s inspection pro-
gram, in terms of the certainty and regularity of its
application, [must] provid[e] a constitutionally ade-
quate substitute for a warrant.
482 U.S. at 702 (cleaned up).
“It is by now axiomatic that a court must examine the total-
ity 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
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30 Opinion of the Court 20-14292
as limited in its intrusiveness as is consistent with satisfaction of the
administrative need that justifies it.” Bruce v. Beary, 498 F.3d 1232,
1248 (11th Cir. 2007) (quotation marks omitted).
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 open-
ing brief, does not seem to contest the City’s argument that war-
rantless, 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 inspect-
ing 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 in-
spections undertaken for specific purposes. In addi-
tion, in defining how a statute limits the discretion of
the inspectors, we have observed that it must be care-
fully limited in time, place, and scope.
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20-14292 Opinion of the Court 31
482 U.S. at 703 (citations and quotation marks omitted). Searches
that are “so random, infrequent, or unpredictable that the owner,
for all practical purposes, has no real expectation that his property
will from time to time be inspected by government officials” will
not be permitted. Donovan v. Dewey, 452 U.S. 594, 599 (1981).
The Club’s chief argument is that the Ordinance does not
satisfy the third prong because it does not have reasonable tem-
poral 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-Al-
dona, we concluded that the lack of temporal restrictions in war-
rantless, surprise searches “is insignificant in the context of regula-
tion 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 admin-
istrative search[.]” 187 F.3d 1339, 1348 (11th Cir. 1999) (quotation
marks omitted).
For further guidance, we return to Supreme Court prece-
dent. 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 under-
ground mines, because the searches were necessary due to the
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32 Opinion of the Court 20-14292
“notorious ease with which many safety or health hazards may be
concealed if advance warning of inspection is obtained.” 452 U.S.
at 603–04 (quotation marks omitted). Moreover, in Burger, the Su-
preme Court upheld the state’s warrantless searches of automobile
junkyards, which were conducted on a “regular basis” and only
“during [ ] regular and usual business hours,” because those
searches were needed to identify stolen items before they were re-
sold. 482 U.S. at 711 (quotation marks omitted).
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 be-
cause the justification -- preventing falsification of records or avoid-
ing administrative burdens -- was not sufficient to satisfy the third
prong. 576 U.S. at 412–13, 427–28 (quotation marks omitted) (dis-
tinguishing Dewey and Burger because, although 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 conse-
quences may be so serious for underage performers. On the other
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20-14292 Opinion of the Court 33
hand, if the City can enter the Club or fine it for failing to produce
the required documents when the Club is completely closed (that
is, when no member of the Club’s management is present to re-
ceive and process the City’s request), the Ordinance would raise
more problems under the Fourth Amendment.
We need not wade into these waters because we construe
the statute more narrowly than the capacious reading the Club of-
fers. 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 ac-
cess to these documents for inspection by the city.” Code of the
City of Miami Beach § 18-913 (emphasis added). The Club says that
the statute authorizes the City to search the Club’s records “at any
time.” Appellant’s Br. at 8. But the statute does not say “at any
time.” Rather, it says, “upon demand.”
“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 dis-
cussed in the statutory scheme. A “demand to produce” is “[t]he
assertion of a right to have someone provide or bring forward
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34 Opinion of the Court 20-14292
something.” Demand to Produce, BLACK’S LAW DICTIONARY (11th
ed. 2019) (emphasis added). The City cannot demand that the Club
provide the documents enumerated by the statute, documents nec-
essarily maintained on its premises at all times, Code of the City of
Miami Beach § 18-913(2), (3), when no Club employee is on site to
process the City’s request. For the City to assert its right, someone
must be present at the Club to produce the onsite documents the
City has requested. We interpret the “on demand” language in the
Ordinance’s warrantless-search provision to mean that any author-
ized City official can inspect the documents enumerated in Section
18-913 during the Club’s regular business hours or when a member
of the Club’s administrative staff is present and able to process the
City’s request.
The constitutional avoidance canon also provides that “[a]
statute should be interpreted in a way that avoids placing its con-
stitutionality 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 statu-
tory 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 war-
rantless-search requirement avoids the Fourth Amendment prob-
lem we’ve discussed. The Supreme Court struck down the regula-
tion in Patel precisely because it lacked any reasonable temporal
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20-14292 Opinion of the Court 35
limitations without justification, while the regulation in Burger
limited inspections to reasonable business hours, and it was upheld.
While the statutory scheme in Dewey lacked detailed temporal
limitations, the Court upheld it because the scheme was meant to
prevent mines from concealing a lack of compliance. We avoid
tackling this problem by reading the Ordinance to restrict the City’s
power to invoke the Ordinance’s warrantless-search provision to
the hours when the Club’s administrative staff is (or, during regular
business hours, should be) available to fulfill the City’s request.
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 con-
flict 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 8 U.S.C. § 1324a
et. seq. According to the Club, Section 18-913(1)(b) of the City’s
Ordinance stands as an obstacle to the goals of federal law by re-
quiring the Club to verify that all workers and performers are U.S.
citizens, legal residents, or lawfully able to work in the United
States. The district court agreed with the Club’s reasoning. We do
as well.
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36 Opinion of the Court 20-14292
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 Con-
stitution or Laws of any state to the Contrary notwithstanding.’”
Ariz. v. United States, 567 U.S. 387, 399 (2012) (quoting U.S. CONST.
art. VI, cl. 2.). Under the Supremacy Clause, Congress has the
power to preempt state and local laws when they conflict with fed-
eral law. Id.Federal law can preempt state law through express preemp-
tion, 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 federal 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 enact-
ing the federal law. Ala., 691 F.3d at 1282. Second, we are guided
USCA11 Case: 20-14292 Date Filed: 08/01/2022 Page: 37 of 66
20-14292 Opinion of the Court 37
by the assumption “that the historic police powers of the States
were not to be superseded by the Federal Act unless that was the
clear and manifest purpose of Congress.” Id. (quoting Wyeth v.
Levine, 555 U.S. 555, 565 (2009)) (quotation marks omitted).
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 es-
tablishments to verify the immigration status of independent con-
tractors. 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 cer-
tain 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 Ari-
zona v. United States. There, the Supreme Court considered a con-
flict preemption challenge to an Arizona law that made it a misde-
meanor 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 (quot-
ing ARIZ. REV. STAT. ANN. § 13-2928(C)). Explaining that the IRCA
created “a comprehensive framework for combatting the employ-
ment of illegal aliens,” and that the statutory text and legislative
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38 Opinion of the Court 20-14292
history of the IRCA evidenced that Congress specifically chose not
to impose criminal penalties on aliens who sought employment,
the Court held that “Congress made a deliberate choice not to im-
pose criminal penalties on aliens who seek, or engage in, unauthor-
ized employment.” Id. at 404–05 (quotation marks omitted). The
Court elaborated, “[the] IRCA’s framework reflects a considered
judgment that making criminals out of aliens engaged in unauthor-
ized work -- aliens who already face the possibility of employer ex-
ploitation because of their removable status -- would be incon-
sistent with federal policy and objectives.” Id. at 405.
“We use our judgment to determine what constitutes an un-
constitutional obstacle to federal law, and this judgment is ‘in-
formed 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 frame-
work, and, if necessary, the legislative history of the IRCA to deter-
mine whether Congress made a deliberate choice to exclude inde-
pendent contractors and casual hires from the employment-verifi-
cation process. Then we examine whether the Ordinance’s verifi-
cation 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 al-
ien . . . with respect to such employment, or . . . hir[ing] for em-
ployment . . . without complying with the requirements” of the
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20-14292 Opinion of the Court 39
statute. 8 U.S.C. § 1324a(a)(1). Notably, these requirements apply
only to “employment[.]” Expressly, they do not apply to independ-
ent contractors or casual hires because, otherwise, Congress would
not have included “employment” in the statutory provision at all.
The IRCA’s regulatory framework, promulgated by the De-
partment of Homeland Security (“DHS”), corroborates our inter-
pretation of the statute. For example, the regulations exclude “in-
dependent contractor[s]” and “those engaged in casual domestic
employment” from the definition of “employee” under the IRCA.
8 C.F.R. § 274a.1(f). Section 274a.2(b) of the regulations likewise
only requires employers to verify work eligibility of employees. Id.
§ 274a.2(b). To put matters to rest, the regulations even exclude
companies that hire or use “contract labor” from the definition of
“employer.” Id. § 274a.1(g).
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 in-
tended 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 in-
tent of this Committee that sanctions would apply in the case of
casual hires (i.e., those that do not involve the existence of an em-
ployer/employee relationship).”). In other words, Congress made
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40 Opinion of the Court 20-14292
a deliberate decision to limit the scope and impact of the IRCA’s
employment-verification requirements.
Seeing that the City’s Ordinance instructs nude dancing es-
tablishments to verify that “any worker or performer” is “legally
permitted to be employed within the United States,” see Code of
the City of Miami Beach § 18-913(1) (emphasis added), the Ordi-
nance requires the Club to verify the employment eligibility of in-
dependent contractors and casual hires -- precisely the kinds of
workers that Congress purposefully exempted from the IRCA.
The Ordinance therefore stands as an obstacle to the accomplish-
ment of one of Congress’s objectives in enacting the IRCA.
We are not alone in reaching this conclusion. Considering
similar conflict preemption challenges to comparable state and lo-
cal 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 employ-
ers 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 explic-
itly declined to sanction employers based on the work
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20-14292 Opinion of the Court 41
authorization status of casual hires[.]” Id. (quotation marks omit-
ted). This choice was “a deliberate distinction that Congress in-
cluded as part of the balance it struck in determining the scope and
impact of IRCA’s employer sanctions.” Id. at 307. Because the mu-
nicipal statute at issue ignored the distinction drawn by Congress,
in Lozano, our sister circuit held that the ordinance was conflict
preempted under the IRCA. Id. at 213.
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 re-
quired entities to verify the work eligibility of independent contrac-
tors was conflict preempted. 594 F.3d at 750. Upon reviewing the
same statutory text and legislative history of the IRCA, the court
concluded that the Oklahoma statute, by requiring employers to
verify the work eligibility of independent contractors, “would cre-
ate obligations on contracting entities that Congress expressly
chose not to impose.” Id. at 770.
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 Con-
gress. We see no daylight between the laws at issue in Lozano and
Edmondson and Section 18-913(1)(b). Each requires the employer
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42 Opinion of the Court 20-14292
to verify the employment eligibility of casual hires or independent
contractors. 6
The City offers two arguments in rebuttal. First, the City
says that the Ordinance’s regulation falls within the IRCA’s “sav-
ings clause,” citing Chamber of Commerce of the United States v.
Whiting, 563 U.S. 582 (2011), in support. Second, the City argues
that the Club cannot succeed on its facial challenge to the statute
because it cannot prove that the Ordinance is preempted in all cir-
cumstances. Neither argument is convincing.
The City’s Whiting argument goes nowhere fast because the
IRCA’s savings clause “does not bar the ordinary working of con-
flict pre-emption principles.” Geier v. Am. Honda Motor Co., 529
U.S. 861, 869 (2000) (emphasis in original). That Congress decided
to permit state and local governments to enact licensing and similar
6 Our concurring colleague suggests that the laws at issue in Lozano and Ed-
monson are different than the Ordinance because those laws applied to all
businesses, whereas the Ordinance applies to only one class of businesses (and
one establishment at that). See Concurring Op. at 8–9. But nothing in our
caselaw indicates that, because a state or municipality selectively imposes reg-
ulatory requirements that conflict with Congress’s commands on certain busi-
nesses or industries, conflict preemption principles carry any less weight. Oth-
erwise, state and local governments could circumvent federal objectives
simply by limiting their conflict-preempted regulations to certain businesses
or industries. Our conflict-preemption inquiry instead is focused on what the
federal statute’s purpose and intended effects are, and whether the state or
local law “stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress.” Crosby, 530 U.S. at 373 (quotation
marks omitted). Section 18-913(1)(b) does so; it is conflict preempted.
USCA11 Case: 20-14292 Date Filed: 08/01/2022 Page: 43 of 66
20-14292 Opinion of the Court 43
laws does not mean it intended to allow those governments to en-
act laws that conflict with Congress’s decision to exempt casual
hires or independent contractors from the employment verifica-
tion process.
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 circum-
stances 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 in-
terpret Salerno to require that the Club prove that there is no hy-
pothetical situation in which the Ordinance could be validly ap-
plied. Because the Club’s performers are purportedly employees,
and not independent contractors, under the IRCA, the City reasons
that the Club’s federal preemption claim fails.
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 Albuquer-
que, when it rejected a similar construction of the Salerno standard,
“Salerno is correctly understood not as a separate test applicable to
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44 Opinion of the Court 20-14292
facial challenges, but a description of the outcome of a facial chal-
lenge in which a statute fails to satisfy the appropriate constitu-
tional framework.” 667 F.3d 1111, 1123 (10th Cir. 2012); see also
United States v. Supreme Court, 839 F.3d 888, 917 (10th Cir. 2016)
(applying the same Doe construction of the Salerno standard to a
facial federal preemption challenge). Here, the Ordinance fails the
relevant constitutional test because, by requiring certain businesses
to verify the employment eligibility of independent contractors
and casual hires, it obstructs federal law. This provision of the law
is facially invalid.
The larger problem with the City’s application of Salerno is
that its “approach would reject a conflict preemption claim in a fa-
cial challenge whenever a defendant can conjure up just one hypo-
thetical 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 fa-
cial 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 Cir-
cuit applied Salerno to a facial preemption challenge based on the
IRCA. Id. at 1104. The state laws at issue prohibited using a false
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20-14292 Opinion of the Court 45
identity to obtain employment. Id. at 1101. The court explained
that the laws were “textually neutral -- that is, they apply to unau-
thorized aliens, authorized aliens, and U.S. citizens alike” -- so the
law flunked Salerno’s no-set-of-circumstances test. Id. at 1104–05.
In contrast, the Ordinance requires employment verification of
both “performers” and “workers,” so even if performers are “em-
ployees” under the IRCA, the Ordinance directly conflicts with
Congress’s choice not to require employers to verify the employ-
ment eligibility of independent contractors or casual hires. In any
event, we find the reasoning in Lozano and Edmondson more per-
suasive.
We also find it suggestive that the Supreme Court declined
to strictly adhere to Salerno’s rigorous facial challenge require-
ments 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 war-
rantless arrests of aliens based on possible removability except in
specific, limited circumstances.” Id. (emphasis added). The Ari-
zona 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
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46 Opinion of the Court 20-14292
struck down the state law because it conflicted with federal law as
a general matter. 7
In sum, we conclude that Section 18-913(1)(b) is conflict
preempted by the IRCA. And because Section 18-913(1)(b) is con-
flict preempted, we see no need to address the Club’s remaining
theories for express and conflict preemption.8
7 The City also says that the Ordinance does not obstruct the objective of the
IRCA because the Ordinance’s chief purpose is to regulate human trafficking,
not immigration. The City provides no persuasive legal support for the argu-
ment that its intent in enacting the Ordinance makes a difference in our con-
flict preemption analysis, apart from a distinguishable, out-of-circuit, district
court opinion. See Universal Contracting, LLC v. Utah Dep’t of Com., 69 F.
Supp. 3d 1225, 1242 (D. Utah 2014) (explaining that the plaintiff in the case
could not establish that it had “ever formally or officially been treated as an
employer of its member-owners under IRCA”). The City’s intent in passing
the Ordinance should not matter: Even if the City did not intend to regulate
immigration law, the Ordinance still stands as an obstacle to one of the IRCA’s
objectives.
8 As we discuss in Section VII, infra, the remedy for the Club’s preemption
challenge is severing Section 18-913(1)(b) from the rest of the Ordinance. By
severing that Section, the Club’s express preemption challenge to Sections 18-
915(a) and 18-915(c) (the Ordinance’s sections on civil penalties) does not mat-
ter because the Ordinance no longer regulates the “hir[ing], or [ ] re-
cruit[ment] . . . for employment in the United States” an unauthorized alien.
See 8 U.S.C. § 1324a(a)(1). In other words, we see no conflict (express, implied,
or otherwise) between a municipal regulatory framework that requires a busi-
ness to check a worker’s identification before she enters to ensure that she is
not a minor, and a federal law regulating the hiring of aliens.
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20-14292 Opinion of the Court 47
VI.
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 chal-
lenges.
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 par-
ticular 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 regula-
tion 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 permit-
ted 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
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48 Opinion of the Court 20-14292
the state level is when the municipality imposes a statutory penalty
that exceeds a state law penalty for the same conduct. See, e.g.,
Thomas, 614 So. 2d at 470 (“A city may not enact an ordinance im-
posing criminal penalties for conduct essentially identical to that
which has been decriminalized by the state. Therefore, we find
that the penalty imposed by the [challenged] ordinance is in conflict
with state law.”).
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 Ordi-
nance. 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 argu-
ment, the Club says, the court 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
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20-14292 Opinion of the Court 49
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.
FLA. STAT. ANN. § 775.083(1)(e).
Although on its face, the statute limits “noncriminal viola-
tion[s]” to $500 in fines, the statutory definition of a “noncriminal
violation” creates an insurmountable hurdle for the Club’s legal ar-
gument. 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 vio-
lation of any municipal or county ordinance. Noth-
ing contained in this code shall repeal or change the
penalty for a violation of any municipal or county or-
dinance.
Id. § 775.08(3) (emphasis added). The plain meaning of “noncrim-
inal violation” specifically excludes municipal penalties -- the very
same type of penalties created by the Ordinance. As a result, we
see no conflict between Section 775.083(1)(e) and the Ordinance.
To put matters to rest, the Florida Supreme Court has also con-
cluded that under Section 775.08, a “violation of a municipal
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50 Opinion of the Court 20-14292
ordinance . . . is not a ‘noncriminal violation’ as defined in Florida
Statutes.” Thomas, 614 So. 2d at 472. Because a violation of the
Ordinance is not a “noncriminal violation,” Section 775.083(1)(e) -
- which creates a statutory ceiling on punishments for “noncriminal
violation[s]” -- cannot preempt the Ordinance.
Second, the Club argues that Section 787.29, which requires
in part that “strip club[s] or other adult entertainment establish-
ment[s]” display human trafficking public awareness signs,
preempts the Ordinance because its statutory penalty is limited to
$500 under Section 775.083. See also FLA. STAT. ANN. § 787.29 (lay-
ing out the statutory penalties for criminal and noncriminal viola-
tions). The Club waived this argument by not lodging specific ob-
jections to the magistrate judge’s reasoning in his R&R about the
Club’s Section 787.29 conflict preemption argument. See 11th Cir.
R. 3-1 (“A party failing to object to a magistrate judge’s findings or
recommendations contained in a report and recommendation . . .
waives the right to challenge on appeal the district court’s order
based on unobjected-to factual and legal conclusions[.]”). 9
9 Even if we considered the Club’s argument, however, it still would fail. The
Club says that the conduct regulated by the municipal ordinance and the stat-
ute need not be identical for preemption to apply, so long as both statutes are
“directed at the same or less serious conduct.” But the conduct regulated by
each statute is not even similar: The Ordinance regulates who can perform or
work at a nude dancing establishment to prevent human trafficking, while Sec-
tion 787.29 regulates human-trafficking awareness signage outside of such es-
tablishments. The Ordinance is not directed at “less serious conduct” than
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20-14292 Opinion of the Court 51
Third, the Club claims that the district court abused its dis-
cretion 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 mo-
tion-to-dismiss stage and before the magistrate judge issued its
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 argu-
ment when that argument was not first presented to the magistrate
judge.” Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009).
Section 787.29 because it directly attempts to prevent instances of human traf-
ficking and underage girls from dancing nude.
10 The statute caps fines for populous cities, including Miami Beach, at “$1,000
per day per violation for a first violation, $5,000 per day per violation for a
repeat violation, and up to $15,000 per violation if the code enforcement board
or special magistrate finds the violation to be irreparable or irreversible in na-
ture.” FLA. STAT. ANN. § 162.09(2)(d).
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52 Opinion of the Court 20-14292
In Williams v. McNeil, we made clear that the district court retains
“final adjudicative authority” in deciding whether to consider and
evaluate new arguments that a party did not raise before the mag-
istrate judge. Id. The district court in that case recognized that it
had the discretion to consider a party’s new argument, but it “de-
clined to do so because [the party] failed to respond to the magis-
trate’s order directing him to file a reply on the precise issue of
timeliness.” Id. Because the court recognized it had the discretion,
and it declined to exercise that discretion based on a reasoned deci-
sion, we concluded that the district court had not committed re-
versible error. See id.
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 Ordi-
nance. 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 Ordi-
nance 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 un-
dermined 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 dis-
trict court did not abuse its discretion in ignoring the Club’s
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20-14292 Opinion of the Court 53
untimely Section 162.09 preemption argument, we affirm the dis-
missal of the Club’s state preemption claim.
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 authori-
zation: preventing victims of human trafficking and minors from
performing at strip clubs. Like the district court, we conclude Sec-
tion 18-913(1)(b) is severable and strike it from the Ordinance.
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54 Opinion of the Court 20-14292
***
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 fed-
eral 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.
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20-14292 NEWSOM, J., Concurring 1
NEWSOM, Circuit Judge, concurring in part and concurring in the
judgment:
I concur 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, alt-
hough 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 Amend-
ment 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,
USCA11 Case: 20-14292 Date Filed: 08/01/2022 Page: 56 of 66
2 NEWSOM, J., Concurring 20-14504
the Court remarked that its approach “accord[ed] with how [it]
protect[s] other constitutional rights”—including, it said, “the free-
dom of speech in the First Amendment.” Id. at 2130.
That would be terrific—if, as I said in Jimenez-Shilon, decid-
ing a First Amendment case consisted of “inquir[ing] what ‘the free-
dom 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 Diction-
ary of the English Language 4 (1st ed. 1828)). But at least for us
middle managers serving on “inferior courts,” U.S. Const. art. III,
§ 1, that’s not the way it seems to work.
This case, it seems to me, is Exhibit A for the sort of “ex-
hausting” doctrinal bloat that I described in Jimenez-Shilon. 34
F.4th at 1054 (Newsom, J., concurring). The Court’s analysis of
Club Madonna’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. Bar-
nette, 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
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20-14292 NEWSOM, J., Concurring 3
Court has fashioned for deciding free-speech cases of various
stripes. See 34 F.4th at 1053–54 (Newsom, J., concurring). This
case features a contest of sorts between two of them—both, almost
comically, traveling under the “intermediate scrutiny” banner. As
the Court here accurately explains, under one of those tests, tradi-
tionally used to assess the constitutionality of so-called “time,
place, or manner” restrictions, a regulation is sufficiently “narrowly
tailored” so long as the speech limitation it entails is “not substan-
tially broader than necessary to achieve the government’s inter-
est.” Ward v. Rock Against Racism, 491 U.S. 781, 798–800 (1989).
Under the other, applicable “when ‘speech’ and ‘nonspeech’ ele-
ments are combined in the same course of conduct,” a restriction
may be “no greater than is essential to the furtherance” of an “im-
portant or substantial governmental interest.” United States v.
O’Brien, 391 U.S. 367, 376–77 (1968). Although those kissing cous-
ins “embody much the same standards,” Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 566 (1991) (plurality op.), we have acknowledged
that they are sufficiently different that the choice between them
“may occasionally be outcome determinative,” Lady J. Lingerie,
Inc. v. City of Jacksonville, 176 F.3d 1358, 1365 (11th Cir. 1999).
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
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4 NEWSOM, J., Concurring 20-14504
might have expected the Court to use the time-place-or-manner
standard, but it instead applied—or at least purported to apply—
the O’Brien test. In doing so, the Court recited O’Brien’s “no
greater than is essential” language and said that the “critical in-
quir[y]” for tailoring purposes was “whether th[e] effect [on speech
was] no greater than necessary to accomplish the City’s purpose.”
Id. at 804–05. Then, though, only a few pages later—after analyz-
ing the importance of the government’s asserted interest—the
Court “turn[ed] to the question whether the scope of the restriction
on [the challengers’] expressive activity [was] substantially broader
than necessary to protect” that interest. Id. at 808 (emphasis
added). But that, as just explained, is the time-place-or-manner ver-
sion of intermediate scrutiny, not the O’Brien version. In the doc-
trinal haze, the Court seems to have lost track of what it had just
called the “critical inquir[y].”
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 sub-
stantially 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 ob-
vious 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.
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20-14292 NEWSOM, J., Concurring 5
Sys. v. FCC, 512 U.S. 622, 662 (1994) (“To satisfy this [O’Brien]
standard, a regulation need not be the least speech-restrictive
means of advancing the Government’s interests.”). 1 But as a mat-
ter of ordinary English, how is a standard that requires a restriction
to be “no greater than is essential to the furtherance” of a govern-
ment interest, O’Brien, 391 U.S. at 377 (emphasis added), not a
least-restrictive-means requirement? I, for one, just don’t get it. Cf.
Essential, Webster’s Second New International Dictionary 874
(1944) (defining “essential” to mean “[i]mportant in the highest de-
gree; indispensable”).
To be clear, I don’t think the Court here has misappre-
hended 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—
1 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).
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6 NEWSOM, J., Concurring 20-14504
in the utmost good faith, I have no doubt, but made up nonethe-
less. Here’s hoping for a return to first principles.
II
On, then, to the more conventional piece of the concur-
rence. 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 8 U.S.C. § 1324a. The
district court held, and the Court today agrees, that the Ordinance
is conflict preempted. I would hold, instead, that the Ordinance is
expressly preempted. Here’s why.
As the Court accurately summarizes, federal law can
preempt state or local law under any of three different sub-doc-
trines: (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 ex-
press and conflict preemption. As its label implies, express preemp-
tion 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 slip-
perier. 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 execu-
tion of the full purposes and objectives of Congress.” Crosby v.
Nat’l Foreign Trade Council, 530 U.S. 363, 372–73 (2000) (quota-
tion omitted). No one here suggests that it would be literally “im-
possible” to comply with both the Ordinance and IRCA, so, by
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20-14292 NEWSOM, J., Concurring 7
process of elimination, the brand of conflict preemption that the
majority is applying must be “obstacle” preemption. See Maj. Op.
at 37–46.
I’m less confident than the majority in obstacle preemp-
tion—both generally, as a sub-sub-doctrine, cf. Wyeth v. Levine,
555 U.S. 555, 594–604 (Thomas, J., concurring in the judgment),
and more particularly, as it applies here. Discerning whether ob-
stacle 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 identify-
ing 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 pur-
poses, 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 preemp-
tion 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
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8 NEWSOM, J., Concurring 20-14504
of IRCA, Congress deliberately excluded independent contractors
and other non-employees from the scope of the restrictions con-
tained in the statute.” 724 F.3d 297, 306 (3d Cir. 2013). In the same
way, the Tenth Circuit concluded in Chamber of Commerce v. Ed-
monson that Congress “intentionally excluded independent con-
tractors from verification obligations.” 594 F.3d 767, 769 (10th Cir.
2010). I’m less confident than the Court, though, that the state and
local laws at issue in Lozano and Edmonson—and thus the Third
and Tenth Circuits’ decisions in those cases—are “comparable” to
ours. Maj. Op. at 40.
Even assuming that those courts were correct to conclude
that applying work-eligibility requirements to employees but not
independent contractors was an important part of IRCA’s underly-
ing purpose, the question remains whether Miami Beach’s Ordi-
nance 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 inde-
pendent contractors; rather, it applies only to “nude dance estab-
lishments”—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
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20-14292 NEWSOM, J., Concurring 9
reasonable, that combatting human trafficking is among the “his-
toric police powers of the States.” Wyeth, 555 U.S. at 565 (empha-
sizing that courts should “start with the assumption that the his-
toric police powers of the States were not to be superseded by the
Federal Act unless that was the clear and manifest purpose of Con-
gress” (quotation omitted)).
All of which is simply to say that while I’m by no means cer-
tain 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 fol-
lowing preemption provision, in which is embedded a parenthe-
tical 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 re-
cruit or refer for a fee for employment, unauthorized aliens.” 8
U.S.C. § 1324a(h)(2). It seems to me clear enough that the Ordi-
nance is a “local law imposing civil or criminal sanctions . . . upon
those who employ . . . unauthorized aliens” within the meaning of
that provision. The Ordinance, recall, requires all “nude dance es-
tablishments” to verify that every “worker or performer” is “either
a U.S. Citizen, legal resident, or otherwise legally permitted to be
employed within” the United States. Code of the City of Miami
Beach § 18-913. It states that “[n]o person shall be allowed to enter
or perform”—and thus to work in any capacity—“at the nude
dance establishment . . . who has not been [so] verified.” Id. And
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10 NEWSOM, J., Concurring 20-14504
it imposes graduated civil fines and penalties—in IRCA’s terms,
“sanctions”—for violations of its requirements. See id. § 18-915.
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 penal-
ized 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 sanc-
tions—those imposed ‘through licensing and similar laws.’” Id. at
607 (plurality op.) (quoting 8 U.S.C. § 1324a(h)(2)). The Court
carefully considered the definition of the word “license” and, cor-
relatively, what counted as a licensing law: “A license is ‘a right or
permission granted in accordance with law . . . to engage in some
business or occupation, to do some act . . . which but for such li-
cense would be unlawful.’” Id. at 595 (majority op.) (first alteration
in original) (quoting Webster’s Third International Dictionary 1304
(2002)). The Court specifically considered whether laws regulating
“articles of incorporation . . . and the like,” or revoking licenses,
counted as “licensing or similar laws” and concluded that they did.
Id. at 596. Because Arizona’s law “impose[d] sanctions through li-
censing laws”—in particular, it authorized “state courts to suspend
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20-14292 NEWSOM, J., Concurring 11
or revoke an employer’s business licenses”—it fell within IRCA’s
savings clause. Id. at 595, 599.
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 enforce-
ment mechanism is a system of graduated monetary penalties. Sec-
tion 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 resem-
blance 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. 8 U.S.C. § 1324a(h)(2). Given the care with which the Su-
preme Court defined “licenses” and “licensing laws” in Whiting, it
seems to me hard to imagine that a state could impose any penalty
it wanted on employers of unauthorized aliens so long as its law
also had some potential to affect businesses’ licenses. Could a state,
for instance, pass a statute imposing 10-year prison sentences for
business owners who employ unauthorized aliens so long as the
law also revoked the owners’ business licenses? Surely not.
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12 NEWSOM, J., Concurring 20-14504
I would hold, therefore, that the Miami Beach Ordinance is
expressly preempted by IRCA on the ground that it is a “local law
imposing civil or criminal sanctions . . . upon those who employ,
or recruit or refer for a fee for employment, unauthorized aliens”
within the meaning of 8 U.S.C. § 1324a(h)(2), and is not a “licensing
[or] similar law[]” within the meaning of that provision’s savings
clause.