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11th Circ. Finds Miami Beach's Strip Club Rules Constitutional

doctorevil

Evil Lair

The Eleventh Circuit has affirmed a lower court's ruling that a Miami Beach, Florida, ordinance requiring strip clubs to verify dancers' ages and keep records subject to spot searches doesn't violate the clubs' First and Fourth Amendment rights.

The ordinance — which was passed after a 13-year-old victim of human trafficking was forced to dance nude at Club Madonna, the city's only fully nude strip club — requires strip clubs to verify workers' ages using government-issued identification plus another form of proof of age, as well as their employment eligibility. Strip clubs also have to keep detailed payroll records and logs of workers going into and out of the building and allow the city to inspect the records at any time, according to court documents.

In an opinion issued Monday, an Eleventh Circuit panel said all but one of the ordinance's regulations could stand and that they did not violate the First or Fourth amendments. The requirement that workers provide verification that they are either "a U.S. citizen, legal resident, or otherwise legally permitted to be employed within the United States of America" is preempted by federal immigration law, which exempts businesses from verifying the employment eligibility of independent contractors and casual hires, the panel said, and must be severed from the rest of the ordinance.

"That section is distinct from the rest of the ordinance's commands because the ordinance aims to accomplish goals separate from verifying an individual's employment authorization: preventing victims of human trafficking and minors from performing at strip clubs," the panel said.

Addressing the club's First Amendment claims, the panel acknowledged that the ordinance does implicate the First Amendment by targeting a specific industry and by regulating who can and who cannot dance nude. However, the panel said it is narrowly tailored enough to stand because it isn't overly broad and advances the city's substantial interest in preventing minors and victims of human trafficking from performing nude on a public stage.

The club had contended on appeal that the requirement that workers produce two forms of identification instead of just one was unnecessarily burdensome, but the panel said it is intended to combat the "rampant use" of counterfeit forms of identification in Miami Beach and reduces the likelihood that a victim of human trafficking or a minor will perform on stage.

The club had also taken issue with the amount of paperwork required to comply with the ordinance, but the panel said that doesn't regulate the club's ability to engage in First Amendment protected expression and isn't burdensome enough to strike down the ordinance.

"Even if the paper process takes some time to complete each 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," the panel said. "At bottom, the First Amendment does not prevent the club from dealing with administrative inconvenience — it protects the dancers' mode of expressive activity."

As to the club's argument that the ordinance's warrantless-search provision violates the Fourth Amendment, the panel said the nude dancing and adult entertainment industry is closely regulated for Fourth Amendment purposes and that the lack of "strict temporal limitations" is essential to the effectiveness of the ordinance. However, the panel adopted a somewhat more narrow construction of the ordinance, saying that inspections can take place only during regular business hours or when management is present.

"Plainly, the city needs to access the club's records with surprise inspections in order to ensure continuous compliance, particularly since the club has been caught sleeping before, and the consequences may be so serious for underage performers," the panel said.

The club's suit, first filed in 2016, was dismissed by U.S. District Judge Federico A. Moreno. But the Eleventh Circuit revived the suit in 2019, saying the claims were "purely legal" issues and there was no reason the court could not take them up.

The appeals court revived three counts of the complaint alleging the city's rules are preempted by state and federal law, another count claiming the rules allow unconstitutional warrantless searches, and counts alleging the regulations are an unconstitutional burden on speech.

In November 2020, Judge Moreno granted summary judgment in the club's favor on the federal preemption claim but entered summary judgment in favor of the city on the First and Fourth amendment claims.

Gary Edinger of Gary S. Edinger PA, who represents Club Madonna, called the decision "a bit disappointing" but noted that the panel's ruling that ordinances like the one at issue in this case could potentially implicate the First Amendment was an "important and welcome" development in the law.

Edinger also noted that the panel agreed the ordinance was somewhat burdensome, if not "substantially" so.

"The court did not provide any guidance as to how a judge is to decide which burdens are substantial and which are not. Figuring out that imponderable will keep us First Amendment litigators busy for a long time," Edinger said. "The First and Fourth Amendments are a little tarnished after this decision, but Club Madonna soldiers on. It has complied with this ordinance for many years and presumably can for years to come — burden or no burden."

Representatives for Miami Beach did not respond to requests for comment Monday.

U.S. Circuit Judges Kevin C. Newsom, Stanley Marcus and U.S. District Judge for the Northern District of Georgia Richard W. Story sat on the panel for the Eleventh Circuit.