Eleventh Circuit Court of Appeals Upholds Strict Record-Keeping and Identification-Checking Protocol for Adult Dance Clubs

This post was authored by Matthew Loescher, Esq.

After a thirteen-year-old victim of human trafficking performed at the City of Miami Beach only fully nude strip club, Club Madonna, Inc., the City enacted two similar ordinances that required all nude strip clubs to follow a record-keeping and identification -checking protocol in order to ensure that each individual performer is at least eighteen years old, which the City could demand to see at any time. 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.

On appeal, the court found concluded that the City’s Ordinance implicated the First Amendment as the City’s Ordinance applied exclusively to nude dancing clubs in the City, out of which the club was in a class of one. Additionally, the law was not neutral because it implicated expressive conduct in a real way. While the Ordinance imposed significant record-keeping and identification-verification requirements on the club that did not directly touch on expressive conduct, they were part of the Ordinance’s enforcement mechanism. Here, since the club challenged the Ordinance’s compliance mechanism, the time, place, and manner test was found to be more appropriate. The court found that the history of the Ordinance reflected that the drafters passed it in order to prevent human trafficking in strip clubs and 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 claimed 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. Thus, even though the Ordinance’s requirements were significant and time-consuming, they were not “substantially broader than necessary” to achieve its aim of preventing minors and victims of human trafficking from performing.

The club next contended that the Ordinance’s warrantless-search provision violated the Fourth Amendment. The court found that the nude dancing and adult entertainment industry was closely regulated for Fourth Amendment purposes so that no reasonable expectation of privacy could exist for the proprietor. In particular, limitations concerning the hours of operation, to zoning restrictions, to prohibitions on their ability to serve alcohol, to rules governing the very size of the establishments, adult entertainment businesses are routinely regulated by cities and municipalities. To avoid running afoul of the Fourth Amendment, the court interpreted the Ordinance as restricting the City’s power to invoke the Ordinance’s warrantless-search provision to the hours when the club’s administrative staff is available to fulfill the City’s request.

The club next claimed that Section 18-913(1)(b) of the City’s Ordinance stood as an obstacle to the goals of federal law by requiring the club to verify that all workers and performers are US citizens, legal residents, or lawfully able to work in the United States. Here, the City’s Ordinance instructs nude dancing establishments to verify that “any worker or performer” is “legally permitted to be employed within the United States,” by requiring the club to verify the employment eligibility of independent contractors and casual hires. The court found that these were the kinds of workers that Congress purposefully exempted from the IRCA. Nevertheless, the section was distinct from the rest of the Ordinance’s commands because the Ordinance to accomplish goals separate from verifying an individual’s employment authorization: preventing victims of human trafficking and minors from performing at strip clubs. Accordingly, the court affirmed the district court’s holding that Section 18-913(1)(b) was severable and should be struck from the Ordinance.

Club Madonna, Inc. v City of Miami Beach, 2022 WL 3022525 (11th Cir CA 8/1/2022)

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