LA County requires that adult film producers obtain a permit and requires performers to use condoms during vaginal and anal intercourse. They have to keep the permit on display, and county health inspectors can enter at any time to inspect for condom use. The ordinance is challenged on various grounds. On the Fourth Amendment claim, if entry is denied, they still have to get a warrant to enter, so it passes Fourth Amendment scrutiny. (The court never says that the adult film industry is closely regulated by LA County, and it seems it is not. It can’t be because it would be impossible to regulate at all. But they’re trying, to the point of the porn industry moving to adjoining counties or Las Vegas.) Vivid Entm’t, LLC v. Fielding, 965 F. Supp. 2d 1113 (C.D. Cal. August 16, 2013):
The adult film industry regularly tests actors for sexually transmitted infections (“STIs”). (Id. ¶¶ 20-31.) During the November 2012 elections, Los Angeles County passed, via referendum, The County of Los Angeles Safer Sex in the Adult Film Industry Act (“Measure “B”). (Id. ¶ 36; Docket No. 58-1 Ex. B text of Measure B); Los Angeles County Code § 11.39r (“§ 11.39”), et seq. (codifying Measure B). Measure B forces producers of adult films, before any production can occur, to pay a fee and obtain a permit from the County Department of Public Health (the “Department”), which is tasked with enforcing Measure B. (Id. ¶ 41-43.) The Department of Public Health, set the permit fee in the range of $2,000 to $2,500 per year. (Compl. ¶ 48.) Once approved, the film producers must display the permit at all times during filming. (Id. ¶ 41.) A permit is valid for two years, but is, at all times, subject to immediate revocation. (Id.) Once a permit is granted, Measure B requires that performers engaging in anal or vaginal sexual intercourse to use condoms during filming. (Compl. ¶ 42.)
Department inspectors are granted access to “any location suspected of conducting any activity regulated by” Measure B, without notice. § 11.39.130. Inspectors can look at personal property or private documents from any person present at any location if there is suspicion of a Measure B violation. See id.
. . .
However, Plaintiffs make a Fourth Amendment challenge in the due process section of the Complaint that warrants further consideration. (Compl. ¶ 95.) Plaintiffs claim that Measure B authorizes an unconstitutional system of warrantless searches and seizures. In a closely regulated industry, administrative warrantless searches are permitted so long as the following conditions are met: (1) “[t]here is [a] ‘substantial’ government interest that informs the regulatory scheme pursuant to which inspection is made,” (2) “warrantless inspection is necessary to further the regulatory scheme,” and (3) the “inspection program, in terms of certainty and regularity of its application, must provide a constitutionally adequate substitute for a warrant” (i.e. “it must advise the owner of the commercial premises that the search is being made pursuant to the law and has a properly defined scope, and it must limit the discretion of the inspecting officers”). New York v. Burger, 482 U.S. 691, 703, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987) (citations omitted). “In addition, in defining how a statute limits the discretion of the inspectors, we have observed that it must be carefully limited in time, place, and scope.” Id. (internal quotation marks and citation omitted).
Plaintiffs’ Fourth Amendment allegations and briefing focus on Burger’s requirement that administrative searches be limited in time, place, and scope. (Compl. ¶ 95.) Specifically, Measure B states:
The county health officer may enter and inspect any location suspected of conducting any activity regulated by this chapter, and, for purposes of enforcing this chapter, the county health officer may issue notices and impose fines therein and take possession of any sample, photograph, record or other evidence, including any documents bearing upon adult film producer’s compliance with the provision of the chapter. Such inspections may be conducted as often as necessary to ensure compliance with the provisions of this chapter.
§ 11.39.130. The “any location” language of § 11.39.130 violates the Fourth Amendment. In upholding warrantless administrative searches, courts emphasize the limited nature of what may be searched. United States v. Delgado, 545 F.3d 1195, 1203 (9th Cir. 2008) (holding that a statute was constitutional in part because it was “limited to commercial vehicles,”); Burger, 482 U.S. at 711 (emphasizing that the statute was limited to “vehicle dismantling business[es]”). Given that adult filming could occur almost anywhere, Measure B would seem to authorize a health officer to enter and search any part of a private home in the middle of the night, because he suspects violations are occurring. This is unconstitutional because it is akin to a general warrant. Therefore, the Court DENIES dismissal of Plaintiffs’ Fourth Amendment claim. See Rush v. Obledo, 756 F.2d 713, 717, 722 (9th Cir. 1985) (holding that a statute “authoriz[ing] any officer, employee, or agent of the Department to enter and inspect any place providing personal care, supervision, and services at any time, with or without notice, to secure compliance with, or to prevent a violation of, any applicable statute” unconstitutional because it “permitt[ed] general searches at any time of any place providing care and supervision to children”); United States v. 4,432 Mastercases of Cigarettes, More Or Less, 448 F.3d 1168, 1180 (9th Cir. 2006) (stating that the procedural safeguards of warrantless administrative searches that implicate homes must be strong and citing Rush as “str[iking] down as unconstitutional a regulation that enabled warrantless searches of family-home day care facilities because it failed to place any limits on the time of searches, the area that could be searched, or the regularity of searches”).
