CA11: Ordinance for rental property inspections not unconstitutional on face; has an admin warrant requirement

The City of Lauderhill’s rental property inspection ordinance is not unconstitutional on its face under the Fourth Amendment. It does provide for an administrative warrant if one is required. 2051 Lush Apts., LLC v. City of Lauderhill, 2017 U.S. App. LEXIS 18948 (11th Cir. Oct. 2, 2017):

The District Court properly found that, read in combination, the Ordinance and relevant Florida Statutes provisions require a warrant for inspections, to be issued only upon a sufficient showing of probable cause. Although Schedule M does state that refusing to consent to an inspection—and then refusing to reschedule the inspection within ten days without just cause—is sufficient for a court to issue a warrant, this does not mean that a warrant will necessarily follow. See Schedule M. Florida Statutes § 933.21 makes clear that a warrant will only be issued upon a showing of probable cause. Fla. Stat. § 933.21. And to support this showing, an affidavit must either state that consent was sought and refused or explain why consent was not sought. Id. This implies that the issuing court will consider the refusal of consent in making its determination; not that it will issue a warrant automatically upon refusal.

Section 933.22, moreover, provides that probable cause exists if, with respect to a particular place, “reasonable legislative or administrative standards for conducting a routine or area inspection are satisfied” or “if there is reason to believe a condition of nonconformity exists” which would violate an applicable law or regulation. Id. § 933.22. This provision implies that, unless a specific unlawful condition is believed to exist, the issuing court will consider whether reasonable standards have been satisfied—an endeavor presumably more holistic than merely looking to whether or not consent was provided. The Florida Statutes provisions and the Ordinance can therefore, in at least a plausible set of circumstances, be interpreted to set forth reasonable legislative or administrative standards in compliance with the lower probable cause standard applicable to inspection warrants. Appellants thus cannot mount a successful facial challenge to the Ordinance. See Salerno, 481 U.S. at 746, 107 S. Ct. at 2101 (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”).

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