N.D.Ga.: Administrative search exception doesn’t apply to a motorcycle club that isn’t remotely a “closely regulated business”

The administrative search exception under Atlanta city ordinance doesn’t apply to a motorcycle club that isn’t remotely a “closely regulated business.” Summary judgment for plaintiffs granted. Brown v. City of Atlanta, 2018 U.S. Dist. LEXIS 6222 (N.D. Ga. Jan. 9, 2018):

The City’s argument that the inspection was authorized under Section 30-76 is similarly doomed. That provision states that “[t]he certificate issued for any business location shall be available for inspection at the address listed on the certificate and shall be displayed to any authorized enforcement officer of the city when so requested. This requirement may also be satisfied by posting the certificate in some conspicuous place at the address listed on the certificate.” City Code § 30-76. The City offers no additional argument for why the DSSR fell under this ordinance beyond its “private club” assertion, which the court rejects. Setting that aside, the City also acknowledges that administrative inspections must be limited to “closely regulated businesses” to avoid the warrant requirement. Defs’ Br. at 13 [Doc. No. 47]. Simply being a business in general is not enough. Marshall, 436 U.S. at 313. So even if the DSSR was subject to Chapter 30 as a “business,” a compliance check for an ordinary business license cannot qualify for the exception to the warrant requirement.

In addition, the Superior Court of Fulton County has already determined that the DSSR was not subject to either of these provisions. The Superior Court found “as a matter of law” that the DSSR was “not a ‘Business’ under Chapter 30 of the Atlanta City Code” and that it “was neither a ‘Business’ nor a ‘Bottle House’ and thus Atlanta City Code § 10-3 [(failure to comply with liquor licensing provisions)] does not apply” [Doc. No. 60-5 at 4]. The state court’s findings also preclude any ruling to the contrary due to collateral estoppel.

The City offers no adequate basis for a rational trier of fact to find that the DSSR was otherwise subject to Sections 10-32 or 30-76 of the City Code. Accordingly, the court finds that the compliance check was not an administrative inspection that qualifies for an exception to the warrant requirement.

The City also asserts that the officers were operating in good faith when entering the DSSR. But the Supreme Court has held that a “municipality may not assert the good faith of its officers or agents as a defense to liability under § 1983.” Owen v. City of Indep., Mo., 445 U.S. 622, 638 (1980). Allowing the City to evade liability based on the qualified immunity of its officers would “contraven[e] the Supreme Court’s holding in Owen.” Askins v. Doe No. 1, 727 F.3d 248, 254 (2d Cir. 2013). While the City also argues that the officers’ arguable probable cause relieves it of liability, that argument similarly lacks merits because the purpose of showing arguable probable cause is to receive qualified immunity. See Brown v. City of Huntsville, Ala., 608 F.3d 724, 734 (11th Cir. 2010).

Further, the court finds that arguable probable cause is not available to the Individual Defendants. Probable cause to enter without a warrant requires exigent circumstances. O’Rourke v. Hayes, 378 F.3d 1201, 1206 (11th Cir. 2004) (“Absent exigent circumstances, police must have a search warrant to enter any area in a place of business that is off-limits to the general public.”).

Brown has adequately shown that there were no such exigent circumstances here. And while arguable probable cause may afford qualified immunity for a warrantless arrest, Brown, 608 F.3d at 735, nothing uncovered during an unlawful inspection can be used to support arguable probable cause. Bruce v. Beary, 498 F.3d 1232, 1248 (11th Cir. 2007). So, because the officers’ entry into the DSSR was unlawful from the start, there can be no supporting probable cause to arrest from the ensuing search. Id.

Accordingly, the court finds that the warrantless search and seizure does not qualify for the administrative inspection exception, and the defendants point to no other applicable exception to the warrant requirement. Brown has successfully proven that his Fourth Amendment rights were violated.

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