An LA ordinance requires certain information from hotel and motel renters which survives analysis under Patel. The information is not private information, and it’s not even a search. If it was, it would be a valid administrative search. City of L.A. AIHM Hotel/Motel Ass’n v. City of L.A., 2019 U.S. Dist. LEXIS 191232 (C.D. Cal. Nov. 1, 2019):
Defendant points out that rent registration information is “routinely submitted to the City to determine, for example, maximum rents, allowable rent increases, and rent restrictions.” MJP at 13 (citing LAMC §§ 151.02, 151.04, 151.05). Defendant relies on S.F. Apartment Ass’n v. City & County of S.F., 881 F.3d 1169 (9th Cir. 2018), where plaintiffs challenged a San Francisco ordinance requiring landlords to submit buyout agreements to the city for placement on a public database. Id. at 1174. The database made publicly available the landlords’ business contact information, the address of any rental unit subject to a buyout agreement, certification of compliance with the ordinance, and copies of the buyout agreements. Id. Under the San Francisco ordinance, “financial information relating to real estate and land use transactions is regularly filed with government entities and made publicly accessible.” Id. at 1179. Therefore, the Ninth Circuit concluded that “landlords do not have a legally protected privacy interest or reasonable expectation of privacy in the information made publicly available by the Ordinance.” Id. at 1178.
Like the ordinance in S.F. Apartment Ass’n, the Ordinance here requires Plaintiffs to report information routinely collected by the City. See LAMC §§ 151.02, 151.04, 151.05. Plaintiffs similarly have no reasonable expectation of privacy in that publicly available information, and thus their heavy reliance on City of Los Angeles v. Patel, 135 S. Ct. 2443, 192 L. Ed. 2d 435 (2015), is misplaced. See Pls.’ Opp. at 9-10 [Doc. # 26]. In Patel, plaintiffs challenged a municipal ordinance that required hotel operators to record and keep guest information and make those records available for immediate inspection by police officers. 135 S. Ct. at 2445. The ordinance also permitted the immediate arrest of and imposition of criminal penalties on any hotel operators who refused to give access to the records. Id. at 2452. Although the Supreme Court acknowledged that the ordinance might fall under the “administrative search” exception, which permits government officials to conduct warrantless searches for administrative purposes, it ultimately held the ordinance unconstitutional because it did not provide the hotel operators an opportunity to seek pre-compliance review before facing penalties for failing to comply. Id. at 2452-53.
But unlike in Patel, here, no Fourth Amendment search occurred, and even if it did, it would be a constitutional administrative search. First, the rent registry requirements do not constitute a search under the Fourth Amendment because, as mentioned above, Plaintiffs did not have a reasonable expectation of privacy to the information requested. See Katz, 389 U.S. at 360. Unlike the ordinance in Patel, the Ordinance here does not seek documents from landlords or renters, or call for any form of inspection. See generally Ordinance. Second, even if the Court considered the rent registration requirements a search, it would constitute an administrative search because its “primary purpose” is “distinguishable from the general interest in crime control.” Patel, 135 S. Ct. at 2452 (citing Indianapolis v. Edmond, 531 U.S. 32, 44, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000)). Generally, “in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker.” Id. at 2452 (citing See v. City of Seattle, 387 U.S. 541, 544, 87 S. Ct. 1737, 18 L. Ed. 2d 943 (1967)). The Ordinance explicitly states, “A landlord disputing the Department’s notification of deficient registration may file a written appeal within ten calendar days of the date of the notice deficiency,” further distinguishing the situation in Patel. RJN, Ex. 3-2 at 6. Furthermore, Plaintiffs make only conclusory allegations that they would be subject to civil or criminal sanctions for violating the Ordinance. See Compl. at ¶ 16.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)