Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids

From Berry v. Leslie (11th Cir. Sept. 16, 2014):

It was a scene right out of a Hollywood movie. On Aug. 21, 2010, after more than a month of planning, teams from the Orange County Sheriffs Office descended on multiple target locations. They blocked the entrances and exits to the parking lots so no one could leave and no one could enter. With some team members dressed in ballistic vests and masks, and with guns drawn, the deputies rushed into their target destinations, handcuffed the stunned occupants and demanded to see their barbers licenses. The Orange County Sheriffs Office was providing muscle for the Florida Department of Business and Professional Regulations administrative inspection of barbershops to discover licensing violations.

We first held 19 years ago that conducting a run-of-the-mill administrative inspection as though it is a criminal raid, when no indication exists that safety will be threatened by the inspection, violates clearly established Fourth Amendment rights. See Swint v. City of Wadley, 51 F.3d 988 (11th Cir. 1995). We reaffirmed that principle in 2007 when we held that other deputies of the very same Orange County Sheriffs Office who participated in a similar warrantless criminal raid under the guise of executing an administrative inspection were not entitled to qualified immunity. See Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007). Today, we repeat that same message once again. We hope that the third time will be the charm.

The Fourth Amendment guarantees [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. Its protections apply to commercial premises, as well as to private homes. In general, the Fourth Amendment requires a warrant supported by probable cause to effectuate a constitutional search. Indeed, this Court has explained, The basic premise of search and seizure doctrine is that searches undertaken without a warrant issued upon probable cause are `per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions.

One of those limited exceptions involves administrative inspections of closely regulated industries. Because an owner or operator of commercial property has a reduced expectation of privacy in this context, the standard for what may be reasonable under the Fourth Amendment is correspondingly broader.

To fall within this exception, a warrantless inspection must satisfy three criteria: (1) a `substantial government interest [must] inform[] the regulatory scheme pursuant to which the inspection is made; (2) the inspection must be necessary to further [the] regulatory scheme; and (3) the statutes inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant. The regulatory statute must [also] be sufficiently comprehensive and defined such that it limits the discretion of inspecting officers. Where a statute authorizes the inspection but makes no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.

But even when the criteria set forth above are met, to satisfy the Fourth Amendment, an administrative inspection must be appropriately limited in both scope and execution and may not serve as a backdoor for undertaking a warrantless search unsupported by probable cause. Above all, such inspections may never circumvent the Fourth Amendments requirement for reasonableness. In this regard, an administrative screening search must be as limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it.

As detailed earlier, the regulatory framework for barbershop inspections in Florida is embodied in Fla. Stat. 476.184 and its implementing rules. In particular, 476.184 requires all barbershops to have a license issued by the DBPR and directs the Florida Barbers Board to adopt rules governing the operation and periodic inspection of barbershops licensed in Florida. Rule 61G3-19.015(1), Fla. Admin. Code, in turn, provides that the DBPR may conduct inspections biennially on a random, unannounced basis. The regulatory framework, which sets forth who may conduct such inspections, notifies barbers that only the DBPR is so authorized. In this case, no one disputes that the DBPR possesses statutory authority to conduct warrantless inspections of barbershops, nor do the parties assert that the statute authorizing such inspections is constitutionally impermissible.

Instead, the plaintiffs contend that the search of Strictly Skillz, which they allege was undertaken with an inordinate display of force, failed to conform to the Fourth Amendments requirement for reasonableness. Because we have twice held, on facts disturbingly similar to those presented here, that a criminal raid executed under the guise of an administrative inspection is constitutionally unreasonable, we agree.

Unlike previous inspections of Strictly Skillz, which were all conducted by a single DBPR inspector without the aid of law enforcement, the August 21 search was executed with a tremendous and disproportionate show of force, and no evidence exists that such force was justified. Despite the fact that neither OCSO nor the DBPR had any reason to believe that the inspection of Strictly Skillz posed a threat to officer safety, the record indicates that several OCSO officers entered the barbershop wearing masks and bulletproof vests, and with guns drawn; surrounded the building and blocked all of the exits; forced all of the children and other customers to leave; announced that the business was closed down indefinitely; and handcuffed and conducted pat-down searches of the employees while the officers searched the premises. Such a search, which bears no resemblance to a routine inspection for barbering licenses, is certainly not reasonable in scope and execution. Rather, [i]t is the conduct of officers conducting a raid.

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Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids