By Arthur M. Miksis, Esq.
Most Floridians believe that they are protected from warrantless searches and seizures by the 4th Amendment to the U.S. Constitution, and Article I, Section 12 of the Florida Constitution. Generally, that is true, and especially in the context of someone’s home, apartment, or hotel room. What about in the context of commercial business property? Do they enjoy the same level of privacy from intrusion by state actors? Not always. This article will discuss how Florida Statute 812.055 impacts business owners and their susceptibility to inspections and searches by law enforcement.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,…”[i] “…the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”[ii]
“Any law enforcement officer shall have the right to inspect any junkyard; scrap metal processing plant; motor vehicle or vessel salvage yard; licensed motor vehicle or vessel dealer’s lot; motor vehicle, vessel, or outboard repair shop; parking lot; public garage; towing and storage facility; or other establishment dealing with salvaged motor vehicle, vessel, or outboard parts.”[iii]
The language of the statute is remarkable because it bestows upon law enforcement the right to inspect these places. Typically, a 4th Amendment analysis by the Court determines if law enforcement has probable cause of criminal activity to justify issuance of a warrant for search and seizure of contraband. This analysis is absent in the Fla. Stat. 812.055 scenario. Law enforcement has the right to inspect these businesses without a warrant, a showing of probable cause, or even reasonable suspicion of criminal activity. There is no exigency required either. How did this come to be?
It was determined that administrative inspections do not offend the 4th Amendment if they are necessary in order to closely monitor regulated businesses for the purpose of learning whether a particular business is conforming to the statute regulating that business.[iv] Inspections are constitutional if the state has a substantial interest in regulating the particular business, the inspection is necessary to further the regulatory scheme, and the statute’s inspection program provides a constitutionally adequate substitute for a warrant.[v] The Florida Supreme Court determined that Fla. Stat. 812.055 was constitutional and satisfied those requirements when it decided Moore v. Florida, 442 So.2d 215 (Fla. 1983).
In Moore, a state trooper and a Gainesville police officer entered Moore’s automotive repair shop, without a warrant, to check a truck that they suspected had an altered identification number. They located the truck on Moore’s property, ascertained that the identification number had been changed, seized the truck, and arrested Moore. Moore filed a motion suppress, alleging section 812.055 to be unconstitutional. The trial court agreed and granted the motion. The district court reversed, and the Supreme Court of Florida affirmed the decision, noting that section 812.055 is limited to business establishments that easily could be involved in the theft and unlawful disposition of vehicles.
Additionally, warrantless administrative searches of commercial property are not automatically unreasonable because the “interest of the owner of commercial property is not one in being free from any inspections.”[vi] Many business owners are already subject to some degree of state inspection in order to confirm compliance with statutory rules and regulations. However, searches according to Fla. Stat. 812.055 must not allow unbridled discretion and the searches must be of a pervasively regulated business so that the business owner is aware that the property is subject to inspection.[vii] The clear and plain language of Fla. Stat. 812.055, as referenced above, helps to put business owners on notice that they are subject to these searches.
How are the inspections conducted, and what exactly does law enforcement inspect? “Such physical inspection shall be conducted during normal business hours and shall be for the purpose of locating stolen vehicles, vessels, or outboard motors; investigating the titling and registration of vehicles or vessels; inspecting vehicles, vessels, or outboard motors wrecked or dismantled; or inspecting records required in ss. 319.30 and 713.87.”[viii]
Included in that description are the safeguards of time and scope. Searches must occur during normal business hours. This implies that the property owner, or a representative thereof, will be present during the search. Law enforcement cannot enter the premises after hours when the business is closed and no one else is around.
Adherence to the scope of the inspection is a crucial factor when evaluating whether law enforcement validly entered the premises without a warrant for the purpose of an administrative inspection. Exceeding the scope can convert the valid inspection into an illegal criminal investigation for which a search warrant was required. For example, did law enforcement search only through the business records, or did they also search through the personal belongings of employees on site? Were any locked doors forcibly opened? Were any of the employees detained during the search? Did law enforcement draw their firearms while entering or searching the premises? What type of law enforcement conducted the search? The use of a SWAT team sends a different signal than the use of a local police officer in standard uniform.
In Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007), the Orange County Sheriff’s Department acted upon a citizen complaint that an automobile purchased from Bruce had mismatched vehicle identification numbers. A group of approximately twenty officers were led to Bruce’s place of business, Wholesale Auto Advantage, Inc. They arrived in unmarked trucks and SUV’s, and surrounded the entire premises, blocking all exits. Some officers were dressed in SWAT uniforms – ballistic vests imprinted with SWAT in big letters, camouflage pants, and black boots. They entered with guns drawn and ordered employees to line up along the fence. Officers patted down and searched employees. Pockets and purses were searched, also. The Eleventh Circuit Court of Appeals ruled that these measures clearly exceeded the parameters of section 812.055.
The scope and execution of an administrative inspection must be reasonable in order to be constitutional. Courts have invalidated these inspections when law enforcement exceeds the properly defined scope. Fla. Stat. 812.055 is not a loophole to conduct warrantless criminal investigations.
That being the case, even if law enforcement suspects criminal activity at the commercial property, that suspicion will not invalidate a proper administrative inspection. Law enforcement has the statutory right to enter the premises to inspect the business records, titles, registrations, and vehicles. As long as the inspection remains within the scope permitted by statute then there is no violation. The U.S. Supreme Court has made it quite clear that an administrative search is not rendered invalid because it is accompanied by some suspicion of wrongdoing.[ix]
In conclusion, an administrative search pursuant to Fla. Stat. 812.055 is a constitutional warrantless search of the property. Business owners are considered to have received proper notice of this possibility by the plain language and meaning of the statute. The time, place, and scope of the search are narrowly tailored to balance the state’s regulatory interests and the citizens’ privacy interests. When law enforcement exceeds the scope of the search, or acts unreasonably in the execution thereof, then a violation occurs. An administrative search is not a substitute for, or a procedure to circumvent, the warrant requirement for general criminal investigations. If you discover a criminal investigation dressed in an administrative search’s clothing, then object immediately!
[i] U.S. Const. amend. IV
[ii] Art. I, 12, Fla. Const.3
[iii] Fla. Stat. 812.055(1)
[iv] New York v. Burger, 482 U.S. 691, 702-03, 107 S.Ct. 2636 (1987)
[vi] Donovan v. Dewey, 452 U.S. 594, 599, 101 S.Ct. 2534, 2538 (1981)
[vii] Id. at 599-600, 101 S.Ct at 2538-39
[viii] Fla. Stat. 812.055(2)
[ix] United States v. Villamonte-Maquez, 462 U.S. 579, 584, 103 S.Ct. 2573, 77 (1983)