WHEN A WIN IS BARELY A WIN

The city of Los Angeles, which requires hotels to keep a registry of their guests, also required those hotels to show their registry to any police officer at any time for the asking.  That it failed to pass Fourth Amendment muster is not surprising.  How little needs to change for the Fourth Amendment to allow it should serve as a note of caution for all regulated businesses.

The City had justified the practice as one of administration rather than law enforcement; one, in other words, that was merely meant to oversee the duty to keep a register.  The U.S. Supreme Court accepted that, and the City only failed when its procedures (or lack thereof) fell short of what was required even under the administrative exemption to a judicial warrant.  Under that so-called “administrative exemption,” the state may investigate whether a regulated business is in compliance without a warrant, by issuing investigative subpoenas.

But the Court noted that, as the ordinance was written, a hotel owner who refused to give an officer access to the registry could be arrested on the spot.  That, at least, was a bridge too far.  Yet all that would be required is to give the innkeeper an opportunity for “pre-compliance review.”  That would not necessarily mean a warrant.  It could be achieved by obtaining a subpoena under the administrative exemption.  This, the Court helpfully reminded cities and states, may be done without probable cause of a crime.  They are a tool of administrative oversight, after all, not one of case-specific law enforcement.  At least, it will give the recipients an opportunity to contest the subpoena before risking being put in cuffs.

Florida too has its shares of hotels, and its crowd of regulations targeting countless industries.  The thin, blurry lines between what a regulator may always access, what they need a warrant for, or only an administrative subpoena, are not always intuitive.  It is an area where attorneys can help keep things on the up and up.