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Unconstitutional: Hotel Registry Ordinances and Statutes

While cities are rewriting their sign codes, per the Supreme Court’s decision last week in Reed v. Town of Gilbert, Arizona they should check to see if they have a hotel registry ordinance.  If they do, it will need some rewriting too.

In City of Los Angeles v. Patel the Supreme Court held 5-4 that a Los Angeles ordinance requiring hotel and motel operators to make their guest registries available to police without at least a subpoena violates the Fourth Amendment. In his dissenting opinion, Justice Scalia cites to the State and Local Legal Center’s (SLLC) amicus brief, which notes that local governments in at least 41 states have adopted similar ordinances. Eight states also have hotel registry statutes:  Indiana, Florida, Massachusetts, Maine, New Hampshire, New Jersey, Wisconsin, and the District of Columbia. 

A Los Angeles ordinance requires hotel and motel operators to keep specific information about their guests and allows police to inspect the registries without a warrant or a subpoena. The purpose of the ordinance is to deter crime—drug dealing, prostitution, and human trafficking—on the theory that criminals will not commit crimes in hotels if they have to provide identifying information. 

The Court concluded that the searches permitted by the ordinance in this case are “administrative”—that is, they are done to ensure compliance with recordkeeping requirements. While administrative searches do not require warrants, they do require “precompliance review before a neutral decisionmaker.” Absent this, “the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests.”

According to the Court, all police officers need to do to make sure that a search of a hotel registry is constitutional is issue a subpoena. If a hotel operator thinks the search is “motivated by illicit purposes” the operator can move to quash the subpoena. If the officer reasonably suspects that the operator may tamper with the registry before a judge can rule on the motion to quash, the officer “may guard the registry.”

Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, would have ruled that hotels are a closely regulated business, in part because, as the SLLC’s amicus brief points out, hotel registry ordinances and statutes are so ubiquitous. Subpoenas are not require to inspect the records of closely regulated businesses.    

The SLLC’s amicus brief pointed out that mobile home parks, second-hand dealers like pawnshops and junkyards, scrap metal dealers, and massage parlors are subject to registration and inspection laws and ordinances. While Supreme Court precedent indicates that junkyards are closely regulated businesses, whether police inspection of other registries will require a subpoena is possible following this decision.  

Finally, the Court held in this opinion that facial challenges—to a statute itself rather than a particular application of a statute—aren’t “categorically barred or especially disfavored.” The SLLC argued that Fourth Amendment facial challenges don’t make sense because whether a search violates the Fourth Amendment depends on whether it is reasonable, which is necessarily a fact-based determination. The Court disagreed pointing out that it has on numerous occasions declared statutes facially invalid under the Fourth Amendment.

The National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association joined the SLLC’s amicus brief which was written by Tom McCarthyWilliam Consovoy, and Michael Connolly of Consovoy McCarthy and the George Mason University School of Law Supreme Court Clinic.  

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