By Nathan Hale

Law360 (February 11, 2021, 9:17 PM EST) -- A federal judge on Thursday dismissed a Miami strip club's lawsuit challenging an emergency curfew related to COVID-19, finding that the measure was enacted in good faith and did not intrude on constitutional rights without adequate justification.

In his order closing the case — brought by 7020 Entertainment LLC, owner of the KOD Miami club, and three employees against Miami-Dade County  — U.S. District Judge Robert N. Scola Jr. emphasized the ongoing impact of the pandemic on the nation, and Florida in particular, and cited "judicial humility" in reviewing elected officials' efforts to address the complex and changing emergency.

"In such situations, the Supreme Court and Eleventh Circuit precedents are clear: If the people's elected representatives are acting in good faith and enacting regulations aimed at combating such crises and maintaining order, the unelected judiciary should defer to those decisions so long as they do not plainly and palpably invade fundamental rights without substantial relation to the government's stated cause," the judge said.

The Dec. 17 complaint, which was also filed by KOD employees Michael Coleman, bartender Briana Kravetz and exotic dancer Kala Majors, claimed that the curfew, which the county enacted in response to last summer's surge in COVID-19 cases and has renewed several times, has had a devastating economic impact while also infringing on their First Amendment rights to offer "constitutionally protected expression" to customers who want to see exotic dancing. 

They claimed violations of their First, Fourth and 14th Amendment rights, as well as their rights to privacy and free travel under the Florida Constitution. Additionally, they argued that the curfew was preempted by an emergency order Gov. Ron DeSantis issued last year that prohibited local emergency ordinances from closing businesses or imposing certain limitations on restaurants.

In a hearing earlier this month on the county's motion to dismiss, the plaintiffs' counsel argued that the court should apply a strict scrutiny standard in reviewing the curfew, which requires the club to close from midnight to 6 a.m., and asserted that the measure does not stand up to requirements that it represent the "least intrusive means" of achieving the county government's interest in curbing the spread of the coronavirus.

But Judge Scola said the plaintiffs failed to back up several of their arguments. He also rejected their  interpretation of case law on several points.

Looking at the preemption issue, Judge Scola said he saw no reason to diverge from a Nov. 4 ruling by the state's Third District Court of Appeal upholding the curfew in a challenge from the owner of another strip club, Tootsie's. In that case, the court found no express or implied preemption and said a challenger had to "demonstrate that no set of circumstances exist in which the law can be constitutionally valid."

The plaintiffs in the KOD case failed to be specific about claimed flaws in the state court's ruling, Judge Scola said.

He also said they ignored differences between their case and a ruling against a curfew in neighboring Broward County. Unlike the Broward curfew, he said,  Miami-Dade's curfew order clearly met the governor's requirements to quantify the economic impact of its actions and explained the need to impose restrictions to reduce transmission of the virus.

The court also rejected the club's claim that Miami-Dade's curfew exceeds its authority, saying the plaintiffs pointed to no authority that says the county cannot impose a curfew with exemptions.

"Reading the Miami-Dade County Code as urged by the plaintiffs would severely curtail the county's ability to appropriately respond in times of crisis, whether it be a global pandemic, a natural disaster or some other emergency," Judge Scola said.

Judge Scola also rejected the claim that the curfew violated the plaintiffs' rights to privacy and assembly under the Florida Constitution and that he should apply the standard of strict scrutiny to the curfew.

While agreeing that such fundamental rights are typically subject to strict scrutiny —  under which the government must demonstrate a compelling state interest — Judge Scola said  case law supports the need for deference in times of emergency.

He disagreed with the plaintiffs' argument that the U.S. Supreme Court receded from a longstanding position of deference in the recently decided case Roman Catholic Diocese of Brooklyn v. Cuomo. Rather, the justices stood by this position when they observed that judges "are not public health experts" and "should respect the judgement of those with special expertise and responsibility in this area."

He disagreed with the plaintiffs' argument that the U.S. Supreme Court receded from a longstanding position of deference in the recently decided  case Roman Catholic Diocese of Brooklyn v. Cuomo.   Rather, the justices stood by this position when they observed that judges "are not public health experts" and "should respect the judgment of those with special expertise and responsibility in this area."

The appropriate standard of review in such cases, Judge Scola said, is "whether the … actions were taken in good faith and whether there is some factual basis for the decision that the restrictions imposed were necessary to maintain order."

Judge Scola said the plaintiffs also "miss the mark" in their First Amendment  argument and sided with the county's position that the curfew is a content-neutral time, place and manner restriction that applies "reasonable" measures and is narrowly tailored.

Similar flaws also doomed their equal protection claims under the 14th Amendment, the order said.

Representatives for both sides did not immediately respond to requests for comment Thursday.

The plaintiffs are represented by Gary Edinger, James Benjamin and Dan Aaronson of Benjamin Aaronson Edinger & Patanzo PA.

Miami-Dade County is represented by in-house counsel Zach Vosseler, David Murray, Lauren Morse and Angela Benjamin.

The case is 7020 Entertainment LLC et al. v. Miami-Dade County, case number 1:20-cv-25138, in the U.S. District Court for the Southern District of Florida.

—Editing by Karin Roberts.

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