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Los Angeles Hotels Upend Record-Keeping Rules

(CN) - Los Angeles violates the U.S. Constitution in requiring hotel and motel owners to hand over guest information without a warrant, the 9th Circuit ruled Tuesday.

Hoteliers Naranjibhai and Ramilaben Patel challenged the city ordinance under the Fourth Amendment as an unlawful invasion of their private business records.

Section 41.49 of Los Angeles Municipal Code says hoteliers must record and keep for 90 days information about each guest, including their names and addresses, details about their vehicles, arrival and departure dates, room numbers, the rate charged and payment method. Moreover, if a police officer requests the information, hotel owners must submit to a warrantless, onsite inspection of their guest registries or face up to six months in jail and a $1,000 fine. The ordinance is meant to deter drug-dealing and prostitution in the city.

U.S. District Judge Dale Fischer sided with the city of Los Angeles after a bench trial, and a split three-judge panel of the federal appeals court in Pasadena affirmed in July 2012. Both courts concluded that the Patels had failed to show a privacy interest in the registry information

The 9th Circuit later agreed to reconsider the issue before an 11-judge, en banc panel. This time, a seven-justice majority reversed based on their finding that the inspection portion of the law clearly violates the Fourth Amendment.

"The Supreme Court has made clear that, to be reasonable, an administrative record-inspection scheme need not require issuance of a search warrant, but it must at a minimum afford an opportunity for pre-compliance judicial review, an element that § 41.49 lacks," Judge Paul Watford wrote for the appellate panel.

"Hotel operators are thus subject to the 'unbridled discretion' of officers in the field, who are free to choose whom to inspect, when to inspect, and the frequency with which those inspections occur," Watford added. "Only by refusing the officer's inspection demand and risking a criminal conviction may a hotel operator challenge the reasonableness of the officer's decision to inspect. To comply with the Fourth Amendment, the city must afford hotel operators an opportunity to challenge the reasonableness of the inspection demand in court before penalties for non-compliance are imposed."

Writing in one of two dissents to the majority ruling, Judge Richard Tallman argued that the panel should have ordered dismissal of the case because there was not enough evidence for a facial challenge.

"They leave us with no evidence to prove that all requests made under the ordinance must violate the Fourth Amendment," Tallman wrote (emphasis in original.) "The majority's decision to nonetheless entertain the facial challenge eschews Supreme Court guidance to the contrary."

The ordinance's language says that the hotel owner must provide the guest register if the police request it, he noted.

"The ordinance does not claim to alter the LAPD's constitutional responsibility to adhere to Fourth Amendment safeguards when making any demand for information," Tallman's dissent states. "We cannot presume that police have violated the Fourth Amendment without any facts with which to make that determination."

Judges Consuelo Callahan, Diarmuid O'Scannlain, and Richard Clifton, who also wrote his own dissent, joined Tallman.

Clifton argued that the Patels had failed to show that the ordinance is unreasonable under the Fourth Amendment.

"The most that the majority opinion has established is that an inspection of guest registry information under the ordinance might not qualify under the established administrative subpoena exception," Clifton wrote. "But that is not the ground upon which the district court concluded that plaintiffs' facial challenge failed. Instead, it took on the harder question and concluded that the plaintiffs failed to demonstrate that they and hotel owners in general had a legitimate privacy interest in guest registry information such that the ordinance was facially unreasonable. By concluding that a search under the ordinance is necessarily unreasonable because it does not fit the administrative subpoena exception, the majority opinion has knocked over a straw man."

The plaintiffs' attorney, Frank Weiser, did not immediately return a request for comment on Christmas Eve. A spokesperson for the Los Angeles City Attorney's Office also did not immediately return a request for comment.

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