By Nathan Hale

Law360 (February 2, 2021, 6:07 PM EST ) A Miami-area strip club urged a Florida federal judge on Tuesday to advance its challenge to the county's COVID-19-related emergency curfew, arguing that the court must take a close look at whether the regulation passes constitutional muster.

In a Zoom hearing on the county's motion to dismiss, counsel for 7020 Entertainment LLC, owner of the KOD Miami club, and three employees 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 will not stand up to requirements that it represents the "least intrusive means" of achieving the county government's interest in curbing the spread of the coronavirus.

U.S. District Judge Robert N. Scola Jr. should not allow the county to short-circuit the case with its motion to dismiss and should instead move ahead to consider the plaintiffs' motion for a preliminary injunction, they contended, adding that the county's arguments on Tuesday relied on facts not yet in the record and that at this stage of the litigation, the court must treat their well-pled facts as true.

"The burden to show that the curfew orders are narrowly tailored is on the government," attorney Gary Edinger said, adding that while there is often a presumption of constitutionality in such challenges, the plaintiffs' claim that the curfew infringes on their First Amendment free speech rights turns that "on its head."

The Dec. 17 complaint, which was also filed by KOD employees Michael Coleman, bartender Briana Kravetz and exotic dancer Kala Majors, claims 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 free expression through exotic dancing.

They assert that the curfew violates their First, Fourth and 14th Amendment rights, as well as their rights to privacy and free travel under the Florida Constitution, adding that the curfew also was preempted by an emergency order Gov. Ron DeSantis issued last year prohibiting local emergency ordinances from closing businesses or imposing certain limitations on restaurants.

Edinger argued that strict scrutiny is required on the free speech claims under the U.S. Supreme Court's ruling in Reed v. Town of Gilbert, and that the Florida Constitution requires strict scrutiny on any review of a curfew.

Assistant County Attorney David Murray countered that the county's order does not place restrictions on free speech, and any distinctions on how exceptions in the emergency order affect various types of businesses differently are not based on the content of their speech.

"The question is whether the county's narrow response to what was driving the surge in COVID-19 cases over the summer and continuing today, namely people not following COVID-19 rules when socializing at night, is constitutional and legal," he said. "The county hasn't drawn any distinctions between similar speech based on content or speaker. Strict scrutiny simply doesn't apply."

Murray argued that "intermediary scrutiny" should instead apply and suggested that the court could uphold the curfew by finding that it imposes reasonable restrictions in terms of time, place and manner, or alternatively under the "secondary-effects doctrine" by saying that the curfew was not aimed at the content of the entertainment provided by the club but its secondary effects on the community.

The county attorney defended the curfew as narrowly tailored to advance the government's compelling interest to prevent transmission of the coronavirus.

Noting that Miami-Dade County has been one of the global epicenters of the pandemic and has seen nearly 5,000 residents succumb to COVID-19, Murray said that the county is "absolutely interested in saving lives" and has nothing to gain from putting county residents out of work.

He pointed to the changing circumstances and growing knowledge concerning the novel coronavirus over the past year and noted that case law, including the U.S. Supreme Court's ruling in 1905's Jacobson v. Massachusetts, says that the court should afford certain deference to government decisions during times of emergency.

He also looked to the Eleventh Circuit's ruling in Smith v. Avino, which he said involved a direct challenge to a Miami-Dade County emergency curfew that was in place for several months. He said that the appeals court held that the measure was constitutional if entered in good faith and if there was some factual basis for the need to maintain it.

The plaintiffs have made "no real suggestion that the county doesn't easily meet that test," Murray argued.

Murray also attempted to shoot down several suggestions that the plaintiffs put forward as available alternatives that would have been less intrusive, such as banning or limiting alcohol sales at clubs, increasing police enforcement of mask and social distancing requirements, or exempting people who have recovered from COVID-19 or received vaccines.

None of those plans was more narrowly tailored, would achieve the same preventive goals as the curfew or would be practical to implement, he said.

"It is impossible to say that less restrictive means exist, and it is doubly impossible to say that, Your Honor, in the face of the deference that the courts have extended to local governments in this pandemic," Murray argued.

He also suggested that, contrary to the plaintiffs' arguments, the exceptions in the emergency order are what make it narrowly tailored rather than being too broad.

Pressed by Judge Scola on the question of whether the court has the facts properly before it to grant the county's motion to dismiss, Murray said that they were already in the orders.

"We would suggest that certainly here, where those facts are on the face of the orders or the cases support what we've said, and the cases have instructed you to grant the county certain deference, that you can absolutely rule on this case at a motion to dismiss stage because they have not shown that there is a viable path forward," he argued.

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

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

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 Steven Edelstone.

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