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More Anti-"Big Box Store" Nonsense
Posted by: MichaelW on Thursday, August 14, 2008

This time it appears to be pretty clearly a taking under the Fifth Amendment:
Big-box, home-improvement stores in Los Angeles will have to set aside space for day laborers under an ordinance passed by the City Council on Wednesday.

When the ordinance takes effect — the mayor has to sign it, and most city laws take effect 30 days afterward — it will apply to stores such as The Home Depot that have 100,000 square feet or more, or any structure where 250,000 square feet or more of warehouse floor area is added.

The shelters must be easily accessible and include drinking water, bathrooms, tables, seating and trashcans. The stores may be required to work with Los Angeles police in developing a security plan, according to the unanimous vote by the 15-member lawmaking body.
If the city government is going to require owners of private property to make accommodations for uninvited guests, then it should have to pay for it itself.

For example, in Lloyd Corp., LTD v. Tanner, 407 U.S. 551 (1972), the Supreme Court ruled that a private property owner's Fifth and Fourteenth Amendment Rights trumped some uninvited guests' First Amendment rights. The case involved a shopping center and some Vietnam War protestors (emphasis added):
The basic issue in this case is whether respondents, in the exercise of asserted First Amendment rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. The Due Process Clauses of the Fifth and Fourteenth Amendments are also relevant to this case. They provide that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." There is the further proscription in the Fifth Amendment against the taking of "private property . . . for public use, without just compensation."

Although accommodations between the values protected by these three Amendments are sometimes necessary, and the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.
The Court distinguished two prior cases where the shopping center, though privately owned, had been so dedicated "to the public use as to entitle respondents to exercise therein the asserted First Amendment rights."

Marsh v. Alabama 326 U.S 501 (1946), involved Chickasaw, AL, which was a company town, and thus all property was privately owned. The Court ruled in that case that because the private owner had taken on all municipal functions of a regular town, that it was for all intents and purposes the same as any other town. Accordingly, a Jehovah's Witness distributing pamphlets on a sidewalk could not be arrested for trespassing without violating his First and Fourteenth Amendment rights. However, the situation in Lloyd Corp. was totally unlike that in Marsh, according to the Court, because there was no such wholesale adoption of the functions of a municipality by the shopping center that would justify a decision that it had lost its private character. Just because the public was generally invited, reasoned the Court, that did not render the shopping center public property:
Respondents' argument, even if otherwise meritorious, misapprehends the scope of the invitation extended to the public. The invitation is to come to the Center to do business with the tenants. It is true that facilities at the Center are used for certain meetings and for various promotional activities. The obvious purpose, recognized widely as legitimate and responsible business activity, is to bring potential shoppers to the Center, to create a favorable impression, and to generate goodwill. There is no open-ended invitation to the public to use the Center for any and all purposes, however incompatible with the interests of both the stores and the shoppers whom they serve.
In short, issuing a general invitation to the public to come shopping does not cause a private owner to lose his Fifth and Fourteenth Amendment rights.

The Court also distinguished Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 (1968), in which it was held that the First Amendment rights of union protesters allowed them to picket a store on private property, where such picketing was directly related to the purposes of the shopping center. However, the Lloyd Corp. decision specifically noted the limited application of Logan Valley by quoting that opinion:
The picketing carried on by petitioners [in Logan Valley] was directed specifically at patrons of the Weis Market located within the shopping center, and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated. We are, therefore, not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put.
So, unlike Logan Valley, the picketing in Lloyd Corp. was not related in any way to the purposes of the shopping center. Given the very limited factual circumstances in which Logan Valley was applicable, none of which were present here, the shopping center in Lloyd Corp. could not be said to have lost its private character under that precedent.

In essence, Lloyd Corp. stands for the proposition that a private property owner does not lose his ability to exclude people from his property simply by issuing a general invitation to the public. This is true even where such guests are exercising their First Amendment rights. The property does not lose it's private character, guaranteed under the Fifth and Fourteenth Amendments, merely by allowing anyone to generally visit. Such invitations are limited to specific activities. When certain guests attempt to the use the property for purposes outside the limitations of the invitation, they may be kicked off the property.

So if it is clear that the Fifth Amendment protects a property owner's right to exclude others, even where uninvited guests attempt to exercise First Amendment rights, then any government requirement that the property owner accommodate such uninvited guests would have to be a conversion of that property to public use (i.e. stripping it of its private character). If the land owner loses his ability to exclude, then it cannot be private land. Indeed, Justice Black said as much in his dissenting opinion in Logan Valley:
The Fifth Amendment provides that

"[n]o person shall . . . be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

This means to me that there is no right to picket on the private premises of another to try to convert the owner or others to the views of the pickets. It also means, I think, that, if this Court is going to arrogate to itself the power to act as the Government's agent to take a part of Weis' property to give to the pickets for their use, the Court should also award Weis just compensation for the property taken.
Moreover, being required to erect "shelters ... and include drinking water, bathrooms, tables, seating and trashcans" for the uninvited guests clearly violates the property owner's rights so as to make this a taking. What's worse is that the uninvited guests are "day laborers" who are most likely illegal aliens.

So, in short, the L.A. government is requiring certain private property owners to pay for and accommodate illegal aliens. That is just foul beyond words.

[HT: Ace of Spades]
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Previous Comments to this Post 

Not only are the day laborers possibly/likely violating immigration law, they are Home Depot’s COMPETITION!!!

Home Depot sells installation services. The day laborers wait outside and offer their installation services for less money than Home Depot charges. I’ve even been approached by some of these folks while INSIDE the store.

So the really big issue here is that City Council has required a private company to subsidize their competition. This is most heinous!
Written By: Less
URL: http://
What you assert regarding legal precedent may be true in this case. But we still need to take a little stroll in front of a judge to be sure. And appeal findings not to our liking. And appeal the appeal...
Written By: CR
URL: http://
A cunning plan by the city council to make it easier for La Migra to find these criminales?
Written By: shark
URL: http://
Less, I’m not so sure. In fact I could make a case that HD would WANT to build a day labor area. Obversely having the government shove it down their throat is against my principles but it makes sense. If I’m a contractor that installs drywall and I just picked up a big job that needs to be knocked out in a day or two. Would I go to a local small business and pick up the board then drive around looking for labor or do I go to Home Depot where I can find labor and supplies at a good rate. Lots of laborers at one spot means they will compete for the job and home depot has everything I need without having to drive my 6mpg truck all over town. From what I understand Home Depot does not really install anything themselves, they subcontract to local contractors. If you order a door installed by Home Depot, the guy that shows up is not an employee of home depot. He works for a contractor that has an agreement with Home Depot. They might even like it because like all the other contractors they can get labor right out side their door. Plus from the HD point of view if they have a problem with these guys bugging the customers then this gives them a nice place to go that is away from the paying customers that don’t want to be bugged but easily accessible to those that need help. I know I could have used some help unloading some bags of cement a few weeks ago and would have paid a some guys to help. (That is how it’s done down in Mexico "Hey! $10 to help me unload these bags" one or two will jump into the back of your truck and you have to drive them back afterwards.)
Personally if they are here to work let them, illegal or not, if they are here to soak up welfare or traffic drugs then they need to be rounded up.
Written By: ryan
URL: http://
As shark pointed out.
the thugs from Homeland Enforcement will be regularly sweeping these areas and I doubt anyone would use them. Too much hassle running from the cops all the time.
Written By: ryan
URL: http://
In fact I could make a case that HD would WANT to build a day labor area.
And in a free country, no one would stop them.
Written By: Dale Franks
Better yet, now that these are "government sanctioned" day laborer centers, more customers will consider using them. Before they might have reluctant as its illegal - but if there is a city certified venue....
Written By: Harun
URL: http://
Frankly, more of these ’big box’ stores need to start telling local governments that if they enact these sorts of laws, they’ll pack up and leave, especially in LA. Once they outlaw all ’objectionable’ business and effectively, the accompanying jobs, downtown related business (those employees have to eat somewhere), and the taxes these guys pay somebody might get a clue, but I doubt it. See Detroit, the city of $1 houses. See Nissan.
Written By: Buddy
URL: http://
But we still need to take a little stroll in front of a judge to be sure.
I’m not suggesting otherwise. I just think the issue is pretty clearly on the side of this being a taking (all the while knowing that takings cases generally fall on the side of the government).
A cunning plan by the city council to make it easier for La Migra to find these criminales?
If only. See my earlier post re Virginia and day laborers.
In fact I could make a case that HD would WANT to build a day labor area.
I understand the argument, and given that Home Depot is apparently not fighting the regulation, you present a compelling argument.

However, that doesn’t mean it’s not a taking. At best, if your theory is correct, it’s collusion between government and business to defeat competition. Not a terribly comforting thought. At worst it’s the government stripping away the Constitutionally protected private property rights of land owners, which is present even if your theory is correct (since the law targets any store of a certain size).
And in a free country, no one would stop them.
Bingo. Moreover, the precedent this would set is exactly the sort of case that eventually leads to Kelo being the right decision. IOW, if the government can effectively strip private property of the very essence of what makes it private — i.e. the sine qua non of private property being exclusivity — then what stops government, for example, from forcing land owners to set aside and accommodate homeless people? Once the rule is established that government has the power to take away the central principle of private property, then the sky is the limit with respect to further regulation.

And if private property can be limited in such ways, then why not private endeavors? If the ability to exclude others from one’s property exists solely at the pleasure of the governors, then what prohibits the ability to exclude others from the products of one’s mind? One’s labor? One’s existence? I would argue nothing.

Now, someone is sure to show up here and declare that my misgivings are derived solely from fantasy. That my fears are strained beyond reality. Yet, when in your life did you ever think that your property, which you bought, maintain and are fully responsible for, could be subject to the claims of others simply because the government says so?* If real property can be placed under such a regime, then what stops the inclusion of intellectual property? And after that, what precludes the adoption of your labors by those who are deemed to be in need of them (think about medical professionals for this exercise). Frankly, the answer is nothing.

"But there are Constitutionally guaranteed rights with respect to such right!" I hear you mewl. So what? Until the SCOTUS decided otherwise, there were Constitutionally guaranteed rights against the use of private property for public means (when Kelo is considered in addition to the current L.A. regime). If those rights could so casually be set aside, what prevents the others from being disappeared beneath a mountain of legalese? Nothing. In fact, I could produce for you, within just a few hours, the very reasoning that would pave the way.

These are the reasons why this odious invasion of private property rights is so dangerous, regardless of what Home Depot thinks is in its best interests.
Frankly, more of these ’big box’ stores need to start telling local governments that if they enact these sorts of laws, they’ll pack up and leave, especially in LA.
I do recall that WalMart did something similar in Canada in response to union pressures seeking government intervention to bring the corporation to heel.

* It should be noted that we’re not talking about prescriptive easements or the like, which are well-grounded in legal history, but instead the granting of affirmative rights to trespassers who have no adjacent or equivalent property rights. The difference is enormous.
Written By: MichaelW
"And in a free country, no one would stop them."

And in a free country no one would make them.
Written By: timactual
URL: http://
What part of "it’s none of your damned business what we do in our business - especially since virtually none of you could ever make a profit anyway" do these lamebrain politicians not understand?

Written By: Mike G
URL: http://
What part of "it’s none of your damned business what we do in our business - especially since virtually none of you could ever make a profit anyway" do these lamebrain politicians not understand?
The whole part.
Written By: Is
URL: http://
Further - what liability did big-box mart just undertake for any injury the day laborers sustained in the use of these centers?

Question - does this crowd of people we are catering to have to have a legitimate business purpose (day laborer) in hanging around or can they just be a congregation of, as mentioned, say, homeless people?

Who monitors their purpose in being there?
who monitors their use of the facilities?
Who has authority to bar some and not others, and on what grounds?

More Californication.
Written By: looker
URL: http://
I don’t know if anyone has discussed the DC legislation on this subject."

Some of the most compelling backroom action was as suggested above. Several large retailers told the city they would not be opening any new stores.

The bad guys love to use DC as a test lab. They only need seven votes to do anything they want.
Written By: Brett McMahon
URL: http://
I wonder... The the arguement you present also work for matters like Illinois ban on smoking pretty much anywhere?
Written By: Scott Jacobs
URL: http://

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