Shen v. Simpson

687 F.Supp.3d 1219

Yifan SHEN, Zhiming Xu, et al., Plaintiffs, v. Wilton SIMPSON, in his official capacityas Florida Commissioner of Agriculture, Meredith Ivey,in her official capacity as Acting Florida Secretary of Economic Opportunity, et al., Defendants.

Case No. 4:23-cv-208-AW-MAF

United States District Court, N.D. Florida, Tallahassee Division

Signed August 17, 2023

Gabriel J. Chin, University of California Davis School of Law, Davis, CA, Robert Seungchul Chang, Ronald A. Peterson Law Clinic, Seattle, WA, Rose Cuison-Villazor, Rutgers Law School, Newark, NJ, Ashley Marie Gorski, Patrick Christopher Toomey, Sarah Michelle Taitz, American Civil Liberties Union Foundation, New York, NY, Bethany Yue-Ping Li, Elizabeth L. Koo, Razeen J. Zaman, Asian American Legal Defense & Education Fund, New York, NY, Cody H. Wofsy, American Civil Liberties Union Foundation, San Francisco, CA, Daniel Boaz Tilley, ACLU Foundation of Florida Inc., Miami, FL, Derek Lawrence Shaffer, Quinn Emanuel Urquhart etc., Washington, DC, Haiyan Tang, San Diego, CA, Keliang Zhu, Deheng Law Offices PC, Pleasanton, CA, Nicholas Warren, ACLU Foundation of Florida, Tallahassee, FL, for Plaintiffs Yifan Shen, Zhiming Xu, Xinxi Wang, Multi-Choice Realty LLC.

Robert Seungchul Chang, Ronald A. Peterson Law Clinic, Seattle, WA, Rose Cuison-Villazor, Rutgers Law School, Newark, NJ, Ashley Marie Gorski, Patrick Christopher Toomey, Sarah Michelle Taitz, American Civil Liberties Union Foundation, New York, NY, Bethany Yue-Ping Li, Elizabeth L. Koo, Razeen J. Zaman, Asian American Legal Defense & Education Fund, New York, NY, Cody H. Wofsy, American Civil Liberties Union Foundation, San Francisco, CA, Daniel Boaz Tilley, ACLU Foundation of Florida Inc., Miami, FL, Derek Lawrence Shaffer, Quinn Emanuel Urquhart etc., Washington, DC, Haiyan Tang, San Diego, CA, Keliang Zhu, Deheng Law Offices PC, Pleasanton, CA, Nicholas Warren, ACLU Foundation of Florida, Tallahassee, FL, for Plaintiff Yongxin Liu.

Daniel Elden Nordby, Shutts & Bowen LLP, Tallahassee, FL, Daniel William Bell, Erik Louis Sayler, Henry Charles Whitaker, Nathan Andrew Forrester, Robert Scott Schenck, Office of the Attorney General Office of the Solicitor General, Tallahassee, FL, for Defendant Wilton Simpson.

Daniel William Bell, Erik Louis Sayler, Henry Charles Whitaker, Nathan Andrew Forrester, Robert Scott Schenck, Office of the Attorney General Office of the Solicitor General, Tallahassee, FL, for Defendants Meredith Ivey, Patricia Fitzgerald.

Madeleine Kristine Rodriguez, Foley Hoag LLP, Boston, MA, Robert Seungchul Chang, Ronald A. Peterson Law Clinic, Seattle, WA, for Amicus Fred T. Korematsu Center for Law and Equality at Seattle University School of Law.

Madeleine Kristine Rodriguez, Foley Hoag LLP, Boston, MA, Rose Cuison-Villazor, Rutgers Law School, Newark, NJ, for Amicus Center for Immigration Law Policy and Justice at Rutgers Law School.

Gabriel J. Chin, University of California Davis School of Law, Davis, CA, Madeleine Kristine Rodriguez, Foley Hoag LLP, Boston, MA, for Amicus Aoki Center for Critical Race and Nation Studies at UC Davis School of Law.

Madeleine Kristine Rodriguez, Foley Hoag LLP, Boston, MA, for Amici LLS Anti-Racism Center of Lmu Loyola Law School, Center on Race Inequality and The Law at New York University School of Law, Boston University Center for Antiracist Research, Center for Civil Rights and Racial Justice at the University of Pittsburgh School of Law, Asian Pacific American Bar Association of Tampa Bay, Conference of Asian Pacific American Law Faculty, Hispanic National Bar Association, National Asian Pacific American Bar Association, South Asian Bar Association of North America, Asian Americans Advancing Justice - Asian Law Caucus, Asian Americans Advancing Justice Atlanta, Asian American Womens Political Initiative, Asian Law Alliance, Chinese for Affirmative Action, Japanese American Citizens League, Latinojustice Prldef.

Alisha Jarwala, DOJ-CRT, Washington, DC, for Amicus United States of America.

Joshua Nathaniel Turner, Idaho Office of the Attorney General Office of the Solicitor General, Boise, ID, for Amicus State of Idaho.

ORDER DENYING PRELIMINARY INJUNCTION MOTION

Allen Winsor, United States District Judge

A new Florida law limits landownership rights of certain noncitizens domiciled in China or other specific countries. See Fla. Stat. §§ 692.201-.204. Four Chinese citizens living in Florida, along with a brokerage that does business with Chinese citizens, sued to challenge that new law. They contend it violates the Fourteenth Amendment's Equal Protection and Due Process Clauses, the Fair Housing Act, and the Supremacy Clause. ECF No. 17 (Am. Compl.). They seek declaratory relief and an injunction precluding the law's enforcement.

Defendants are Florida's Agriculture Commissioner, Economic Opportunity Secretary, and Real Estate Commission Chair (collectively the State Defendants), along with the State Attorneys for Florida's Seventh, Ninth, and Eleventh Judicial Circuits. Am. Compl. at 1.¹

Plaintiffs moved for a preliminary injunction. ECF No. 23 (MPI). The State Defendants responded in opposition, ECF No. 60 (Resp.), and Plaintiffs replied, ECF No. 65 (Reply). The United States of America filed a brief supporting Plaintiffs' motion, and other amici weighed in too. ECF Nos. 43, 54, 64.²

After a nonevidentiary hearing, and having carefully considered the evidence and the parties' arguments, I now deny the motion.

I. BACKGROUND

A. The Challenged Law

The challenged law, codified at Florida Statutes § 692.201-.204, became effective July 1. It restricts land purchases by any "[f]oreign principal," which it defines to include anyone "who is domiciled in a foreign country of concern and is not a citizen or lawful permanent resident of the United States." Fla. Stat. § 692.201(4)(d). It specifies the countries "of concern" are China, Russia, Iran, North Korea, and others. Id. § 692.201(3).

Section 692.203 provides that, subject to certain exceptions, "[a] foreign principal may not directly or indirectly own . . . any interest . . . in real property on or within 10 miles of any military installation or critical infrastructure facility." Id. § 692.203(1).³ (The statute defines the terms "military installation" and "critical infrastructure facility," id. § 692.201(2), (5), and this order's references to those terms are to the statutory definitions.) Anyone purchasing real property within that protected zone must sign an affidavit attesting that he is not a foreign principal. Id. § 692.203(6).

Section 692.203 includes a grandfather provision for foreign principals who owned covered property before the law took effect. Those foreign principals can keep the grandfathered property but cannot acquire any new covered property. Id. § 692.203(2). They also must register their property with the Department of Economic Opportunity. Id. § 692.203(3)(a). Foreign principals who do not timely register face civil penalties, id. § 692.203(3)(b), and those who acquire land in violation of the provision commit a misdemeanor, id. § 692.203(8).

Section 692.204 imposes additional restrictions, but it applies only to foreign principals domiciled in China—not in other countries "of concern." Id. § 692.204(1)(a)(4). Subject to certain exceptions, foreign principals domiciled in China cannot "directly or indirectly own . . . any interest . . . in real property," regardless of its proximity to military installations or critical infrastructure. Id. Florida real estate purchasers must sign affidavits attesting that they are not principals of China. Id. § 692.204(6)(a); see also id. § 692.204(6)(c) (directing the Florida Real Estate Commission to adopt rules regarding the affidavit).

Section 692.204 includes a grandfather provision and registration requirement like those in § 692.203. Id. § 692.204(3), (4)(a). It likewise provides for civil penalties for failing to register, id. § 692.204(4)(b), and it provides that those who acquire land in violation of the provision commit a third-degree felony, id. § 692.204(8).⁴

B. Facts

The facts come from the parties' affidavits. No party requested an evidentiary hearing, and the relevant facts are not in dispute.

Multi-Choice Realty is a Florida real estate brokerage that often transacts business with Chinese clients. ECF No. 21-6 ¶¶ 3-5. Plaintiffs Yifan Shen, Zhiming Xu, Xinxi Wang, and Yongxin Liu are native-born citizens of China living in Florida. ECF No. 21-2 ¶¶ 3, 9; ECF No. 21-3 ¶¶ 3, 5; ECF No. 21-4 ¶¶ 3, 9; ECF No. 21-5 ¶¶ 3, 9. They own Florida real estate, plan to buy some, or both. ECF No. 21-2 ¶¶ 12-16, 18; id. at 6-18; ECF No. 21-3 ¶¶ 11-12, 18; id. at 6-24; ECF No. 21-4 ¶¶ 12-13; ECF No. 21-5 ¶¶ 12-13, 18. Each is lawfully present in the United States, but none has lawful-permanent-resident status. ECF No. 21-2 ¶¶ 6-7; ECF No. 21-3 ¶¶ 6-7; ECF No. 21-4 ¶¶ 6-7; ECF No. 21-5 ¶¶ 6-7. Shen, Liu, and Wang are present on nonimmigrant H-1B or F-1 visas, ECF No. 21-2 ¶ 7; ECF No. 21-4 ¶ 7; ECF No. 21-5 ¶ 7, and Xu has a pending political asylee application, ECF No. 21-3 ¶ 7.

Fearing that the challenged law will restrict their right to own Florida real estate (as to Shen, Xu, Liu, and Wang) or cause lost business (as to Multi-Choice), Plaintiffs initiated this preenforcement lawsuit.

II. PRELIMINARY INJUNCTION STANDARD

"[A] preliminary injunction is an extraordinary and drastic remedy." Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (quoting McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir. 1998)); see also Texas v. Seatrain Int'l, S.A., 518 F.2d 175, 179 (5th Cir. 1975) ("[W]e must remember that granting a preliminary injunction is the exception rather than the rule."). It is available only when the party seeking it "clearly establishe[s]" entitlement. Siegel, 234 F.3d at 1176 (quoting McDonald's Corp., 147 F.3d at 1306).

To succeed, Plaintiffs must clearly establish four factors: (1) that they have "a...