News

By Andrew Kreighbaum

• State restricts purchases by nationals of seven countries
• Violates Fair Housing Act, Equal Protection Clause, suit says

A Florida law banning citizens of China and six other countries from buying real estate revives a 100-year-old, discredited legal precedent that unconstitutionally discriminates against Asian immigrants, civil rights groups say.

A challenge to the law, (SB 264) is set to go before a panel of the US Court of Appeals for the Eleventh Circuit in Miami Friday, offering the biggest legal test so far for a torrent of state laws restricting land ownership by foreign individuals or entities.

SB 264 prohibits noncitizens whose “domicile” is in China from purchasing any property in the state, with exceptions for some immigrants like those granted asylum in the US. Less restrictive bans were included for immigrants from from other designated “countries of concern” like Cuba, Venezuela, Iran, North Korea, Russia, and Syria.

The law has had a “chilling effect” for not only Chinese immigrants but Asian Americans generally in the state, said Bethany Li, legal director at the Asian American Legal Defense and Education Fund (AALDEF).

“The law sends the message that Asians aren’t welcome in the state of Florida and some of the interactions that we’re seeing day-to-day are certainly reflective of that,” Li said in an interview.

Florida was one of 16 states that enacted legislation restricting land ownership by foreign entities or individuals last year, according to the Congressional Research Service. And lawmakers introduced bills to regulate foreign property ownership in another 20 states, it found. Opponents say Florida’s law is one of the most sweeping adopted so far.

A group of plaintiffs that includes H-1B specialty occupation visa holders and an Orlando real estate firm sued over the restrictions, arguing they violated the Fair Housing Act and Equal Protection Clause of the Constitution.

A federal district court rejected a request for an injunction against the law last year, although an Eleventh Circuit panel later approved a limited preliminary injunction blocking enforcement of the law against two of the plaintiffs.

AALDEF and the American Civil Liberties Union, which represent the plaintiffs, say the lower court incorrectly relied on a 1923 US Supreme Court ruling to hold that discrimination based on national origin is permissible. But that ruling on the constitutionality of a Washington state land law—which broadly applied to all “aliens” and not just those from certain countries—was undermined by developments in equal protection law in the 1950s, the groups said.

SB 264’s explicit focus on China and noncitizens “domiciled” there takes the law well outside of precedent cited by the district court and uses an obvious proxy for discrimination based on national origin, they say.

‘Patchwork of Rules’

States can adopt laws regulating purchase of property by noncitizens, but they’re not permitted to use their own classifications of noncitizens, said Gabriel Chin, a professor at the University of California, Davis School of Law who signed onto a brief backing the challenge to the Florida law.

If states were allowed to adopt their own restrictions based on nationality or status, there “would undoubtedly be a patchwork of rules,” he said in an interview.

“That’s why traditionally the Supreme Court—conservatives or liberals—have said whatever else is going on in immigration, it has to be uniform and be decided at the federal level,” Chin said.

But the state’s Office of the Attorney General argued in court briefs that SB 264 falls within Florida’s “fundamental sovereign prerogative to regulate its own land.”

The Supreme Court has long upheld restrictions on land purchases by foreign individuals, and there’s been no explicit language overturning the case at issue in the district court’s ruling, the state said.

The plaintiffs are also incorrect to say that the law uses “domicile” as a proxy for national origin or racial animus, the state argued.

A representative for Gov. Ron DeSantis (R) didn’t respond to a request for comment.

The challenge will be heard by a panel made up of Judge Charles R. Wilson, a Clinton appointee, and Trump-appointed Judges Robert J. Luck and Barbara Lagoa.

The appellants are also represented by the ACLU of Florida; DeHeng Law Offices PC; Rutgers Immigrant Rights Clinic; and Quinn Emanuel Urquhart & Sullivan LLP.

The Florida Department of Agriculture and Consumer Services, Florida Department of Economic Opportunity, and Florida Real Estate Commission, who are named as defendants, are represented by the state’s Office of the Attorney General and by Shutts & Bowen LLP.

The case is Shen v. Comm’r, Fla. Dep’t of Agric., 11th Cir., No. 23-12737, oral arguments scheduled 4/19/24.

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Read the article here: https://news.bloomberglaw.com/ip-law/floridas-ban-on-chinese-homebuying-to-get-appeals-court-hearing