United States District Court Judge Winsor yesterday issued an Order Denying Preliminary Injunction Motion in Shen v. Simpson. concerning Fla. Stat. §§ 692.201-.204, including the “Purchase of agricultural land by foreign principals prohibited.” The Order is based in large part on US Supreme Court equal protection decisions that are 100 years old or more. That is not a typo. A copy is attached.

Though initially finding that at least some of the Plaintiffs had standing, the District Court found that the Plaintiffs did not have a substantial likelihood of prevailing on the merits.

The Court determined the US Supreme Court “never suggested that all state alienage classifications are inherently invalid or suspect”, relying in part on a C.J. Berger 1977 dissent.

Relying on a series of 1923 USSCT decisions, which in turn relied on a 1879 decision, the District Court determined that that “states could deny aliens ownership interests in land within their respective borders absent an arbitrary or unreasonable basis. “ You may recall from law school that once a reasonableness test, rather than strict scrutiny is applied to an equal protection analysis, the state wins.

In further analysis, the Court determined that the law applies to where an alien is domiciled, “facially neutral as to race and national origin.” The Court differentiated prior USSCt equal protection decisions finding discrimination because none expressly addressed land ownership or expressly the 1923 decision. These post war decisions found discrimination in commercial fishing, exclusion from welfare benefits, discriminating against aliens seeking law licenses, engineering licenses, financial education assistance, or certain public employment.

Concerning discriminatory animus, the Court presumed the Legislature acted in good faith, and did not see evidence of disproportionate impact. Further:

…statements from the Governor or Legislators, none evinces racial animus or any intent to discriminate based on race or where someone was born. Nor do they show any intent to discriminate against Chinese citizens “because of” their Chinese citizenship.

Similarly, the FHA attack failed because:

Florida’s law does not make any classification based on “race, color, religion, sex, familial status, or national origin.” It instead classifies based on alienage, citizenship, and lawful-permanent-resident status—none of which are covered by the FHA.

Limiting myself to two comments. First, while the law addresses domicile, the law restricts on the relationship to a "foreign country of concern" the criteria of which is mostly based on national origin. Second, There seems to be a deaf ear as to the comments made on the campaign trails.

Many thanks to Larry Sellers of Tallahassee providing an early heads up that the decision was docketed.

Stay out of the heat, at least the hot and humid heat.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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