Could Florida enforce its employer sanctions law despite federal immigration-law preemption in 2007?

Plain-English summary

Bay County Sheriff Frank McKeithen requested an informal opinion or case law about section 448.09, Florida Statutes, which at the time prohibited knowingly hiring, recruiting, employing, or referring a person unauthorized to work. Attorney General Bill McCollum noted a federal law with overlapping prohibitions, then quoted the decisive provision, 8 United States Code 1324a(h)(2): federal law “preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws)” on those employing, recruiting, or referring unauthorized workers for a fee. He described that language as a clear congressional intent to preempt such state sanctions.

The office expressly said it could not declare a statute invalid. It also recounted the sheriff's statement in State v. Alvidrez that he lacked a counterargument to a federal-preemption motion concerning section 448.09. The letter's only identified Florida appellate case mentioning section 448.09, Cenvill Development Corporation v. Candelo, concerned wage-loss benefits and an employer's ability to assert a worker's immigration status, not a ruling on the preemption issue raised by the sheriff.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

What did the federal preemption clause cover?
As quoted in the letter, 8 United States Code 1324a(h)(2) preempted state or local civil and criminal sanctions on those who employed, recruited, or referred unauthorized workers for a fee. The quoted text excepted licensing and similar laws.

Did the AG strike down Florida's section 448.09?
No. The letter said the AG's office could not declare a statute invalid. It identified express federal preemption and described a related county-court motion, but did not issue a judgment invalidating the statute.

What was the difference between Florida's law and the federal law discussed?
The opinion's footnote said Florida's provision covered referral for employment, while the federal referral provision specified referral “for a fee.” The AG said that distinction did not affect the inquiry before him, but might matter in another one.

What did the cited Florida appellate case decide?
The letter said Cenvill addressed wage-loss benefits and when an employer could assert a worker's unauthorized status. It did not present that case as a decision upholding employer sanctions under section 448.09.

Background and statutory framework

The letter quoted Florida's 2007 section 448.09 and federal 8 United States Code 1324a, then applied the federal provision's explicit preemption clause and the Supremacy Clause. It discussed DeCanas v. Bica for the principle that federal and state laws addressing the same general subject do not automatically conflict; express congressional preemption supplied the stronger ground here. The office also summarized State v. Alvidrez, a Bay County Court matter, as part of the sheriff's request.

Citations and references

• Section 448.09, Florida Statutes: state employer sanctions discussed in the 2007 letter.
• 8 United States Code 1324a(h)(2): federal preemption clause quoted by the AG.
• DeCanas v. Bica, 424 U.S. 351 (1976): federal preemption analysis.
• Cenvill Development Corporation v. Candelo, 478 So. 2d 1168 (Fla. 1st DCA 1985): wage-loss case discussed by the AG.
• State v. Alvidrez, Case No. 2007-0265-TOMA (Bay Co. Ct. 2007): county-court matter referenced in the letter.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/employment-of-illegal-aliens
• Official print view: https://www.myfloridalegal.com/print/pdf/node/8287

Original opinion text

The Honorable Frank McKeithen

Bay County Sheriff

3421 North Highway 77

Panama City, Florida 32405

Dear Sheriff McKeithen:

You have asked for an informal opinion or case law relating to section 448.09, Florida Statutes.

Section 448.09, Florida Statutes, provides:

"(1) It shall be unlawful for any person knowingly to employ, hire, recruit, or refer, either for herself or himself or on behalf of another, for private or public employment within the state, an alien who is not duly authorized to work by the immigration laws or the Attorney General of the United States.

(2) The first violation of subsection (1) shall be a noncriminal violation as defined in s. 775.08(3) and, upon conviction, shall be punishable as provided in s. 775.082(5) by a civil fine of not more than $500, regardless of the number of aliens with respect to whom the violation occurred.

(3) Any person who has been previously convicted for a violation of subsection (1) and who thereafter violates subsection (1), shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Any such subsequent violation of this section shall constitute a separate offense with respect to each unauthorized alien."

This office is aware of only one Florida appellate case which refers to section 448.09, Florida Statutes. In Cenvill Development Corporation v. Candelo,[1] the court considered whether the status of an unauthorized alien could be considered in determining whether a work search was adequate to entitle the claimant to wage loss benefits. The court disagreed with the deputy commissioner, who placed a burden on the employer pursuant to section 448.09, Florida Statutes, to verify alien registration numbers or be estopped from asserting the status of the unauthorized alien, holding instead that the employer is estopped from asserting the status of an unauthorized alien only where he knew or should have known of the true status of the employee. A copy of the case is enclosed for your review.

While this office cannot declare a statute invalid, I would note that 8 United States Code 1324a prohibits the unlawful employment of aliens. Subsection (a)(1) and (2) provide:

"(a) Making employment of unauthorized aliens unlawful.

(1) In general. It is unlawful for a person or other entity

(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3)) with respect to such employment, or

(B) (i) to hire for employment in the United States an individual without complying with the requirements of subsection (b) or (ii) if the person or entity is an agricultural association, agricultural employer, or farm labor contractor (as defined in section 3 of the Migrant and Seasonal Agricultural Worker Protection Act [29 U.S.C. 1802], to hire, or to recruit or refer for a fee, for employment in the United States an individual without complying with the requirements of subsection (b).

(2) Continuing employment. It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment."

Thus, both section 448.09, Florida Statutes, and 8 United States Code 1324a make it illegal to knowingly hire, recruit, or employ an illegal alien as well as refer an illegal alien for employment.[2]

Title 8 United States Code 1324a(h)(2), however, expressly states:

"Preemption. The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens."

Where a federal statute expressly preempts a field and operates to bar specified acts or conduct, the Supremacy Clause of the United States Constitution provides that the federal law will prevail and exclusively control such matters.[3] The United States Supreme Court in DeCanas v. Bica[4] considered a number of factors in determining whether a state or local law is preempted by federal law. The Court cautioned that preemption is not based on the mere fact that state and federal laws address the same general subject matter. The DeCanas Court determined that the clearest examples of preemption involve instances where Congress has explicitly stated its intent that, in enacting federal laws, it has preempted state and local regulations in the same area. Where "Congress has unmistakably so ordained," or in those instances where preemption is "the clear and manifest purpose of Congress," state and local laws are preempted by the federal law.[5]

The express statement of preemption in 8 United States Code 1324a(h)(2) represents Congress' clear intent to preempt state and local laws imposing civil or criminal sanctions on those who employ, or recruit or refer for a fee for employment, unauthorized aliens. This office would note that in the case of State v. Alvidrez,[6] in which Mr. Alvidrez was charged with violating section 448.09, Florida Statutes, the attorney for the defendant cited the above preemption provisions and you advised the court that you had "no counter argument or case law which would provide us with sufficient grounds to legitimately oppose this motion" and that the federal statute is "identical to Florida Statute, has preempted the enforcement of Florida Statute 448.09."[7]

I trust that the above informal comments may be of assistance to you in resolving the issues which you raise in your letter of July 24, 2007.

Sincerely,

Bill McCollum

Attorney General

BM/tjw

Enclosure: Cenvill Development Corporation v. Candelo

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[1] 478 So. 2d 1168 (Fla. 1st DCA 1985), review denied, 488 So. 2d 67 (Fla. 1986).

[2] There is a slight difference in the conduct prescribed by the state statute and the federal act. Section 448.09, Fla. Stat., includes referring an alien for employment while the federal act applies to referring an illegal alien for employment "for a fee." While this distinction might be relevant to another inquiry, it has no impact on the instant inquiry.

[3] See Art. VI, cl. 2, U.S. Const., which provides:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

And see Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195; 162 L. Ed. 2d 1 (2005) (Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail).

[4] 424 U.S. 351, 96 S. Ct. 933, 47 L. Ed. 2d 43 (1976).

[5] 424 U.S. at 356-357, 96 S. Ct. at 937, quoting Florida Lime & Avocado Growers v. Paul, 373 U.S. 132, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963).

[6] Case No. 2007-0265-TOMA (Bay Co. Ct. 2007).

[7] Letter from Sheriff Frank McKeithen to Judge Welch, dated July 17, 2007.