A Florida official's report that claimed state authorities are not using immigration enforcement powers available to them prompted critics to conclude that there is no need to pass more laws to control illegal aliens.
The revelation, aired Monday at a Senate panel hearing, came from Michael Ramage, general counsel for the Florida Department of Law Enforcement. Ramage said that after 11 years on the books, Florida Statute 448.09 had never been used to prosecute employers who "knowingly" hired illegal immigrants.
The statute imposes $500 civil fines for a first offense and levies a second-degree misdemeanor for a second offense.
Ramage speculated that law-enforcement agencies' failure to use the statute could be due to the relatively mild penalties. He also noted that law enforcement is a "reactive" business, whereby agents respond to complaints, as opposed to initiating action.
"If there are no complaints, there's no investigation," he told the Senate panel, which was hearing testimony on immigration issues.
Ramage's report implied that state agencies had a functional enforcement tool at their disposal, but simply chose not to use it. That conclusion was seized upon by immigration proponents.
"We don't need any new laws," said Maria Rodriguez of the Florida Immigrant Coalition, likening immigration crackdowns to a "police state."
In fact, FS 448.09 was effectively nullified more than three years ago by then-state Attorney General Bill McCollum.
In a Sept. 7, 2007, letter, McCollum advised Bay County Sheriff Frank McKeithen not to use the law, saying that it was "pre-empted" by federal immigration statutes.
McKeithen had been garnering national headlines for aggressively investigating work sites in the Panhandle county. The sheriff was using FS 448.09 to charge employers who had hired illegal aliens.
But when one of the defendants hired a Tallahassee attorney to challenge the law, McKeithen asked McCollum for an opinion. The attorney general then issued an "informal" written directive advising that the state law had been "pre-empted."
Declaring that "both section 448.09 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," McCollum quoted the U.S. Code's "pre-emption" clause:
"The provisions of this section pre-empt 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."
But Sheriff McKeithen said his office was getting the "runaround" from federal law-enforcement agencies. Ultimately, McKeithen's department joined the federal 287(g) program that cross-trains deputies to work with U.S. Immigration and Customs Enforcement agents.
Though ICE protocols prohibit unannounced checks of job sites, McKeithen said his deputies have successfully used state laws covering "criminal use of personal identification" to arrest scores of individuals.
McKeithen also disputed Ramage's claim that "no cases" were prosecuted through FS 448.09. "We had 10 or 12 cases -- some pleaded, some paid fines," he told Sunshine State News.
Though the Florida law remains on the books, McCollum's "pre-emption" letter made it null and void -- which explains its lack of use by state and local authorities.
Amid rising discontent over the federal government's failure to control the influx and hiring of illegal aliens, Floridians for Immigration Enforcement (FLIMEN) says the state can be more proactive while avoiding the "pre-emption" trap.
Though states may not have authority to impose monetary fines for immigration violations, FLIMEN Vice President David Caulkett notes that the U.S. Code does allow states to enforce their licensing laws.
Sen. Alan Hays' new E-Verify legislation (Senate Bill 518) would require all Florida employers to use the federal screening database to determine the legal status of job applicants. Failure to comply would result in revocation of business licenses. Hays, R-Umatilla, calls his bill the "Employment Eligibility Verification" law.
Rep. Gayle Harrell said she will sponsor a companion bill to SB 518 in the House. And if, as intended, she succeeds in removing FS 448.09 from the state statutes, the Port St. Lucie Republican will be entitled to file an additional bill.
Bolstering the state's case, Ramage noted that President George W. Bush's Justice Department determined that states do have "immigration authority," and state Sen. Steve Oelrich, R-Gainesville, pointed out Monday that crimes "can be both federal and state offenses."
Caulkett said Sheriff McKeithen's experience in Bay County -- and the gaps in immigration law -- "prove why we need E-Verify."
McKeithen, meantime, continues to pursue illegals.
"People talk and talk about unemployment. We just arrested 14 illegal aliens a month ago at a public-housing construction site where locals were trying to get jobs," he said.
The sheriff's website still posts this notice:
"The Bay County Sheriff's Office has a special unit that is committed to enforcing state statutes against illegal alien activity. Do you know of any illegal alien activity or employers that hire illegal aliens?"
The Federation for American Immigration Reform estimates that 950,000 illegal aliens reside in Florida, along with their 186,000 U.S.-born children.
Rep. William Snyder, R-Stuart, has scheduled an immigration workshop at his House Judiciary Committee meeting from 8 a.m. to 10 a.m. Thursday.
To read McCollum's letter, click on the attachments below.
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Contact Kenric Ward at kward@sunshinestatenews.com or at (772) 801-5341.
