Miami Beach lost a battle in its efforts to stop hawking on Lincoln Road and Ocean Drive when the Eleventh Circuit Court of Appeals this month ruled in favor of a First Amendment challenge by FF Cosmetics. FF Cosmetics does business as Forever Flawless which has a store at 704 Lincoln Road and often has two or three solicitors who aggressively approach passersby.
[Read the ruling here]
City Attorney Raul Aguila this week informed Commissioners of the ruling which encompasses two City ordinances, one on commercial solicitation and the other regarding handbilling in the historic districts, specifically Lincoln road, Ocean Drive, Española Way, and parts of Washington and Collins Avenues. The decision upholds a preliminary injunction that temporarily invalidated the restrictions.
In a Letter to Commission, Aguila said the City’s ordinances were drafted “based upon the Eleventh Circuit’s 1996 decision in Sciarrino v. City of Key West upholding a substantially identical ordinance. Unfortunately, on August 10, 2017, the Eleventh Circuit issued an opinion contrary to the Key West decision, affirming the preliminary injunction order here.”
With regard to the commercial solicitation ordinance, the Court determined it was not sufficiently narrow in its scope, “specifically that the City failed to consider numerous and obvious less-burdensome alternatives.” The Court noted the City's own examples for regulation of charitable solicitations (allowed with permits) and artists and vendors who are regulated by lottery with spacing and display restrictions. In its ruling, the Court wrote, “The City offered no explanation why it did not even consider these less-restrictive alternatives, which currently regulate charities, artists, and vendors, or why these alternatives could not also be used to regulate commercial solicitation.”
The Court struck down the handbilling ordinance writing, “[T]he prohibition on ‘any’ message about ‘any’ good or service provided by a business is overbroad … everything from a PETA demonstrator passing out flyers about a fast-food chain’s treatment of animals to a Rabbi distributing a list of restaurants that serve kosher meals could potentially be prohibited…” Noting that, “The City acknowledges that the problems stem from commercial handbilling and it seeks to regulate only commercial handbilling,” the Court determined the ordinance was not sufficiently narrow to target only commercial handbilling.
In his letter, Aguila said, “We believe that the Eleventh Circuit panel improperly ignored its own prior precedent upholding virtually identical ordinances in Key West” and said he will seek a rehearing. He will discuss the cost of litigation if the request for a rehearing fails in an attorney-client session at the City Commission meeting on September 13th. At that time he will seek guidance from the Commission on proceeding with the case or “exploring narrower legislative options”.
In another First Amendment court decision of note this month, the City of Miami’s ordinance banning panhandling was invalidated. Aguila wrote in his letter, “[T]he court held that singling out panhandlers for different treatment than others who might wish to approach passers-by to solicit them or show them a sign (such as, for example, charitable solicitors or political activists) was a content based restriction in violation of the U.S. Supreme Court’s recent decision in Reed v. Town of Gilbert … Applying Reed in the panhandling context, the appellate court followed a string of other decisions nationally, invalidating panhandling ordinances because they treat panhandlers differently than other speakers.”
Aguila said both decisions, “if they are not reversed in further appeals, will require the City Commission to approach the regulation of protected speech and expressive activities in new, more nuanced ways.”
In the meantime, the commercial solicitation and handbilling injunction continues, as does the hawking.
hawking on lincoln road and ocean drive will continue:
court rules city's prohibitions are overly broad