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LTC 109-2018 Promoters and VendorsMIAMI BEACH OFFICE OF THE CITY MANAGER NO. LTC # 109-2018 LETTER TO COMMISSION TO: Mayor Dan Gelber and Members of the City C mission FROM: Jimmy L. Morales, City Manager DATE: February 27, 2018 SUBJECT: Promoters and Vendors As we gear up for Spring Break 2018 we ntinue to address code complaints related to vendors, promoters and hawkers, I wanted to remind our residents of what we can and cannot address. Pursuant to our code, neither vendors nor promoters can approach patrons seated at a business' sidewalk cafe without the sidewalk cafe operator's consent. Vendors cannot sell their products without a Business Tax Receipt (BTR). If Code and/or Police staff witness money transactions and exchanges, enforcement action is taken for conducting business in the public right-of-way. Promoters fall under that solicitation category where the city is enjoined on enforcement by federal injunction as detailed in LTC 436-2017, attached. From time to time we receive complaints that promoters are hawking — encouraging passers-by to come into their venue and/or take a promotions flyer. This behavior is not a code violation we can address due to the injunction. Also, from time to time we receive calls about promoters hawking patrons seated at a cafe. Promoters cannot enter a sidewalk cafe area and solicit patrons without the sidewalk cafe operator's consent. When this results in heated exchanges with staff or patrons, Police Captain Ian Robinson knows to engage police resources to address the disturbance, trespass and business disruption these people are causing. Additionally, Code Officers on Ocean Drive have been instructed to notify the Police Entertainment Squad when this occurs or whenever they are flagged down by restaurant staff. Recently, we have received complaints about ticket offices and their practices. The city offers BTR's, for ticket offices that sell tourist related tickets and tours. BTR's are issued to businesses located in "brick and mortar" structures situated at specific folios/parcels in our City, i.e. private property. The City does not issue BTR's for ticket office entities selling goods or conducting outdoor -sales on the right-of-way. Each individual ticket office must obtain their own location specific BTR. If you have any questions, please feel free to contact me. JLM/SMT OFFICE OF THE CITY ATTORNEY LTC NO. 436-2017 LETTER TO COMMISSION TO: Mayor Philip Levine and Members of the City Commission FROM: Raul J. Aguila, City Attorney CC: Jimmy L. Morales, City Manager Rafael E. Granado, City Clerk DATE: August 22, 2017 SUBJECT: FF Cosmetics, Inc. v. City of Miami Beach Toombs v. State This LTC discusses two recent and important First Amendment appellate decisions negatively impacting the City's ability to regulate speech activities on public streets, and evidencing a judicial trend toward invalidating governmental efforts to restrict or ban particular kinds of speech in particular public areas. The first decision, FF Cosmetics, Inc. v. City of Miami Beach, upheld a preliminary injunction temporarily invalidating our City's restrictions on commercial solicitation and handbilling in the historic districts. The second decision, Toombs v. State, invalidated the City of Miami's prohibition of panhandling in Miami's Downtown Business District. FF Cosmetics, Inc. v. Citv of Miami Beach As many of you know, a three judge panel of the United States Court of Appeals for the Eleventh Circuit heard oral argument in November 2016, in FF Cosmetics, Inc. v. City of Miami Beach, our appeal of a preliminary injunction entered in favor of Plaintiffs in a First Amendment challenge to the City's commercial solicitation (Code Sec. 74-1) and commercial hand billing (Code Sec. 46-92) ordinances. These ordinances prohibit commercial solicitation and handbilling on five streets, including Lincoln Road, Espanola Way, and parts of Washington Avenue, Collins Drive, and Ocean Drive. We drafted these ordinances based upon the Eleventh Circuit's 1996 decision in Sciarrino v. City of Key West, 83 F.3d 364 (11th Cir. 1996), 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. The court held that the City's 2014 amendments to both ordinances, which limited the scope of the ordinances to highly congested portions of the historic districts, likely violate the First Amendment. Letter to Commission — FF Cosmetics, Inc. v. City of Miami Beach / Toombs v. State August 22, 2017 Page 2 The court's decision was based primarily upon a perceived lank of narrow tailoring of the ordinances. The court stated that the City should have attempted less restrictive alternatives instead of prohibiting commercial solicitation and harndbilling in the areas governed by the ordinances. The court also held that the definition of commercial handbill in sec, 46-92 was facially overbroad because it prohibits "any handbill that conveys any information about any good or service provided by a business," which the court determined to impermissibly encompass commercial and noncommercial handbills about a business. With regard to the solicitation ordinance (Code Sec. 74-1), the Court held that: Here, we affirm the preliminary injunction prohibiting the enforcement of Section 74-1 because the record suggests that the ordinance is not narrowly tailored—specifically that the City failed to cor sider numerous and obvious less -burdensome alternatives. We need not speculate about potential alternatives because this preliminary record is replete with numerous and obvious less -burdensome options. The City itself offered these alternatives for the trial court's consideration. Thus, for example, the former Assistant City Manager testified that "things. like charitable solicitations" are allowed in the same areas but are regulated by permits. Further, artists and vendors are allowed to sell their goods, but they are regulated "by a lottery," "they are spaced appropriately,"' their "volume is regulated," and "[t]he footprint[s] of the[ir] display[s] ... [are] also heavily regulated." The City offered no explanation why it did nal 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. FF Cosmetics FL, Inc. v. City of Miami Beach, Nos, 15-14394, 15-15256, 2017 U.S. App. LEXIS 14801, at *19-20 (11th Cir. Aug. 10, 2017). In addition to the problems associated with lack of narrow tailoring, the court also struck down the handbilling ordinance based upon an overbreadth analysis due to, according to the court, the overly broad definition of a commercial handbill used in the ordinance. [H]ere, the prohibition on "any" message about "any" good or service provided by a business is overbroad. Section 46-92 burdens substantially more speech than necessary to further the City's interests. As the district court correctly points out, 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 under Section 46-92. We cue commfHed to providing excellent public service and safely to all who live, work, and play In our vlbraoO, kptcal, hlslalc community, Letter to Commission — FF Cosmetics, Inc. v. City of Miami Beach / Toombs v. State August 22, 2017 Page 3 Moreover, there is no evidence in the record that this traditional non- commercial speech presents the same problems that commercial handbilling does. The City acknowledges that the problems stem from commercial handbilling and it seeks to regulate only commercial handbilling. However, Section 46-92 is not worded in a sufficiently narrow manner to target only commercial handbilling. Thus, the district court correctly concluded that Retailers showed a substantial likelihood of success on their claim that Section 46-92 is overbroad. Id. at x`26-27. We believe that the Eleventh Circuit panel improperly ignored its own prior precedent upholding virtually identical ordinances in Key West. Therefore, the City Attorney's Office, together with outside counsel, will seek rehearing and rehearing en banc by the entire Eleventh Circuit of this adverse ruling. In the meantime, the preliminary injunction entered in 2015 will continue during the continuing pendency of this lawsuit. I intend to call an attorney-client session at the City Commission meeting on September 13, 2017 to discuss litigation expenditures in this case going forward, should the City not prevail on our motions for rehearing. At this session, I would like further direction from the City Commission regarding continuing this litigation, and proceed to argue the case on the merits vis a vis motion for a summary judgement or, in the alternative, exploring narrower legislative options. Toombs v. State Another recent First Amendment appellate decision is important and further evidences the judicial trend toward invalidating governmental restrictions on speech on public streets. In Toombs v. State, Case No. 15-220 AC (Mia. Dade Cir. Ct., July 11, 2017) , a state court panel of the Miami -Dade Circuit Court, sitting in its appellate capacity, invalidated the City of Miami's ordinance prohibiting panhandling in the city's Downtown Business District. In that case, a panhandler was charged with approaching cars begging for money in the prohibited area. While the panhandling ordinance banned panhandling from broad portions of the downtown area, the court did not invalidate the ordinance on that basis. Instead, the 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, 135 S.Ct. 2218 (2015). We are committed to providing excellent public service and safely to all who live, work, and play In our vibrant, tropical, historic community. Letter to Commission — FF Cosmetics, Inc. v. City of Miami Beach / Toombs v. State August 22, 2017 Page 4 In Reed, the Supreme Court drastically altered the First Amendment landscape, holding that a regulation is impermissibly content based if it "applies to particular speech because of the topic discussed or the idea or message expressed" and rejecting the previous rule that allowed differential treatment if there was no evidence that the government's intent was discriminatory. 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. Both of the FF Cosmetics and the Toombs 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. We, along with municipal attorneys nationally, will be considering and advising you regarding new strategies to meet these new legal standards in the coming months and years. Please do not hesitate to contact us with any questions. Both the FF Cosmetics v. City of Miami Beach and the Toombs v. State decisions are attached here for your review. RJA/RFR We are committed to providing excellent public service and safely to all who live; work, and ploy In our vibrant, tropical, historic community.