LTC 169-2020 The City's Constitutional Authority to Regulate Panhandling as Impacted by the COVID - 19 EmergencyM IA M I BEACH
OFFICE OF THE CITY ATTORNEY
169-2020 LTCM
TO:
FROM:
LETTER TO COMMISSION
DATE:
SUBJECT:
Mayor Dan Gelber and
Members of the City Commission
Rau ±. Aouta, ciy Atom es/,:
Rob Rosenwald, First Assistant City Attorney
May 8, 2020
The City's Constitutional Authority to Regulate Panhandling as Impacted by
the COVID-19 Emergency
This memorandum addresses the questions of several Commissioners raised at
the April 24, 2020 Finance and Economic Resiliency Committee meeting regarding the
City's authority to regulate panhandlers who create a dangerous condition outside of
carry-out restaurants during the COVID-19 emergency.
This memo outlines the City Attorney's Office analysis that, under normal
circumstances, any regulation singling out panhandlers based upon their speech would
be subject to strict scrutiny review by the courts following the U.S. Supreme Court
Decision in Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2239 (2015), and therefore
likely struck down. However, during the current COVID-19 emergency, the City could
mount a defensible case in court that the temporary emergency panhandling restrictions
suggested here survive strict scrutiny review, because they advance the goal of mitigating
the COVID-19 public health threat.
A. Panhandling is protected speech, but the Eleventh Circuit
upheld ordinances restricting it before Reed v. Town of Gilbert
was decided in 2015.
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P a n h a n d lin g is a fo rm o f s p e e c h p ro te cte d by th e F irs t A m e n d m e n t. S ee , United
S tates v. Kokind a, 497 U.S. 720, 725 (1990); S m ith v. C ity of Fort La ud erdale, 177 F.3d
954, 956 (11th Cir. 1999) ("[l]ike other charitable solicitation, begging is speech entitled
to First Amendment protection"); Led fo rd v. S tate, 652 So. 2d 1254, 1255 (Fla. 2d DCA
1995) ('"[b]egging' is entitled to some constitutional protection"). Restrictions on speech
are categorized as content based or content neutral. Turn er B ro ad . S ys., Inc. v. F C C ,
512 U.S. 622, 642 (1994).
"In a traditional public forum, a regulation that impedes speech based on the
content of the speech must satisfy strict scrutiny, which means that the regulation is
constitutional only if the regulation employs the least restrictive means of advancing a
compelling governmental interest." H om eless H elping H om eless, Inc. v. C ity of Tam p a,
No. 8:15-cv-1219-T-23AAS, 2016 WL 4162882, at 4 (M.D. Fla. Aug. 5, 2016). Such
content-based regulations on speech are "presumptively unconstitutional." Id.
Alternatively, "a regulation imposing only a reasonable and content-neutral restriction on
the time, place, and manner of speech must withstand only intermediate scrutiny, which
permits a regulation both narrowly tailored to serve a significant governmental interest
and 'leaving open ample alternative channels for communication of the information."' Id.
(citing M cC ullen v. C oak ley , 134 S. Ct. 2518, 2529 (2014)).
Prior to 2015, the U.S. Court of Appeals for the Eleventh Circuit, which governs
Florida, upheld anti-panhandling ordinances as valid time, place, and manner restrictions
that were not content-based under existing U.S. Supreme Court First Amendment
precedent. S ee S m ith v. C ity of F t. Laud erdale, 177 F.3d 954, 956 (11th Cir. 1999)
(applying intermediate scrutiny and holding that regulation proscribing begging on five-
mile strip of beach and two attendant sidewalks in city was narrowly tailored to serve the
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C it y 's s ig n ifi c a n t g o v e rn m e n t in t e r e s t in p r o v id in g s a f e , p le a s a n t e n v iro n m e n t a n d
e lim in a t in g n u is a n c e a c t iv it y o n th e b e a c h ). See also Chad v. City of Ft. Lauderdale, 66
F. Supp. 2d 1242, 1244 (N.D. Fla. 1998) (holding that City's regulation prohibiting
soliciting, begging, or panhandling on city beach and adjacent sidewalk was a content-
neutral time, place, and manner restriction).
Pursuant to this authority, the City, in 2003, enacted Sec. 74-78 of the City Code.
Section 7 4-78 prohibited panhandling in various locations throughout the City, including
within 20 feet of any restaurant, bar, ATM, liquor store, bank, parking payment machine,
and in any high-volume intersection in the City. ld.1
B. In 2015, the U.S. Supreme Court issued its watershed First
Amendment decision in Reed v. Town of Gilbert, dramatically
altering First Amendment jurisprudence.
In 2015, the Supreme Court of the United States revolutionized this First
Amendment analysis in Reed, 135 S. Ct. at 2239. Prior to Reed, a restriction on speech
was considered content-neutral as long as it did not restrict a specific viewpoint within a
topic. However, in Reed, the Supreme Court defined "content-based" much more broadly
as regulating either the entire topic or a viewpoint within, and "effectively abolishe[d] any
distinction between content regulation and subject-matter regulation" and held that both
categories of restrictions must pass strict scrutiny. Consequently, most regulations of a
particular topic of speech will fail this stringent test. Norton v. City of Springfield, Ill., 806
F.3d 411,412 (7th Cir. 2015); Reed, 135 S. Ct. at 2227. In Reed, the specific issue was
regulation of temporary directional signs to events that were more restrictive than
regulations of other types of signs, such as political signs. Id.
1 The City has ceased enforcement of Sec. 74-78, which regulated panhandling, based upon the Reed
decision and its progeny.
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T h e s a m e y e a r , th e U .S . C o u rt o f A p p e a ls fo r th e S e v e n th C ir c u it h e ld th a t
p a n h a n d lin g o r d in a n c e s w e r e c o n te n t -b a s e d a n d , th e r e fo r e , im p e r m is s ib le u n d e r Reed's
new strict scrutiny standard because the ordinance regulated speech based upon the
content of the speech. Norton, 806 F.3d at 412.
Since that time, both federal and state courts in Florida have reached the same
conclusion. In Homeless Helping Homeless, Inc. v. City of Tampa, the Federal District
Court for the Middle District of Florida found in 2016 that an ordinance banning the
solicitation of "donations or payment" in designated locations was an unconstitutional
content-based restriction on speech because "[w]hether [the ordinance] applies to speech
depend[ed] entirely on the expressed message (i.e., a solicitation for 'donations or
payment')." 2016 WL 4162882 at *4. The court also noted that it would have upheld the
law as content neutral before the Reed decision. Id. at *5.
Similarly, the Miami-Dade County Circuit Court, Appellate Division, held in Toombs
v. State (Case No. 15-220 AC, issued August 3, 2017) that the City of Miami's
panhandling ordinance, which prohibited soliciting funds within the City's designated
"Downtown Business District," violated the First Amendment pursuant to Reed. The Court
stated, "[t]he analytical framework adopted in Reed has resulted in the invalidation of
panhandling statutes similar to the one at issue here." Id.
Courts in other jurisdictions have also uniformly found anti-panhandling ordinances
to be unconstitutionally content-based after the Reed decision. See Thayer v. City of
Worcester, 144 F. Supp. 3d 218, 237 (D. Mass. 2015) (urging local governments to revise
ordinances that were written before Reed and holding that ordinance making it unlawful
to panhandle any other person in an aggressive manner was content-based, and
therefore subject to strict scrutiny); Brown v. City of Grand Junction, 136 F. Supp. 3d 1276
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(D . C o lo . 2 0 1 5 ) (fi n d in g a n a n ti-s o lic ita tio n o rd in a n c e w a s c o n te n t-b a s e d a n d s u b je c t to
s tr ic t s c r u t in y ); Blitch v. City of Slidell, 260 F. Supp. 3d 656, 673 (E.D. La. 2017) (finding
a city's anti-panhandling ordinance that prohibited panhandling without a permit was
content-based and unconstitutional under strict scrutiny); McLaughlin v. Lowell, 140 F.
Supp. 3d 177 (D. Mass. 2015) (holding that a city's anti-panhandling ordinance was not
content-neutral).
Pursuant to this unanimous authority, any City ordinance that targets panhandling
in a traditional public forum without some justification meeting the strict scrutiny standard
will be deemed to be impermissibly content-based and invalid.
C. A temporary and narrowly drawn emergency order prohibiting
panhandling in close proximity to safety-sensitive locations
such as restaurant entrances may survive during the COVID-
19 emergency.
During the COVID-19 emergency, state and local governments, including the City
of Miami Beach, have imposed temporary safety-based emergency orders. Some of
these may be subject to strict scrutiny and under "normal" circumstances (as opposed to
during a global pandemic) may likely have been struck down in court. For example, an
Illinois Federal District Court upheld, just this week, local emergency restrictions on
religious gatherings. The court, applying strict scrutiny analysis to the Illinois Religious
Freedom Restoration Act claim, stated, "the virus continues to proliferate, Illinoisans
continue to die, and restrictions remain vital to ensuring that hospitals are not
overwhelmed. In these exceptional circumstances, controlling the spread of COVID-19
counts as a compelling interest." Cassell v. Snyders, No. 20 C 50153, 2020 U.S. Dist.
LEXIS 77512, at *35 (N.D. Ill. May 3, 2020).
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M o r e o v e r, c o u rt s a re ty p ic a ll y h ig h ly d e fe re n tia l to te m p o ra ry g o v e rn m e n ta l p u b lic
s a fe ty o rd e rs d u rin g a p a n d e m ic e m e rg e n c y . See Compagnie Francaise de Navigation a
Vapeur, 186 U.S. 380, 387 (1902), where the U.S. Supreme Court reiterated the state's
authority to enact and enforce laws "for the purpose of preventing, eradicating, or
controlling the spread of contagious or infectious diseases." In Jacobson v.
Massachusetts, 197 U.S. 11(1905), the Supreme Court, stated, "upon the principle of
self-defense, of paramount necessity, a community has the right to protect itself against
an epidemic of disease which threatens the safety of its members."
The Florida Supreme Court extended this deferential standard even further in a
case challenging a quarantine order in 1952, stating,
Generally speaking, what laws or regulations are necessary to protect
public health and secure public comfort is a legislative question, and
appropriate measures intended and calculated to accomplish these ends
are not subject to judicial review. The exercise of the police power is a
matter resting in the discretion of the Legislature or the board or tribunal to
which the power is delegated, and the courts will not interfere with the
exercise of this power except where the regulations adopted for the
protection of the public health are arbitrary, oppressive and unreasonable.
Moore v. Draper, 57 So. 2d 648, 649 (Fla. 1952).
Applying these courts' language to the current COVID-19 emergency leads to the
possibility that a temporary and narrowly drawn emergency order prohibiting panhandling
might be upheld for certain areas where residents are forced to congregate in lines
outside of their homes during the emergency, such as restaurants offering take-out
service or grocery stores.
The City Manager, if directed to enact an emergency rule regarding panhandling
outside of food delivery and pickup locations, would need to establish that panhandling
by homeless people creates a specific public safety risk due to the COVID-19 emergency
based upon the need to establish social distancing between people who are forced to
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p e r io d ic a ll y le a v e th e s a fe ty o f th e ir h o m e s . A b r ie f G o o g le s e a r c h re v e a ls s o m e s u p p o rt
fo r t h is p o s it io n . See, e.g., Centers for Disease and Prevention, Homelessness and
COV/D-19 FAQs, https://www.cdc.gov/coronavirus/2019-ncov/community/homeless-
shelters/fags.html ("People who are homeless are at risk of COVID-19. Homeless
services are often provided in congregate settings, which could facilitate the spread of
infection."). Suggested evidence to support such a temporary emergency order might
include statements from residents who have been harassed by panhandlers not
observing existing masking orders and not observing existing social distancing orders.
Also, photographs of groups of panhandlers flaunting these rules in a condensed area
around a restaurant would readily evidence the need for the temporary emergency order
dispersing them.
The City Attorneys' Office is available to provide whatever technical assistance
that the City Manager may require if he is directed to enact, or he decides to enact, such
an emergency order.
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