FF Cosmetics FL Inc. v. City of Miami Beach
| Decision Date | 31 August 2015 |
| Docket Number | CASE NO. 14-cv-22072-KING |
| Citation | 129 F.Supp.3d 1316 |
| Parties | FF Cosmetics FL Inc., a Florida corporation doing business as Forever Flawless Cosmetics 1; Timeless Cosmetics FL Inc., a Florida corporation; Brilliance New York, LLC, a New York limited liability company, f/k/a/ Brilliance New York, Inc.; and Oceane FL Cosmetics Inc, a Florida corporation doing business as Tresor Rare, Plaintiffs, v. City of Miami Beach, Florida, a Florida municipal corporation, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Daniel Robert Aaronson, James Scott Benjamin, Benjamin & Anderson, Fort Lauderdale, FL, Gary Scott Edinger, Benjamin, Aaronson, Edinger & Patanzo, P.A., Gainsville, FL, for Plaintiff.
Jason Patrick Kairalla, Richard J. Ovelmen, Enrique Daniel Arana, Scott Everett Byers, Carlton Fields Jorden Burt, P.A., Robert F. Rosenwald, Jr., Donald Mark Papy, City of Miami Beach, Miami Beach, FL, for Defendant.
PRELIMINARY INJUNCTION
THIS CAUSE comes before the Court upon Plaintiffs' Renewed Motion for Preliminary Injunction (DE 27). The Court held a preliminary injunction hearing, which lasted five days and was spread out over three months. The Court renders this opinion with the benefit of having heard live testimony, documentary evidence, and oral arguments. For the reasons that follow, Plaintiffs' motion is granted and a preliminary injunction is entered.
Each Plaintiff operates a store in Miami Beach, Florida, as an authorized retailer for specialty cosmetics, skin care, and beauty products. Their storefronts are on Lincoln Road, in the City's historic district. Lincoln Road runs several blocks, lined on either side with shops and restaurants. The road is closed to cars and other motorized vehicles such as Segways. Bicycling and skateboarding are prohibited during certain hours. Pedestrians roam freely. Chairs and tables belonging to sidewalk cafes and restaurants sprawl out from the buildings' facades or take up space in the middle of the road. See TR 04/29, at 94:12-14.1 It is a popular tourist destination, teeming with visitors daily.
Plaintiffs have a common business model that depends on soliciting these visitors, particularly the tourists, who stroll past their stores. To attract their attention, Plaintiffs employ one, two, or three "greeters" who stand in front of their stores, calling out to passersby with salutations, such as "Hi, how are you?" and "Where are you from?" They express compliments or ask questions such as "What do you use for your eyes?" They make entreaties, such as "I will give you a free sample" or "would you like to have a free demonstration?" They distribute handbills. This behavior has been variously referred to as greeting, hawking, barking, or soliciting. Whatever its proper label, the purpose of this behavior is clear: to get passers-by to bend their steps into Plaintiffs' stores to buy their products.
The City wants all of this to stop. Because it's not just the Plaintiffs. It seems many businesses on Lincoln Road, Ocean Drive, and elsewhere in the City's historic district, particularly the restaurants and cosmetics stores, employ people to stand outside and cat-call the walking public, who in turn complain to the City. The phenomenon of all these greeters is annoying to some—annoying to have their day of strolling, shopping, and leisure interrupted every twenty paces by another greeter handing them something, enticing them with fifty-percent-off meals, or commenting on their looks. Some people feel harassed or embarrassed. Their annoyance is compounded by the ubiquity of these greeters. One witness described walking down Lincoln Road as having "to come through a gauntlet."2 TR 07/28, at 79:17-20. Another described the constant barrage of handbills as "death by paper cut." TR 07/27, at 80:10-11. The City, protective of its aesthetics and of its attractiveness as a tourist destination, fears annoyed pedestrians.
So the City started enforcing two sections of its Code of Ordinances: Section 74-1, an anti-soliciting ordinance, and Section 46-92, an anti-handbilling ordinance. Broadly speaking, the ordinances prohibit soliciting and handbilling in the public right-of-way within certain streets and other areas of the City's historic district—what one witness called "the entertainment district"—which includes Lincoln Road, where Plaintiffs operate. TR 07/27, at 69:20-21.3 Plaintiffs received several citations for violating the ordinances, incurring fines ranging from $50 to $250. Yet their employees kept greeting, and the citations kept coming. TR 04/29, at 117:21-118:5. The City threatened at least three of the plaintiffs that they risked their occupational licenses if their employees did not stop. TR 04/29, at 42:25-43:5; TR 07/27, at 163:4-11.
Aggrieved at being fined for speaking in public, the plaintiffs sued on June 5, 2014, to enjoin the City from enforcing the two ordinances, claiming injury to their First Amendment rights. A little less than six months into the litigation, the City amended the ordinances. The amendments, which became effective on November 29, 2014 (DE 24 ¶ 3), prompted Plaintiffs to file an Amended Complaint (DE 26).
Plaintiffs also filed a Renewed Motion for Preliminary Injunction, which targets only the amended versions of the ordinances. See DE 27, at 6 (). Whether Plaintiffs succeed in pursuing their injunction or not, they may still have viable claims for monetary damages suffered under the prior versions of the ordinances. Unless otherwise noted, all discussion of the ordinances in this opinion concerns the amended versions.
"A district court may grant injunctive relief only if the moving party shows that: (1) it has a substantial likelihood of success on the merits; (2) irreparable injury will be suffered unless the injunction issues; (3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) if issued, the injunction would not be adverse to the public interest." Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir.2000)(en banc). The Court turns first to the merits question.
The anti-solicitation ordinance (Section 74-1) reads, in pertinent part, as follows:
The parties present an initial question of what framework to use in analyzing this ordinance. Plaintiffs argue that it proscribes more than commercial speech, and is therefore subject to an overbreadth attack. SeeBd. of Trustees of State Univ. of N.Y. v. Fox , 492 U.S. 469, 481, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). It cannot be disputed, however, that the ordinance significantly proscribes commercial speech, which includes Plaintiffs' speech on the public right-of-way.
Commercial speech has been variously described as speech which does "no more than propose a commercial transaction,' " Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc. , 425 U.S. 748, 762, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)(quoting Pittsburgh Press Co. v. Human Relations Comm'n , 413 U.S. 376, 385, 93 S.Ct. 2553, 37 L.Ed.2d 669 (1973)), or as "expression related solely to the economic interests of the speaker." Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y. , 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Such speech is "the offspring of economic self-interest," id. at 564 n. 6, 100 S.Ct. 2343, analytically separated from other varieties of speech by a "commonsense distinction." Id. at 562, 100 S.Ct. 2343(quoting Ohralik v. Ohio State Bar Ass'n , 436 U.S. 447, 455–456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978)(internal quotation marks omitted)). In this way, commercial speech is not a "rigid classification[ ]," dependent on any definite set of characteristics. Bolger v. Youngs Drug Prods. Corp. , 463 U.S. 60, 81, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983)(Stevens, J., concurring in the judgment).
Whatever form the greeters' speech takes, their engagements with the walking public have one underlying message and one object, albeit often indirectly stated: to have prospects enter their stores and purchase Plaintiffs' products. The Court here makes a commonsense distinction: Plaintiffs' speech is commercial speech.
The Court is mindful that "the lawfulness of the particular application of the law should ordinarily be decided first." Fox , 492 U.S. at 485, 109 S.Ct. 3028. Because Plaintiffs' speech is commercial speech, and because of the limitations found in the ordinance's plain language, (described in Part III.D.1., below), the Court finds it proper to take the ordinary route; that is, the Court will analyze this ordinance as applied to Plaintiffs' commercial speech, under the Supreme Court's four-part framework for commercial speech articulated in Cent. Hudson Gas & Elec....
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