McDonald v. City of Pompano Beach

Decision Date23 August 2021
Docket NumberCASE NO. 20-60297-CIV-ALTMAN/Hunt
Citation556 F.Supp.3d 1334
Parties Bernard MCDONALD, Plaintiff, v. CITY OF POMPANO BEACH, FLORIDA, Defendant.
CourtU.S. District Court — Southern District of Florida

Dante Pasquale Trevisani, Raymond J. Taseff, Florida Justice Institute, Miami, FL, F. Jahra McLawrence, The McLawrence Law Firm, Tamarac, FL, Mara Shlackman, Law Offices of Mara Shlackman, P.L., Fort Lauderdale, FL, for Plaintiff.

Michael Thomas Burke, Hudson Carter Gill, Johnson Anselmo Murdoch Burke Piper & Hochman PA, Fort Lauderdale, FL, for Defendant.

ORDER

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

The City of Pompano Beach's new ordinance prohibits sitting or standing on medians that (1) divide roads with at least three lanes "in any one direction" and (2) are between three and five feet wide. The question presented in this case is whether that ordinance violates the First Amendment—both facially and as applied to our Plaintiff, Bernard McDonald, who uses these medians to panhandle for his subsistence.

The parties, who have filed cross-motions for summary judgment, mostly agree on the facts and the law. But the case is hard anyway because it sits uncomfortably at the murky intersection between two competing interests: the government's power to promote public safety on the one hand and the individual's freedom of speech on the other.1 To understand just how close this case is, consider this: the City appears to concede that its ordinance would be unconstitutional as to medians that are wider than five feet, while McDonald (implicitly) admits that the ordinance is constitutional as applied to medians that are narrower than three feet; the City concedes that its ordinance would be unconstitutional as applied to the sidewalks that are just a few feet from the medians at issue here, and McDonald doesn't seem to dispute the commonsense proposition that the ordinance would be constitutional as applied, say, to a light pole that, though erected on the very same median in question here, bears a sign prohibiting panhandlers from climbing it. There's also, buried beneath the briefs, a still more difficult question, one the parties never address: whether the ordinance, as a law that purports to regulate only conduct, even implicates the First Amendment at all. In end, because the record is underdeveloped on certain key issues, we'll DENY the motions for summary judgment and proceed to trial.

THE FACTS 2
I. BACKGROUND

Bernard McDonald lives in Pompano Beach, Florida, where he panhandles to survive. See Pl.’s SOMF ¶ 13. When he solicits from motorists, McDonald stands either on street medians or along adjacent sidewalks and road shoulders, and he displays a sign that reads "Homeless, please help me if you can." Id. ¶ 15. When a motorist offers him a donation, he walks towards the donor's car by stepping between the vehicles that are stopped at the light. Def.’s SOMF ¶ 7. If another motorist signals him, he'll stay in the roadway—but only if it's safe to do so. Id. ¶ 8; Pl.’s SOMF Opp. ¶ 8. Otherwise, after collecting the donation, he returns to the sidewalk or to the median—whichever is closer. Def.’s SOMF ¶ 9.

McDonald has panhandled throughout the City, but he prefers major intersections because that's where he can communicate his message to the largest audiences—and, as a consequence, receive more donations. Pl.’s SOMF ¶ 16. The intersections he frequents the most have at least three lanes of traffic on either side, and the medians at those intersections are about four to five feet wide. Id. Apparently, the size of the median doesn't affect McDonald's choice of intersection. Def.’s SOMF ¶ 10. But he selects medians generally because he thinks they allow him—standing there in the middle of the street—to be seen by the greatest number of people: small in physical stature, McDonald says that he can sometimes get lost in the crowds that tend to congregate on the sidewalks, particularly near bus stops or at crosswalks. Pl.’s SOMF ¶ 18.

II. THE LAWSUIT

In 2003, the City enacted Ordinance 2003-71, codified at § 100.41 of the City Code. Id. ¶ 12.3 The law imposed 21 different regulations and requirements on "street solicitors," § 100.41(B), which it defined as any "person who stands or goes upon any portion of a public street, roadway, or neutral ground" for the purpose of (1) soliciting donations, business, or employment from the occupant of any vehicle, or (2) selling anything or distributing any tangible object to the occupant of any vehicle, § 100.41(A) ("Definitions"). The ordinance defined "[n]eutral ground" as "any area that divides a roadway or divides the roadway for vehicles driving in opposite directions including, but not limited to, paved or unpaved medians." Id.

In August of 2018, McDonald was arrested for violating § 100.41. Pl.’s SOMF ¶ 13. He was held overnight and, the next morning, sentenced to time served. Id. A year-and-a-half later, in February of 2020, McDonald sued the City in this Court, alleging that § 100.41 was a content-based restriction that violated the First and Fourteenth Amendments to the U.S. Constitution—both facially and as applied to him. See generally Initial Complaint [ECF No. 1].

Soon after filing this lawsuit, McDonald moved for a preliminary injunction. See First Motion for Preliminary Injunction [ECF No. 4]. At a hearing on April 29, 2020, we denied the First Preliminary Injunction as moot after the City promised to amend (and stop enforcing) § 100.41. See Order Denying First Motion for Preliminary Injunction [ECF No. 24]. On June 23, 2020, the City amended § 100.41 at a meeting of the City Commission. Pl.’s SOMF ¶ 2. These amendments, the parties now stipulate, rendered § 100.41 content-neutral and (thus) constitutional. Id.

But that didn't end the lawsuit. At the same meeting on July 23, 2020, the Commission enacted Ordinance 2020-59, which amended § 100.35 of the City Code. After reviewing these amendments, McDonald filed an amended complaint, arguing that two of § 100.35's subsections violate the First Amendment, both facially and as applied to him. Those subsections—now challenged here—are § 100.35(C)(1)(b) (the "Median Provision"), which prohibits sitting or standing on medians that divide three-lane roads and are less than five feet wide; and § 100.35(C)(2) (the "Hand-to-Hand Transmission Ban"), which prohibits hand-to-hand exchanges between pedestrians and motorists. See Verified Amended Complaint [ECF No. 38] ¶¶ 81–89. As redress, McDonald seeks declaratory relief, injunctive relief, and damages. See id. at 20. Specifically, he alleges that his 2018 arrest under § 100.41 and the subsequent amendments to § 100.35 "chill[ed]" his willingness to engage in protected speech. Id. ¶ 63.

In its answer to the Verified Amended Complaint, the City represented that it was in the process of "deleting subsection (C)(2) of Section 100.35 of the City Code." Answer to Verified Amended Complaint [ECF No. 53] ¶ 81; see also Response to Second Motion for Preliminary Injunction [ECF No. 52] ¶ 9 (explaining that the City had included the provision "inadvertently" and was deleting it). On October 27, 2020, the City enacted Ordinance 2021-05, which repealed § 100.35(C)(2). See Ordinance 2021-05 [ECF No. 75-3]. We'll separately address the City's contention that this second emendation rendered McDonald's claim under that subsection moot. Otherwise, though, we'll focus our attention on the Median Provision, § 100.35(C)(1)(b).

III. THE MEDIAN PROVISION: HISTORY AND TEXT

On May 26, 2020, the City held an exploratory meeting on the proposed Ordinance 2020-59.4 Def.’s SOMF ¶ 16. At that meeting, the City Attorney, Mark Berman, read the text of Ordinance 2020-59, explained its purpose, and referred to some data and reports on which the Commission had relied in reaching its conclusions. Id. The purpose of the regulation, the City Attorney said, was to promote traffic and pedestrian safety. Id.

In assessing traffic safety, the Commission had reviewed a one-page data chart listing the number of accidents at 24 intersections in Pompano Beach over a two-year span—from February 1, 2018 to February 1, 2020. See Verified Amended Complaint [ECF No. 38-3], Ex. 3 ("Occurrence Chart"). The Occurrence Chart identified 1,394 incidents at those 24 intersections—25 of which involved pedestrians. See generally id.

The Commission also considered a 117-page report, published by the Florida Highway Safety and Motor Vehicle Department, which included several statistical charts showing the number of traffic accidents that had occurred in 2018. See Notice of Exhibits [ECF No. 75-2], Ex. 2 (the FLORIDA HIGHWAY SAFETY AND MOTOR VEHICLE DEPARTMENT , TRAFFIC CRASH FACTS: ANNUAL REPORT (2018) ("FHSMV Report")). The FHSMV Report shows seven accidents in which "cross median" was the "First Harmful Event,"5 none of which resulted in injury. Id. at 35. Other First Harmful events included "Concrete Traffic Barrier" (6,089 accidents), "Curb" (6,003 accidents), and "Pedestrian" (17,427 accidents). Id. at 35–36. The Report also included statistics for intersection crashes—which showed that 873 resulted in fatal injuries; 7,219 in incapacitating injuries; 27,885 in non-incapacitating injuries; 60,002 in possible injuries; and 221,976 in no injuries. Id. at 118.

In presenting Ordinance 2020-59, the City Attorney explained that smaller medians—those less than five feet wide—aren't safe for pedestrians because, if a pedestrian were to fall while standing on such a median, he would very likely end up falling into moving traffic. See May 26, 2020 Meeting (starting at 2:09:30). He also pointed out that roads with more lanes create greater opportunities for accidents between motorists and pedestrians. Id. After the City Attorney wrapped up, the City Mayor, Rex Hardin, spoke briefly, describing his own "close calls" and "near misses" while driving by pedestrians who were standing on or beside the roadway. Id. The City Commission then...

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