Messina v. City of Fort Lauderdale

• Decision Date: 23 June 2021
• Docket Number: CASE NO. 21-cv-60168-ALTMAN/Hunt
• Citation: 546 F.Supp.3d 1227
• Parties: Mark MESSINA, et al., Plaintiffs, v. CITY OF FORT LAUDERDALE, FLORIDA, a Florida municipal corporation, Defendant.
• Court: U.S. District Court — Southern District of Florida

546 F.Supp.3d 1227

Mark MESSINA, et al., Plaintiffs,

v.CITY OF FORT LAUDERDALE, FLORIDA, a Florida municipal corporation, Defendant.

CASE NO. 21-cv-60168-ALTMAN/Hunt

United States District Court, S.D. Florida.

Signed June 23, 2021

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 Plaintiffs.

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

Mark Messina and Bernard McDonald are men of limited means. To survive, they hold signs and panhandle in the City of Fort Lauderdale—sometimes on sidewalks, sometimes along public roads. The City enacted (and its police have been enforcing) two ordinances that chill these activities. The first ordinance bans solicitation in designated areas—at bus stops and garages, for instance, or near ATMs and sidewalk cafés—and it prohibits so-called "aggressive panhandling" anywhere within the City's limits. The second ordinance makes it illegal to solicit donations along certain arterial roads—including via hand-to-hand exchanges with motorists—and it forbids canvassers from standing on those roads and holding signs that violate the City's sign regulations. Both ordinances are punishable by fines and imprisonment.

Messrs. Messina and McDonald (our Plaintiffs) have sued the City under 42 U.S.C. § 1983 for past and ongoing injuries to their rights under the First Amendment to the U.S. Constitution. As redress, they've asked us to enjoin both ordinances. After a hearing and a careful review of the record, we conclude that the Plaintiffs are likely to succeed on the merits of their claims and that they've satisfied the other requirements for preliminary injunctive relief. We therefore GRANT their motion for a preliminary injunction.

BACKGROUND

In May 2012, the Fort Lauderdale City Commission enacted Ordinance No. C-12-10, which it later codified as § 16-82 of the City Code (we'll refer to this Ordinance as "§ 16-82" or the "Panhandling Ordinance"). See Complaint [ECF No. 1] ¶ 1. About two-and-a-half years later, the Commission enacted Ordinance No. C-14-38, which it later codified as § 25-267 of the City Code (we'll refer to this Ordinance as "§ 25-267" or the "Right-of-Way Ordinance"). Id. ¶ 22. These are the two Ordinances the Plaintiffs challenge in this case, so we'll take a moment to describe each in detail.¹

The Panhandling Ordinance bans two activities. First , it prohibits "panhandling" in certain kinds of locations throughout the City—at bus stops and transportation facilities; in parking lots and City parks; anywhere within 15 feet of sidewalk cafés, ATMs, or entrances to commercial or government buildings; and on private property. § 16-82(b). The Ordinance defines "panhandling" as any request for "an immediate donation of money or thing of value," or an exchange in which one person receives an item of "little or no monetary value in exchange for a donation," such that "a reasonable person would understand that the transaction is in substance a donation." § 16-82(a). Panhandling doesn't include "passively standing or sitting, performing music, or singing with a sign or other indication that a donation is being sought, but without any vocal request other than a response to an inquiry by another person." Id.

Second , the Panhandling Ordinance forbids "aggressive panhandling" anywhere within City limits. § 16-82(c). "Aggressive panhandling" is a form of panhandling that includes the following: (1) approaching someone in a manner that would lead a "reasonable person to believe" that he is "being threatened with either imminent bodily injury or the commission of a criminal act upon the person"; (2) requesting a donation after a person has "given a negative response to the initial request"; (3) blocking individuals or groups from passage; (4) touching another without permission; or (5) "[e]ngaging in conduct that would reasonably be construed as intended to intimidate, compel or force a solicited person to accede to demands." § 16-82(a).

Section 25-267, the Right-of-Way Ordinance, identifies and regulates a distinct category of panhandler whom the provision refers to as the "right-of-way canvasser or solicitor." This person does any of the following three things on a "right-of-way"² : he (1) sells items or services of any kind, or advertises for sale anything or service of any kind; (2) seeks a "donation of any kind"; or (3) "personally hands to or seeks to transmit by hand or receive by hand anything or service of any kind" to a motorist on any street or roadway, whether the motorist's vehicle is temporarily stopped or not. § 25-267(a). The Ordinance makes it illegal to act "as a right-of-way canvasser or solicitor"—that is, to engage in one of the three listed activities—on any portion of certain specified public rights-of-way. § 25-267(b). It's also illegal for a right-of-way canvasser "to hold, carry, possess or use any sign or other device of any kind, within any portion of the public right-of-way contrary to any of the terms and provisions of section 47-22, of the Unified Land Development Regulations." § 25-267(d).³

The penalties for violating the Panhandling Ordinance or the Right-of-Way Ordinance are set forth in § 1-6 of the City Code and include fines of up to $500, a term of imprisonment of up to 60 days, or both. § 16-82(d); § 25-267(f).

The Plaintiffs are residents of Broward County. See Complaint ¶¶ 7–8. They've either lived without permanent housing or struggled to pay for basic needs and expenses, and they rely on donations for their subsistence. Id. Mr. Messina solicits pedestrians for donations, typically on city sidewalks near commercial areas or outdoor cafés—though sometimes he stands on the medians or shoulders of roads to ask for donations from motorists who are temporarily stopped in traffic. Id. ¶ 36. He often holds a sign with a religious message and sometimes distributes pamphlets, hoping for donations in return. Id. ¶ 37. When Mr. Messina panhandles in the City, he is "regularly harassed by [City] officers who will drive up to where he is standing and yell at him to leave the area immediately and warn him that if they see him again, they will arrest him." Id. ¶ 38. On several occasions, he's seen the police arrest other panhandlers. Id. ¶ 39. Mr. Messina panhandles a few times a week and would like to do so more often, but he doesn't because of his fear of arrest. Id. ¶ 39.

Mr. McDonald likewise panhandles at several locations in the City, standing on sidewalks adjacent to the street or on the medians or shoulders of City roads. Id. ¶ 43. He displays a sign that reads "Homeless, please help me if you can," id. , and—like Mr. Messina—he's been "repeatedly harassed" and threatened with arrest by the police, id. ¶ 44. Those experiences have deterred him from panhandling more frequently. Id. ¶ 45.⁴

In this lawsuit, the Plaintiffs assert two counts under the First Amendment—one for each Ordinance—and ask for the following relief: (1) declarations that §§ 16-82 and 25-267 violate the First Amendment, facially and as applied to the Plaintiffs; (2) a preliminary and permanent injunction prohibiting the City from enforcing §§ 16-82 and 25-267; (3) money damages; and (4) attorneys’ fees and costs. Id. ¶¶ 47–63.

PROCEDURAL HISTORY

Soon after the Plaintiffs filed their Complaint, they moved for a preliminary injunction, arguing that they've been irreparably harmed by having their speech chilled and that preliminary relief is equitable insofar as the City has no valid interest in enforcing unconstitutional laws. See generally Motion for Preliminary Injunction ("Motion") [ECF No. 5]. The City subsequently moved to dismiss the Complaint for lack of subject matter jurisdiction, see Defendant City's Motion to Dismiss for Lack of Subject Matter Jurisdiction ("Motion to Dismiss") [ECF No. 12], contending that the Plaintiffs lack Article III standing because (1) they haven't been arrested or cited for violating the Ordinances and (2) their general allegations of "harassment" don't suffice to state a concrete injury, id. ¶¶ 2–3. Nor, according to the City, can the Plaintiffs really allege that their speech has been "chilled" because (as they acknowledge) they continue to panhandle in the City. Id.⁵

After both motions were fully briefed,⁶ the Court scheduled a preliminary injunction hearing and asked the parties whether they intended to call witnesses or present additional evidence. See Order [ECF No. 26]. The City submitted an excerpt of Mr. McDonald's deposition testimony from another case—which it used to challenge his Article III standing—and a copy of the sign ordinance, § 47-22. See Joint Notice [ECF No. 27]. In their Reply, the Plaintiffs sought to introduce an updated arrest report. See id. At the Hearing, we sustained the City's objection to this report—which, after all, the Plaintiffs had only submitted in Reply. See Apr. 9, 2021 Hr'g. The Plaintiffs also introduced copies of the Ordinances, the arrest records, and a letter signed by various organizations asking the City Commission to repeal the Ordinances. See Motion, Exs. 1–6.

At the Hearing, we denied the City's Motion to Dismiss,⁷ explaining that Article III standing is "loosened" for First Amendment challenges to laws that are broadly applicable to the public. See Pittman v. Cole , 267 F.3d 1269, 1283 (11th Cir. 2001) ; see also Hallandale Pro. Fire Fighters Loc. 2238 v. City of Hallandale , 922 F.2d 756, 762 n.5 (11th Cir. 1991) ("[T]he broader the first amendment right and ... the more likely it is that a governmental act will impinge on the first amendment, the more likely it is that the courts will find a justiciable case when confronted with a challenge to the governmental act."). And we found that the Plaintiffs’...