State v. O'Daniels

• Decision Date: 28 September 2005
• Docket Number: No. 3D04-1075.,3D04-1075.
• Citation: 911 So.2d 247
• Parties: The STATE of Florida, Appellant, v. Ron Andrew O'DANIELS, Appellee.
• Court: Florida Supreme Court

911 So.2d 247

The STATE of Florida, Appellant, v. Ron Andrew O'DANIELS, Appellee.

No. 3D04-1075.

District Court of Appeal of Florida, Third District.

September 28, 2005.

COPYRIGHT MATERIAL OMITTED

Charles J. Christ, Jr., Attorney General, and John D. Barker, Assistant Attorney General; Murray H. Dubbin, City Attorney, and Sheri Sack, First Assistant City Attorney, for appellant.

Bennett H. Brummer, Public Defender, and John Eddy Morrison, Assistant Public Defender, for appellee.

The American Civil Liberties Union Foundation of Florida, Inc. and Rosalind J. Matos, as Amicus Curiae for appellee.

Before RAMIREZ, WELLS, and CORTIÑAS, JJ.

CORTIÑAS, Judge.

Ron Andrew O'Daniels ("O'Daniels") was playing his guitar on Ocean Drive and 14th Street in the City of Miami Beach, Florida ("City"). Three police officers observed O'Daniels and instructed him to stop playing his guitar. He refused, stood up, and stepped toward the officers. An altercation ensued and O'Daniels was arrested for violating Miami Beach Ordinance 2001-3313 entitled "Street Performers and Art Vendors" ("ordinance").

The ordinance on appeal bans all street performances and art vending from a fixed location in the entire City, except for in eleven locations where a permit is required. Section 18-902 of the ordinance provides, in relevant part:

It shall be unlawful for any person to engage in any street performance or art vending on public property from a fixed location without first obtaining a permit as required by this article.

Section 18-901 defines a street performance as including "acting, singing, playing musical instruments, pantomime, juggling, magic, dancing, puppetry, and creating items for sale under street vending as hereinafter defined, on public property." Street vending of art, art vending, and street vending are all defined to include "the display, creation and/or sale on public property of art by a permittee."

Section 18-903 entitled "Permit application" provides that permit applications are subject to the review and approval of the city occupational licensing office. It states that the application will be approved "[i]f the application form is complete and consistent with the ordinance from which this section derives, the applicant agrees to abide by the terms of said ordinance, and the application fee is paid. . . ."

Section 18-904 entitled "Areas reserved for street performances and art vending" allows for street performances and art vending in eleven designated areas: five on Lincoln Road; three on Ocean Drive; one on Normandy Fountain Green Space; one on Ocean Terrace; and one in Liebman Park.¹ In the event that the number of requests to perform at the designated locations exceeds the number of locations available, "the locations will be assigned for up to [a] three-month period, by a lottery. . . ."

The stated purpose of the ordinance is "to encourage such performances and vending to the extent that they do not interfere with the reasonable expectations of residents to the enjoyment of peace and quiet in their homes, the ability to conduct their businesses and serve their patrons uninterrupted, and the public's use of the City's rights-of-way. . . ."

On July 14, 2003, O'Daniels filed a sworn motion to dismiss the count against him for violating the ordinance on the basis that the ordinance was unconstitutional. On November 7, 2003, the trial court entered an order finding the ordinance unconstitutional under the First and Fourteenth Amendments to the United States Constitution, and Article I, sections 4 and 9 of the Florida Constitution.² On November 19, 2003, the trial court entered a final order dismissing the count and certifying its order as one involving a question of great public importance. The State of Florida ("State") and the City appeal from the trial court's final order. The American Civil Liberties Union Foundation of Florida, Inc. ("ACLU") submitted an amicus curiae brief in response to their appeal of the trial court's order.

We review the trial court's conclusions of law and application of the law to the facts de novo. See One World One Family Now v. City of Miami Beach, 175 F.3d 1282, 1285 n. 4 (11th Cir.1999)(citing Simmons v. Conger, 86 F.3d 1080, 1084 (11th Cir.1996)).

The First Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment, protects speech and expressive conduct. Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); Rodriguez v. State, 906 So.2d 1082, 1088 (Fla. 3d DCA 2004), aff'd, 30 Fla. L. Weekly S495, ___ So.2d ___, 2005 WL 1475362 (Fla.2005). In determining whether the government has infringed on First Amendment protections, "the initial inquiry is whether the speech or conduct affected by the government action comes within the ambit of the First Amendment." One World, 175 F.3d at 1285. Street performances are a form of expression, which are afforded constitutional protection under the First Amendment. See, e.g., Horton v. City of St. Augustine, 272 F.3d 1318 (11th Cir.2001); Davenport v. City of Alexandria, Virginia, 710 F.2d 148 (4th Cir.1983); Friedrich v. City of Chicago, 619 F.Supp. 1129 (N.D.Ill.1985). Likewise, art vending is entitled to full First Amendment protections. See, e.g., Bery v. City of New York, 97 F.3d 689, 695-96 (2d Cir.1996)(citing Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 756 n. 5, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)).

Since street performances and art vending are protected by the First Amendment, we must next determine whether the government action at issue is content neutral or content based. One World, 175 F.3d at 1286. If the government action is content based, we apply a strict scrutiny test requiring the government to show that its action is "narrowly tailored and serves a compelling state interest." Id. (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)); Rodriguez, 906 So.2d at 1088. However, if the government action is content neutral, we apply a time, place, and manner analysis. City of Ladue v. Gilleo, 512 U.S. 43, 55-56, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 518, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981); One World, 175 F.3d at 1286.

An ordinance is content based when the government adopts it as a regulation on speech because of disagreement with the message the speech conveys. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)(citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 295, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). An ordinance is content neutral if it serves purposes unrelated to the content of the speech or expression. Ward, 491 U.S. at 791, 109 S.Ct. 2746 (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)).

O'Daniels contends that the ordinance is content based because it discriminates against performers and entertainers in favor of other speakers, such as preachers, election campaigners, nightclub promoters, and other religious, political, and commercial speakers. However, an ordinance is not content based merely because "it has an incidental effect on some speakers or messages but not others." See Ward, 491 U.S. at 791, 109 S.Ct. 2746 (citing Renton, 475 U.S. at 47-48, 106 S.Ct. 925).

Furthermore, the City's justification for the ordinance has nothing to do with the content of the street performances or art vending, or disagreement with the messages that they convey. See, e.g., Ward, 491 U.S. at 792, 109 S.Ct. 2746 (quoting Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)). The principal justification for the ordinance at issue is the City's desire to preserve the "reasonable expectations of residents to the enjoyment of peace and quiet in their homes, the ability to conduct their businesses and serve their patrons uninterrupted, and the public's use of the City's rights-of-way." The City and State maintain that the City also has an interest in protecting the health, safety, and welfare of its citizens, and regulating the pedestrian traffic on its streets. We find the ordinance to be content neutral as it does not target the content of the street performances or art vending.

Having found that the ordinance is content neutral, we examine whether it satisfies the time, place, and manner test. In a traditional public forum, such as a city street or sidewalk, the government may impose reasonable limitations on the time, place, and manner of protected speech provided that such limitations (1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels for communication of information. Ward, 491 U.S. at 791, 109 S.Ct. 2746 (quoting Clark, 468 U.S. at 293, 104 S.Ct. 3065). The government must demonstrate that it meets all three criteria. Ward, 491 U.S. at 791, 109 S.Ct. 2746; City of Alexandria, 710 F.2d at 151. With respect to the first prong, we have already determined that the City's justification for the ordinance is unrelated to the content of street performances or art vending.

Next, we consider whether the ordinance is narrowly tailored to serve a significant government interest. We review whether the blanket prohibition in the ordinance barring all street performances and art vending, except for in eleven locations where a permit is required, is a narrow means of preventing traffic congestion. See, e.g., City of Alexandria, 710 F.2d at 151.

It is well-established that a city is entitled to regulate pedestrian traffic, a significant interest which constitutes "one of the more specialized and intensely local types of problems." See One World, 175 F.3d at 1287 (citing Schneider v. State of New Jersey, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155 (1939)). Moreover, an ordinance need not be...