Vigue v. Shoar

• Citation: 494 F.Supp.3d 1204
• Decision Date: 12 October 2020
• Docket Number: Case No. 3:19-cv-186-J-32JBT
• Parties: Peter VIGUE, Plaintiff, v. David B. SHOAR, in his official capacity as Sheriff of St. Johns County, Defendant.
• Court: U.S. District Court — Middle District of Florida

494 F.Supp.3d 1204

Peter VIGUE, Plaintiff,

v.David B. SHOAR, in his official capacity as Sheriff of St. Johns County, Defendant.

Case No. 3:19-cv-186-J-32JBT

United States District Court, M.D. Florida, Jacksonville Division.

Signed October 12, 2020

Jodi Lynn Siegel, Kirsten Anderson, Southern Legal Counsel, Inc., Gainesville, FL, Tristia Bauman, Pro Hac Vice, National Law Center on Homelessness & Poverty, Washington, DC, for Plaintiff.

Bruce R. Bogan, Hilyard, Bogan & Palmer, PA, Orlando, FL, Melissa Jean Sydow, Underwood Murray, Tampa, FL, for Defendant.

ORDER

TIMOTHY J. CORRIGAN, United States District Judge Peter Vigue is a homeless resident of St. Johns County who stands on public roadways and holds signs to solicit charitable donations from passersby. Mr. Vigue's signs often bear messages like "God Bless, Be Safe" or "Please Care." In busy areas of town, Mr. Vigue may see up to ten thousand people per day.

Two Florida laws, FLA. STAT. §§ 316.2045 and 337.406 (2019), prohibit individuals from soliciting charity on roadways in Florida without a permit issued by a local government. Sections 316.2045(2)–(4) contain exceptions to the permitting requirement for Internal Revenue Code § 501(c)(3) registered organizations and for political campaigning. Mr. Vigue claims that St. Johns County Sheriff David B. Shoar enforces §§ 316.2045 and 337.406 against homeless individuals to forbid them from soliciting charitable donations in public spaces, including sidewalks and roadways. In this 42 U.S.C. § 1983 action, he contends these statutes are facially unconstitutional.

This case is before the Court on cross-motions for summary judgment. (Docs. 59, 60). The Court held oral argument on June 2, 2020, the record of which is incorporated by reference. (Doc. 75).

I. FACTS AND PROCEDURAL HISTORY

A. Preliminary Injunction

On May 6, 2019, the Court entered a preliminary injunction enjoining both Sheriff Shoar and Gene Spaulding, in his official capacity as Director of the Florida Highway Patrol ("FHP"), from enforcing § 316.2045 against Mr. Vigue during the pendency of this case. (Doc. 32). In so doing, the Court relied on the decisions of two other district courts in the Eleventh Circuit that found § 316.2045 unconstitutional and issued preliminary and permanent injunctions, as well as on the Florida Attorney General's opinion that subsequent amendments have not cured the statute's constitutional infirmities. Id. at 3–5. The Court declined, however, to extend the preliminary injunction to § 337.406 because at that time, Mr. Vigue had "not sufficiently shown he ha[d] standing to obtain an injunction against enforcement of a statute under which he ha[d] not been cited." Id. at 3 n.1. The Court limited injunctive relief to Mr. Vigue only. Id. at 7.

On August 16, 2019, in response to the preliminary injunction (Doc. 32), Sheriff Shoar enacted Policy 41.39 for the St. Johns County Sheriff's Office ("SJSO") which states that officers are not to enforce § 316.2045(2)–(4), are to limit enforcement of §§ 316.2045(1) and 337.406, and are to receive training regarding the policy change.¹ (Doc. 59-16). The policy is a response to litigation and may be changed depending on the outcome of this case. (Docs. 59-16; 59-8 at 17:1–16, 59:1–19, 61:19–20). Additionally, Sheriff's deputies were told not to arrest, cite, or stop Mr. Vigue for violations of either statute unless he was committing other crimes. (Docs. 59-8 at 81–98; 59-10 at 21:24–22:19; 59-5 at 33:8–15; 59-4 at 28:11–25; 59-6 at 43:6–15; 59-11 at 36:19–25).

B. Florida Highway Patrol Settlement

Mr. Vigue originally brought this lawsuit against both Sheriff Shoar and FHP. (See Doc. 1). The Office of the Florida Attorney General represented FHP. (Doc. 15). The Court anticipated that the Attorney General, charged with defending Florida laws, would provide a comprehensive argument regarding the constitutionality of §§ 316.2045 and 337.406, and that Sheriff Shoar would be important, though not primary, to that discussion.

However, on October 28, 2019, FHP settled with Mr. Vigue. (Docs. 45, 45-1). Almost identical to the language of Sheriff Shoar's Policy 41.39, FHP agreed to prohibit enforcement of § 316.2045(2)–(4), limit its enforcement of § 316.2045(1) and § 337.406, provide FHP officers with related training, and circulate a bulletin regarding its new enforcement scheme.² (Doc. 45-1). The Florida Department of Highway Safety and Motor Vehicles, of which FHP is one component, agreed to remove § 316.2045(2)–(4) from the Uniform Traffic Citations, communicate its enforcement policy to various law enforcement entities, include edited versions of the statutes at issue in its annual package of requested legislation, and provide Mr. Vigue's counsel with a report of arrests and citations under the statutes. Id. The agreeement also stated that Mr. Vigue would continue litigation against Sheriff Shoar, seeking an order to permanently enjoin enforcement of §§ 316.2045 and 337.406, and that the Florida Attorney General retained authority to intervene to defend the statutes, though she has not done so.³ Id. Thus, FHP has agreed not to enforce the statutes at issue and is no longer a party to this lawsuit, while Sheriff Shoar has decided to continue to defend the case. The Court proceeds in that context.

C. Enforcement of §§ 316.2045 and 337.406 Prior to Preliminary Injunction

Before this lawsuit, Sheriff Shoar had not issued formal written guidance, policies, or directives regarding how to enforce §§ 316.2045 or 337.406. (Doc. 59-8 at 48:13–20, 50:8–20). From 2016 to 2019, deputies used their own discretion to issue citations and warnings to Mr. Vigue under §§ 316.2045 and 337.406. (Docs. 59-5 at 10:8–11:3; 59-9 at 20:24–21:6; 59-6 at 49:11–16; 59-10 at 20:23–21:14). Between January 17, 2017 and July 29, 2019, the SJSO states that it received fifty-four calls for assistance related to Vigue standing in roadways. (Doc. 66 at 3). Mr. Vigue, for his part, says that he has felt harassed by Sheriff's deputies and does not try to cause any traffic issues when he holds his sign requesting charitable donations.⁴ (Doc. 60-9). The Court enumerates the relevant warnings, citations, and arrests that Mr. Vigue has received under each of the statutes below.

i. Mr. Vigue has been cited under § 316.2045.

Section 316.2045(1) prohibits obstructing the use of public streets, highways, and roads. Violations of § 316.2045(1) may result in noncriminal traffic citations. § 316.2045(1). Section 316.2045(1) states:

It is unlawful for any person or persons willfully to obstruct the free, convenient, and normal use of any public street, highway, or road by impeding, hindering, stifling, retarding, or restraining traffic or passage thereon, by standing or approaching motor vehicles thereon, or by endangering the safe movement of vehicles or pedestrians traveling thereon; and any person or persons who violate the provisions of this subsection, upon conviction, shall be cited for a pedestrian violation, punishable as provided in chapter 318.

§ 316.2045(1).

Sheriff's deputies have issued warnings or citations to Mr. Vigue under § 316.2045(1) six times:

• June 28, 2016 – Guilty, paid fine on December 21, 2016. (Docs. 2-7 at 2–3; 60-1).

• October 2, 2018 – Dismissed on December 27, 2018. (Docs. 2-7 at 14–15; 60-4).

• October 28, 2018 – Issued written traffic warning. (Doc. 59-2 at 1).

• January 8, 2019 – Dismissed on January 10, 2019. (Doc. 2-7 at 23–24).

• March 7, 2019 – Dismissed on May 17, 2019. (Doc. 23 at 6; 59-1 at 1).

• March 11, 2019 – Dismissed on May 9, 2019. (Doc. 23 at 7; 59-1 at 1).

Violations of § 316.2045(2) are more serious and may result in second-degree misdemeanor charges. Like § 316.2045(1), § 316.2045(2) prohibits obstructing the use of public streets, highways, and roads, but § 316.2045(2) specifically disallows individuals from obstructing roads to solicit when they have no permit. Section 316.2045(2) grants an exception to the permit requirement for 501(c)(3) organizations and their representatives on streets and roads not maintained by the state, and the statute cross-references the other law that Mr. Vigue claims is unconstitutional, § 337.406. Section 316.2045(2) provides that:

It is unlawful, without proper authorization or a lawful permit, for any person or persons willfully to obstruct the free, convenient, and normal use of any public street, highway, or road by any of the means specified in subsection (1) in order to solicit. Any person who violates the provisions of this subsection is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. Organizations qualified under s. 501(c)(3) of the Internal Revenue Code and registered pursuant to chapter 496, or persons or organizations acting on their behalf are exempted from the provisions of this subsection for activities on streets or roads not maintained by the state. Permits for the use of any portion of a state-maintained road or right-of-way shall be required only for those purposes and in the manner set out in s. 337.406.

§ 316.2045(2).

Sheriff's deputies have cited or arrested Mr. Vigue under § 316.2045(2) seven times:

• April 18, 2017 – Nolle prossed on June 2, 2017. (Docs. 2-7 at 4–5; 60-2; 59-1 at 1).

• November 25, 2017 – No information on disposition. (Docs. 2-7 at 11–13; 60-3; 59-1 at 1).

• November 13, 2018 – Arrested and booked into St. Johns County Jail; nolle prossed on December 2, 2018. (Docs. 2-7 at 16–22; 60-5; 59-1 at 1).

• January 8, 2019 – Arrested and booked into St. Johns County Jail; nolle prossed on January 15, 2019. (Docs. 2-7 at 25–31; 60-7; 59-1 at 1).

• January 13, 2019 – Arrested and booked into St. Johns County Jail; nolle prossed on February 11, 2019.⁵ (Doc. 2-7 at 32–36; 59-1 at 1).

• February 13, 2019 – Nolle prossed on April 26, 2019. (Doc. 23 at 3; 59-1 at 9).

• February 22, 2019 – Nolle prossed on March 12, 2019. (Doc. 23 at 4–5; 59-1 at 1).

Section 316.2045(3) elaborates on the conditions under...