Vigue v. Shoar et al
ORDER granting 59 Plaintiff Peter Vigue's Motion for Partial Summary Judgment; denying 60 Defendant David B. Shoar's Motion for Summary Judgment; permanently enjoining enforcement of Fl.Stat. §§ 316.2045 and 337.406(1); filings due 11/19/2020, 12/21/2020 (see order for details). Signed by Judge Timothy J. Corrigan on 10/12/2020.(SRW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
Case No. 3:19-cv-186-J-32JBT
DAVID B. SHOAR, in his official
capacity as Sheriff of St. Johns
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
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).
FACTS AND PROCEDURAL HISTORY
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
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).
Regarding enforcement of §§ 316.2045(1) and 337.406, Policy 41.39
So long as a person does not impede the free, convenient, and
normal use of the road, SJSO will not treat entering or leaving a
roadway while traffic is stopped pursuant to a traffic light as a
violation of Section 316.2045(1). SJSO will not use this provision
to prohibit persons from engaging in lawful conduct, such as
charitable solicitation adjacent to public streets, highways, or
roads, so long as any incursion is during stopped traffic pursuant
to a traffic light and does not impede the free, convenient, and
normal use of the road. Additionally, SJSO will not enforce this
provision against a person who has left the roadway by the time
traffic is permitted to move, so long as the person does not impede
the free, convenient, and normal use of the road.
(Doc. 59-16 at 2–3).
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, 451). 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
FHP agreed to limit its enforcement of § 316.2045(1) and 337.406 as
So long as a person does not impede the free, convenient, and
normal use of the road, FHP will no longer treat entering or
leaving a roadway while traffic is stopped pursuant to a traffic
control device as a violation of Section 316.2045(1) [or of Section
337.406]. And FHP will no longer use th[ese] provision[s] to
prohibit persons from engaging in lawful conduct such as
charitable solicitation adjacent to public streets, highways, or
roads, so long as any incursion is during stopped traffic pursuant
to a control device and does not impede free, convenient, and
normal use of the road. Additionally, FHP will not enforce th[ese]
provision[s] against a person who has left the roadway by the time
traffic is permitted to move and does not impede the free,
convenient, and normal use of the road.
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.
Enforcement of §§ 316.2045 and 337.406 Prior to
Before this lawsuit, Sheriff Shoar had not issued formal written guidance,
policies, or directives regarding how to enforce §§ 316.2045 or 337.406. (Doc. 598 at 48:13–20, 50:8–20). From 2016 to 2019, deputies used their own discretion
(Doc. 45-1 at 11).
The settlement agreement included various other deadlines, directives,
and provisions, including a payment to Vigue for the costs, attorneys’ fees, and
expenses incurred in litigation. (Doc. 45-1 at 4).
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.
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
Mr. Vigue has stated that he feels he has been harassed for holding his
sign. (Doc. 60-9 at 142:9–13). “I’m not out to bother people or hurt people on
any—whether you’re in a car, vehicle, on foot or you have a business, I’m not
out there to bother you or hurt you. I just want to see people smile. Put a smile
on your face, and I’ll go on my way. If you give me something, that’s good. If you
don’t, that’s fine.” (Doc. 60-9 at 147:14–20).
cited for a pedestrian violation, punishable as provided in chapter
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
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–
March 7, 2019 – Dismissed on May 17, 2019. (Doc. 23 at 6; 59-1 at
March 11, 2019 – Dismissed on May 9, 2019. (Doc. 23 at 7; 59-1 at
Violations of § 316.2045(2) are more serious and may result in seconddegree 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)
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.
Sheriff’s deputies have cited or arrested Mr. Vigue under § 316.2045(2)
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
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 which 501(c)(3)
organizations may be exempt from the requirement to obtain a permit from a
local government for the use of streets, roads, or rights-of-way not maintained
by the state.6 Finally, § 316.2045(4) clarifies that no part of the law “shall be
The Offense Report from January 13, 2019, includes the following
Probable Cause Narrative, alluding to Mr. Vigue’s other offenses:
I observed the defendant standing at State Road 312 and Tingle
Court holding a sign and approaching vehicles with their windows
down. The defendant does not have a permit to solicit on a state
road. I knew the defendant to have been issued a citation for
Soliciting without a permit on October 2, 2018. The defendant was
also placed under arrest for the same offense on November 13,
2018 and January 8, 2019.
(Doc. 59-1 at 3–4).
The full text of § 316.2045(3) reads:
Permits for the use of any street, road, or right-of-way not
maintained by the state may be issued by the appropriate local
government. An organization that is qualified under s. 501(c)(3) of
the Internal Revenue Code and registered under chapter 496, or a
person or organization acting on behalf of that organization, is
exempt from local requirements for a permit issued under this
subsection for charitable solicitation activities on or along streets
or roads that are not maintained by the state under the following
(a) The organization, or the person or organization acting on behalf
of the organization, must provide all of the following to the local
1. No fewer than 14 calendar days prior to the proposed
solicitation, the name and address of the person or organization
that will perform the solicitation and the name and address of the
organization that will receive funds from the solicitation.
2. For review and comment, a plan for the safety of all
persons participating in the solicitation, as well as the motoring
public, at the locations where the solicitation will take place.
3. Specific details of the location or locations of the
proposed solicitation and the hours during which the solicitation
activities will occur.
4. Proof of commercial general liability insurance against
claims for bodily injury and property damage occurring on streets,
roads, or rights-of-way or arising from the solicitor’s activities or
use of the streets, roads, or rights-of-way by the solicitor or the
solicitor’s agents, contractors, or employees. The insurance shall
have a limit of not less than $1 million per occurrence for the
general aggregate. The certificate of insurance shall name the local
government as an additional insured and shall be filed with the
local government no later than 72 hours before the date of the
5. Proof of registration with the Department of Agriculture
and Consumer Services pursuant to s. 496.405 or proof that the
soliciting organization is exempt from the registration
(b) Organizations or persons meeting the requirements of
subparagraphs (a)1.-5. may solicit for a period not to exceed 10
cumulative days within 1 calendar year.
(c) All solicitation shall occur during daylight hours only.
(d) Solicitation activities shall not interfere with the safe and
efficient movement of traffic and shall not cause danger to the
participants or the public.
(e) No person engaging in solicitation activities shall persist after
solicitation has been denied, act in a demanding or harassing
manner, or use any sound or voice-amplifying apparatus or device.
construed to inhibit political campaigning on the public right-of-way or to
require a permit for such activity.” Thus, representatives of political campaigns
may also lawfully solicit donations without a permit.
Mr. Vigue has been warned under § 337.406 and other statutes.
Violation of § 337.406 is a second-degree misdemeanor offense.
§ 337.406(5). Like § 316.2045, § 337.406(1) prohibits solicitation without a
permit, but it applies to rights-of-way of state transportation facilities and lists
various prohibited uses of those rights-of-way in addition to solicitation.
Section 337.406(1) provides:
Except when leased as provided in s. 337.25(5) or otherwise
authorized by the rules of the department, it is unlawful to make
any use of the right-of-way of any state transportation facility,
including appendages thereto, outside of an incorporated
municipality in any manner that interferes with the safe and
efficient movement of people and property from place to place on
the transportation facility. Failure to prohibit the use of right-ofway in this manner will endanger the health, safety, and general
welfare of the public by causing distractions to motorists, unsafe
pedestrian movement within travel lanes, sudden stoppage or
slowdown of traffic, rapid lane changing and other dangerous
traffic movement, increased vehicular accidents, and motorist
injuries and fatalities. Such prohibited uses include, but are not
limited to, the free distribution or sale, or display or solicitation for
(f) All persons participating in the solicitation shall be at least 18
years of age and shall possess picture identification.
(g) Signage providing notice of the solicitation shall be posted at
least 500 feet before the site of the solicitation.
(h) The local government may stop solicitation activities if any
conditions or requirements of this subsection are not met.
free distribution or sale, of any merchandise, goods, property or
services; the solicitation for charitable purposes; the servicing or
repairing of any vehicle, except the rendering of emergency
service; the storage of vehicles being serviced or repaired on
abutting property or elsewhere; and the display of advertising of
any sort, except that any portion of a state transportation facility
may be used for an art festival, parade, fair, or other special event
if permitted by the appropriate local governmental entity. Local
government entities may issue permits of limited duration for the
temporary use of the right-of-way of a state transportation facility
for any of these prohibited uses if it is determined that the use will
not interfere with the safe and efficient movement of traffic and
the use will cause no danger to the public. The permitting
authority granted in this subsection shall be exercised by the
municipality within incorporated municipalities and by the county
outside an incorporated municipality. Before a road on the State
Highway System may be temporarily closed for a special event, the
local governmental entity which permits the special event to take
place must determine that the temporary closure of the road is
necessary and must obtain the prior written approval for the
temporary road closure from the department. Nothing in this
subsection shall be construed to authorize such activities on any
limited access highway. Local governmental entities may, within
their respective jurisdictions, initiate enforcement action by the
appropriate code enforcement authority or law enforcement
authority for a violation of this section.
Sheriff’s deputies have warned Mr. Vigue twice under § 337.406:
December 7, 2015 – Written traffic warning. (Doc. 59-2 at 5).
December 31, 2017 – Verbal warning.7 (Doc. 59-2 at 9).
A Sheriff’s deputy described his encounter with Mr. Vigue on December
31, 2017 in a Field Interview Narrative:
Peter was standing with a cardboard sign just outside Cobblestone
property in the grass between the sidewalk and curb of Old
Moultrie Rd. I observed Peter enter the roadway of Jenkins St just
outside the CBL property line to receive money from a motorist
exiting the plaza.
Mr. Vigue has not been cited or arrested under § 337.406. (See Doc. 59-2).
Deputies’ reports reflect that Mr. Vigue received verbal warnings in three other
August 11, 2015 – Verbal warning for violation of unspecified
statutes. (Doc. 59-2 at 3).
December 7, 2016 – Verbal warning for violation of unspecified
statutes. (Doc. 59-2 at 7).
April 1, 2019 — Verbal warning for soliciting charitable donations
in an intersection.8 (Doc. 59-2 at 13).
I made Peter distinctly aware where he was standing was within
the right-of-way of Old Moultrie Rd and he was (1) using the rightof-way to solicit for charitable purposes and (2) entered the
roadway, interfering with the safe movement of vehicles, contrary
to FS 337.406.
Peter acknowledged he understands where the CBL property line
is at the Old Moultrie Rd entrance and now thoroughly
understands where the right-of-way is. He was informed this
warning would be documented and appropriate law enforcement
action would follow if he is located, committing the same offense.
At the time, he was wearing a grey vest with long-sleeve orange
shirt under it, jeans, and green gloves. His sign read, “God Bless,
(Doc. 59-2 at 9).
A Sheriff’s deputy’s “Suspicious Person” report from April 1, 2019
includes the following narrative:
Peter Vigue was standing in the intersection holding a hand
written sign, which read “God Bless.” Once Peter saw my patrol
vehicle, he walked away from the intersection, leaving another
hand written sign and plastic bottle on the ground. I advised Peter
Following the Court’s preliminary injunction (Doc. 32), pending
prosecutions against Mr. Vigue were dismissed. (Docs. 59-1). All but one of the
prosecutions against Mr. Vigue under § 316.2045 were dismissed or nolle
prossed, and Mr. Vigue was never found guilty of the other charges. (Docs. 591, 2–7, 23).
History of Florida Non-Solicitation Statutes
This Court is not the first to address the constitutionality of §§ 316.2045
or 337.406. In this District in 2003, the Honorable John Antoon II issued a
permanent injunction against enforcement of § 316.2045, declaring the statute
facially unconstitutional. Bischoff v. Florida, 242 F. Supp. 2d 1226 (M.D. Fla.
2003). In 2006, the Honorable Stephan P. Mickle in the Northern District of
Florida issued a preliminary injunction as to both statutes at issue here. Chase
v. City of Gainesville, No. 1:06-CV-044-SPM/AK, 2006 WL 2620260 (N.D. Fla.
Sept. 11, 2006). Subsequently, the parties in Chase agreed to have the court
permanently enjoin enforcement of §§ 316.2045 and 337.406 and find both
statutes facially unconstitutional. Chase v. City of Gainesville, No. 1:06-CV-44SPM/AK, 2006 WL 3826983 (N.D. Fla. Dec. 28, 2006).
to collect his items or he would be ticketed. Peter said he wasn’t
leaving the area and he wasn’t breaking the law. Advised him to
stay out of the roadway or he would be subject to arrest. Peter
assured me he would not walk or stand in the road way.
(Doc. 59-2 at 13).
In 2007, the Florida Legislature amended § 316.2045(3) to exempt certain
501(c)(3) organizations from the permit requirements for charitable solicitation
and to establish conditions with which the organizations must comply to take
advantage of that exemption. Fla. Att’y Gen. Op. 2007-50 (2007). On November
7, 2007, Florida Attorney General Bill McCollum issued an opinion that the
amendments did not address the constitutional infirmities identified in Bischoff
and recommended that the Florida Legislature address those issues. Id.9 To
date, the Legislature has not done so.
Both §§ 316.2045 and 337.406 reference a permitting scheme. However,
there is not (and never has been) a permit process established in St. Johns
County, St. Augustine, or the state of Florida for Mr. Vigue or other individuals
wishing to engage in charitable solicitation on public streets, highways, or
roads. (Doc. 59-3 at 1–3). Thus, Mr. Vigue does not have such a permit, and
Sheriff Shoar does not point to any avenue through which he may obtain one to
solicit donations lawfully. Id. Mr. Vigue is not alone in soliciting charity on St.
Johns County roadways, and authorities have questioned other individuals
“To read the amended statutory language to allow only charities and
political campaigners to solicit could, arguably, subject the statute to federal
constitutional challenge as violating First Amendment free speech rights and
Fourteenth Amendment equal protection rights . . . . I would strongly suggest
that the Florida Legislature revisit this statute to consider the First
Amendment problems raised by the Bischoff case.” Fla. Att’y Gen. Op. 2007-50
about whether they possessed appropriate permits. (Docs. 59-9 at 27:14–28:2,
59-10 at 15:15–25, 59-4 at 35:24–36:15, 59-14 at 18:17–19:1). Authorities have
enforced §§ 316.2045 and 337.406 against others through citations, arrests, and
warnings. (Docs. 2-4, 59-15, 59-11 at 13:14–14:8, 59-4 at 36:2–15, 59-10 at
The parties filed cross-motions for summary judgment (Docs. 59, 60), and
the Court received responses to both motions (Docs. 65, 66). There are no
disputed issues of material fact.10 Though Mr. Vigue asserts that the statutes
are unconstitutional facially and as-applied, he confirmed through counsel at
the hearing that he now asks for a ruling only as to the facial challenge. (Doc.
75 at 50). Mr. Vigue requests that the Court enter a declaratory judgment that
both statutes are facially unconstitutional in violation of the First and
Fourteenth Amendments; that the Court enter a permanent injunction
prohibiting Sheriff Shoar from enforcing both statutes; and that the Court enter
judgment in favor of Mr. Vigue, finding Sheriff Shoar liable for damages for past
enforcement of the statutes against Mr. Vigue, in an amount to be determined
at trial. (Doc. 59 at 4). Sheriff Shoar claims that the evidence “does not support
“The principles governing summary judgment do not change when the
parties file cross-motions for summary judgment.” T-Mobile S. LLC v. City of
Jacksonville, 564 F. Supp. 2d 1337, 1340 (M.D. Fla. 2008).
the existence of the alleged official policy, practice and/or custom of the Sheriff.”
(Doc. 60 at 2). He also maintains that Mr. Vigue’s challenge to § 337.406 should
be denied for lack of standing and asks that the permanent injunction be denied
in its entirety. Id.
Section 1983 establishes a cause of action against state officials who
violate constitutional rights while acting under color of state law. 42 U.S.C.
§ 1983 (2018). Mr. Vigue mounts a facial challenge as to both statutes at issue.
(Docs. 59, 75). “A facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be valid.” United
States v. Salerno, 481 U.S. 739, 745 (1987). In contrast to an as-applied
challenge, a facial challenge “seeks to invalidate a statute or regulation itself.”
United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000). Here, Mr.
Vigue challenges the constitutionality of §§ 316.2045 and 337.406 as contentbased, overbroad, vague prior restraints on speech, and adds that § 316.2045
unconstitutionally favors 501(c)(3) organizations and campaign speech. (Doc.
Standing to Challenge §§ 316.2045 and 337.406
For constitutional standing to challenge the statutes, Mr. Vigue must
show (1) that he suffered an injury in fact, or invasion of a legally protected
interest, that is concrete and particularized as well as actual and imminent; (2)
that there is a causal connection between that injury and the alleged conduct,
traceable to the action of the Defendant; and (3) that it is likely and not merely
speculative that the injury will be redressed by a favorable decision in this case.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). When a lawsuit
challenges the legality of government action or inaction:
[T]he nature and extent of facts that must be averred (at the
summary judgment stage) . . . in order to establish standing
depends considerably upon whether the Plaintiff is himself an
object of the action (or foregone action) at issue. If he is, there is
ordinarily little question that the action or inaction has caused him
injury, and that a judgment preventing or requiring the action will
Id. at 561–62.
Soliciting charity is constitutionally protected expression. See Vill. of
Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632 (1980)
(“[C]haritable appeals for funds, on the street or door to door, involve a variety
of speech interests—communication of information, the dissemination and
propagation of views and ideas, and the advocacy of causes—that are within the
protection of the First Amendment.”); Smith v. City of Fort Lauderdale, 177
F.3d 954, 956 (11th Cir. 1999) (“Like other charitable solicitation, begging is
speech entitled to First Amendment protection.”). Mr. Vigue gained a legally
cognizable interest in challenging § 316.2045 when St. Johns County law
enforcement took concrete action against him with a combined twelve arrests
and citations under § 316.2045. (Docs. 2-7, 23, 59-1). Those citations
demonstrate that Mr. Vigue was the object of government action under the
statute. There is “little question” that action under the statute caused him
injury, and a judgment permanently preventing the enforcement of § 316.2045
would directly redress that injury. Thus, Mr. Vigue has standing to bring this §
1983 action challenging § 316.2045.
Mr. Vigue also has standing to challenge § 337.406 even though he has
not been cited or arrested under the statute. Threats of arrest for engaging in
free speech activities are evidence of “an actual and concrete injury wholly
adequate to satisfy the injury in fact requirement of standing.” Bischoff v.
Osceola Cty., 222 F.3d 874, 884 (11th Cir. 2000). When there is a credible threat
of prosecution, a plaintiff is not required to expose himself to actual arrest and
prosecution to have standing to challenge statutory provisions. Steffel v.
Thompson, 415 U.S. 452, 459 (1974) (finding that plaintiff had standing to
challenge constitutionality of trespass statute after he was warned twice to stop
handbilling and told he would be arrested if he repeated such conduct); see also
Wilson v. State Bar of Ga., 132 F.3d 1422, 1428 (11th Cir. 1998) (“[S]tanding
exists at the summary judgment stage when the plaintiff has submitted
evidence indicating an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there
exists a credible threat of prosecution.” (internal quotation omitted)).
Bischoff sheds light on this issue. The case went to the Eleventh Circuit
in 2000 on the issue of standing prior to the ultimate ruling from Judge Antoon
in 2003. Plaintiffs Bischoff and Stites were not actually arrested during the
relevant demonstration, but other protesters were arrested. Bischoff, 222 F.3d
at 877. The Eleventh Circuit reasoned that the threat of arrest under the
challenged statutes was adequate to show injury in fact to establish standing.
Id. at 884. Thus, Bischoff and Stites were ultimately found to have standing
when “[b]oth Plaintiffs testified that they were threatened with arrest for
engaging in the same handbilling conduct that resulted in the arrest and charge
under the challenged statutes of [other protesters].” 222 F.3d at 885.
Similarly, Mr. Vigue received one written traffic warning in 2015 and one
verbal warning in 2017 under § 337.406 but was never arrested or cited under
the statute. (Doc. 59-2). On December 31, 2017, when Mr. Vigue was threatened
with arrest under § 337.406, an officer informed Mr. Vigue that he was “acting
contrary to FS 337.406” and “would be documented and appropriate law
enforcement action would follow” if Mr. Vigue violated the statute again. (Doc.
59-2 at 9). Mr. Vigue ultimately satisfies the requirement for standing and need
not expose himself to further threats to challenge the constitutionality of §
337.406. As in Bischoff, “it is clear that a decision in [Mr. Vigue’s] favor
declaring [§ 337.406] unconstitutional, either on [its] face or as applied to [Mr.
Vigue], would redress the injury of being threatened with arrest for engaging
in constitutionally protected activity.” 222 F.3d at 885.
Sheriff’s Liability Under 42 U.S.C. § 1983 in his Official
Sheriff Shoar makes little effort to defend the facial constitutionality of
the statutes. (Docs. 60; 75). Instead, his primary argument is that Mr. Vigue
may not hold him liable under 42 U.S.C. § 1983 because he has not established
a custom, policy, or practice of enforcing the statutes at issue. Id.
Local governments may be held liable under § 1983 only when a
constitutional deprivation arises from a governmental policy or custom. Monell
v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 694 (1978). “A policy is a
decision that is officially adopted by the municipality, or created by an official
of such rank that he or she could be said to be acting on behalf of the
municipality . . . . A custom is a practice that is so settled and permanent that
it takes on the force of law.” Cooper v. Dillon, 403 F.3d 1208, 1221 (11th Cir.
2005) (quoting Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.
1997)). “[I]t is when execution of a government’s policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is responsible
under § 1983.” Monell, 436 U.S. at 694. The government’s official policy or
custom must be the “moving force” behind the constitutional violation. Id.; see
also Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404 (1997)
(stating that a municipality, through its deliberate conduct, must be the
“moving force” behind an alleged injury for § 1983 liability).
In Cooper, the Eleventh Circuit answered the question of whether a police
chief enforcing a state law may subject a municipality to liability under § 1983.
Cooper, 403 F.3d at 1223. The Court determined that a police chief’s decision to
enforce a Florida statute constituted the adoption of a policy sufficient to trigger
municipal liability under § 1983. Id. at 1221. Chief Dillon, like Sheriff Shoar,
argued that enforcement of a state law could not subject him to liability. Id. The
Eleventh Circuit disagreed, stating:
Dillon was clothed with final policymaking authority for law
enforcement matters in Key West and in this capacity he chose to
enforce the statute against Cooper. While the unconstitutional
statute authorized Dillon to act, it was his deliberate decision to
enforce the statute that ultimately deprived Cooper of
constitutional rights and therefore triggered municipal liability.
Thus, Dillon’s choice to enforce an unconstitutional statute against
Cooper constituted a deliberate choice to follow a course of
action . . . made from among various alternatives by the official or
officials responsible for establishing final policy. Accordingly, we
find that the City of Key West, through the actions of Dillon,
adopted a policy that caused the deprivation of Cooper’s
constitutional rights which rendered the municipality liable under
Id. at 1223 (internal citations and quotations omitted).
Cooper bears a striking resemblance to this case. Chief Dillon oversaw
enforcement of the state statute on only one occasion and was held liable, while
Sheriff Shoar has overseen repeated instances of enforcing § 316.2045 and
§ 337.406 over a four-year period. 11 (Docs. 2-7, 23). Like Mr. Vigue, Cooper
argued that the statute improperly abridged First Amendment freedom.
Cooper, 403 F.3d at 1213. The Court ultimately found that the statute was “a
content-based restriction that chill[ed] the exercise of fundamental First
Amendment rights without a compelling justification for doing so and
accordingly [was] unconstitutional.” Id. at 1223.
The Court does not overlook that Sheriff Shoar’s role derives from Art.
VIII, § 1(d), FLA. CONST., a different constitutional provision than those
regarding municipalities and city police. “Whether an official has final
policymaking authority is a question of state law.” Church v. City of Huntsville,
30 F.3d 1332, 1342 (11th Cir. 1994). Courts have consistently held that “police
The Court acknowledges that in Cooper, Chief Dillon personally swore
an affidavit and obtained a warrant for Cooper’s arrest under the challenged
statute. 403 F.3d at 1212. Here, Sheriff Shoar has not personally arrested or
sworn an affidavit for the arrest of Mr. Vigue. Still, Cooper’s reasoning applies.
The question in Cooper was “whether Dillon had final policymaking authority
for the City of Key West in law enforcement matters and whether his decision
to enforce FLA. STAT. ch. 112.533(4) against Cooper was an adoption of ‘policy’
sufficient to trigger 1983 liability.” Id. at 1221. The Court concluded that
enforcement of a state law by a police chief may subject a municipality to
liability. Id. at 1223. That conclusion did not hinge on personal enforcement by
the police chief himself. Moreover, “when an officer is sued under Section 1983
in his or her official capacity, the suit is simply another way of pleading an
action against an entity of which an officer is an agent.” Busby v. City of
Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (internal quotation omitted). The
record shows that SJSO repeatedly and deliberately decided to enforce the
challenged statutes against Mr. Vigue.
chiefs in Florida have final policymaking authority in their respective
municipalities for law enforcement matters” under state and local law. See, e.g.,
Cooper, 403 F.3d at 1222 (citing various statutes); Davis v. City of Apopka, 734
Fed. App’x 616, 619 (11th Cir. 2018) (citing to the Florida Constitution, local
ordinances, and Cooper to determine that a city’s police chief was a final
policymaker); Rojas v. City of Ocala, 315 F. Supp. 3d 1256, 1288 (M.D. Fla.
2018) (analyzing the Florida Constitution, state law, and local ordinances to
conclude that a police chief had authority that could subject a city to liability).
Similarly, under the Florida Constitution, sheriffs are elected constitutional
officers who can exercise final policymaking authority regarding law
enforcement in their counties. Art. VIII, § 1(d), FLA. CONST. They have “absolute
control over the selection and retention of deputies in order that law
enforcement be centralized in the county, and in order that the people be able
to place responsibility upon a particular officer for failure of law enforcement.”
Szell v. Lamar, 414 So.2d 276, 277 (Fla. 5th DCA 1982) (citing § 30.53, FLA.
STAT. (1981)). Said another way, “[i]t is essential to law enforcement in the
various counties of the State that the people shall be able to place responsibility
upon a particular individual, the sheriff.” Blackburn v. Brorein, 70 So. 2d 293,
298 (Fla. 1954).
“[C]ases on the liability of local governments under § 1983 instruct us to
ask whether governmental officials are final policymakers for the local
government in a particular area, or on a particular issue.” McMillian v. Monroe
Cty., 520 U.S. 781, 785 (1997). Under Florida law, Sheriff Shoar is a final
policymaker in St. Johns County for the enforcement of the two statutes at issue
here. His position as a final policymaker for the St. Johns County is directly
analogous to Chief Dillon’s position as a final policymaker for Key West in
Sheriff Shoar claims that a review of the relevant testimony reveals that
“there was no promulgated policy to enforce these particular statutes.”12 (Doc.
66 at 8). However, local government liability attaches where a “deliberate choice
to follow a course of action is made from among various alternatives by the
official or officials responsible for establishing final policy with respect to the
subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 470
(1986). “[I]f a municipality decides to enforce a statute that it is authorized, but
not required, to enforce, it may have created a municipal policy.” Vives v. City
of New York, 524 F.3d 346, 353 (2d Cir. 2008). The statutes being challenged
here authorized Sheriff Shoar to act, but that is not the issue; the issue is
Sheriff Shoar focuses on cases regarding deliberate indifference under
the Eighth Amendment, exhaustion of administrative remedies, and excessive
force violations to support his contention that he had no policy that would
trigger municipal liability under § 1983. (Doc. 66 at 7–8). However, those cases
are readily distinguishable.
whether Sheriff Shoar made a deliberate decision to enforce the statutes that
ultimately deprived Mr. Vigue of his constitutional rights.
St. Johns County Sheriff’s deputies arrested, cited, and warned Mr. Vigue
from 2016 to 2019 under § 316.2045 and § 337.406 on at least fifteen occasions.
(Docs. 2-7, 23). In doing so, they acted within SJSO unwritten policy from before
this litigation. (Doc. 59-8 at 97: 4–13). Sheriff Shoar, as the final authority in
SJSO, has the authority to decide whether to enforce a Florida statute as a
matter of interpretation and enforcement discretion. Id. at 28:15–19. The record
demonstrates that Sheriff Shoar made the deliberate decision (even following
Bischoff, Chase, and the Attorney General’s criticism of the 2007 amendment)
to enforce the statutes. That the “on the street” decisions to warn, cite, and
arrest Mr. Vigue were made by his deputies instead of the Sheriff himself does
not matter. Quoting Cooper: “[Sheriff Shoar] was clothed with final
policymaking authority for law enforcement matters in [St. Johns County] and
in this capacity he chose to enforce the statute against [Mr. Vigue].” 403 F.3d
At the hearing, Sheriff Shoar’s counsel argued that it was not the Sheriff’s
role to justify the language of the statute because he did not draft or enact it.
(Doc. 75 at 19:19–27:3). As a result, he claimed, Sheriff Shoar should be
insulated from legal exposure. Id. But in the wake of Cooper, and with Sheriff
Shoar’s deliberate decision to repeatedly enforce §§ 316.2045 and 337.406,
Sheriff Shoar may be held liable under § 1983 in his official capacity.
The Constitutionality of § 316.2045
The Court’s role in deciding whether a state law is constitutional is
summarized well by Judge Antoon in Bischoff:
Federal courts are courts of limited jurisdiction. The courts do not
reach out to reform or rewrite state statutes that seem to require
some improvement. Neither do the federal courts strike down valid
laws of which they disapprove. It is the state legislature’s duty to
enact valid laws, and the Court’s duty to declare what the law is,
and how the law applies to the facts. The federal courts do not
substitute laws they prefer for the will of the elected state
legislature. But where parties in a controversy ask a federal court
to declare whether a state law violates the Constitution of the
United States, the Court must not shrink from its duty to
adjudicate the question presented.
242 F. Supp. 2d at 1241. Here, the Court is asked to declare whether § 316.2045
violates the First and Fourteenth Amendments.13
Every court previously asked to evaluate § 316.2045 has declared the
statute unconstitutional. Judge Antoon provided an in-depth analysis of
§ 316.2045 and concluded that the statute was unconstitutional for multiple
reasons under First and Fourteenth Amendment jurisprudence. Bischoff, 242
F. Supp. 2d. 1226. In 2006, Judge Mickle adopted the logic and rationale of the
Bischoff decision to grant a preliminary injunction enjoining enforcement of
The First Amendment is applicable to the states through the
Fourteenth Amendment. Elrod v. Burns, 427 U.S. 347, 357 n.10 (1976).
§ 316.2045, which was later converted to a permanent injunction through
settlement, finding that the statute violated the First and Fourteenth
Amendments. Chase, 2006 WL 3826983, at *1–2. Finally, the Honorable
unconstitutional in Booher v. Marion County, No. 5:07-CV-00282WTHGRJ,
2007 WL 9684182 (M.D. Fla. Sept. 21, 2007).
The Court sees no reason to depart from the analysis of those courts.
Accordingly, the Court limits discussion here to recent case law and the
ineffectiveness of the 2007 amendments.
Section 316.2045 remains an unconstitutional content-based
prohibition on speech in public fora.
Content-based regulations of speech in public fora target speech based on
its communicative content and “distinguish favored speech from disfavored
speech on the basis of the ideas or viewpoints expressed.” Cooper, 403 F.3d at
1215 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994)); see
also Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502
U.S. 105, 115 (1991). Content-based regulations are subject to strict scrutiny.
“Content-based laws—those that target speech based on its communicative
content—are presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve compelling state
interests.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015) (citations omitted).
In Reed, the Supreme Court clarified that “a speech regulation targeted at
specific subject matter is content-based even if it does not discriminate among
viewpoints within that subject matter.” Id. at 169 (finding town code to be
content-based because the application of the code to public signs depended on
the communicative content of the signs). Courts must:
[C]onsider whether a regulation of speech “on its face” draws
distinctions based on the message a speaker conveys. Some facial
distinctions based on a message are obvious, defining regulated
speech by particular subject matter, and others are more subtle,
defining regulated speech by its function or purpose. Both are
distinctions drawn based on the message a speaker conveys, and,
therefore, are subject to strict scrutiny.
Id. at 163-64 (internal citation omitted).
Following Reed, multiple statutes that restrict charitable solicitation
have been viewed as content-based and struck down because they cannot
survive strict scrutiny. In this district, for example, the Honorable Steven D.
Merryday permanently enjoined the City of Tampa from enforcing an ordinance
that banned charitable solicitation in certain areas. Homeless Helping
Homeless, Inc. v. City of Tampa, No. 8:15-CV-1219-T-23AAS, 2016 WL
4162882, at *5–6 (M.D. Fla. Aug. 5, 2016). Also applying Reed, the Seventh
Circuit and a Massachusetts district court found that anti-panhandling
statutes were content-based and violated free speech rights under the First
Amendment. Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015) (striking
down statute as unconstitutional when it prohibited oral requests for
immediate payment of money but allowed signs requesting money and oral
requests to send money later); Thayer v. City of Worcester, 576 U.S. 1048 (2015)
(remanding case to district court for further consideration in light of Reed);
Thayer v. City of Worcester, 144 F. Supp. 3d 218 (D. Mass. 2015) (concluding
that statute prohibiting begging, panhandling, or soliciting in an aggressive
manner was content-based, subject to strict scrutiny, and unconstitutional).
Even before Reed, the court in Bischoff found that § 316.2045 regulated
speech on the basis of ideas expressed and was therefore content-based.
Section 316.2045 selectively proscribes protected First
Amendment activity—i.e., it impermissibly prefers speech by
§ 501(c)(3) charities and by persons who are engaged in “political
campaigning” over all other activity that retards traffic, without
any showing that the latter is more disruptive than the former.
Section 316.2045 makes the legality of conduct that retards
traffic depend solely on the nature of the message being conveyed.
Said differently, the Florida statute facially prefers the viewpoints
expressed by registered charities and political campaigners by
allowing ubiquitous and free dissemination of their views, but
restricts discussion of all other issues and subjects. Section
316.2045 of the Florida Statutes, therefore, is presumptively
invalid under the Equal Protection Clause and the First
Amendment of the United States Constitution because it imposes
content-based restrictions on speech in a traditional public forum.
242 F. Supp. 2d at 1256 (internal citations omitted). This analysis of § 316.2045
remains true for the current version of the statute. Most of the content-based
restrictions that made the law facially unconstitutional in Bischoff remain in
the current version of the law. In particular, § 316.2045(2) still exempts
501(c)(3) organizations, and persons or organizations acting on their behalf,
from the permitting requirements for streets or roads not maintained by the
state, and it still, confusingly, conditions the need for permits on statemaintained roads or rights-of-way “only for those purposes and in the manner
set out in s. 337.406.” (More about § 337.406 later.)
The language of § 316.2045(4) is identical to the 2003 version of the
statute when Bischoff was decided: “[n]othing in this section shall be construed
to inhibit political campaigning on the public right-of-way or to require a permit
for such activity.” § 316.2045(4). The law impermissibly favors organizational,
campaign, and other group speech over other types of speech, like individual
charitable solicitation. Thus, § 316.2045 remains a presumptively invalid
content-based regulation on protected speech. See, e.g., R.A.V. v. City of St.
Paul, 505 U.S. 377, 382 (1992) (“Content-based regulations are presumptively
invalid.”). 14 The Bischoff court further concluded that § 316.2045 could not
The distinction between individuals and charitable or political groups
may also be understood as the law favoring certain speakers. The Supreme
Court in Reed commented on why speaker distinctions may be problematic
under the First Amendment and are often subject to strict scrutiny:
In any case, the fact that a distinction is speaker based does
not . . . automatically render the distinction content neutral.
Because [s]peech restrictions based on the identity of the speaker
are all too often simply a means to control content, we have
insisted that laws favoring some speakers over others demand
strict scrutiny when the legislature’s speaker preference reflects a
content preference. Thus, a law limiting the content of
newspapers, but only newspapers, could not evade strict scrutiny
simply because it could be characterized as speaker based.
survive strict scrutiny, as is required of content-based regulations of speech in
public fora, because it was not narrowly tailored to meet a compelling state
interest. 242 F. Supp. 2d at 1236-37, 1256-59.
The Court adopts the reasoning of Bischoff.
Bischoff identified additional constitutional infirmities in § 316.2045,
deeming the statute content-based and vague, insufficiently tailored to serve
the compelling interest of safety, overbroad, and an unconstitutional prior
restraint on speech. 242 F. Supp. 2d at 1250–59. At the preliminary injunction
stage, the Court relied on Bischoff and Chase to support its finding that Mr.
Vigue had a substantial likelihood of success on the merits of his claim that
§ 316.2045 is unconstitutional. (Doc. 32). There has been no material change to
the statute since Bischoff. Reed only strengthens Bischoff’s holding. Thus, the
Court adopts the reasoning in Bischoff regarding § 316.2045. Florida Statute
§ 316.2045 is facially unconstitutional.
Likewise, a content-based law that restricted the political speech
of all corporations would not become content neutral just because
it singled out corporations as a class of speakers. Characterizing a
distinction as speaker based is only the beginning—not the end—
of the inquiry.
Reed, 576 U.S. at 170 (internal citations and quotations omitted). Section
316.2045 reflects the Legislature’s preference for organizational and campaign
speakers over individual speakers. This is yet another reason the law is subject
to strict scrutiny.
The Constitutionality of § 337.406
Mr. Vigue contests the validity of § 337.406 on the grounds that it is
unconstitutionally overbroad, vague, imposes an improper prior restraint on
speech, and violates equal protection. (Doc. 59 at 19).
Section 337.406 has received some criticism in the courts, but it has not
garnered as much attention as § 316.2045. The court in Bischoff commented
that § 337.406 contained “opaque and undecipherable permit provisions,” which
have remained unchanged, but § 337.406 was not directly at issue in that case.
242 F. Supp. 2d at 1256.
In News & Sun-Sentinel Co. v. Cox, 702 F. Supp. 891 (S.D. Fla. 1988), a
court in the Southern District of Florida found a prior version of § 337.406
unconstitutional. There, a newspaper publisher sued the City of Fort
Lauderdale, the city commission, and the police chief for enforcing § 337.406,
which prohibited the commercial use, including the sale of newspapers, of statemaintained roads. Id. at 893–94. The Cox court found that the prior version of
§ 337.406 was a content-neutral regulation of speech in public fora that was not
narrowly tailored to serve a significant government interest and was therefore
unconstitutional. Id. at 900–03. At that time, § 337.406 targeted commercial
activity, whereas now, it prohibits using state rights-of-way of state
transportation facilities “in any manner that interferes with the safe and
efficient movement of people and property from place to place on the
transportation facility.” § 337.406(1); see Sentinel Commc’ns Co. v. Watts, 936
F.2d 1189, 1191 n.1, 1195 n.6 (11th Cir. 1991).
In 2006, although the new version of § 337.406 was in use at the time, the
Court in Chase found “no reason to depart from the thorough analys[is]
undertaken” in Cox and granted a preliminary injunction, finding a substantial
likelihood that § 337.406 was unconstitutional. Chase, 2006 WL 2620260, at *1.
The Court analyzes the new version of the statute here.
Section 337.406(1) imposes an unconstitutional prior restraint.
A prior restraint on speech exists “when the government can deny access
to a public forum before the expression occurs.” United States v. Frandsen, 212
F.3d 1231, 1236–37 (11th Cir. 2000). Prior restraints “are not per se
unconstitutional,” but there is a “strong presumption against their
constitutionality.” Id. at 1237. Attempts to subject the exercise of First
Amendment freedoms to the prior restraint of a license are unconstitutional
when they lack narrow, objective, and definite standards to guide the licensing
authority. Shuttlesworth v. Birmingham, 394 U.S. 147, 150–51 (1969). A
permissible prior restraint must include “adequate procedural safeguards to
avoid unconstitutional censorship.” Frandsen, 212 F.3d at 1239 n.7. Facially
valid prior restraints require: (1) the burden of going to court to suppress speech
and of proof once in court rests upon the government; (2) any restraint prior to
a judicial determination may only be for a specified brief period to preserve the
status quo; and (3) an avenue for prompt judicial review of the censor’s decision
must be available. Id. at 1238; Freedman v. Maryland, 380 U.S. 51, 58–59
Section 337.406(1) articulates a prior restraint on speech because anyone
who wishes to solicit charitable donations on state rights of way must first
obtain a permit:
Local government entities may issue permits of limited duration for
the temporary use of the right-of-way of a state transportation
facility for any of these prohibited uses [including solicitation for
charitable purposes] if it is determined that the use will not
interfere with the safe and efficient movement of traffic and the use
will cause no danger to the public. The permitting authority
granted in this subsection shall be exercised by the municipality
within incorporated municipalities and by the county outside an
The permitting scheme described in § 337.406(1) does not include
adequate procedural safeguards. It includes no explicit standards for issuance
other than general safety, no time limits, and no review process for denials.
Local governments seem to have unfettered discretion not only regarding who
receives a permit, but also regarding whether and how to institute a permitting
procedure in the first place. This is brought into sharp focus here because
neither the State, St. Johns County, nor Sheriff Shoar have ever created a
process by which a person can obtain a permit under § 337.406(1), and the
statute does not require them to do so. Thus, there is literally no way for Mr.
Vigue to comply with the permitting requirement, even if he wanted to.
Courts have routinely struck down permitting schemes with similar
deficiencies. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225–26 (1990) (stating
that “cases addressing prior restraints have identified two evils that will not be
tolerated,” including unbridled government discretion and lack of time
constraints); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1272 (11th
Cir. 2005) (finding a sign code’s permitting requirement to be “precisely the type
of prior restraint on speech that the First Amendment will not bear” when it
contained no time limit for decisions and vested officials with unbridled
discretion); Frandsen, 212 F.3d at 1240 (finding that a permit requirement to
hold meetings in public parks was an unconstitutional prior restraint because
it did not provide time constraints); Lady J. Lingerie, Inc. v. City of Jacksonville,
176 F.3d 1358, 1363 (11th Cir. 1999) (finding that a zoning board licensing
requirement for sexually oriented businesses was an unconstitutional prior
restraint because it vested too much discretion in the zoning board). The
unconstitutional prior restraint on speech.15
The permitting scheme in § 337.406 explicitly lists “the solicitation for
charitable purposes” as a prohibited use of the roadway for which one must
obtain a permit. For that reason, the permitting scheme appears to be contentbased. See Reed, 576 U.S. at 163 (“Government regulation of speech is content
The prohibition on charitable solicitation in Section 337.406(1) is
Beyond the unconstitutional permitting scheme, § 337.406(1) is written
in a somewhat confusing manner, so it is worth reiterating its provisions. First,
§ 337.406(1) bans certain conduct on rights-of-way of state transportation
facilities and their appendages:
Except when leased as provided in s. 337.25(5) or otherwise
authorized by the rules of the department, it is unlawful to make
any use of the right-of-way of any state transportation facility,
including appendages thereto, outside of an incorporated
municipality in any manner that interferes with the safe and
efficient movement of people and property from place to place on
the transportation facility.
§ 337.406(1). Next, it specifies the prohibition’s purpose:
Failure to prohibit the use of right-of-way in this manner will
endanger the health, safety, and general welfare of the public by
causing distractions to motorists, unsafe pedestrian movement
within travel lanes, sudden stoppage or slowdown of traffic, rapid
lane changing and other dangerous traffic movement, increased
vehicular accidents, and motorist injuries and fatalities.
based if a law applies to particular speech because of the topic discussed or the
idea of message expressed.”) However, even if the permitting scheme were
content-neutral, it could not pass constitutional muster. Though the Supreme
Court has “never required that a content-neutral permit scheme regulating
speech in a public forum adhere to the procedural requirements set forth in
Freedman,” still, “[w]here the licensing official enjoys unduly broad discretion
in determining whether to grant or deny a permit, there is a risk that he will
favor or disfavor speech based on its content.” Thomas v. Chicago Park Dist.,
534 U.S. 316, 322–23 (2002). Thus, even a content-neutral permitting scheme
must “contain adequate standards to guide the official’s decision and render it
subject to effective judicial review.” Id. The permitting scheme in § 337.406 does
not contain such standards.
Id. Then, it gives examples of “prohibited uses:”
Such prohibited uses include, but are not limited to, the free
distribution or sale, or display or solicitation for free distribution or
sale, of any merchandise, goods, property or services; the
solicitation for charitable purposes; the servicing or repairing of any
vehicle, except the rendering of emergency service; the storage of
vehicles being serviced or repaired on abutting property or
elsewhere; and the display of advertising of any sort, except that
any portion of a state transportation facility may be used for an art
festival, parade, fair, or other special event if permitted by the
appropriate local governmental entity.
Id. (emphasis added).
Finally, the law imposes the previously discussed permitting scheme. Id.
Section 337.406(1) appears to provide a content-neutral, outright
prohibition on activity that interferes with the flow of people and property,
followed by content-based list of prohibited uses and an impermissible permit
scheme. The statute’s imprecision led Judge Antoon to comment on its “opaque
and undecipherable permit provisions,”16 led the Cox court to find an earlier
In Bischoff, Judge Antoon pointed out ambiguity in the type of conduct
prohibited without a permit and troublesome cross-referencing between
§ 337.406 and § 316.2045(2):
But § 337.406(1) is unclear as to whether the term “these
prohibited uses” refers only to uses “for an art festival, parade, fair
or other special event.” May municipalities also permit other uses
prohibited by § 337.406(1), such as charitable solicitation that
interferes with traffic movement? The answer may be important
not only to someone seeking a permit for soliciting in a
municipality, but also to someone who simply wants to avoid using
a state road for a purpose specified in § 337.406—i.e., a person who
version of the statute unconstitutional, 702 F. Supp. at 900-03, and led the
Chase court to find the current version of the statute unconstitutional, 2006 WL
3826983, at *1–2. The Court concurs with those courts, and additionally, finds
that the current version of § 337.406(1) is overbroad as it pertains to charitable
Here, without the impermissible and unavailable permitting scheme, the
remainder of § 337.406(1) prohibits all “solicitation for charitable purposes” on
rights of way of state transportation facilities and appendages thereto. An
outright prohibition on charitable solicitation is overbroad. Even if the statute
is considered content-neutral, it must survive intermediate scrutiny—that is,
the regulation must be narrowly tailored to serve a significant government
interest and must leave open alternative channels of communication. See, e.g.,
McCullen v. Coakley, 573 U.S. 464, 477 (2014); see also United States v. Grace,
461 U.S. 171, 177 (1983). It cannot “burden substantially more speech than is
necessary to further the government’s legitimate interests.” McCullen, 573 U.S.
at 486 (internal quotation omitted). A narrowly tailored statute “targets and
has no permit but wants to avoid violating § 316.2045(2). The
statute provides no answer. This level of detail in the analysis is
necessary because the Florida Legislature chose to make the
criminality of a person’s conduct under § 316.2045(2) dependent on
the “purposes” set forth in § 337.406.
242 F. Supp. 2d at 1254–55.
eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Cox,
702 F. Supp. at 900 (quoting Frisby v. Schultz, 487 U.S. 474, 475 (1988)).
The Cox court found that § 337.406 was not narrowly tailored because the
statute banned “any commercial activity by anyone, at any time, at any place
on a state-maintained road.” 702 F. Supp. at 901. Thus, the court concluded, it
was not carefully drawn to meet the City’s interests, made no attempt to restrict
activity to certain times, failed to distinguish between children and adults who
may be more safety-conscious, and failed to take into account that traffic
hazards may vary. Id. Today, the same reasoning applies to the statute’s ban
on all charitable solicitation. The statute prohibits more than the exact source
of evil that it seeks to remedy—solicitation that poses a true traffic safety
In First Amendment cases, there exists a serious concern that overbroad
laws may lead to a chilling effect on protected expression. See Nat’l Endowment
for the Arts v. Finley, 524 U.S. 569, 582 (1998); Dombrowski v. Pfister, 380 U.S.
479, 487 (1965). Thus, courts invalidate statutes when “persons whose
expression is constitutionally protected may well refrain from exercising their
rights for fear of criminal sanctions provided by a statute susceptible of
application to protected expression.” Gooding v. Wilson, 405 U.S. 518, 521
(1972). When a statute implicates First Amendment rights, it must be written
clearly and narrowly drawn. Section 337.406(1)’s provisions concerning
charitable solicitation are not and are therefore unconstitutional.
First Amendment Freedom and Traffic Safety
The Supreme Court’s articulation of why public streets, sidewalks, and
parks are critical to First Amendment freedom resonates strongly in this case:
It is no accident that public streets and sidewalks have developed
as venues for the exchange of ideas. Even today, they remain one
of the few places where a speaker can be confident that he is not
simply preaching to the choir. With respect to other means of
communication, an individual confronted with an uncomfortable
message can always turn the page, change the channel, or leave
the Web site. Not so on public streets and sidewalks. There, a
listener often encounters speech he might otherwise tune out. In
light of the First Amendment’s purpose “to preserve an
uninhibited marketplace of ideas in which truth will ultimately
prevail,” this aspect of traditional public fora is a virtue, not a vice.
McCullen, 573 U.S. at 476 (internal citation omitted).
Mr. Vigue’s right to free speech is vital. But to be sure, the Court finding
§ 316.2045 and portions of § 337.406(1) unconstitutional does not give Mr.
Vigue and others carte blanche to solicit charity on roadways however they
wish. “It requires neither towering intellect nor an expensive ‘expert’ study to
conclude that mixing pedestrians and temporarily stopped motor vehicles in the
same space at the same time is dangerous.” Cox, 702 F. Supp. at 900 (quoting
Int’l Soc. For Krishna Consciousness of New Orleans, Inc. v. City of Baton
Rouge, 668 F. Supp. 527, 530 (M.D. La. 1987), aff’d, 876 F.2d 494 (5th Cir.
1989)). Thus, the Legislature may legislate on these topics so long as it strikes
the careful balance between upholding First Amendment rights and ensuring
traffic safety. Unfortunately, neither § 316.2045 nor § 337.406(1) meet this test.
It is essential that law enforcement is not left without recourse for traffic
safety problems posed by people blocking traffic in streets, asking for money or
otherwise. In Booher, Judge Hodges stated that “concerns about traffic safety
during the pendency of the injunction [were] adequately addressed by [other]
existing laws.” 2007 WL 9684182, at *4. Similarly, Mr. Vigue asserts that “there
are other laws in place that better address pedestrian and vehicular safety,”
such as § 316.130. (Doc. 59 at 16). Florida’s legitimate interest in road safety
“can be better served by measures less intrusive than a direct prohibition on
solicitation.” Schaumburg, 444 U.S. at 637.
Having found portions of both statutes to be unconstitutional, the Court
now turns to the question of whether those portions are severable from the rest
of the statute. Severability is a question of state law. Wollschlaeger v. Governor,
Fla., 848 F.3d 1293, 1317 (11th Cir. 2017). When, as here, there is no
severability clause, the “key determination is whether the overall legislative
intent is still accomplished without the invalid provisions.” State v. Catalano,
104 So. 2d 1069, 1080–81 (Fla. 2012) (refusing to sever prior version of
§ 316.2045(1)(a) when severance would expand statute’s reach beyond what the
legislature contemplated); Lawnwood Med. Ctr., Inc. v. Seeger, 990 So. 2d 503,
518 (Fla. 2008) (refusing to sever hospital governance law when act would not
be complete with invalid portions severed to accomplish what the legislature
In § 316.2045, the unconstitutional provision is the crux of the statute. If
§§ 316.2045(1)–(4) were to be severed from the small portion of the statute that
remains, § 316.2045(5), the law would fail to serve the legislative intent of
regulating traffic safety through prohibiting solicitation and establishing a
permit scheme. Thus, the Court cannot sever the unconstitutional provisions of
§ 316.2045 and salvage the remaining section.
The Florida Supreme Court in Catalano laid out the purpose of the
severability doctrine and the test for severability in Florida:
Severability is a judicially created doctrine which recognizes a
court's obligation to uphold the constitutionality of legislative
enactments where it is possible to remove the unconstitutional
portions. It is derived from the respect of the judiciary for the
separation of powers, and is designed to show great deference to
the legislative prerogative to enact laws. The portion of a statute
that is declared unconstitutional will be severed if: (1) the
unconstitutional provisions can be separated from the remaining
valid provisions, (2) the legislative purpose expressed in the valid
provisions can be accomplished independently of those which are
void, (3) the good and the bad features are not so inseparable in
substance that it can be said that the Legislature would have
passed the one without the other, and (4) an act complete in itself
remains after the invalid provisions are stricken.
Catalano, 104 So. 3d at 1080 (internal citations and quotations omitted).
On the other hand, the Court has found only the portions of
Section 337.406(1) that prohibit charitable solicitation to be unconstitutional.
The rest of § 337.406(1) is not at issue here; Mr. Vigue has mounted a facial
challenge only to the statute’s prohibition on charitable solicitation. The Court
does not reach the portions of §§ 337.406(1) that do not pertain to charitable
solicitation, or §§ 337.406(2)–(5). Thus, the portions of § 337.406(1) pertaining
to charitable solicitation are severed from the statute. The portions of
§ 337.406(1) unrelated to charitable solicitation and the entirety of
§§ 337.406(2)–(5) remain unaffected.
For a permanent injunction to be issued, Mr. Vigue must: (1) show actual
success on the merits of claims asserted in the complaint; (2) establish that
irreparable harm will result from failure to provide injunctive relief; (3)
establish that the balance of equities tips in his favor; and (4) demonstrate that
an injunction is in the public interest. KH Outdoor, LLC v. City of Trussville,
458 F.3d 1261, 1268 (11th Cir. 2006). Permanent injunction requirements are
the same as those for a preliminary injunction, except that Mr. Vigue must show
actual success on the merits as opposed to likelihood of success on the merits of
his claims. Id.
Mr. Vigue has succeeded in his claims that §§ 316.2045 and portions
of 337.406(1) are unconstitutional. “The loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976). Here, Mr. Vigue has suffered and will
continue to suffer denial of his First Amendment right to expression in the form
of charitable solicitation. Arrest and incarceration pursuant to §§ 316.2045(1)
and 316.2045(2), as well as warnings and threats of arrest pursuant to
§ 337.406, prohibit Mr. Vigue from engaging in protected speech. With these
statutes in effect and no available permitting scheme with procedural
safeguards in place, Sheriff Shoar retains unbridled discretion to enforce the
statutes that bar Mr. Vigue’s protected speech activity. “Because chilled speech
cannot be compensated by monetary damages, an ongoing violation of the First
Amendment constitutes irreparable injury.” Univ. Books & Videos, Inc. v.
Metro. Dade Cty., 33 F. Supp. 2d 1264, 1373 (S.D. Fla. 1999).
Injury to Mr. Vigue also outweighs any harm the injunction might cause
Sheriff Shoar. Even without §§ 316.2045 and 337.406, Sheriff Shoar is still free
to enforce all other state and local laws to maintain safe roadways throughout
the county. Sheriff Shoar has already altered enforcement of these statutes
through Policy 41.39, and makes no claim of increased difficulty maintaining
safe roadways as a result of the new policy. Courts regularly find that injury to
plaintiffs outweighs harm to defendants in First Amendment cases. See
Baumann v. City of Cumming, No. 2:07-CV-0095-WCO, 2007 WL 9710767, at
*7 (N.D. Ga. Nov. 2, 2007) (“[T]he temporary infringement of First Amendment
rights constitutes a serious and substantial injury, and the city has no
legitimate interest in enforcing an unconstitutional ordinance.”).
Finally, “[t]he public interest is served by the maintenance of First
Amendment freedoms and could not possibly be served by the enforcement of
an unconstitutional ordinance.” Howard v. City of Jacksonville, 109 F. Supp. 2d
1360, 1365 (M.D. Fla. 2000). While citizens certainly have an interest in
remaining safe, and Sheriff Shoar has an interest in ensuring traffic safety, the
“interest in remaining safe while walking or driving [is] served by other
statutes and codes available to law enforcement officers.” Chase, 2006 WL
2620260, at *3.
Mr. Vigue claims that Sheriff Shoar is liable for compensatory damages
for violation of Mr. Vigue’s constitutional rights, and that he should proceed to
trial on the issue of damages. (Doc. 59 at 24). Mr. Vigue relies primarily on
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299 (1986) to argue that
compensatory damages should be available.
For actions under § 1983, “the rules governing compensation for injuries
caused by the deprivation of constitutional rights should be tailored to the
interests protected by the particular right in question.” Carey v. Piphus, 435
U.S. 247, 259 (1978). In reviewing the law, the Court understands that nominal
damages are available in First Amendment cases. Pelphrey v. Cobb Cty., 547
F.3d 1263, 1282 (11th Cir. 2008) (“This Court has found that ‘nominal damages
are similarly appropriate in the context of a First Amendment violation.’”);
Familias Unidas v. Briscoe, 619 F.2d 391, 402 (5th Cir. 1980) (holding that
nominal damages are available for violations of the First Amendment); see also
Gonzalez v. Sch. Bd. of Okeechobee Cty., 250 F.R.D. 565, 570 (S.D. Fla. 2008)
(finding that nominal damages were available in a § 1983 action for violations
of the First Amendment).18 But the Court is uncertain regarding whether there
also exists a legal and factual basis for compensatory damages in this case.
Compare Carey, 435 U.S. at 264 (stating compensatory damages under § 1983
are available only when plaintiff shows actual injury); with Stachura, 477 U.S.
at 310-11 (“When a plaintiff seeks compensation for an injury that is likely to
have occurred but difficult to establish, some form of presumed damages may
possibly be appropriate.”); see also King v. Zamiara, 788 F.3d 207, 213 (6th Cir.
2015) (surveying cases where compensatory damages were permitted for
deprivation of constitutional rights and concluding that compensatory damages
were appropriate “for specific, actual injuries [plaintiff] suffered that cannot be
easily quantified”); Celli v. City of St. Augustine, 214 F. Supp. 2d 1255, 1262
(M.D. Fla. 2000) (allowing jury to place monetary value on intangible free
Fifth Circuit precedent prior to October 1, 1981 is binding on the
Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
speech rights to determine damages in § 1983 action). If Mr. Vigue wishes to
pursue more than nominal damages, the Court directs him to submit a proffer
of the legal and factual basis for compensatory damages.
In ruling in favor of Mr. Vigue on the constitutionality of §§ 337.2045 and
337.406, the Court is following precedent and upholding important First
Amendment and Equal Protection principles. Of course, as suggested by
Florida’s Attorney General in 2007, the Legislature is free to rewrite these
statutes to try to alleviate the constitutional infirmities. For now, Sheriff Shoar
has demonstrated through his Policy Directive 41.39 that he can abide by the
Court’s decision on an ongoing basis such that Mr. Vigue will be free to exercise
his constitutional right to solicit. However, the Court also addresses Mr. Vigue:
this decision is not a license to trespass on private property, interfere with
traffic, station himself where he obstructs traffic or creates a safety hazard to
himself or others. If he does so, there are other laws which can be brought to
bear. The Court is confident that both Sheriff Shoar and his deputies and Mr.
Vigue will exercise common sense and good judgment.
Accordingly, it is hereby
1. Plaintiff Peter Vigue’s Motion for Partial Summary Judgment (Doc.
59) is GRANTED for the reasons stated herein.
2. Defendant David B. Shoar’s Motion for Summary Judgment (Doc. 60)
is DENIED for the reasons stated herein.
3. Florida Statute § 316.2045 is found to be facially unconstitutional
under the First and Fourteenth Amendments. Declaratory Judgment
to that effect will be entered at the conclusion of the case.
4. The portions of Florida Statute § 337.406(1) pertaining to charitable
solicitation are found to be facially unconstitutional under the First
and Fourteenth Amendments. Declaratory Judgment to that effect
will be entered at the conclusion of the case.
5. Defendant David B. Shoar, in his official capacity as Sheriff of St.
Johns County, is hereby permanently ENJOINED from enforcing
Florida Statutes §§ 316.2045 and 337.406(1), the latter insofar as it
pertains to charitable solicitation. A final permanent injunction will
be entered at the conclusion of the case.
6. If he wishes to pursue compensatory damages, Mr. Vigue is directed to
submit a proffer of the legal and factual basis for a claim for damages
no later than November 19, 2020, and Sheriff Shoar is directed to
respond no later than December 21, 2020. The Court will then
determine how to proceed.
7. Any claim for attorneys fees and costs will await the conclusion of the
DONE AND ORDERED in Jacksonville, Florida the 12th day of
TIMOTHY J. CORRIGAN
United States District Judge
Counsel of record
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