Homeless Helping Homeless. Inc. v. City of Tampa, Florida
Filing
71
ORDER granting 47 --motion for judgment; denying as moot 48 --motion for preliminary injunction; directing the clerk to ENTER JUDGMENT for Homeless Helping Homeless and against the City, to TERMINATE any pending motion, and to CLOSE the case. Signed by Judge Steven D. Merryday on 8/5/2016. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HOMELESS HELPING HOMELESS,
INC.,
Plaintiff,
v.
CASE NO. 8:15-cv-1219-T-23AAS
CITY OF TAMPA, FLORIDA,
Defendant.
____________________________________/
ORDER
Challenging an ordinance that bans in parts of Tampa, Florida, the
solicitation of “donations or payment,” Homeless Helping Homeless, Inc., sues
(Doc. 42) for an injunction against the City of Tampa’s enforcing the ordinance and
for a declaration that the ordinance unconstitutionally infringes the right of free
speech protected both by the First Amendment to the United States Constitution and
by Article I, Section 4, of the Florida Constitution. Under Rule 12(c), Federal Rules
of Civil Procedure, Homeless Helping Homeless moves (Doc. 47) for a judgment on
the pleadings.
Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), an opinion accompanied by
three distinct concurring opinions joined by a total of seven justices and an opinion
adjudicating a sign-ordinance dispute, appears to govern this action. In other words,
an opinion that resolves a dispute about parishioners temporarily planting some
small signs directing people to a church service is written in such sweeping terms that
the opinion appears to govern a dispute about an ordinance that regulates face-to-face
demands for money from casual passers-by.
This action illustrates (as Reed illustrates) the frailties of governing discrete
local issues, which are otherwise decided by local officials subject to periodic
election, by force of intermittently issued decrees, which are conveyed as
constitutional directives; which are issued by a majority (or, sometimes, only a
plurality) of nine lawyers serving during “good behavior”; and which are uttered in
the course of resolving a different dispute in another locality. Nonetheless, this order
dutifully applies Reed and resolves the present dispute against the City and in favor of
Homeless Helping Homeless. Without Reed, which governs for the moment (despite
prominently featuring the badges of a transient reign), I would follow Judge
Easterbrook in Norton v. City of Springfield, 768 F. 3d 713 (7th Cir. 2014), and similar
decisions, and I would uphold the City’s ordinance, which results from a constructive
and demonstrably benign legislative attempt to manage fairly and humanely a
tangible and persistent problem in a manner narrowly and artfully tailored to fit the
compelling facts in the affected community.
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BACKGROUND
1. Homeless Helping Homeless
Homeless Helping Homeless, a charity based in Tampa, offers emergency
shelter to the homeless. (Doc. 42 ¶ 14) According to the allegations in the amended
complaint, Homeless Helping Homeless quarters approximately seventy persons
every night, feeds approximately three thousand persons every month, distributes
hygiene kits, and assists persons “in obtaining social services, educational assistance,
and permanent employment.” (Doc. 42 ¶ 16) Homeless Helping Homeless’s mission
“is to break societal stereotypes by giving homeless men and women the opportunity
to better their own lives thorough service.” (Doc. 42 ¶ 14)
To “carry out its operations and fulfill its mission,” Homeless Helping
Homeless relies on staff and volunteers to pursue private money. (Doc. 42 ¶ 17)
From 2011 to 2013, Homeless Helping Homeless’s money-raising focused on
downtown Tampa and Ybor City1 because each neighborhood offers both “a broad
audience” and “wide sidewalk space to solicit safely without causing disruptions.”
(Doc. 42 ¶ 32) In 2013, as a result of soliciting in downtown Tampa and Ybor City,
Homeless Helping Homeless raised more than $26,000. (Doc. 42 ¶ 32)
1
Ybor City, a historic district in Tampa, adjoins downtown Tampa to the east-northeast.
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2. Section 14-46 of the Tampa Municipal Code
Beginning in May 2013, the Tampa City Council held meetings about public
solicitation for money. (Doc. 56 at 9) At one meeting, the president of a college in
Tampa stated that the problem of “[v]agrancy and panhandling is more than an
inconvenience to our 8,000 students and 400 employees. It is [a] distraction to our
learning process and our core operations.” (Doc. 45-10 at 3; Doc. 56 at 9) The
owner of a business in Tampa stated that “there are some things that I believe
we could [do] to support a more usable environment for all community members.
One of those could be the discussion of a strict panhandling exclusion zone in Ybor
City and downtown.” (Doc. 45-10 at 5; Doc. 56 at 9–10) Others agreed. (Doc. 56
at 8–10) From May to July 2013, the Tampa City Council discussed enacting an
ordinance to create zones, “particularly in tourist areas,” in which a person “could
be free from all types of [oral] unsought solicitation.” (Doc. 56 at 10)
In July 2013, the Tampa City Council enacted Ordinance 2013-95, which
amends Section 14-46 of the Tampa Municipal Code. Ordinance 2013-95, among
other changes to Section 14-46, adds Section 14-46(b), which in downtown Tampa
and Ybor City, among some other specified locations, bans the solicitation of
“donations or payment.” Section 14-46(b) contains a limited exception permitting
“solicitation that only involves holding a sign.” Also, Section 14-46(d) exempts from
Section 14-46 “business operations” conducted in “an enclosed building” and
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“persons operating under franchises, concessions, or pursuant to temporary license
agreements or concessions for special events.” A violation of Section 14-46(b)
subjects a person to a fine or imprisonment.
After the enactment of Ordinance 2013-95, Section 14-46 states:
(a) It shall be unlawful for any person in the City of Tampa to solicit
donations or payment, or to exhibit oneself for such purpose, by:
(1) Any act or language constituting an express or implied
threat of injury to any person or of damage to or loss of any
property owned by or in lawful possession of the solicited
person;
(2) Endeavoring to maintain contact with the solicited person
and continuing to verbally demand, ask or beg for, or to solicit,
donations or payment from any person after the solicited person
has made a negative response to an initial demand or
solicitation; or
(3) Any act intended to impede the passage or free movement
of the solicited person. Passage or free movement applies to
persons on foot or bicycles, in wheelchairs or operating motor
vehicles or persons attempting to enter or exit motor vehicles.
(b) It shall be unlawful in the City of Tampa for any person to solicit
donations or payment when either the solicitor or the person being
solicited is located in, on, or at any of the following locations or
premises thereof:
(1) Downtown/Ybor Area Prohibited Zone;
(2) Bus, trolley stop, or transit stop;
(3) Sidewalk cafe; or
(4) Area within fifteen (15) feet (in any direction) of an
automatic teller machine or entrance to a financial institution.
This section does not apply to solicitation that only involves holding a
sign.
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(c) The following words and phrases, when used in this section, shall
have the following meanings:
(1) Solicit means attempts in person to obtain charitable
contributions, or attempts to sell any good or service, for the
benefit of the solicitor or on behalf of an individual or
organization.
(2) “Downtown/Ybor Area Prohibited Zone” means that land area
bounded on the north by West Palm Avenue (to the northern
edge of pavement), bounded on the west by North Boulevard
(to the western edge of pavement) until North Boulevard
crosses the Hillsborough River, then by the Hillsborough River
(to the water’s edge), bounded on the south by Garrison
Channel (to the water’s edge), and bounded by the east by Ybor
Channel (to the water’s edge) as far north as E. Harbor Street
(the northern edge of pavement) then west until the eastern
edge of pavement of N. 14th Street, then north until the
southern edge of pavement of Adamo Dr., then east until the
eastern edge of 26th Street bounded on the east by 26th Street
(to the eastern edge of pavement) . . . .
(d) This section shall not apply to persons operating under franchises,
concessions, or pursuant to temporary license agreements or
concessions for special events, or business operations conducted
entirely within an enclosed building or in a permanent structure for
which a building permit is required, or operating on private property.
(e) Violations of this section shall be punishable as provided in Tampa
Code section 1-6.
(Doc. 45-1 at 4–5) (emphasis in original) This action challenges only Section
14-46(b) and not Section 14-46(a), which remains mostly unchanged by Ordinance
2013-95. (See Doc. 42 ¶¶ 39–49)
In the preamble to Ordinance 2013-95 and in the City’s response to the motion
for a judgment on the pleadings, the City justifies Section 14-46(b) both as a means to
promote downtown Tampa and Ybor City “as tourist destinations and economic
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engines for the City” and as a means to protect the City’s “citizens and visitors in
areas where they may be or perceive themselves to be vulnerable [or] unable to
leave.” (See Doc. 45-6 at 7–8; Doc. 56 at 8)
3. This Action
Suing for injunctive and declaratory relief,2 Homeless Helping Homeless
alleges that, because of Section 14-46(b)’s ban against soliciting for money in
downtown Tampa and Ybor City, Homeless Helping Homeless’s staff and volunteers
no longer solicit money in those areas. (Doc. 42 ¶ 35) According to the amended
complaint, Homeless Helping Homeless “has lost tens of thousands of dollars” and
“has been forced” to reduce service and to abandon plans for additional service.
(Doc. 42 ¶¶ 35, 36) Moving for a judgment on the pleadings, Homeless Helping
Homeless argues that Section 14-46(b) is a content-based regulation of speech that
cannot withstand strict scrutiny under the First Amendment. (Doc. 47 at 1) In
response, the City argues that Section 14-46(b) “is not facially content based” and is
not subject to strict scrutiny. (Doc. 56 at 1, 3)
2
Homeless Helping Homeless sues for injunctive and declaratory relief under 42 U.S.C.
§ 1983 (Count I) and for a declaratory judgment under 28 U.S.C. § 2201 and under Section 86.021,
Florida Statutes (Count II).
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DISCUSSION
1. Rule 12(c)
Rule 12(c) states, “After the pleadings are closed — but early enough not to
delay trial — a party may move for judgment on the pleadings.” Rule 12(c) permits a
judgment on the pleadings if the moving party demonstrates that “no issues of
material fact exist” and that “the moving party is entitled to judgment as a matter of
law based on the substance of the pleadings and any judicially noticed facts.”
Interline Brands, Inc. v. Chartis Specialty Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014)
(quoting Cunningham v. Dist. Attorney’s Office for Escambia Cty., 592 F.3d 1237, 1255
(11th Cir. 2010)).
2. First Amendment Analysis
A. Soliciting money is protected by the First Amendment.
The First Amendment states, “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.”3 Soliciting “donations
or payment” is a form of speech protected by the First Amendment. See Vill. of
Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 632 (1980) (“[C]haritable
3
Article I, Section 4, of the Florida Constitution states, “No law shall be passed to restrain
or abridge the liberty of speech or of the press.” “The scope of the protection accorded to freedom of
expression in Florida under article I, section 4 is the same as is required under the First
Amendment.” Dep’t of Educ. v. Lewis, 416 So. 2d 455, 461 (Fla. 1982).
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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.”). Through the due process clause of the Fourteenth
Amendment, the First Amendment applies to a municipal government such as the
City. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1268 (11th Cir. 2004).
B. Section 14-46(b) regulates speech in a traditional public forum.
Section 14-46(b) regulates soliciting money in areas, including downtown
Tampa and Ybor City, that contain traditional public forums such as a public street,
a public sidewalk, or a public park. McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014).
Because of the historic role as a venue open to the public for discussion and debate, a
traditional public forum receives special protection under the First Amendment.
McCullen, 134 S. Ct. at 2529.
In a traditional public forum, a regulation that impedes speech based on the
content of the speech must satisfy strict scrutiny, which means that the regulation is
constitutional only if the regulation employs the least restrictive means of advancing
a compelling governmental interest. McCullen, 134 S. Ct. at 2530 (citing United States
v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813 (2000)). A content-based regulation
of speech is “presumptively unconstitutional.” Reed, 135 S. Ct. at 2226. In contrast,
a regulation imposing only a reasonable and content-neutral restriction on the time,
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place, and manner of speech must withstand only intermediate scrutiny, which
permits a regulation both narrowly tailored to serve a significant governmental
interest and “leav[ing] open ample alternative channels for communication of the
information.” McCullen, 134 S. Ct. at 2529–30.
C. Section 14-46(b) is a content-based regulation of speech.
Resolving a First Amendment challenge to a town’s restricting the
display of outdoor signs, Reed v. Town of Gilbert holds that a regulation of speech is
content-based if the regulation applies to speech “because of the topic discussed or
the idea or message expressed.”4 135 S. Ct. at 2227. Under the ordinance challenged
in Reed, a less restrictive set of rules applied to a sign conveying a message “designed
to influence the outcome of an election” than applied to a sign conveying the location
and time of a church service. 135 S. Ct. at 2224–25. Reed holds that the town’s code
was content-based because the application of rules to a sign depended “entirely on
the communicative content of the sign.” 135 S. Ct. at 2227, 2230.
Whether Section 14-46(b) applies to speech depends entirely on the expressed
message (i.e., a solicitation for “donations or payment”). Section 14-46(b) imposes
no penalty if a speaker in a public park in downtown Tampa or on a sidewalk in
Ybor City asks a passer-by about a political issue or offers a passer-by a brochure
4
Also, Reed holds that a regulation of speech “targeted at specific subject matter is
content-based even if it does not discriminate among viewpoints within that subject matter.”
135 S. Ct. at 2230.
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about a church or about a show at a carnival. If a speaker asks a passer-by to sign a
petition, Section 14-46(b) imposes no penalty. But, if a speaker asks a passer-by for
“donations or payment,” Section 14-46(b) criminally penalizes the speaker.5 Further,
a regulation of speech is content-based if the regulation requires “enforcement
authorities to examine the content of the message that is conveyed to determine
whether a violation has occurred.” McCullen, 134 S. Ct. at 2531. Section 14-46(b)
punishes speech based not at all on the place, and manner of the speech but based
decidedly and exclusively on the content of the speech, a fact that subjects
Section 14-46(b) to strict scrutiny.6
In the City’s response to the motion for a judgment on the pleadings, the City
states that the Tampa City Council’s meetings about Section 14-46(b) were “replete
with concern about the plight of the homeless and how to assist them” and lacked
“discussion on keeping [the homeless] out of sight or banishing them.” (Doc. 56
at 10) Also, the City states that a representative of an organization benefitting the
5
Although the City describes Section 14-46(b) as a regulation of oral solicitation,
Section 14-46(b) applies also to unspoken solicitation. Section 14-46(c) defines a solicitation as an
“attempt[] . . . to obtain charitable contributions.” Section 14-46(b) exempts a solicitation that “only
involves holding a sign,” but the exemption fails to apply to an unspoken solicitation that does not
“involve[] holding a sign.” Thus, if a panhandler on a public sidewalk in Ybor City extends his hand
to a passer-by and intends the gesture as an “attempt[] . . . to obtain charitable contributions,”
Section 14-46(b) imposes a penalty.
6
Other courts applying Reed have held that bans on solicitation are content-based regulations
of speech subject to strict scrutiny. See Norton v. City of Springfield, Ill., 806 F.3d 411, 411–13 (7th Cir.
2015) (Easterbrook, J.); Thayer v. City of Worcester, 144 F. Supp. 3d 218, 232–34 (D. Mass. 2015)
(Hillman, J.); McLaughlin v. City of Lowell, 140 F. Supp. 3d 177, 185–87 (D. Mass. 2015) (Woodlock,
J.); Browne v. City of Grand Junction, 136 F. Supp. 3d 1276, 1288–91 (D. Colo. 2015) (Arguello, J.).
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homeless participated in the meetings about Section 14-46(b). (Doc. 56 at 10)
However, the Tampa City Council’s solicitude toward the interests of the homeless
and the City Council’s amiable reception of advocates for the homeless are,
especially after Reed, unresponsive to a constitutional attack on Section 14-46(b) as
impermissibly content-based. To the extent that the City argues that Section 14-46(b)
is content-neutral because the City actively accommodates the homeless, the
argument fails.
Before Reed, some circuit courts held that, even if a regulation “facially
differentiates between types of speech,” the regulation was content-neutral if the
regulation was “justified without reference to the content of regulated speech.”
Brown v. Town of Cary, 706 F.3d 294, 301–02 (4th Cir. 2013) (Diaz, J.). In contrast,
other circuit courts (including the Eleventh Circuit) held that the inquiry into whether
a regulation of speech was content-based focused on the regulation’s “own terms”
rather than the regulation’s rationale. Solantic, LLC v. City of Neptune Beach, 410 F.3d
1250, 1259 n.8 (11th Cir. 2005); accord Neighborhood Enterprises, Inc. v. City of St. Louis,
644 F.3d 728, 737 (8th Cir. 2011) (Smith, J.).
Reed rejects the argument that a “regulation is content neutral — even if it
expressly draws distinctions based on . . . communicative content — if those
distinctions can be justified without reference to the content of the regulated speech.”
135 S. Ct. at 2228 (internal quotation marks omitted). Instead, Reed holds that a
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facially content-based regulation is subject to strict scrutiny “regardless of the
government’s benign motive, content-neutral justification, or lack of animus toward
the ideas contained in the regulated speech.” 135 S. Ct. at 2228 (internal quotation
marks omitted). Thus, under Reed, the City’s otherwise benevolence toward the
homeless is immaterial in determining whether Section 14-46(b) imposes an
impermissibly content-based infringement of the right to free speech. See 135 S. Ct.
at 2228.
D. Section 14-46(b) fails strict scrutiny.
Because Section 14-46(b) imposes in a traditional public forum a content-based
regulation of speech, Section 14-46(b) is presumptively unconstitutional. See Reed,
135 S. Ct. at 2226. To withstand strict scrutiny, the City must demonstrate that
Section 14-46(b) constitutes the least restrictive means of advancing a compelling
governmental interest. See McCullen, 134 S. Ct. at 2530. However, in the answer to
the amended complaint, the City admits that no compelling governmental interest
supports Section 14-46(b). (Doc. 42 ¶ 42; Doc. 45 ¶ 42) And — with admirable
candor — the City forbears the assertion that Section 14-46(b) is the least restrictive
means of advancing any governmental interest.7
7
Arguing for denial of the motion for a judgment on the pleadings, the City cites United
States v. Kokinda, 497 U.S. 720 (1990), and Heffron v. International Society for Krishna Consciousness, Inc.,
452 U.S. 640 (1981). (Doc. 56 at 3–7) Although upholding a regulation infringing the right to solicit
money, Kokinda examines the regulation “only for reasonableness” because the regulation applied in
a zone that was “not expressly dedicated . . . to any expressive activity.” 497 U.S. at 727, 730. And,
unlike Section 14-46(b), the challenged regulation in Heffron neither applied in a traditional public
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CONCLUSION
Accordingly, Homeless Helping Homeless’s motion (Doc. 47) for a judgment
on the pleadings is GRANTED. Homeless Helping Homeless’s motion (Doc. 48) for
a preliminary injunction is DENIED AS MOOT. The clerk is directed to enter a
judgment for Homeless Helping Homeless and against the City (1) DECLARING
that Section 14-46(b) unconstitutionally infringes the right of free speech protected by
the First Amendment to the United States Constitution and by Article I, Section 4, of
the Florida Constitution and (2) PERMANENTLY ENJOINING the City from
enforcing Section 14-46(b). Also, the clerk is directed to terminate any pending
motion and to close the case.
ORDERED in Tampa, Florida, on August 5, 2016.
forum nor directly targeted solicitation of “donations or payment.” In Heffron, the challenged
regulation applied in a limited public forum — a state fair that required an attendee to pay a fee for
admission — and provided only that a person selling merchandise must sell the merchandise from “a
duly-licensed location” at the fair. 452 U.S. at 643, 655.
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