“Spare Change?” Florida Appellate Court Vacates Homeless Man’s Conviction After Finding Miami’s Panhandling Law to be an Unconstitutional Restriction on the Right to Free Speech

by: Misael Chacon

Homelessness affects us as a society.  At the peak of the great recession in 2007, the U.S. Department of Housing and Urban Development reported roughly 671,000 people were homeless on a given night in January.[1]  According to the report over half of all homeless people were found in just a handful of states, with Florida being one of them.[2]  As Florida’s economy began to recover, developers, businesses, and residents pressured cities like Miami to clear up the visible poverty. Concerned with economic vitality and tourism, the city legislatures responded with crude laws that criminalized panhandling—the act of begging or soliciting money—in designated areas, such as its downtown and financial districts.[3]

It did not take long for the new panhandling laws to stir up controversy.  In west Florida, the City of Sarasota agreed to cease enforcement of its own panhandling law after some police officers were exposed for using the law to go “bum hunting.”[4]  In Tampa, panhandling laws were struck down following a legal challenge.[5]   Likewise, in 2016, the City of Miami made the news when a state appellate court struck down the city’s panhandling ordinance after determining that the law was an unconstitutional prohibition of free speech.[6]

The events leading up to the successful constitutional challenge began when Andrew Toombs, a homeless man, was arrested for holding a sign that solicited funds in the downtown area: a violation of the ordinance.[7]  While at the time of his conviction it was well established that the constitutional analysis of legislation that restricts content-based speech requires an application of strict scrutiny review,[8] the law was unclear as to whether restrictions on speech found on signs were content-based.[9]  To overcome strict scrutiny review, the enacting body must show that the legislation supports a compelling government interest.[10]  Had Toombs challenged the ordinance at the time of his conviction, a court would have reviewed it under a less demanding standard of review: severely weakening the merits of his argument.  Fortunately, six days after Toombs’ conviction, the Supreme Court in Reed v. Town of Gilbert, held that a legislative restriction of speech on signs is content-based, and thus, courts must review its constitutionality under strict scrutiny.[11]  The decision had a substantial impact on how courts treated constitutional challenges to panhandling laws; indeed, they were consistently struck down as unconstitutional content-based speech restrictions.[12]  Luckily, Mr. Toombs reserved his right to appeal and he challenged the law under the precedent established in Reed.

Following the footprint of other courts in the country, the appellate court first determined that Miami’s ordinance restricted speech based on its content because it selectively prohibited signs designed to solicit funds, but not signs with messages such as “Jesus Loves You” or “Not My President.”[13]  The court then applied strict scrutiny review, as mandated by Reed, and found that the city’s reasoning for the ordinance, promoting tourism and business growth, was not a compelling government interest.[14]  Thus, the court held the ordinance unconstitutional and vacated Mr. Toombs’ conviction. In response to this outcome, Miami’s downtown “residents and business owners call[ed] on the city to uphold” the law.[15]  Nevertheless, the City of Miami accepted the court’s decision and chose not to appeal.

Advocates considered this a victory in the fight to protect the rights of the homeless.  As ACLU director Sara Latshaw said: “[a] person doesn’t lose their right to free speech or due process simply because they need help getting by.”[16]  It is critical that the public continues to scrutinize the way local and state governments treat our homeless, vulnerable members of society.[17]  Hopefully judicial decisions like that in Toombs will prompt governments to focus on implementing legislation designed to assist the homeless rather than to criminalize their exercise of free speech.

[1] Dennis P. Culhane et al, The 2007 Annual Homeless Assessment Report to Congress, The U.S. Department of Housing and Urban Development, July 2008, at 9.

[2] Id. at C-1.

[3] See e.g., Sarasota, Fla. Ordinance § 34-41 (2017); City of Miami, Fla. Ordinance § 37-8 (2017); City of Lake Worth, Fla. Ordinance § 15-91 (2017); City of St. Petersburg, Fla. Ordinance § 20-79 (2017).

[4] American Civil Liberties Union of Florida, City ordinances criminalizing sleeping in public and panhandling used to target homeless individuals violate First and Eighth Amendment; Six plaintiffs, including a recent YouTube sensation, claim their rights have been violated by the police enforcing these laws, ACLU. October 1, 2015.

[5] Richard Danielson, Tampa panhandling ban in downtown and Ybor City ruled unconstitutional, Tampa Bay Times, August 8, 2016.

[6] David Smiley, Miami’s downtown panhandling ban is unconstitutional, court says, Miami Herald, August 18, 2017.

[7] See Brief for Appellant at 2, Toombs v. State of Florida, No. 2015-00220-AC-01 (Fla. 11th Cir. Ct. Aug. 21, 2017).

[8] See McCullen v. Coakley, 134 S.Ct. 2518 (2014).

[9] See e.g., Otterson v. City of Springfield, 768 F.3d 713 (7th Cir. 2014) (discussing circuit split as to whether panhandling laws were content-based restrictions) rev’d by Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015). There are generally three levels of review a court will use when analyzing a challenged law: rational basis, intermediate scrutiny and strict scrutiny. Strict scrutiny is the most demanding standard of review and it requires that the government show that it has a compelling interest in prohibiting or restricting the conduct, and the law is narrowly tailored to meet that interest.

[10] See e.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813—15 (2000) (providing a list of instances where the court has found the government had a compelling interest in regulating certain forms of speech; e.g. obscene speech, unwanted advertisements, etc.).

[11] See Reed v. Town of Gilbert, 135 S.Ct. 2218, 2227 (2015).

[12] See e.g., Norton v. City of Springfield, 806 F.3d 411 (7th Cir. 2015); McLaughlin v. City of Lowell, 140 F. Supp. 3d 177 (D. Mass. 2015); Homeless Helping Homeless, Inc. v. City of Tampa, No. 8:15-cv-1219-T-23AAS, 2016 U.S. Dist. LEXIS 103204 (M.D. Fla. Aug. 5, 2016).

[13] See Toombs, No. 2015-00220-AC-01, slip op. at 4.

[14] Id. at 5.

[15] David Smiley, Miami city attorney doesn’t plan to appeal ruling that overturned panhandling ban, Miami Herald, August 25, 2017.

[16] ACLU Files Lawsuit Challenging Pensacola Panhandling Ordinance, American Civil Liberties Union, May 17, 2017. https://www.aclufl.org/en/press-releases/aclu-files-lawsuit-challenging-pensacola-panhandling-ordinance.

[17]Megan Henry et al, The 2016 Annual Homeless Assessment Report (AHAR) to Congress, The U.S. Department of Housing and Urban Development, November, 2016, at 8.

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