FORT LAUDERDALE. Yesterday, U.S. District Court Judge Roy K. Altman issued a preliminary injunction enjoining the City of Fort Lauderdale from enforcing its two panhandling ordinances, finding that Plaintiffs Mark Messina and Bernard McDonald have shown that the laws are likely unconstitutional restrictions on free speech in violation of the First Amendment.
The lawsuit, brought by the Florida Justice Institute (FJI), in partnership with Fort Lauderdale lawyers Mara Shlackman and Frantz J. McLawrence, challenged a pair of the City of Fort Lauderdale’s anti-panhandling ordinances. One ordinance prohibits requesting donations in all public parks, parking lots, and transportation centers; and within 15 feet of any sidewalk café, ATM, or entrance or exit to a commercial or governmental building. The other ordinance prohibits asking for donations or offering items for sale to people in cars along certain roads, and prohibits this speech along all city roads if holding a sign. A violation of either law is punishable by up to 60 days in jail. In the last two years alone, over one hundred people have been arrested or cited for violating these ordinances—nearly all of them homeless people requesting donations.
Judge Altman found that both ordinances are likely unconstitutional because they are content-based restrictions of speech which treat speakers differently based on the content of their message. Judge Altman wrote:
“[P]eople are free to solicit pedestrians—in person and vocally—for advice, for directions, for their prayers, for a signature on a petition, to read a treatise by John Locke, to join a political party, to visit a restaurant, to come to church, to put on Tefillin, to shake a Lulav, to kiss an Etrog, to join a softball team, etc. As long as the speaker doesn’t say something to the effect of ‘I’m poor, please help’ or ‘Do you have some spare change?’ he may approach a stranger anywhere in the City and utter any other message.”
Judge Altman held that the laws discriminate on the basis of the content of one’s speech, in clear violation of the First Amendment and issued an order prohibiting the City from enforcing the laws or arresting people for panhandling until there is a final trial in the case.
The Plaintiffs are Mike Messina and Bernard McDonald, both of whom are life-long residents of Broward County who have been homeless at various points in their lives. They request donations from pedestrians and drivers to help with their survival, but they fear being arrested for doing so.
“Today’s decision from the federal court is a victory for the First Amendment. Homeless people have the same right as others to stand on public sidewalks and roadways and peacefully ask for help, just as a politician has to ask for our vote,” said Ray Taseff, lead attorney with the Florida Justice Institute. “This speech is protected by the First Amendment and the City cannot single out panhandling for differential treatment.”
“These laws are used to criminalize poverty and homelessness,” said Mara Shlackman. “This sends a clear message that the City of Fort Lauderdale should rethink its strategy of criminalization.”
This lawsuit is part of FJI’s effort to end the criminalization of poverty in the state of Florida. The attorneys have also filed a similar lawsuit against the City of Pompano Beach over a similar ordinance. In response, Pompano Beach repealed a portion of the ordinance and revised other portions. That case, McDonald v. City of Pompano Beach, Case No. 20-CV- 60297, is still pending against the revised ordinance.
This is not the first time that the City of Fort Lauderdale has been sued over the treatment of homeless people. In June 2017, ten homeless individuals sued the City after it seized and destroyed property from a homeless encampment in a downtown park. That case settled for roughly $82,000. In January 2015, the local activist group Fort Lauderdale Food Not Bombs—which regularly shared food with homeless people in a public park—sued the City over its onerous restrictions on food sharing, claiming the restrictions violated their First Amendment rights.
The current lawsuit also points out that, in August 2018, numerous advocacy organizations wrote to the City of Fort Lauderdale, notifying the City that its panhandling ordinances were unconstitutional under recent United States Supreme Court precedent, and urging the City to repeal them. The City did not respond to the letter.
The case is Messina v. City of Fort Lauderdale, Case No. 21-CV-60168 in the Southern District of Florida. For more information, contact Ray Taseff, rtaseff@floridajusticeinstitute.org, 786-342-6919.
