January 31, 2024
MIAMI— U.S. District Court Judge Roy K. Altman released his post-trial findings, concluding that the one Fort Lauderdale panhandling ordinance remaining in the case was unconstitutional, and enjoined the City from enforcing it. The ordinance prohibited pedestrians from exchanging anything by hand with motorists and aimed at stopping people from requesting donations along roadways. Judge Altman concluded that the ordinance violated the First Amendment because the City had no evidence showing that its traffic safety problems were related to solicitations of donations.
“We’re glad that, after three years of litigation, the last of Fort Lauderdale’s ordinances criminalizing requests for donations has been eliminated,” said Ray Taseff, lead attorney with the Florida Justice Institute. FJI attorneys co-counseled the case with Fort Lauderdale lawyer Mara Shlackman.
Filed in January 2021, the case originally attacked two ordinances: one that prohibited panhandling in certain locations, and a second one that prohibited certain activities along designated roads, including holding signs, seeking donations from motorists, offering items for sale to motorists, and exchanging items by hand with motorists. FJI requested a preliminary injunction against those, and, after a hearing, the Court granted the motion, finding plaintiffs Bernard McDonald and Mark Messina were likely to succeed on the merits of their First Amendment claim, and enjoined enforcement of the ordinance.
After discovery, the parties moved for summary judgment, and the plaintiffs asked the Court to make permanent its findings made in the preliminary injunction order. The Court granted the majority of the plaintiffs’ requests, and declared unconstitutional a) the anti-panhandling ordinance, and b) the portions of the second ordinance prohibiting requesting donations, sales, or holding a sign along certain roadways. The Court permanently enjoined them. Regarding the remaining portion of the second ordinance—the hand-to-hand transmission clause—the Court found there was a factual dispute as to whether that ordinance was sufficiently narrowly tailored, and set the matter for trial.
Just before trial, the City repealed all of the enjoined ordinances and expanded the hand-to-hand transmission clause. Although the City sought to dissolve the preliminary injunction on the hand-to-hand transmission clause, the Court denied that relief and left the injunction in place.
A one-day trial was held in October 2022. Unfortunately, one of the original plaintiffs, Mark Messina, unexpectedly passed away before the trial. Therefore, the plaintiffs’ main witness was the remaining plaintiff, Bernard McDonald, who testified about how he needed to request donations for his survival and how he had been harassed by City police officers for doing so.
“We hope this sends a message to other cities and counties that they cannot address homelessness by criminalizing the actions poor people must do to survive,” said Dante Trevisani, Litigation Director at FJI who also worked on the case.
This is not the first time that the City of Fort Lauderdale has been sued over the treatment of individuals experiencing homelessness. 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 Eleventh Circuit Court of Appeals eventually agreed with their claims.
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.
This lawsuit is part of FJI’s effort to end the criminalization of poverty in the state of Florida. The attorneys also filed a similar lawsuit against the City of Pompano Beach over a similar ordinance. FJI has also brought similar lawsuits against other municipal governments: the Cities of Hollywood, Miami, and West Palm Beach and Palm Beach and Columbia Counties.
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.