Florida City's Solicitation Ban Passes Court Muster
(CN) - A South Florida city may enforce an ordinance that prohibits people from soliciting donations in or near major public roads, a federal judge ruled.
The City of Pembroke Pines enacted its Right-of-Way Solicitors and Canvassers Ordinance in September 2012. The statute bars individuals and organizations from asking for donations from and offering services to drivers engaged in traffic on six major city roads, but exempts people who lawfully display signs along those roads.
Pembroke Pines, pop. 160,000, is in Broward County, 13 miles west of Fort Lauderdale.
According to the city engineer, the six roads on which hand-to-hand canvassing and soliciting are prohibited make up less than 10 percent of the city's 466 miles of public roadways.
After the ordinance took effect, The Cosac Foundation, a charitable organization also known as The Homeless Voice, challenged its constitutionality in a federal lawsuit.
The organization operates a vendor program to give job skills and meaningful work to homeless individuals, according to its complaint. And although its newspaper is free, vendors seek donations from the public on roads and sidewalks, which makes them subject to the solicitation ordinance.
It argued that the law was overbroad and prevented its vendors from distributing The Homeless Voice, a newspaper that seeks to educate people about homelessness and poverty, on major public roads. Because the statute impinges on its ability to distribute its newspaper, The Homeless Voice also claimed that the ordinance violated the First Amendment.
But U.S. District Judge Robin Rosenbaum ruled that the law was a reasonable restriction on speech and promoted a significant government interest.
The distribution of The Homeless Voice's newspaper is expressive activity protected by the First Amendment, but the ordinance is content neutral and allows speech that does not involve hand-to-hand distribution or receipt of things and services, according to the 39-page ruling.
The Homeless Voice may still convey its message on the streets through alternative means of distribution, the order states.
The organization also failed to prove that the city enacted the ordinance to suppress advocacy for homeless individuals and keep homeless people off the public streets, according to the order.
Rosenbaum agreed that the city had a constitutionally significant interest in enacting the ordinance to provide safe roadways and free flow of traffic.
The city was entitled to conclude that prohibiting solicitation on its busiest streets would improve safety and traffic flow, according to the ruling.
What's more, the ordinance, which regulates only canvassing and soliciting on less than 10 percent of the city's public roads, is narrowly tailored to serve the city's interests in traffic control and citizen safety.
The Homeless Voice may still distribute its newspaper on other roads and sidewalks, by going door-to-door, and via mail and email, the order adds.
Rosenbaum refused to strike two expert affidavits the city used to justify the enactment of its ordinance. Both the city engineer and a police captain who led investigations and studies into right-of-way canvassing and soliciting had personal knowledge of the facts to which they testified, the judge concluded.
As to the plaintiff's vagueness challenge, Rosenbaum ruled that the ordinance lets citizens know what activities constitute violations and contains clear guidelines against arbitrary or discriminatory enforcement.
The court dismissed the claims against Police Chief Dan Giustino as redundant and improper, noting that a suit against Giustino in his official capacity was just another way of suing the city.
The Homeless Voice may still pursue a claim that the city's code of ordinances contains an unconstitutional permitting scheme for charitable solicitations, according to the ruling.
Pembroke Pines sought leave to file a motion for summary judgment on the remaining claim by Oct. 18.
"The decision the judge made allows the city to remove us from major public roads, in fact the most public place there is the major streets," Homeless Voice Director Sean Cononie told Courthouse News. "We are now very limited to where we can go in that city. The streets we are left with we cannot move the same amount of press as before. We are cut out of about 90 percent per corner of what we used to circulate."
Cononie said the organization will for sure cut the number of jobs it can give to the homeless.
The Homeless Voice will most likely appeal the decision, according to its director. Representatives for the city did not return requests for comment.