First Amendment invalidates anti-solicitation ordinance in tourist district

FF Cosmetics FL Inc. v. City of Miami Beach, No..
14-cv-22072, 2015 WL 5145548 (S.D. Fla. Aug. 31, 2015)
 
Plaintiffs run stores in Miami Beach, selling cosmetics,
skin care, and beauty products on Lincoln Road, in the City’s historic
district. Lincoln Road is closed to cars and has other restrictions;
pedestrians roam freely and “[c]hairs and tables belonging to sidewalk cafes
and restaurants sprawl out from the buildings’ facades or take up space in the
middle of the road. It is a popular tourist destination, teeming with visitors
daily.”  Plaintiffs’ business model
depends on soliciting visitors, especially tourists, using “greeters” who stand
in front of their stores, calling out to passersby: “Hi, how are you?” and “What
do you use for your eyes?” and “would you like to have a free demonstration?” Greeters
also distribute handbills.
 
Indeed, many businesses in the historic district,
particularly restaurants and cosmetics stores, “employ people to stand outside
and cat-call the walking public, who in turn complain to the City.”  People feel annoyed, harassed, and
embarrassed, compounded by the ubiquity of greeters.  “One witness described walking down Lincoln
Road as having ‘to come through a gauntlet.’ Another described the constant
barrage of handbills as ‘death by paper cut.’”
 
As a result, the City began enforcing an anti-soliciting
ordinance and an anti-handbilling ordinance, prohibiting both activities in the
public right-of-way in certain areas of the City’s historic district, including
Lincoln Road.  After plaintiffs were
cited and fined for violating the ordinances, and threatened with loss of their
occupational licenses, they sued.
 
The current anti-solicitation ordinance states:
 
(a) Prohibitions. It shall be
unlawful to solicit any person for the purpose of inducing such person to
purchase any property, real or personal, or any food, beverage or service, or
to solicit such person to enter any place of business for the purpose of
inducing or attempting to induce such person to purchase any property, real or
personal, or any food, beverage or service.
This Section shall apply when the
solicitor or the person being solicited is located on any public right-of-way,
which means and includes, but is not limited to, any street, sidewalk, street
corner, curb, bicycle path, or pedestrian walkway, in any of the following
areas in the City of Miami Beach. This Section shall also apply to any doorway,
stairway, window or other opening of a building abutting on or adjacent to such
right-of-way, in [certain streets and other areas of the City’s entertainment
district.]
 
Plaintiffs argued that the ordinance covered more than
commercial speech, but the court analyzed it as applied to the plaintiffs’
speech, which is commercial even when the commercial aim is “indirectly
stated.”
 
The City argued that plaintiffs’ speech was misleading,
presenting evidence that the cosmetic claims made for plaintiffs’ diamond dust
products were false.  However, the most
that anyone ever heard the greeters say outside
the stores were “the various salutations, entreaties, and comments described earlier,
such as ‘Hi, how are you?’ and ‘Where are you from?’”  There were no identified false statements on
the public right-of-way, and that was the regulated speech at issue.  Anyway, the ordinance didn’t distinguish
between false and misleading solicitations and other solicitations, so the
ordinance had to satisfy Central Hudson.

The City’s interests in protecting the character of the tourist district, “the
City’s economic engine,” and minimizing harassment of tourists, were
substantial.  Witnesses testified to
having seen greeters follow people down the street and touch people’s hair; “stop
people in the middle of their stroll,” and “chase after them in certain cases.”
One witness testified that one of plaintiffs’ greeters told him he had a nice
face but it was marred by “blackheads,” embarrassing him.  The former Assistant City Manager testified
not only that he received many complaints about soliciting and handbilling, but
that he personally experienced excessive soliciting and handbilling. The
Director of the Code Compliance Department testified that he had to draw
personnel and financial resources away from other City districts to the
entertainment district to deal with the solicitation problem. 
 
Moreover, the ordinance directly advanced the city’s
interests.  “a partial solution to a
city’s aesthetic problems may still directly advance the city’s goals. The
Constitution does not require the City to choose between curing all of its
aesthetic problems or curing none at all.”
 
However, the ordinance reached further than necessary and
was not narrowly tailored.  The City
didn’t meet its burden of showing that its regulation was a reasonable fit for
its interests.  This was a blanket ban,
albeit one with a limited geographic reach and one that only applied to
commercial solicitation (ok, by that logic isn’t everything a blanket ban?).  The ban didn’t distinguish between invited
and uninvited solicitations, or oral and non-oral solicitations, or
solicitations from strangers versus from known people, or false and misleading
solicitations versus truthful, non-misleading solicitations. “Importantly, the
ordinance does not limit its prohibition to solicitations that impede
pedestrian traffic, are too loud, or are otherwise harassing or vexatious.” The
ordinance also extended past the the public right-of-way “to any doorway,
stairway, window, or other opening of a building abutting on or adjacent to
such right-of-way,” reaching into private property.
 
The City failed to show that less intrusive alternatives
wouldn’t work. A previous Eleventh Circuit case upheld a Key West
anti-soliciting and anti-handbilling ordinance as a valid regulation of
commercial speech.  However, the Eleventh
Circuit viewed that ordinance as “significantly restricting, but not banning,
soliciting and handbilling on five historic streets.” Under Miami Beach’s
ordinance, plaintiffs couldn’t stand two feet in front of their businesses to
wave someone inside—not even if they did it silently.  Here, testimony indicated that less
restrictive alternatives were available and the City didn’t show they wouldn’t
work.
 
The former assistant city manager testified that charitable
solicitations are allowed but regulated in the same areas—solicitors need a
permit.  Artists and vendors are allowed
by lottery and spaced, as well as regulated for volume and the footprint of
their displays.  The City didn’t show why
these measures wouldn’t adequately protect the city’s interest.  “Presumably, a charitable solicitor, who asks
pedestrians if they would like to save Lolita the whale, is no less annoying
than one of Plaintiffs’ greeters, who asks pedestrians if they would like a
free demonstration.”
 
The City also considered but rejected “solicitation boxes”
limiting how solicitors could move and “bubbles” around each pedestrian.  The former assistant city manager said
solicitation boxes wouldn’t work because ‘we couldn’t guarantee people would
stay in them.’  But that could be true of
any regulation, including the present one and a permitting system and a volume
limit.  Plaintiffs did make an effort to
create their own solicitation boxes, by laying down tape in the shape of a box
in front of their stores, but the record was undeveloped as to whether this
worked.  The manager testified that the
City “had just as many, if not more, complaints during that period,” but that
was when the City wasn’t even enforcing its ordinances and the court found that
this said nothing meaningful about whether a solicitation box ordinance could
also advance the City’s interests.  Given
that “[a] store owner that stands two feet in front of his own store (or in his
doorway, or in his window) and waves to someone outside may reasonably fear a
citation,” the City had a duty to explore alternatives to suppressing “such
passive, non-obstructive behavior.”
 
Advertising has considerable First Amendment value because
it provides information to consumers. 
Plaintiffs’ representative testified that their clientele were Lincoln
Road shoppers, mostly tourists; he’d tried other forms of ads, such as email,
Google, magazines, referrals from beauty salons, and referrals from hotels, all
to no discernible benefit.  Another of
plaintiffs’ witnesses testified that emailing customers didn’t work and that face-to-face
soliciting was the only way to effectively sell his products to his customers.  This testimony, the court said, illustrated
the considerable value of commercial speech, since it was the lifeblood of
plaintiffs’ businesses.  (I think the
court here conflates “economic value” with “First Amendment value.”)
 
Just as the anti-solicitation ordinance was invalid, so was
the anti-handbilling ordinance—even more so, since its overbreadth was glaring
on its face. “Handbill” was defined to include any “written, printed or painted
matter or object that conveys any information, except that ‘handbill’ shall not
include a newspaper or its contents.”  It
was unlawful to distribute commercial handbills on the public right-of-way, and
openings adjacent to the right-of-way, in the relevant district.  The court found the definition of “commercial
handbills” to cover “any handbill that conveys any information about any good
or service provided by a business,” which actually reached a “staggering”
amount of speech, including noncommercial speech.  The court offered these examples:
 
• An animal-rights activist stands
near McDonalds on Washington Avenue, handing out flyers that read, ‘Shame on
McDonalds! They Don’t Use Cage-Free Eggs!’…
• A rabbi stands on Ocean Drive,
and distributes pamphlets to visiting yeshiva students that inform them which
restaurants in the area serve kosher food.
• A food critic, who wants more
people to visit her website and to read her blog, distributes laminated
placards that list the names, locations, and her review of ‘Foodie Freddi’s
Four Favorite Pizza Shops on Lincoln Road.’…
 
Given this substantial overbreadth, the plaintiffs were
likely to succeed on the merits of their challenge.
 
Harm to First Amendment interests is irreparable; the harm
to the City was insufficient to weigh against the grant of a preliminary
injunction; the public interest favors First Amendment rights; therefore the
court granted a preliminary injunction.

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