Chad v. City of Ft. Lauderdale, FL

177 F.3d 954

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 2, 1999
• Docket: 98-4973
• Status: Published

Opinion

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 98-4973 06/02/99 ________________________ THOMAS K. KAHN CLERK D. C. Docket No. 93-6970-CV-NCR

JAMES DALE SMITH, personally and on behalf of all others similarly situated, Plaintiff-Appellant,

versus

CITY OF FORT LAUDERDALE, FLORIDA, Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________

(June 2, 1999)

Before COX and HULL, Circuit Judges, and COHILL*, Senior District Judge.

HULL, Circuit Judge:

A Plaintiff-Appellant class of homeless people appeals the district court’s

decision granting summary judgment for the City of Fort Lauderdale on the class’s

First Amendment challenge to a City regulation proscribing begging on a certain

* Honorable Maurice B. Cohill, Senior U.S. District Judge for the Western District of Pennsylvania, sitting by designation. five-mile strip of beach and two attendant sidewalks. We hold the challenged

restrictions on speech are narrowly tailored to serve the City’s legitimate interests

and thus affirm.

The controversy in this case began when the City of Fort Lauderdale enacted

Rules and Park Regulations for City Parks and Beaches, intended “to provide

citizens with a safe environment in which recreational opportunity can be

maximized.” Pursuant to this purpose, the City included in its regulations Rule

7.5, which prescribes regulations “to eliminate nuisance activity on the beach and

provide patrons with a pleasant environment in which to recreate.” Rule 7.5(c)

states, “Soliciting, begging or panhandling is prohibited.”1

Plaintiffs challenge Rule 7.5(c)’s application to a five-mile strip of beach, a

new, one-and-a-half-mile promenade sidewalk between that beach and Highway

A1A, and the commercial-area sidewalk on the opposite side of Highway

A1A–hereinafter collectively called the “Fort Lauderdale Beach area.” The parties

stipulate as follows:

The Fort Lauderdale Beach area is an essential part of the Fort Lauderdale tourism experience. Tourism is one of Florida’s most important economic industries, and Fort Lauderdale is the premiere tourist location of Broward County. The Beach area is Fort

1 It is undisputed that “soliciting,” “begging,” and panhandling” are interchangeable terms. We use the term “begging” to encompass all three.

2 Lauderdale’s number one tourist attraction. Approximately four million tourists, many of whom are from foreign countries, visit the Fort Lauderdale area, and most of them at one time or another visit the Fort Lauderdale Beach area. City attendance records reflect that almost three million people visit the beached annually (August, 1993- July, 1994 estimated figures). The improvement of the Beach area was a high priority in the City’s plan to expand the economic base of the community by attracting new investment. Creating an attractive infrastructure was designed to encourage quality development in the Beach area.

As an initial matter, we note that Rule 7.5(c)’s limitations on begging in the

Fort Lauderdale Beach area restrict speech in a public forum. Like other charitable

solicitation, begging is speech entitled to First Amendment protection.2 See Loper

v. New York City Police Dept., 999 F.2d 699, 704 (2d Cir. 1993) (holding

“begging is at least ‘a form of speech’” because of the lack of material distinctions

between begging and other forms of charitable solicitation); see also Village of

Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 (1980)

(holding charitable organizations’ solicitations for contributions are protected

speech).

Additionally, this Court’s precedent conclusively establishes that the Fort

Lauderdale Beach area covered by Rule 7.5(c)–consisting of beach and sidewalk

spaces–is a public forum. See One World Family Now v. City of Miami Beach,

2 The parties do not raise–and thus we do not address–the issue of whether begging is commercial speech entitled to a lower level of First Amendment protection.

3 No. 98-4091, — F.3d — (11th Cir. May 20, 1999) (holding an oceanfront strip of

public sidewalk in the historic Art Deco district of Miami Beach to be a

“quintessential public forum”); International Caucus of Labor Committees v. City

of Montgomery, 111 F.3d 1548, 1550 (11th Cir. 1997) (confirming the

longstanding principle that “[a] sidewalk, although specifically constructed for

pedestrian traffic, also constitutes a public forum”); Naturist Society, Inc., v.

Fillyaw, 958 F.2d 1515, 1521-23 (11th Cir. 1992), (holding John D. MacArthur

Beach State Park to be a public forum).

Nonetheless, Rule 7.5(c)’s restrictions on begging in the Fort Lauderdale

Beach area3 survive Plaintiffs’ First Amendment challenge. Even in a public

forum, the government may “enforce regulations of the time, place, and manner of

expression which [1] are content-neutral, [2] are narrowly tailored to serve a

significant government interest, and [3] leave open ample alternative channels of

communication.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

45 (1983); see also One World Family Now, — F.3d at —. Plaintiffs do not

dispute that Rule 7.5(c) is content-neutral and leaves open ample alternative

channels of communication. Plaintiffs also expressly concede that the City’s

3 On appeal, Plaintiffs challenge Rule 7.5(c) only as applied to begging in the Fort Lauderdale Beach area.

4 interest in providing a safe, pleasant environment and eliminating nuisance activity

on the beach is “a significant government interest.” Plaintiffs argue only that Rule

7.5(c)’s begging restrictions are not narrowly tailored to serve that interest. We

disagree.

Rule 7.5(c)’s restrictions on begging in the Fort Lauderdale Beach area are

narrowly tailored to serve the City’s interest in providing a safe, pleasant

environment and eliminating nuisance activity on the beach. The City has made

the discretionary determination that begging in this designated, limited beach area

adversely impacts tourism. Without second-guessing that judgment, which lies

well within the City’s discretion, we cannot conclude that banning begging in this

limited beach area burdens “substantially more speech than is necessary to further

the government’s legitimate interest.” One World Family Now, — F.3d —

(quoting Ward v. Rock Against Racism, 491 U.S. 781, 789 (1989)). Rule 7.5(c)’s

suppression of begging in the Fort Lauderdale Beach area is materially mitigated

by the allowance of begging in streets, on sidewalks, and in many other public fora

throughout the City. Cf. Loper, 999 F.2d at 701 (assessing a statute applicable to

any “public place” in the state of New York).

Moreover, Rule 7.5(c)’s restrictions on begging in the Fort Lauderdale

Beach area are not rendered unconstitutional by the possible availability of less-

5 speech-restrictive alternatives. Plaintiffs assert that the City’s interest might be

served by proscribing only hostile or aggressive begging or by confining begging

to specific parts of the beach. But Rule 7.5(c) need not be the “least restrictive or

least intrusive means” of serving the City’s interest in order to qualify as “narrowly

tailored.” Ward, 491 U.S. at 788-89. “So long as the means chosen are not

substantially broader than necessary to achieve the government’s interests . . . the

regulation will not be invalid simply because a court concludes that the

government’s interest could be adequately served by some less-speech-restrictive

alternative.” Id. at 799. Plaintiffs’ proffered alternatives fall far short of

demonstrating that Rule 7.5(c)’s prohibition of begging in this Fort Lauderdale

Beach area is “substantially broader than necessary.”

Thus, Rule 7.5(c)’s restrictions on begging in the Fort Lauderdale Beach

area do not run afoul of the First Amendment, and the district court’s grant of

summary judgment for the City is AFFIRMED.