Tuesday, September 08, 2015

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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