Chad v. City of Ft. Lauderdale, FL , 177 F.3d 954 ( 1999 )

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.
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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-
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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.
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