James Dale SMITH, personally and on behalf of all others similarly situated, Plaintiff-Appellant,
v.
CITY OF FORT LAUDERDALE, FLORIDA, Defendant-Appellee.
No. 98-4973.
United States Court of Appeals,
Eleventh Circuit.
June 2, 1999
Appeal from the United States District Court for the Southern District of Florida. (No. 93-6970-CV-NCR),
Norman C. Roettger, Jr., Judge.
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 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
*
Honorable Maurice B. Cohill, Senior U.S. District Judge for the Western District of Pennsylvania, sitting
by designation.
1
It is undisputed that "soliciting," "begging," and "panhandling" are interchangeable terms. We use the
term "begging" to encompass all three.
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 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, 100 S.Ct. 826, 63 L.Ed.2d 73 (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, 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
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.
2
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, 103 S.Ct. 948, 74 L.Ed.2d 794 (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 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
at ---- (quoting Ward v. Rock Against Racism, 491 U.S. 781, 789, 109 S.Ct. 2746, 105 L.Ed.2d 661 (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).
3
On appeal, Plaintiffs challenge Rule 7.5(c) only as applied to begging in the Fort Lauderdale Beach area.
3
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-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, 109 S.Ct.
2746. "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, 109 S.Ct. 2746. 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.
4