Miami Fort Lauderdale Panhandling Ordinances Have Marked Differences

Written by Risa Polansky on May 1, 2008

By Risa Polansky
Differences between a proposed Miami panhandling ordinance and an existing Fort Lauderdale measure don’t mean the local law would not hold up in court, attorneys who helped craft the legislation say.

But an American Civil Liberties Union lawyer says certain provisions leave the city open to challenges.

Proponents of the local law have based its legality in part on a panhandling measure in Fort Lauderdale that withstood court challenges in the late 1990s. But the Broward city’s rules differ from Miami’s, namely in enforcement provisions.

Miami’s, which covers a small area of downtown and gained initial approval from commissioners last month, calls for first-violation penalties of up to 30 days in jail and fines up to $100.

Fort Lauderdale’s — which is not an ordinance like Miami’s, but a park rule for a stretch of its public beach — provides only for removing an offender from the premises for 24 hours after a verbal warning. Those who return could be charged with trespassing. It makes no mention of fines or jail time.

A class of homeless people challenged the Fort Lauderdale law in 1999, but an appeals court upheld it.

The makers of Miami’s law say the differences between theirs and Fort Lauderdale’s do not mean the new local law wouldn’t also sustain legal challenges.

"It should hold up in court," said Veronica Xiques, the assistant city attorney who worked with Miami’s Downtown Development Authority to draft the law. "If we are challenged, we’ll defend it."

In advising the Downtown Development Authority on the legal strength of the proposed ordinance, city legal staff said the protection of an area’s economic vitality was at the heart of the Fort Lauderdale measure and is one that Miami could use in defense of its ordinance.

The wording of Fort Lauderdale’s resolution is not as important as the ideals set through the court opinion, she said.

The 1999 decision says "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."

For these and other reasons, the court determined "restrictions on begging in the Fort Lauderdale Beach area do not run afoul of the First Amendment."

Proponents of Miami’s measure say panhandling stifles economic growth downtown.

To fit the "narrowly tailored" and "designated, limited" criteria, it’s designed to cover less than half of 1% of city streets.

"You have to look at the law, the case that interpreted it (Fort Lauderdale’s measure)," Ms. Xiques said. "We feel the interpretation is more similar than different."

Jay Solowsky, an attorney on the development authority board, said many cities have similar panhandling laws to Miami’s.

"All kind of places have them, and they are generally being upheld today," he said.

He echoed Ms. Xiques’ opinion that, though Miami and Fort Lauderdale’s rules differ, "The tests that the courts applied to determine whether or not the ordinances are constitutional are the same."

Should someone challenge the ordinance, however, the differences in enforcement provisions could be ammunition, said Rosalind Matos, South Florida staff counsel for the American Civil Liberties Union.

"If you’re going to lobby against the ordinance, that’s one of the arguments you’re going to be making," she said. "The penalties are harsh."

She noted, however, that it’s common for laws to be worded differently from city to city and that "it would be up to a judge to determine whether they’re that similar."

The local ACLU chapter has come out against the enforcement provisions laid out in the current draft of Miami’s law.

"These penalties are very punitive," said Carlene Sawyer, chair of the Greater Miami Chapter of the ACLU of Florida. "These people don’t have any money."

Local advocates for the homeless have said the same.

Mr. Solowsky of the development authority said the organization has agreed to not only tweak the law to provide for warning provisions, but also to fund posted signs.

Ms. Sawyer pointed out also that the ordinance in its current form does not contain a clear definition of panhandling.

Ben Burton, executive director of Miami Coalition for the Homeless, said last month he hopes the city will "more narrowly define what they mean by panhandling."

The ordinance now says only that "soliciting, begging or panhandling is prohibited within the downtown business district" but does not define the three terms.

The wording "leaves it open to subjective interpretation by law enforcement," Mr. Burton said. "The act of asking for money isn’t illegal."

Commissioners agreed last month to work with those concerned in preparing the ordinance for final consideration. It is scheduled for May 22.