FL Appeal Court declares Fort Myers’ anti-panhandling ordinance unconstitutional

By: - August 12, 2021 5:57 pm

A state appeals court has overturned a Fort Myers city ordinance prohibiting panhandling, ruling that it was a clear violation of the First Amendment.

A three-judge panel of the 2nd District Court of Appeal, with jurisdiction extending from Pasco to Collier counties, overturned David Joseph Watrous’ conviction for seeking charitable donations at the city’s Rosa Parks Bus Station.

The opinion said nothing about his background — just that he was “actively begging” for money.

A trial judge had upheld the ordinance as “a content-neutral regulation of a traditional public forum that met a legitimate public need.”

But the appeals court, in a opinion by Judge Suzanne Labrit, concluded that the First Amendment “requires the [state] to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”

Judging by her opinion, Attorney General Ashley Moody’s office didn’t put up much of a fight.

At trial, “the state posited promoting the ‘economy’ and ‘the flow of travel,’ ‘preventing nuisance,’ and ‘public safety’ as government interests justifying the panhandling ordinance and the charge against Mr. Watrous,” Labrit wrote.

But on appeal, “the state concedes and we agree that none of these interests are compelling in this context,” she added.

“Likewise, Mr. Watrous’s conviction is, at best, hypothetically related to those interests because there is no record evidence that, for example, Mr. Watrous was impeding traffic or endangering the public,” she added.

“We accept the state’s concession that it cannot withstand strict scrutiny in this instance, and we see no reason to continue to infringe on Mr. Watrous’s First Amendment rights.”

The local public defender’s office represented Watrous but the ACLU of Florida, Southern Legal Counsel, and Florida Rural Legal Services filed an amicus brief on his behalf.

“Any city that currently has a similar ordinance would be wise to repeal it immediately. Ordinances that prohibit charitable requests directly impact the ability of individuals, particularly those experiencing homelessness or low-income individuals, to exercise their First Amendment rights,” Jacqueline Azis, staff attorney for the ACLU, said in a written statement.

Yet, since COVID-19 hit, jurisdictions including Delray Beach, Port Orange, and West Palm Beach have enacted anti-panhandling ordinances, the advocacy groups said. Miami Beach did, too, but dropped it following a warning from the organizations.

Fort Lauderdale, Ocala, and Pompano Beach are now in court defending challenges to their ordinances.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.