Downtown Miami

Miami’s downtown panhandling ban is unconstitutional, court says

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A controversial law banning panhandling in downtown Miami has been struck down by the courts.

In a ruling that could stoke tensions between condo tenants and downtown’s homeless, a judicial panel of the 11th Circuit’s appellate division ruled this month that Miami’s blanket ban on street begging is unconstitutional.

Relying on the U.S. Supreme Court’s recent Reed v Town of Gilbert decision rebuking “content-based” messaging bans, the panel found that Miami’s law, passed under the pretense of protecting tourism and downtown businesses around the Adrienne Arsht Center for the Performing Arts and the AmericanAirlines Arena, crossed the line by dictating what people can say in public.

“The city argues that it does not discriminate among viewpoints, that no one is allowed to solicit funds whether they are homeless or members of the girl scouts,” wrote Judge Miguel de la O. “This is an outdated view of First Amendment jurisprudence which was rendered obsolete by Reed.”

The court issued its opinion in response to a 2015 appeal by Andrew Toombs, a 32-year-old who was arrested on April 21, 2015, jailed and fined $200 by Miami police for begging for change from drivers heading west onto Interstate 395 from downtown. Toombs pleaded no contest. Public Defender Carlos J. Martinez challenged the arrest on the grounds that the city’s ban violated Toombs’ right to free speech.

The city argues that no one is allowed to solicit funds whether they are homeless or members of the girl scouts. This is an outdated view of First Amendment jurisprudence

Judge Miguel de la O

The Aug. 3 decision has been celebrated by homeless advocates, who saw panhandling bans enacted around South Florida and across the country as a trend toward outlawing homelessness. In Miami last year, police charged an average of about a person a day with downtown panhandling, attorney John Eddy Morrison wrote in an October motion.

“You are making it a crime for a person who is homeless, engaging in certain behavior, by the very nature of their homelessness,” said Melissa Gallo, policy and program director for the nonprofit Miami Homes For All.

We also have a right to walk outside our buildings with our children and not be constantly approached and harassed for cash

Cristina Palomo, president of the Downtown Neighbors Alliance

But in downtown, where business owners and an emerging condo community have been pushing the city to tamp down street begging, the reaction has been one of frustration. Cristina Palomo, president of the Downtown NeighborsAlliance, said she hopes the city will appeal.

“We also have a right to walk outside our buildings with our children and not be constantly approached and harassed for cash,” she said.

Palomo said she believes street begging is as bad for the people doing the begging as it is for business owners and tenants because it encourages them to stay away from public resources intended to help get them off the street. Toombs, court records show, has been arrested multiple times in recent years for street begging, among other offenses.

Steve Dutton, a downtown resident whose husband, Tom Lang, was killed by a mentally ill homeless man about a year ago, said he was “aghast” at the court’s decision: “Because of free speech people should be allowed to stand on a street corner with their hand out collecting money? It doesn’t make sense to me how that can be equated to free speech.”

A spokesman for the Miami-Dade State Attorney, the losing side in the appeal, could not immediately say whether the state will challenge the decision. City Attorney Victoria Méndez said she has to confer with city commissioners.

Even if the law is ultimately overturned, Miami still has a citywide ban on aggressive panhandling on the books. But Mayor Tomás Regalado says he hopes the city will fight.

“Absolutely. It would show the residents that the city is doing something, not sitting on the sideline, and I think it would benefit other cities,” he said. “Now the media will report on this and downtown will become the panhandlers’ dream.”

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