Miami Beach

Tired of being handed menus and samples on Lincoln Road? Court says it's free speech

In this September 2016 file photo, people walk along Lincoln Road in South Beach.
In this September 2016 file photo, people walk along Lincoln Road in South Beach. MIAMI HERALD FILE

Miami Beach’s attempts to ban Lincoln Road businesses from hawking menus and makeup samples are unconstitutional because they violate the First Amendment, an appeals court has ruled.

Businesses that have chatty greeters who try to entice passersby with menus or special promotions can continue to operate without fear of being cited for violating city ordinances.

In a ruling favoring three Lincoln Road cosmetics stores that sued Miami Beach in 2014, a three-judge appellate panel from the 11th Circuit decided two ordinances restricting aggressive sidewalk solicitation, including handing out handbills, are an overreach that limits free speech protected by the First Amendment. The appellate ruling affirms the district court’s decision to prevent the city from enforcing the ordinances.

In 2014, the three stores sued Miami Beach after being fined thousands of dollars under the ordinances. Brilliance New York, Timeless Cosmetics and Forever Flawless got an injunction to stop the city from enforcing the ordinances in 2015. The city lost its appeal of that injunction this month, meaning code enforcement still cannot issue citations.

The ordinances were passed to prohibit commercial solicitation and the passing out of handbills in some of the Beach’s busiest commercial corridors inside historic districts: Lincoln Road, Española Way, and parts of Washington Avenue, Collins Avenue and Ocean Drive.

Daniel Aaronson, attorney for the businesses, told the Miami Herald on Wednesday that the ordinances were overly broad and restricted rights of more people than just greeters standing in front of restaurants and cosmetics stores.

“They were both declared unconstitutional because they not only infringed on the stores’ rights but also citizens’ rights,” he said. “They were not narrowly tailored.”

The appellate ruling states that the way the handbill ban is written makes it too widely applicable, so it prohibits non-commercial speech as well as the menu-hawking that the city wants to curb.

“As the district court correctly points out, everything from a PETA demonstrator passing out flyers about a fast-food chain’s treatment of animals to a Rabbi distributing a list of restaurants that serve kosher meals could potentially be prohibited under [the ordinance],” wrote Judge Joel F. Dubina.

In a memo sent Wednesday to Miami Beach commissioners, City Attorney Raul Aguila said the city is requesting a rehearing of the case before the full bench of appellate judges. He plans on discussing the case during an attorney-client session with city commissioners at their next meeting Sept. 13 to determine how the city should move forward if the rehearing is not granted.

“Very disappointing decision,” Aguila said on Wednesday.

If the appeals court denies the rehearing, the case would go back to the district court for trial, at which point the city could consider a settlement. If the city lost the case, it would be on the hook for damages and legal fees.

The ruling in the Beach case comes in the same month as another decision by the same appellate court that struck down the city of Miami’s panhandling ordinance. Similarly, a panel of judges ruled that the panhandling ordinance was unconstitutional because it dictated what people could say in public.

Aguila referenced the Miami case in his memo, saying that both “decisions, if they are not reversed in further appeals, will require the City Commission to approach the regulation of protected speech and expressive activities in new, more nuanced ways.”

Joey Flechas: 305-376-3602, @joeflech

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