March mediation set in ACLU case filed against the city last fall

City Commission approves first reading of a revised panhandling ordinance, which could render part of the lawsuit moot

The U.S. District Courthouse for the Middle District of Florida is in Tampa. Image from the court's website
The U.S. District Courthouse for the Middle District of Florida is in Tampa. Image from the court’s website

Mediation is set for March 18 in a lawsuit the Florida Chapter of the American Civil Liberties Union (ACLU) filed in October 2015 against the City of Sarasota over allegations that the city has been trying to criminalize homeless individuals “despite the lack of an available shelter and a deepening housing crisis,” plus sections of the city’s panhandling ordinance, The Sarasota News Leader has learned.

The case was moved last fall, at the city’s request, from the 12th Judicial Circuit in Sarasota to the U.S. District Court for the Middle District of Florida, in Tampa.

In the meantime, on a first reading on Feb. 1, the City Commission voted 4-0 in favor of a revised panhandling ordinance that would appear to invalidate part of the lawsuit. Approval of the ordinance during a second, required public hearing later this month would mean “hopefully mooting out some of the more key allegations in the lawsuit,” City Attorney Robert Fournier told the City Commission.

In a Feb. 2 telephone interview with the News Leader, Michael Barfield, vice president of the Florida ACLU chapter and a paralegal with the Andrea Flynn Mogensen law firm in Sarasota — which filed the suit — concurred that the city board’s action “will have bearing” during the March mediation session. If the case is not resolved at that time, he said, the city will argue that the panhandling part of the lawsuit is no longer valid. “[Changing the ordinance] cuts out part of the case.”

Mogensen has “requested and received an early trial date of July of next year” if the mediation is unsuccessful, Barfield pointed out.

The panhandling part of the lawsuit pointed to a section of the ordinance which, the complaint said, “makes it unlawful to engage in the act of panhandling at specified locations within the City,” including bus stops, any public transportation vehicle or public transportation facility, and a sidewalk café. The suit adds, “Even if the restrictions … are content neutral, they are content-based regulations because they restrict speech based on the City’s disagreement with the message panhandling conveys within the geographical limitations set forth therein.”

In a Case Management and Scheduling Order filed on Dec. 11 in the U.S. District Court in Tampa, Judge Elizabeth Kovachevich wrote that a pretrial conference would be held on June 6, 2017 before Magistrate Judge Julie S. Sneed in Tampa, if the mediation proves unsuccessful. The case tentatively is set for a jury trial starting on July 3, 2017, the order adds, noting that the estimated length of the proceedings would be 10 days.

Robert Fournier. File photo
Robert Fournier. File photo

A notice filed by the plaintiffs in the ACLU case says the mediation will take place at 9 a.m. on March 18 in Tampa; a full day has set aside for it.

In a separate interview with the News Leader on Feb. 2, Fournier noted that the case is still in the discovery phase. He plans to provide the City Commission an update on it during the board’s next meeting, when the panhandling’s second reading is scheduled.

The panhandling ordinance

With Vice Mayor Suzanne Atwell presiding in the absence of Mayor Willie Shaw, Fournier explained to the city commissioners on Feb. 1 that he had worked to revise the panhandling ordinance in light of a U.S. Supreme Court decision in an Arizona case, Reed v. Town of Gilbert.

Even though that involved sign regulations, he told the News Leader, “[the justices] don’t want you imposing regulations on the content of speech.”

Therefore, the title of the revised ordinance is designed to govern “personal solicitation,” not panhandling, he noted in the News Leader interview.

The revised ordinance says that “after Reed v. Town of Gilbert a regulation of speech in a traditional public forum targeted at a specific subject matter is likely to be found content based even if the regulation does not discriminate among viewpoints within that subject matter …”

Traditional public forums are those such as public parks, streets and sidewalks, the ordinance continues. The revised law will apply to all forms of personal solicitation in those areas, Fournier pointed out; it is not limited to panhandling. “We have to tolerate being asked for a donation,” he said in the News Leader interview. “That is protected by the First Amendment.”

Michael Barfield. File photo
Michael Barfield. File photo

However, the law will prohibit aggressive conduct by persons engaged in speech protected by the First Amendment, including “following someone or grabbing their sleeve,” Fournier told the News Leader. The revised ordinance language defines aggressive conduct as “unwanted communications, touching, harassing, intimidating or otherwise interfering with the right of another to enjoy and travel public parks, streets and sidewalks …”

“I just don’t see how [the ACLU representatives] can claim that [section] violates the First Amendment,” Fournier said during the News Leader interview.

Additionally, the revised ordinance will not allow personal solicitations in non-traditional forums, including the city’s public parking garages and parking lots, bus stops and downtown sidewalk cafes, Fournier told the News Leader. “There is substantial governmental interest in protecting the safety and well being of visitors downtown.”

In his remarks to the City Commission this week Fournier said he expects it could take up to three years for the Reed case to become settled law. Therefore, it is possible his office might recommend further changes to the ordinance in the future.

With no one having signed up to speak during the public hearing Monday night, the city commissioners took slightly more than 20 minutes to hear Fournier’s comments and then vote unanimously to approve the revised law on the first reading.