Miami Beach Once Again Tries to Ban Panhandling, a Constitutionally Protected Activity

Once again, Miami Beach city officials are looking to crack down on panhandlers.
For years, Miami Beach leaders have done their utmost to make the city an unpleasant place for homeless people.

Advocates have long complained that the city's homeless outreach office treats homeless residents rudely and isn't open when it's supposed to be. Since 2016, the city's police force has used the courts to commit drug- and alcohol-addicted homeless people to treatment facilities against their will. More recently, Miami Beach Police Chief Rick Clements joined forces with a vigilante, resident-led Facebook group with a history of harassing homeless people and people of color.

Beyond that, the city has spent countless hours in court fighting to uphold restrictions on panhandling that City Attorney Raul Aguila himself acknowledges are likely unconstitutional under the First Amendment, which guarantees the right to free speech.

Nevertheless, amid a global pandemic, city leaders are once again looking to crack down on panhandlers in Miami Beach.

At a meeting yesterday, commissioners asked City Manager Jimmy Morales to amend Miami Beach's emergency coronavirus orders to ban panhandling.

Jackie Aziz, an ACLU attorney who has fought panhandling bans in Miami Beach and other Florida municipalities, tells New Times the new restrictions needlessly single out the homeless.

"People experiencing homelessness are already facing daunting challenges to maintain social distancing, find some shelter, and to make sure they have access to sanitation," Aziz says. "Attacking this especially vulnerable community during this pandemic is simply inhumane."

The years-long debate over panhandling was revived at an April 24 meeting of the city's Finance and Economic Resiliency Committee. Commissioner Mark Samuelian said some residents had complained about panhandlers begging for money outside restaurants offering takeout during the lockdown.

"This topic of panhandling came back up again, and I do hear from the community concerns that that could have an impact on some of our businesses reopening," he said.

In the meeting, Aguila told committee members that restrictions on panhandling were almost uniformly considered unlawful under Supreme Court case law. But he promised he would try to look for a loophole amid the pandemic.

"The only thing I can think of with regard to the emergency powers at all would be that, you know, panhandlers have to maintain a six-foot distance separation from the people that they panhandle, but that's just going to make 'em scream," he said with a laugh. "I will tell you that this is not for lack of trying — this is Supreme Court precedent that really has our hands tied."

Regardless, Commissioner Michael Góngora pushed Aguila to go back to the drawing board and come back with a new strategy to ban panhandling.

"I know that these are very difficult ordinances, but I support the direction to look at this and do whatever we can at this time that pushes the envelope," Góngora said. "Let's try to come up with something creative that you think might pass muster."

With that direction, Aguila sent a letter to commissioners two weeks later advising that courts are generally friendly toward cities that pass special restrictions during emergencies. But he stopped short of saying that any new rules against panhandling could win in court, allowing only that there was "a possibility" such a ban "might be upheld."

Yesterday, the debate was opened up to the entire city commission, and Assistant City Attorney Rob Rosenwald coached commissioners to share their recent experiences with aggressive panhandling.

"You should talk about personal experiences that you have had observing panhandling during the COVID emergency at these essential businesses or restaurants, or that your constituents, your family, or your friends have told you that are motivating you to want to legislate in this fashion. In that way, we make a record so we can attempt, if we're ever challenged, to meet strict scrutiny in court," he said, referring to a legal standard to determine whether a law is constitutional.

Rosenwald said any panhandling restrictions added to the city's emergency order would be "very temporary," lasting no more than a few months.

"Under normal circumstances, we want to make this clear, you cannot single out the homeless or panhandlers for regulations of their speech," he said.

After a short discussion on "aggressive" and "problematic" panhandlers getting too close to people on Lincoln Road and Washington Avenue, commissioners agreed to have the city manager's office draft language to include a ban on panhandling in Miami Beach's emergency order.

"We take our First Amendment rights very seriously, but that being said, this is a serious health issue, especially in that segment of our population," said Commissioner Steven Meiner. "As we open our business, we need to make sure we keep our businesses open and not driving people away."

Lawyers contacted by New Times find it unlikely that the coronavirus emergency makes it legal for the city to crack down on panhandlers.

Stephen Schnably, a law professor at the University of Miami who worked on the groundbreaking Pottinger case for homeless rights in Miami, says the legal argument Aguila presented in his letter to commissioners "just wouldn't pass muster" in front of a judge.

"When you add to it the history of animus in Miami Beach toward people who are homeless, I think that just presents a record that would be untenable for the city," Schnably says. "It's very disturbingly akin to a lot of concerns that are emerging about disproportionately enforcing social distancing on people of color. It sort of reeks of that."

Schnably says the city could simply enforce its existing rules on social distancing for panhandlers who get within six feet of others. Or it could choose to ban anyone in the city from holding a sign in public instead of singling out the homeless — although he disagrees with that approach.

"In general, just to say the First Amendment can be suspended because of an emergency is a pretty dangerous proposition," he maintains.

Dante Trevisani, a lawyer and the executive director of the Florida Justice Institute, agrees there's no reason for Miami Beach to create a new restriction on panhandling when it already requires people to stay six feet apart in most outdoor areas.

"There doesn't seem to be any problem with just enforcing the rules that are generally applicable, that are already in place for everybody," Trevisani says. "I have not seen any evidence that they simply can't enforce those orders."

Schnably calls an emergency ban on panhandling "just another form of criminalization of homelessness."
And he worries what might happen if Miami Beach police were to enforce those rules.

"If you actually arrest people, if they end up in jail, that's increasing the exposure to the potential of getting COVID-19," he says. "And that poses its own public-health risk."