Advocates Ask Surfside to Provide Shelter Instead of Hatching Plans to Punish Homeless

Homeless advocacy groups are urging the Town of Surfside to reject Mayor Shlomo Danzinger's calls for legislation that would prohibit homeless people from sleeping in public places, sitting on busy sidewalks, and using soap to bathe at beach showers. 

On February 1, the National Homelessness Law Center, American Civil Liberties Union (ACLU) of Florida, and Southern Legal Counsel (SLC) sent a letter to the mayor and town commissioners arguing that the mayor's proposals would violate the constitutional rights of the homeless if enacted.

"We, along with local advocates and unhoused residents of your community, fear that any legislation emerging from the Mayor’s memorandum... will unjustly and unconstitutionally punish people for existing in public spaces, even when they have no indoor alternative place to be," the letter states.

At the town's special commission meeting on January 10, Danzinger issued his memo with five suggestions for an ordinance to "promote and preserve the health, safety, and welfare for all Surfside residents and visitors."

The mayor proposed bans on sleeping on the beach or other public property, bathing with shampoos and soaps in beach showers, aggressive panhandling, and obstructing pedestrians by sitting or lying on sidewalks. (He also proposed a presumably less controversial restriction on urinating and defecating on town property.)

The town commission unanimously agreed to direct the city attorney to draft an ordinance based on Danzinger's memo.

Chelsea Dunn, an attorney from SLC, tells Miami New Times the organization became aware of the memo after community advocates reached out with concerns. SLC and its partner groups found that the shelter facilities nearest to Surfside are more than five miles away in the City of Miami.

"If there is no shelter available, criminalizing those types of activities is essentially criminalizing homeless status because sleep is an unavoidable consequence of living," Dunn says.

SLC, a statewide nonprofit public-interest law firm, argues the mayor's proposed bans cover a number of activities that homeless people have "no choice but to engage in, in order to survive."

"These are exactly the type of ordinances that courts have frowned upon," Dunn tells New Times.

The letter further asserts that an ordinance restricting panhandling would likely infringe on homeless people's First Amendment rights. According to the Homelessness Law Center's review of legal challenges nationwide since 2015, courts have resoundingly struck down local anti-panhandling ordinances as unconstitutional.

"A lot of cities attempt to frame their panhandling laws as restrictions on aggressive behavior, but if you're only punishing the behavior in relation to the protected speech, that still runs afoul of the First Amendment," Dunn says.

Jacqueline Azis, attorney for the ACLU of Florida, says homeless residents have the same freedom to solicit money in public as nonprofit organizations, churches, and politicians enjoy.

"So why in Surfside's mind, and why in any of these cities' minds, is it okay to restrict what they call panhandling? Why would they restrict it from people, but allow it for themselves? And that's because they are trying to target a demographic that they would rather hurt than help," Azis says.

The letter to Surfside cites a long list of case law to argue that homeless residents' daily activities like sleeping or sitting in public spaces are protected by constitutional rights.

Plaintiffs in the landmark Pottinger v. City of Miami case, on behalf of nearly 6,000 homeless residents living in Miami, alleged the city had a custom of arresting and harassing homeless people for engaging in basic life-sustaining activity. A judge in the Southern District of Florida sided with the plaintiffs in 1992, ruling the city's practices were cruel and unusual in violation of the Eighth Amendment.

In 1998, the City of Miami entered into a settlement, known as the Pottinger agreement, which required police to offer homeless people a space in a shelter instead of being arrested for life-sustaining misdemeanors such as sleeping on the street. The consent decree was terminated in 2019 after an appeals court determined that the city had overhauled its practices in dealing with the homeless to the point where court oversight was no longer necessary.

Despite the settlement's termination, the case law is intact.

"The court discussion of rights from that case still stands," Dunn says. "It is still a decision and has precedent."

On the other side of the country, in Martin v. City of Boise, the Ninth Circuit Court of Appeals found in 2018 that punishing a person for sleeping on public property when they have no home or shelter available violates the Eighth Amendment.

The following year, the SLC and ACLU of Florida successfully sued the City of Ocala on behalf of more than 200 homeless people who were arrested under a city ordinance for sleeping or sitting in public spaces. In 2021, the Middle District of Florida ruled the ordinance could not be enforced unless police inquired about shelter availability prior to making an arrest.

Danzinger claimed on the Surfside dais that he is not looking to target any demographic, noting his memo does not mention the word "homeless."

"We are looking to target people that don't follow our laws and don't have any regards for our quality of life and town here," Danzinger said. "We have the right to protect our residents."

His memo says that his planned legislation would be aimed at ensuring the "preservation of public and natural places in clean and pristine condition."

Beyond the case law, Dunn says the mayor's proposals are counterproductive, offering nothing to help unhoused people get back on their feet.

"Preventing people from using the only available showers to clean themselves... it strips them of basic human dignity," Dunn tells New Times.

Although the town commission has not yet responded to the letter, Dunn says the advocacy organizations are willing to engage in a dialogue to help Surfside address homelessness.

"The policy changes that are needed are not these sorts of punitive laws," Dunn argues. "They are a reallocation of funds into things like permanent supportive housing and other services that actually house the homeless instead of punishing and marginalizing them."