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Miami Public Defender Says City's Anti-Panhandling Law Violates Free Speech

On an April afternoon back in 2015, a homeless man named Andrew Toombs experienced something so routine that it's happened to him more than 70 times in the last decade. After approaching some cars underneath the I-95 on-ramp on NE First Avenue, Toombs was stopped by police and arrested for panhandling.

Facing a $200 fine and 60 days in jail, Toombs pleaded no contest that May. But more than two years later, the Public Defender's Office is still appealing the charge, saying the city's anti-panhandling ordinance violates the free speech rights of homeless residents.

"The premise of the ordinance is that some types of speech are bad for business," assistant public defender John Eddy Morrison notes in a legal brief. "If Mr. Toombs had been making exhortations to sign a political petition, recommendations to adopt particular religious views, or even merely commenting on the weather, the ordinance would not make his behavior illegal."

City commissioners unanimously passed the ordinance in 2008 in an attempt to revitalize the downtown business district. While Miami already had a law on the books against "aggressive panhandling," the commission worried panhandlers would scare residents moving into the new lofts and condos being built downtown.

"If we're serious about bringing a standard for downtown that we would like to see, that we see in other cities, it's time for us to act," Commissioner Joe Sanchez said at the time.

A sign underneath the MacArthur Causeway on-ramp indicates the city's no panhandling zone
A sign underneath the MacArthur Causeway on-ramp indicates the city's no panhandling zone
via Google Maps

But over time, judges in other cities have struck down such bans as unconstitutional. Tampa's panhandling ordinance was overturned last summer, following similar decisions in Worcester, Massachusetts, and Portland, Maine. In May, the ACLU filed a lawsuit against the city of Pensacola, saying it can't ban speech just because it makes some people uncomfortable.

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In the case of Toombs, a 32-year-old chronic offender with a long history of criminal charges for drugs and panhandling, Miami-Dade State Attorney Katherine Fernandez Rundle has defended his arrest under the ordinance, saying the panhandling ban only covers 1.57 percent of city streets.

"The regulation leaves open the vast majority of the city for people, including Defendant, to panhandle," the state argues in a legal motion. "In addition, local governments must be allowed a reasonable opportunity to experiment with solutions to the city's serious problems."

Neither Rundle nor lawyers with the City Attorney's Office, which has also petitioned the judge to keep the ordinance on the books, responded to a request for comment from New Times. Oral arguments were held in May, but both sides are still waiting for the appellate panel to make a decision. Morrison, the public defender, declined to comment at length but said he would continue to fight for Toombs.

"Our duties as lawyers requires us to raise all meritorious arguments on his behalf, including constitutional challenges to the ordinance," he said in an email. "We do the same for every client we represent."

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