Home Commentary Five reasons why Pensacola’s panhandling ordinance will be thrown out in court

Five reasons why Pensacola’s panhandling ordinance will be thrown out in court

A controversial law bans panhandling within a 40-block area in downtown Pensacola, centered on Palafox Street. (Drew Buchanan/The Pulse)

Thursday night, Pensacola city council members will take a second and final vote on a controversial ordinance which would ban panhandling throughout most of the city’s downtown core.

The ordinance would make it illegal to ask for donations, either verbally or using a sign, within the “Downtown Visitors District,” roughly defined as two blocks on either side of Palafox Street, from Wright Street south to the bay. There’s an exemption for charitable organizations, but not for buskers and other street performers. Violators of the ordinance would be issued civil citations and fined.


If the ban becomes law, it’s likely to be challenged in court — and if that happens, odds are it will be overturned. Here’s five reasons why:

ACLU North Florida Director Sara Latshaw addresses Pensacola City Council members in 2015. (Drew Buchanan/The Pulse)

This is a First Amendment issue, and the ACLU takes it seriously.

At the core of Pensacola’s ordinance is the desire of city officials to regulate what citizens can say or write on signs. It’s an proposal fraught with First Amendment issues, and it’s caught the attention of the American Civil Liberties Union, which has called Pensacola’s proposed ordinance “a direct violation of citizens’ rights.”

The ACLU doesn’t mess around with the First Amendment. Over the years, they’ve successfully defended the First Amendment rights of everyone from LGBT Americans to the Ku Klux Klan to religious groups, not to mention those of panhandlers.

Local ACLU officials haven’t officially said whether or not they’ll sue if Pensacola’s ordinance passes, but they’re watching it closely, and city council members should take heed. Last year, after officials in Akron, Ohio passed a similar anti-panhandling law, the ACLU filed suit. Rather than face a costly court battle, Akron repealed the law less than a week later.

The ACLU is currently involved in litigation over anti-panhandling laws with the cities of Cleveland, Ohio; Slidell, La.; and Belton, Mo., among others.

Pensacola City Council President Brian Spencer, left, and Mayor Ashton Hayward, right, have cosponsored a controversial ordinance that would ban panhandling in downtown Pensacola. (City of Pensacola/Special to The Pulse)

It’s an ill-conceived, poorly thought out law.

Much like Pensacola’s controversial 2013 “blanket ban,” the new panhandling ordinance was a mess from the beginning, drafted behind closed doors without input from homeless advocates, social services groups, or anyone else who actually deals with the people doing the panhandling.

In their rush to move the legislation forward, Hayward, Spencer, and the Downtown Improvement Board didn’t even think about how the ordinance would impact street performers, some of whom — like Maurice Sorrell — have become popular fixtures downtown. The DIB has since released draft rules, copied verbatim from those in Asheville, N.C., which would allow street performers under new regulations.

They also forgot that well-established charities also sometimes ask for donations on the street. The first version of the ordinance, passed in April, didn’t carve out an exemption for charitable groups, meaning Salvation Army bellringers would have been barred from setting up downtown. Perhaps realizing that city councilman P.C. Wu typically serves as one of those downtown bellringers, the ordinances’ sponsors have since amended the proposal to allow charities to pull a special permit that would make it okay.

Pensacola’s proposed downtown panhandling ban would extend along Palafox Street from Wright Street south to Plaza de Luna. (Drew Buchanan/The Pulse)

State and federal courts have already spoken on the issue. Repeatedly.

Pensacola may be America’s first city, but it’s hardly the first city in America to grapple with panhandling.

In 2013, Tampa city officials did essentially the same thing that Pensacola is considering, banning panhandling within tourist-centric areas of Downtown Tampa and Ybor City. Last August, U.S. District Judge Steven Merryday struck down the law as unconstitutional.

“Because [the Tampa ordinance] imposes in a traditional public forum a content-based regulation of speech, [the law] is presumptively unconstitutional,” Merryday wrote in the ruling, declaring that the ordinance “unconstitutionally infringes the right of free speech protected by the First Amendment to the United States Constitution and by Article I, Section 4, of the Florida Constitution.”

In other words, because the Tampa ordinance was attempting to regulate the content of speech rather than the place or manner of speech — the same thing the Pensacola ban would do — it doesn’t hold up.

In recent years, courts have struck down similar anti-panhandling laws in Springfield, Ill.; Portland, Maine; Grand Junction, Colo.; Boise, Idaho; Louisville, Ky.; Lowell, Mass.; Worcester, Mass.; Cranston, R.I.; Charlottesville, Va.; and Hawaii County, Hawaii. Statewide panhandling legislation in Michigan and Arizona has also been ruled unconstitutional.

A proposed crackdown on panhandling in downtown Pensacola would also bar street musicians from accepting donations. (Downtown Improvement Board/Special to The Pulse)

The Supreme Court has already spoken on the issue. Repeatedly.

There’s no need to reinvent the wheel, no matter how hard some Pensacola officials may try. It just so happens that the nation’s highest court made things pretty clear 37 years ago in Village of Schaumburg v. Citizens for a Better Environment, a case that’s cited in virtually all of the others mentioned above.

“Charitable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, dissemination and propagation of views and ideas, and advocacy of causes — that are within the First Amendment’s protection,” wrote Justice Byron White for the majority.

Since then, the Supreme Court has repeatedly reaffirmed that view. “Our prior cases teach that the solicitation of charitable contributions is protected speech,” Justice William Brennan wrote in a 1988 decision. Just two years ago, in Reed v. Town of Gilbert, the Court ruled that when governments enact content-based limits on speech, they must demonstrate that such a law “furthers a compelling interest and is narrowly tailored to achieve that interest.” It’s unlikely Pensacola’s ordinance would meet that standard.

Officials broke ground in 2015 on One Hopeful Place, a homeless resource complex in Fort Walton Beach. (One Hopeful Place/Special to The Pulse)

The ordinance won’t actually solve the panhandling “problem.”

Ultimately, even if Pensacola’s ordinance becomes law and somehow avoids being struck down in court, it won’t actually reduce panhandling. The ordinance doesn’t empower police officers to cart panhandlers off to jail; only to issue fines that the panhandlers likely can’t afford anyway. There’s nothing to stop a panhandler from simply continuing to panhandle once the officer leaves.

Here’s an idea: instead of undercutting the First Amendment and exposing city taxpayers to a costly lawsuit, why don’t we try to address some of the root causes which lead people to panhandle in the first place? We don’t have to look far for a good example: The City of Fort Walton Beach has partnered with the Greater Fort Walton Beach Chamber of Commerce to develop One Hopeful Place, a comprehensive resource center located on eight acres of city-owned property.

Once completed, the project — funded by a combination of private and public dollars — will include shelter facilities for veterans, women and families, a cold-weather shelter, tiny houses, and a resource center to help homeless individuals transition into housing and jobs. Why can’t Pensacola follow suit?