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FF Cosmetics FL, Inc. v. City of Miami Beach

United States Court of Appeals, Eleventh Circuit

August 10, 2017

FF COSMETICS FL, INC., a Florida corporation, d.b.a. Forever Flawless Cosmetics 1, TIMELESS COSMETICS FL, INC., a Florida corporation, BRILLIANCE NEW YORK, LLC, a New York limited liability company, f.k.a. Brilliance New York, Inc., OCEANE FL COSMETICS, INC., Plaintiffs - Appellees,
v.
CITY OF MIAMI BEACH, Defendant-Appellant.

         Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 1:14-cv-22072-JLK

          Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG, [*] Judge.

          DUBINA, CIRCUIT JUDGE

         In this consolidated interlocutory appeal, Appellant City of Miami Beach ("City") challenges the district court's order granting Appellees FF Cosmetics FL Inc., Timeless Cosmetics FL Inc., Brilliance New York LLC, and Oceane FL Cosmetics Inc.'s ("Retailers") renewed motion for a preliminary injunction, and denying the City's motions for clarification and for reconsideration. The preliminary injunction enjoins the enforcement of two City ordinances that restrict commercial solicitation and handbilling in sections of five streets in the Historic Art Deco District.

         After careful review, and having the benefit of oral argument, we affirm.

         I. Background

         Retailers operate cosmetic stores along Lincoln Road in the City of Miami Beach's Historic District. Each store depends on solicitation as its primary, and most effective, form of advertisement, employing several greeters to stand outside the storefront and attract potential customers inside. Reports of the greeters' methods range from benign salutations, offers of free samples, and distribution of handbills to allegations of cat-calling, harassment, and uninvited touching. There is no evidence presented to suggest that the Retailers engaged in direct sales pitches of products outside of the stores.

         The City is not primarily concerned with the individual actions of Retailers, but rather with the collective effects of the numerous greeters employed by many stores and restaurants along Lincoln Road and certain other areas of the City's Historic District. Visitors, storeowners, and residents of the Historic District testified to the annoyance, inconvenience, and general unpleasantness of being barraged with menus, free samples, and comments from greeters. The record shows that individuals expressed concerns about the effects on tourism, property values, quality of life, and the unique aesthetic of the City's Historic District.

         In response to the flood of complaints stemming from solicitation and handbilling activities in the Historic District, the City began enforcing Section 74-1, an anti-solicitation ordinance, and Section 46-92, an anti-handbilling ordinance. Testimony from the Director of Code Compliance for the City indicated that the number of complaints in the Historic District increased substantially, resulting in Code Compliance staff being pulled from other locations to deal with the commercial solicitation problem.

         After receiving a number of citations pursuant to Section 74-1 and Section 46-92, Retailers brought suit against the City under 42 U.S.C. § 1983, challenging the constitutionality of the ordinances. Specifically, Retailers argued that the ordinances were overbroad, unconstitutionally vague, and violative of the Due Process Clause, the Equal Protection Clause, and the First Amendment. Retailers sought permanent injunctive relief, as well as damages incurred from fines and lost business resulting from the enforcement of the ordinances. Retailers also filed for a preliminary injunction.

         Both parties agreed to stay litigation pending the outcome of the City's attempts to amend the ordinances at issue. The City held public hearings to address the problem and employed other fact-finding tactics, such as requesting public feedback on social media, searching review websites such as Yelp, and reviewing past complaints filed with the City.

         The City presented evidence showing that it considered a number of alternative prohibitions. First, the former Assistant City Manager testified that the City considered "free speech 'bubbles, ' which would essentially require that any commercial solicitation activities take place beyond a minimum threshold distance surrounding a pedestrian." As to the viability of this regulation, he stated,

"[Free speech bubbles] would have never worked. First of all, what's the difference between 2 feet 8 inches and 3 feet? Evidentiary problem at a hearing. And it's so congested now. It's a popular street, all of them are, it would be a looser [sic]. You can't keep that level of distance from people on Lincoln Road without bumping into somebody else's zone. You know, it doesn't exist in the one person vacuum so we just didn't feel that that was feasible."

         Second, the former Assistant City Manager stated the City considered creating zones in which commercial solicitation would be permitted. This idea was ultimately rejected because, "enforcement is a problem. We tried not to write something that we couldn't understand how to enforce. If everybody is just in this box, it becomes a bazaar. There would be yelling. It would have had the opposite effect in my opinion."

         Finally, the former Assistant City Manager testified that the City considered banning only aggressive solicitation, but determined that establishing an "aggressive" standard would be an enforcement nightmare, and that it wouldn't solve the problem of the volume of solicitation.

Ultimately, the City amended both ordinances to read as follows:
Sec. 74-1. Soliciting business in public.
(a) Prohibitions. It shall be unlawful to solicit any person for the purpose of inducing such person to purchase any property, real or personal, or any food, beverage, or service, or to solicit such person to enter any place of business for the purpose of inducing or attempting to induce such person to purchase any property, real or personal, or any food, beverage, or service.
This Section shall apply when the solicitor or the person being solicited is located on any public right-of-way, which means and includes, but is not limited to, any street, sidewalk, street corner, curb, bicycle path, or pedestrian walkway, in any of the following areas in the City of Miami Beach. This Section shall also apply to any doorway, stairway, window or other opening of a building abutting on or adjacent to such right-of-way, in any of the following areas in the City of Miami Beach:
(1) The area bounded on the north by, but not including, 17th Street, bounded on the east by, but not including, Washington Avenue, bounded on the south by Lincoln Lane, and bounded on the west by Alton Road;
(2)Ocean Drive from 5th to 15th Streets;
(3)Collins Avenue from 5th to 15th Streets;
(4)Washington Avenue from 5th to Lincoln Road;
(5)All cross streets and bystreets bounded on the north by 15th Street, bounded on the east by Ocean Drive, bounded on the south by 5th Street, and bounded on the west by Washington Ave;
(6)Española Way from Pennsylvania Avenue to Collins Avenue; and
(7)Lummus Park.
Sec. 46-92. Litter; definitions; prohibitions on litter; penalties for litter and commercial handbill violations; commercial handbill regulations, fines, and rebuttable presumptions; seizure and removal of litter by ...

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