by Jeremy Morrison
Just a few months after passing its latest panhandling-related ordinance, the Pensacola City Council has decided to nix the measure in the face of a completely-expected free-speech lawsuit.
Council members voted Sept. 15 to repeal the ordinance, which prohibited panhandling within the just-minted Visitors District, basically the downtown stretch of Palafox with plenty of buffer. The repeal was a condition of a legal settlement reached over the course of the summer with the American Civil Liberties Union of Florida.
As the council considered the repeal Thursday night, local homeless advocate Michael Kimbrel — and one of the plaintiffs in this case — reminded them that the move was in the city’s best legal interest.
“I am holding in my hand a settlement agreement we have made with the city of Pensacola,” Kimberl said, declining to get into the settlement’s details. “For the sake of further legal battles, I would ask that we repeal this ordinance.”
Councilwoman Sherri Myers told the council that she had “spoken extensively” with City Attorney Lysia Bowling, and felt she was in favor of the settlement and the repeal of the ordinance.
“She supports — I can’t say she supports it, but doesn’t object to it and thinks it’s a good idea. How about that?” Myers said. “My impression is that she feels this is the right thing to do.”
That position is a 180-pivot for Bowling, who assured the city council during the spring that the panhandling ordinance had been designed to withstand legal challenges. Though, even at that time, the attorney seemed to hedge her assurances.
“The state of the law is in flux, and it’s not certain, and it is difficult for us to predict if this ordinance will be challenged, or of the outcome if challenged,” Bowling said in April.
But North Florida ACLU Director Sara Latshaw had also warned council at that meeting that there was no question the city’s ordinance would fall to a constitutional challenge.
“It really isn’t up for debate,” Latshaw had told them, all but promising an ACLU lawsuit if the ordinance was passed.
Sure enough, about a week after the ordinance passed in May, the lawsuit was filed in federal court.
“Well, before the ordinance was passed we signaled — we clearly signaled — that passing the ordinance would be unconstitutional and there would likely be a constitutional challenge,” recalled ACLU attorney Benjamin Stevenson.
Stevenson said city officials — and the Atlanta law firm working the case for the city — seemed to immediately recognize the mess they were in.
“I think, quickly, they realized, “Hmmm, maybe there is a problem with that ordinance,’” the attorney said.
Over the course of a series of summer legal motions, the city and the ACLU took a wait-and-see approach. The city agreed to not enforce its ordinance while its legality was being addressed, and the ACLU agreed to hit the pause button on its legal challenge in hopes that the ordinance would ultimately be repealed.
“I’m hopeful,” Stevenson said Thursday afternoon ahead of the council’s vote.
But Stevenson’s hope was pretty well founded. There was the tentative legal settlement lingering out there, which stipulated that if the city declined to repeal the ordinance then the ACLU lawsuit was back on.
And the city’s chances of coming out on top in such a legal battle were slim to nil. While cities were once able to construct such an ordinance to dodge a constitutional challenge, the U.S. Supreme Court essentially took that ability off the table with its 2015 Reed vs. the Town of Gilbert decision, which affirmed a broad prohibition on content-based restrictions, such as a panhandler’s signage.
“That changed things,” Stevenson said of the 2015 case.
But the city council already knew that. Latshaw had told them in April that similar ordinances in other municipalities had not been able to weather legal challenges in recent years.
“Every single one since 2015 that has been challenged, every single ordinance has been struck down,” she said.
The council ultimately voted unanimously — 5-0 — to repeal the city’s latest panhandling ordinance. Notably absent for the vote were Council President Brian Spencer, who originally brought the issue forward on behalf of the Downtown Improvement Board and business owners, and Councilman Larry B. Johnson, who also supported the ordinance.
The primary condition of the settlement was that the city would repeal the ordinance.
“And that the city would pay us $10,000 in attorney fees,” Stevenson noted the settlement’s other condition.
The ACLU attorney confirmed reports that the city had initially discussed the notion of a confidentiality agreement, presumably to keep the terms of the settlement secret. But those discussions were short lived.
“They quickly realized that they couldn’t do that,” Stevenson said, guessing that perhaps the city’s Atlanta attorneys were not familiar with the extent of Florida’s public records laws. “It’s public record.”
The ACLU was representing in this challenge a suite of locals. Plaintiffs were listed as Food Not Bombs, a local charitable organization Kimbrel is associated with, as well as Caterina Cardwell and Nathan Marona.
Speaking before the council Thursday night, Kimberl noted that while he was glad the ordinance would be killed, he was not completely satisfied with the outcome.
“It still doesn’t sit well with me,” Kimberl told the council, recounting the city’s numerous efforts over the years to target panhandlers and the homeless community he works to assist, urging the officials to put more effort into addressing the issue of homelessness, rather than codifying punitive measures. “Let’s repeal this ordinance, but let’s seriously have some workshops and find some solutions.”
Nathan Monk, another vocal advocate for the homeless community, put it in harsher terms. He criticized the city’s efforts, or lack thereof, to work towards addressing the issues of homelessness and poverty and pointed to a recent incident in which a homeless man he knew was hit by a train and killed and argued such tragedies could be avoided if officials were more proactive in addressing such issues.
“I hold everyone of you responsible for that,” Monk blamed the man’s death on city officials’ unwillingness to address such issues over the years. “I watched Greg wither away, and his teeth fall out and then he got hit by a train. I’m tired of this conversation.”