CopyCited 12 times | Published | District Court, S.D. Florida | 1988 U.S. Dist. LEXIS 14755, 1988 WL 136593
...rams, and labor pools. Those persons employed through the vendor program sell NSS newspapers to motorists on Fort Lauderdale public streets, including state-maintained roads. 4. On October 1, 1984, the Florida legislature passed Florida Statute sec. 337.406 (1987) (amending Fla.Stat....
...le as provided in s.
775.082 or s.
775.083, and each day a violation continues to exist constitutes a separate offense. For almost four years since its effective date, none of the Defendants took any action to implement enforcement of Fla.Stat. sec.
337.406....
...ng. [4] During that City Commission *894 meeting, several Fort Lauderdale residents voiced their opinions regarding street vendors, in particular, newspaper vendors. Those residents, as well as the Defendants, urged the enforcement of Fla.Stat. sec. 337.406....
...On April 11, 1988, pursuant to the Commission's direction, Fort Lauderdale Police began enforcement of the statute. That same day, Officer Richard P. Schulze ticketed Gerald Lewis, a NSS employee. The citation charged Mr. Lewis with a violation of Fla.Stat. sec. 337.406, for selling newspapers from the median at the eastern intersection of Broward Boulevard and Federal Highway in the City of Fort Lauderdale, also known as State Road 842....
...NSS immediately filed the Complaint presently before this Court on April 11, 1988, accompanied by a motion for temporary restraining order. Pursuant to a hearing held on April 19, 1988, this Court temporarily restrained the enforcement of Fla.Stat. sec. 337.406....
...390, 392,
101 S.Ct. 1830, 1832,
68 L.Ed.2d 175 (1981) (citing Canal Authority of Florida v. Callaway,
489 F.2d 567 (5th Cir.1974)). [7] That injunction is presently in effect. NSS now requests that the Defendants be permanently enjoined from enforcing Fla.Stat. sec.
337.406 against its news vendors....
...NSS's Amended Complaint contains the following eight counts. a. Count I seeks a declaration that the citation issued to the newspaper vendor by the Fort Lauderdale Police Department is invalid because the Defendants' actions regarding the enforcement of Fla.Stat. sec.
337.406 violated Florida's Sunshine Act, Fla.Stat. secs.
286.0105 (1987) and
286.011 (1987). NSS contends that the City Commission's decision to enforce Fla.Stat. sec.
337.406 was improper because it was made without benefit of appropriate public notice....
...*895 d. Count IV alleges a violation of NSS's due process rights as guaranteed by the Fourteenth Amendment of the United States Constitution resulting from Defendants' failure to post adequate notice of the Commission's decision to enforce Fla.Stat. sec. 337.406....
...96 be joined as a party. Despite the constitutional challenges raised herein, this case may proceed without the participation of the State of Florida. [13] Moreover, NSS may proceed directly against the City of Fort Lauderdale because Fla.Stat. sec. 337.406(3) authorizes "other law enforcement agencies" to enforce its provisions....
...The Sunshine Act In Count I and Count IV of the Amended Complaint, NSS contends that the Defendants failed to comply with Florida's Sunshine Act, Fla.Stat. sec.
286.011, which resulted in a per se nullification of the decision to enforce Fla.Stat. sec.
337.406 and also resulted in a denial of NSS's rights to due process....
...All members of the City Commission attended the meeting. Accordingly, such notice under existing Florida case law, passes muster. Yarbrough,
462 So.2d at 517 (notice "effective" because all members of City Commission present). Furthermore, Fla.Stat. sec.
337.406 became effective on October 1, 1984....
...ed.1979). Clearly, the selling of newspapers constitutes a commercial activity. It follows, therefore, that the presence of a "commercial feature" in NSS's newspaper sales constitutes a "commercial use" of state-maintained roads under Fla.Stat. sec. 337.406, rendering it enforceable against NSS....
...and the nonpublic forum." Frisby v. Schultz, ___ U.S. ___,
108 S.Ct. 2495, 2499,
101 L.Ed.2d 420 (1988) ( quoting Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,
473 U.S. 788, 802,
105 S.Ct. 3439, 3449,
87 L.Ed.2d 567 (1985)). Fla.Stat. sec.
337.406 plainly attempts to prohibit commercial use of "state-maintained roads." Public streets and sidewalks are the "archetype of a traditional public forum," Frisby,
108 S.Ct. at 2499, because of their usage for public assembly and debate. Hague v. CIO,
307 U.S. 496, 515,
59 S.Ct. 954, 964,
83 L.Ed. 1423 (1939). Therefore, the streets of Fort Lauderdale are traditional public fora. [21] Accordingly, Fla.Stat. sec.
337.406 must be judged against the standards established for restrictions on speech in this type of forum....
...Restrictions of Time, Place and Manner NSS contends that the statute is overbroad because it bans newspaper sales on all state-maintained roadways at all times and less intrusive means exist by which the City may further its interests. [22] The City asserts that the restrictions imposed by Fla.Stat. sec. 337.406 are valid as reasonable time, place and manner regulations....
...2294, 2303,
33 L.Ed.2d 222 (1972)). (1) Content Neutrality A content-neutral regulation makes no distinction between prohibited and permitted speech. Virginia Pharmacy,
425 U.S. at 771,
96 S.Ct. at 1830. In this case, it is clear that Fla.Stat. sec.
337.406 is content-neutral because on its face, the statute makes no distinction between classes of prohibited and permitted speech, nor does it single out any particular group....
...way of any state-maintained road, including appendages thereto" (emphasis added). The prohibition extends, but is not limited to, sidewalks, [25] "rest areas, wayside parks, boat-launching ramps, weigh stations, and scenic easements." Fla.Stat. sec. 337.406(1)....
...ly more safety-conscious. It fails to take into account the fact that actual traffic hazards may vary with the level of traffic flow which exists at each of the state roads; instead all such roads come within its broad sweep. Finally, Fla.Stat. sec. 337.406 does not even *902 permit any so-called "commercial" activity to occur on the sidewalks of those state-maintained roads....
...ul of the statute. Taking this argument to its logical conclusion, it is possible for two Girl Scouts to be on the same street at exactly the same time with one selling Girl Scout Cookies and the other giving away free samples. Under Fla. Stat. sec. 337.406, only the Girl Scout selling the cookies has committed a misdemeanor in the second degree, Fla.Stat. sec. 337.406(4), while the other Scout may continue her free distributions. Fla.Stat. sec. 337.406 is fundamentally incompatible with the First Amendment....
...have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State,
308 U.S. 147, 163,
60 S.Ct. 146, 151,
84 L.Ed. 155 (1939). For these reasons, Fla.Stat. sec.
337.406 is declared unconstitutional under the First Amendment and defendants are permanently enjoined from its enforcement....
...plainly provides the state action essential to show a direct violation of [plaintiff's civil rights]." Adickes v. S.H. Kress & Co.,
398 U.S. 144, 152,
90 S.Ct. 1598, 1605,
26 L.Ed.2d 142 (1970) (citations omitted). Here, the enforcement of Fla.Stat. sec.
337.406 by the Fort Lauderdale police establishes the requisite element of state action to establish a section 1983 claim....
...CONCLUSION In summary, NSS's claims for violations of the Sunshine Act and for tortious interference are DENIED. NSS's claims for violation of freedom of speech under the United States Constitution, the Florida Constitution and 42 U.S.C. sec. 1983 are GRANTED. [30] Fla.Stat. sec. 337.406 is hereby declared unconstitutional and a permanent injunction shall take effect forthwith....
...he Commission. See, Plaintiff's Composite Exhibit number 1, Letter from Ray Ferrero to Mayor Cox, dated April 11, 1988. [5] Although the Commission mentioned several state statutes at the April 5, 1988 meeting, the applicable statute, Fla.Stat. sec. 337.406, was never identified. The discussion, however, clearly involved Fla.Stat. sec. 337.406....
...ble statute: The City has the right to regulate vending that takes place on the street in a manner that creates a traffic hazard. The City has the means to enforce this right through City Code Section 38-24(4). In addition, Florida Statutes Sections
337.406(1) and
316.2045(1) are available....
...[14] Despite the conclusion that Defendants did not violate the Sunshine Act, the Defendants' handling of this matter should not be condoned. Defendants were certainly aware that Plaintiff's interest would be affected by suddenly enforcing Fla.Stat. sec. 337.406....
...[22] While the Court is mindful that striking down a statute as overly broad is "strong medicine" to be invoked only "as a last resort", Broadrick v. Oklahoma,
413 U.S. 601, 613,
93 S.Ct. 2908, 2916,
37 L.Ed.2d 830 (1973), the expansive sweep of Fla.Stat. sec.
337.406 allows for the overbreadth doctrine to be applied....
...ct at issue here. Further, the City has interpreted and applied the statute to prohibit charitable solicitations and any other type of activity involving the exchange of money. It is therefore evident that the prohibition contained in Fla.Stat. sec. 337.406 is content-neutral....
...No similar saving construction is available in this case. [27] The statute does appear to provide for some exceptions. The "commercial use" of the roads is prohibited "[e]xcept when otherwise authorized by law or by the rules of the department." Fla.Stat. sec. 337.406(1)....
...would fall outside the statutory language of "commercial use". In addition, the statute itself provides exceptions for "an art festival, parade, fair, or other special event if permitted by the appropriate local governmental entity." Fla.Stat. sec. 337.406(1)....
...as these frequently become intertwined. See, Arkansas Writers' Project, Inc. v. Ragland,
481 U.S. 221,
107 S.Ct. 1722, 1726 n. 3,
95 L.Ed.2d 209 (1987) (Court need not address both claims if First Amendment complaint is vindicated). Since Fla.Stat. §
337.406 "directly implicates freedom of the press, [this Court] analyzes it primarily in First Amendment terms," Id., and because the First Amendment claim is vindicated, there is no need to reach the Equal Protection issue....
CopyCited 6 times | Published | District Court, M.D. Florida | 2003 U.S. Dist. LEXIS 670, 2003 WL 147531
...The undefined terms `solicit' and `political campaigning' contribute to the indefiniteness of §
316.2045, as does section two's reference to and partial incorporation of the opaque and undecipherable permit provisions of another criminal statute, §
337.406." (Doc....
..., or persons acting on their behalf are exempted from the provisions of this subsection by the state. Permits for the use of any portion of a statemaintained road or right-of-way shall be required only for those purposes and in the manner set out in § 337.406....
...local government." Section two, however, establishes a different permitting rule for state-maintained roads. Permits for the *1254 use of a state-maintained road or right-ofway "shall be required only for those purposes and in the manner set out in § 337.406." Fla....
...The language of §
316.2045(2) requires a permit for the use of state roads only for certain specified purposesno permit is otherwise required. Apparently, a solicitor may wilfully retard traffic without a lawful permit so long as he is not using the state road for a purpose specified in Fla. Stat. §
337.406. [17] But how would a person intending to solicit on a state road determine whether or not he will be using the state road for a specified purpose (and therefore need a permit)? Section
337.406 of the Florida Statutes does not clearly specify those purposes for which a permit is required. Section
337.406 is itself a separate criminal statutea second degree misdemeanor punishable by "a definite term of imprisonment not exceeding 60 days," a $500 fine, or both. Fla. Stat. §
337.406(4); Fla. Stat. §
775.082(4)(b); Fla. Stat. §
775.083(1)(e). Under §
337.406(1), it is unlawful to make any use of the right-of-way of a state transportation facility (an undefined term) outside an incorporated municipality in any manner that interferes with the safe and efficient movement of people or property on the facility. Any such use is a prohibited use. Prohibited uses include, but are not limited to, the free distribution or display of any goods or property; solicitation for charitable purposes; and the display of advertising of any sort. Fla. Stat. §
337.406(1). Although no party in this action seeks a declaration that Fla. Stat. §
337.406 is un-constitutional, our analysis of §
316.2045 is aided by identifying the conduct that §
337.406 criminalizes. Again, the firefighter collecting money in a boot and the ninth grader hoping to entice cars into a car wash are each subject to arrest and a jail term of up to two months if they interfere with the safe and efficient movement of cars. Indeed, §
337.406 not only omits the § 501(c)(3) exemption found in §
316.2045(2), but expressly criminalizes "solicitation for charitable purposes." Furthermore, §
337.406 not only omits the "political campaigning" exemption found in §
316.2045(4), but expressly criminalizes "the display of advertising of any sort." Florida legislators and state judges advertising for re-election or retention along the roadway may join the firefighters and ninth graders in jail. Section
337.406(1) does provide for permits: "any portion of a state transportation facility may be used for an art festival, parade, fair, or other special event if permitted by the appropriate local governmental entity." The term "other special event" is not defined, and the "appropriate" local governmental entity ( i.e., the county, an unincorporated municipality) is not specified. Section
337.406(1) confers on incorporated municipalities special authority to issue permits of limited duration for the temporary use of the right-of-way "for any of these prohibited uses if it is determined that the use will not interfere with the safe and efficient movement of traffic and the use will cause no danger to the public." Fla. Stat. §
337.406(1) (emphasis supplied). [18] But §
337.406(1) is unclear as to whether the term "these prohibited uses" refers *1255 only to uses "for an art festival, parade, fair or other special event." May municipalities also permit other uses prohibited by §
337.406(1), such as charitable solicitation that interferes with traffic movement? The answer may be important not only to someone seeking a permit for soliciting in a municipality, but also to someone who simply wants to avoid using a state road for a purpose specified in Fla. Stat. §
337.406 i.e., a person who has no permit but wants to avoid violating §
316.2045(2). The statute provides no answer. This level of detail in the analysis is necessary because the Florida Legislature chose to make the criminality of a person's conduct under §
316.2045(2) dependent on the "purposes" set forth in §
337.406....
...88 at 2, neither Sheriff Aycock nor the Attorney General of the State of Florida could point to a description in the record (or otherwise describe) how one might obtain the permits referred to in Fla. Stat. §
316.2045(2)-(3) (permits for state-maintained and non-state-maintained roads, or other "proper authorization") and §
337.406(1)-(2) (permits for use of state transportation facilities by the appropriate local governmental entity, both outside and within incorporated municipalities, including roads on the State Highway System)....
...The undefined terms "solicit" and "political campaigning" contribute to the indefiniteness of §
316.2045, as does section two's reference to and partial incorporation of the opaque and undecipherable permit provisions of another criminal statute, §
337.406....
...adth. Defendants assert that Fla. Stat. §
316.2045 is designed to protect the safety of both motorists and pedestrians. Section
316.2045 supports defendants' assertion. Section
316.2045(2) refers to and adopts the licensing provisions in Fla. Stat. §
337.406....
...tractions to motorists, unsafe pedestrian movement within travel lanes, sudden stoppage or slowdown of traffic, rapid lane changing and other dangerous traffic movement, increased vehicular accidents, and motorist injuries and fatalities. Fla. Stat. § 337.406(1)....
..., or persons acting on their behalf are exempted from the provisions of this subsection by the state. Permits for the use of any portion of a state-maintained road or right-of-way shall be required only for those purposes and in the manner set out in§ 337.406....
...[14] Under defendant's understanding of "political campaigning," the Osceola County Sheriff's Office must arrest the group on one side of the street holding "Impeach Clinton" posters, while the group on the other side of the street holding "Re-Elect Clinton" signs would be allowed to remain and wilfully retard traffic. [15] Section 337.406 of the Florida Statutes makes it lawful to use a state transportation facility right-of-way in a manner that interferes with traffic movement where the use is "otherwise authorized" by the rules of the Florida Department of Transportation....
...No such rules appear in the record. [16] There may nevertheless be a pedestrian violation. Section one contains no permitting exception. [17] Once again, there may nevertheless be a pedestrian violation. Section one contains no permitting exception. [18] Section two of Fla. Stat. § 337.406 also permits sales by persons "holding valid peddlers' licenses issued by appropriate governmental entities." [19] The Florida Department of Transportation designates roads as state-maintained roads....
...An unspecified local government entity "may" issue a limited and temporary permit for certain ambiguously specified uses if the entity determines that "the use will not interfere with the safe and efficient movement of traffic and the use will cause no danger to the public." Fla Stat. §§
316.2045(2) and
337.406(1).
