Last night, the Pensacola City Council  voted to repeal an ordinance–sponsored by Mayor Ashton Hayward and Council President Brian Spencer and passed in April–that prohibited individuals from asking for donations in downtown Pensacola. The vote was 5-0. Mayor Hayward and President Spencer didn’t attend the meeting.
The ACLU of Florida filed a lawsuit challenging the ordinance prior to its going into effect, arguing that the law violates the free speech and due process rights of those impacted by the law.
Responding to the city council’s decision, ACLU of Florida staff attorney Jacqueline Azis stated in a press release:
“We warned the city that we would sue if they attempted to implement this unconstitutional ordinance, they did it anyway, we sued – and now, thankfully, they’re backing down.
“Cities shouldn’t use law enforcement as a tool to address homelessness and poverty, and courts across the country have made clear that they can’t ban certain kinds of speech, like panhandling, simply because they might make some people uncomfortable.
“We had worked to avoid litigation in this case, and now that this ordinance no longer poses a threat to the people of Pensacola, we will immediately work to end that case.
“We are glad that the city council has walked back this wrong-headed ordinance, and we hope that this serves as an object lesson for other Florida cities about the fact that the Constitution protects everyone – including those who are least fortunate in our communities.â€
The ordinance had originally been proposed by the Downtown Improvement Board and was drafted by City Attorney Lysia Bowling who assured the council that it would stand up to court challenges. Mayor Hayward told the council members and others supporting the ban that he would fight for it in court, which is why the council approved the ordinance. Read “Pensacola’s Panhandling Dilemma” to understand Mayor Hayward’s six-year battle concerning the homeless and panhandling.
The ACLU of Florida announced it will file a motion to dismiss is lawsuit since the ordinance has been appealed.More information about the lawsuit filed in May is available here.
The fact that the ACLU says the ordinance is unconstitutional does not make it unconstitutional. The case never went to trial so the matter is unresolved. A Councilmember told me that the ACLU demanded to be given money as a condition of settling the matter. I said that if this was true I was offended that the City would let the ACLU shake-down city taxpayers over a law that was never enforced because Hayward got cold feet. The City Attorney advised Mayor Hayward and City Council that the ordinance was constitutional. I hope that Mayor Hayward hired an independent attorney to check the work of the City Attorney. If not, then they really are bigger fools then we think. Absent some independent expert opinion that the ordinance was unconstitutional, the city should have stuck to its guns. For sure, one specific part – about seven words – in Section 8-1-28 did seem questionable but the rest of the ordinance was consistent with the citywide panhandling ordinance adop0ted in 2013 – Section 8-1-25 Panhandling. No one to include the ACLU has challenged Section 8-1-25 so it is presumptively constitutional until a court says otherwise. If it turns out that Hayward has directed the PPD not to enforce Section 8-1-25, then the DIB might have a good case to sue the City, Hayward, City Administrator Olson and Police Chief Lyter to compel them to enforce Section 8-1-25. The other option would be for the City Council to also repeal Section 8-1-25. Perhaps that is the next part of the plan to encourage panhandling not just in downtown but on 9th Avenue and along Bayou Boulevard. Panhandlers at the intersections along Bayou Boulevard step into traffic in violation of state, county and city laws that all are not being enforced. A few months ago, there was almost an accident when a panhandler rushed into traffic to take money from a driver who just stopped in the middle of the road with the light green.