The Board of County Commissioners (BOCC) discussed, however did not vote on a new panhandling ordinance. At the February 23, 2021 meeting, the board agreed that they will create a solid plan to limit the areas in which panhandling will be allowed. The main issue to consider carefully is that such an ordinance may be unconstitutional. Panhandling and begging, like other forms of charitable solicitation, is a form of protected speech that occurs in a public forum such as sidewalk spaces.
As Assistant County Attorney Kyle Benda presented the facts of the local, state and federal statutes, Commissioner Steve Champion expressed his concern regarding the number of individuals he has seen panhandling along public roads. Champion reported that over the weekend (of February 20-21) he witnessed at least 30 individuals panhandling.
Champion, who once lived in Fort Lauderdale, recalled tactics he witnessed in that area, such as people approaching vehicles and knocking on windows. “It’s really bad for our county.” Acknowledging that state and federal laws govern what ordinances Hernando County can enact, he added, “I know (Benda) will tell us what we can and cannot do, but we’ve got to do something about it because it’s spreading and if word gets out ‘hey, come to Hernando County, nobody’s going to do anything about it -- you can just panhandle on the side of the road.”
Benda began by saying that almost unanimously, federal courts have held that panhandling regulations are content-based. This means that while panhandling or charitable solicitation is protected under the US Constitution’s first amendment, a municipality can regulate where the practice can occur.
According to Benda, such regulations need to be narrowly tailored “to a compelling government interest, and you have to leave open sufficient alternative avenues for the speech that you’re prohibiting.”
Benda illustrated content-basis and narrow-tailoring by describing a case in south Florida (Smith v. City of Ft. Lauderdale, Fla., 177 F.3d 954, 957 (11th Cir. 1999)) where a local government prohibited panhandling on a 1.5 mile stretch of beach, street and nearby shops, and a higher court upheld the statute, as it as not content-based, but determined that it was narrowly-tailored because panhandling was allowed anywhere else in the city.
Benda then spoke of new developments stemming from a 2015 Supreme Court case (Reed v. Town of Gilbert, 576 U.S. 155, 163-64 (2015)) which has flipped former decisions on panhandling cases, and calls into question what defines “content-based” and “narrow tailoring.” It is for this reason that the board will carefully construct the language of the pending ordinance.
Benda also reported, but did not cite a pending case in the (Florida) 11th Circuit Court of Appeals that could have additional ramifications on local ordinances when decided.
County Attorney Garth Coller added, “Federal judges are going to lean heavily to the first amendment, so we have to draft (the ordinance) very narrowly. I suggest that’s what we do.”