83 F. 3d 364 - Sciarrino v. City of Key West Florida

This case involves the regulation of commercial speech. In Key West's historic district, businesses used to seek customers by employing "barkers" to distribute handbills to pedestrians and to engage in face-to-face advertising. The city labelled the barking activities of these businesses "off-premises canvassing" ("OPC") and banned such conduct in specified areas: on public beaches, on Mallory Dock, and in public parking lots. See Key West, Fla., Code § 94.05. Also, OPC activity was significantly restricted, but not banned, on five historic streets heavily trafficked by pedestrians. See id. § 94.06. In addition, the city established a permitting system for OPC barkers who sought to work on public lands. For the permit, barkers apply by filling out an application, listing the business employer, and proving citizenship or work eligibility. Id. § 94.03.

The city's stated aims in passing the Ordinance were reducing litter, sidewalk congestion, and invasions of pedestrians' privacy. The Ordinance was challenged on First Amendment and state law grounds by Plaintiff Sciarrino, owner of Clancy's Gourmet Pizza, which is just off one of the busy streets on which OPC activity is now restricted; Clancy's engages in prohibited OPC activity. Sciarrino sought damages and permanent injunctive relief preventing enforcement of the Ordinance. After a bench trial, the judge ruled in favor of the city on the First Amendment and pendent state claims. We affirm the judgment.

The Supreme Court has held that a state law drawing a distinction between commercial and non-commercial speech, as does the OPC ban, is not a mere time, place, and manner restriction. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 430, 113 S.Ct. 1505, 1517, 123 L.Ed.2d 99 (1993). Therefore, the statute at issue must be judged against the Court's jurisprudence on restrictions on commercial speech.

In Rubin v. Coors Brewing Co., --- U.S. ----, ----, 115 S.Ct. 1585, 1589, 131 L.Ed.2d 532 (1995), the Court stressed thatthe free flow of commercial information is 'indispensable to the proper allocation of resources in a free enterprise system' because it informs the numerous private decisions that drive the system. Indeed ... a 'particular consumer's interest in the free flow of commercial information ... may be as keen, if not keener by far, than his interest in the day's most urgent political debate.'

Id. (citations and alteration omitted).

Still, the Court has recognized the "common-sense distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978) (citation and internal quotation marks omitted). So, the constitution in reality grants "less protection to commercial speech than to other constitutionally safeguarded forms of expression." Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 64-65, 103 S.Ct. 2875, 2879, 77 L.Ed.2d 469 (1983) (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 2349-50, 65 L.Ed.2d 341 (1980)).

Thus, in Central Hudson, the Court set out a four-part test to determine the constitutionality of restrictions on commercial speech. Pursuant to that test, the court must first determine that the speech is not misleading and concerns lawful activity. 447 U.S. at 563-64, 100 S.Ct. at 2350. If so, the First Amendment applies; and the government must prove that it has a substantial interest in its stated basis for the statute, that the regulation directly advances that interest, and that the regulation is narrowly drawn to avoid unduly burdening speech. Id. The party arguing the restriction's validity has the ultimate burden of justifying it. Edenfield v. Fane, 507 U.S. 761, 770, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543 (1993).

Here, the state has conceded that the prohibited OPC activity is not misleading and concerns lawful activity. We discuss each remaining element of the Central Hudson framework individually.

To find a "substantial interest," a court must conclude both that the interest advanced by the state is legitimate in theory, and that that interest is in remedying a problem that exists in fact (or probably would exist, but for the challenged legislation). In Coors Brewing, --- U.S. at ----, 115 S.Ct. at 1591, the government sought to justify the legislation by asserting the federal government's interest in "facilitat[ing]" state efforts to regulate alcohol. The Court rejected this asserted interest:

We conclude that the Government's interest in preserving state authority is not sufficiently substantial to meet the requirements of Central Hudson. Even if the Federal Government possessed the broad authority to facilitate state powers, in this case the Government has offered nothing that suggests that States are in need of federal assistance.

Id. See also Edenfield, 507 U.S. at 768, 113 S.Ct. at 1798-99 (noting that courts should not ignore factual indications that state has obscured its real reason for regulating).

Here, however, the County has asserted valid goals, and the record supports the State's assurance that the stated problems are the actual ones sought to be redressed. Again, the state's asserted interests are preventing the harassment of pedestrians by barkers; reducing pedestrian traffic; and reducing litter. The Supreme Court has explicitly concluded that preventing vexation or harassment of the listener constitutes a legitimate state interest. See Edenfield, 507 U.S. at 769, 113 S.Ct. at 1799 (citing Ohralik, 436 U.S. at 462, 98 S.Ct. at 1921). And, we have concluded that preserving aesthetics is a valid interest. See Supersign of Boca Raton v. City of Ft. Lauderdale, 766 F.2d 1528, 1530 (11th Cir.1985) ("The objectives served by the ordinance, traffic regulation and aesthetic improvement, undoubtedly qualify as substantial governmental interests."). The state's interest here is in preserving aesthetics through the reduction of litter.

At trial, the city elicited the testimony of various witnesses to establish that these harms were sufficiently real and that the city was sufficiently appraised of them; and this testimony was properly credited by the district court. Witnesses described the frequency of harassment1 and the litter problems2 associated with the OPC activity. (The City also introduced a thirty minute videotape depicting the situation the Ordinance was designed to remedy.) Therefore, we are satisfied that the County has articulated a substantial interest under Central Hudson.3

Restrictions on commercial speech must not only address a valid problem, but must also contribute effectively to the solution--this is the "direct advancement" element of the Central Hudson test. The focus in this stage of our study is on whether the evidence supports the idea that the regulation will actually work. See Edenfield, 507 U.S. at 771, 113 S.Ct. at 1800 (party seeking to justify commercial speech restriction must prove that "the harms it recites are real and that its restriction will in fact alleviate them to a material degree"); Central Hudson, 447 U.S. at 564, 100 S.Ct. at 2350 ("[T]he regulation may not be sustained if it provides only ineffective or remote support for the government's purpose.").

The party defending the regulation must present some concrete indications that the regulation will have the intended effect. E.g., Edenfield, 507 U.S. at 771, 113 S.Ct. at 1800 (holding no material advancement where state "presents no studies" showing likely success of regulation, and where record "does not disclose any anecdotal evidence" to validate the government's suppositions regarding effectiveness); Florida Bar v. Went For It, Inc., --- U.S. ----, ----, 115 S.Ct. 2371, 2377, 132 L.Ed.2d 541 (1995) (distinguishing Edenfield, because Florida Bar Association presented extensive statistical analyses); Don's Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051, 1053 n. 8 (11th Cir.1987) (upholding ban on display of portable signs based on deposition testimony and photographs in record "confirming an unsightly visual cluster") (record citation omitted).4

The issue before us is thus whether, in our independent estimation, the design of the statute and the early evidence about its impact indicate the regulatory scheme will achieve its goals. We conclude that the City presented sufficient evidence to support the district court's conclusion that the statute will advance its goals. In particular, the City introduced extensive anecdotal evidence that the Ordinance reduced the number of instances of pedestrian congestion and harassment5 in the City's historic district.

The district court ultimately concluded that the Ordinance directly advanced all three of the city's asserted interests. But, the court indicated that the Ordinance had only a "tangible, if modest" impact on sidewalk congestion in the historic district.6 And, though the district court found, based on City Manager Cooper's testimony, an appreciable reduction in litter after the Ordinance passed, we find Cooper's testimony to be devoid of a statement to that effect. Nonetheless, the statute still survives constitutional scrutiny, because the Supreme Court has indicated that direct advancement of even one substantial interest is sufficient to preserve a statute. See Florida Bar v. Went For It, Inc., --- U.S. ----, ---- n. 1, 115 S.Ct. 2371, 2376 n. 1, 132 L.Ed.2d 541. From our independent examination of the record, we conclude that Key West has satisfactorily established that the Ordinance directly advances the substantial interests of reducing pedestrian congestion and reducing harassment of pedestrians.7C.

The last element of the Central Hudson analysis inquires whether the statute reaches farther than is necessary. We conclude it does not.

The issue is whether the City has successfully "demonstrated that its interest ... cannot be protected adequately by more limited regulation of appellant's commercial expression." Central Hudson, 447 U.S. at 570, 100 S.Ct. at 2354. This standard does not require the city to employ the "least restrictive means" imaginable. See Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). There, the Supreme Court "focus[ed] upon this specific issue for the first time," 492 U.S. at 477, 109 S.Ct. at 3033, and concluded that commercial speech protection demands "not necessarily the least restrictive means but ... a means narrowly tailored to achieve the desired objective." 492 U.S. at 480, 109 S.Ct. at 3035.

The burden to justify the extent of the restrictions nonetheless remains with the would-be regulator. Id. Here, we conclude the state has carried its burden of showing the restrictions to be narrowly tailored. The record evidences an absence of the "numerous and obvious less-burdensome alternatives to the restriction on commercial speech," Discovery Network, 507 U.S. at 417 n. 13, 113 S.Ct. at 1510 n. 13, which might require invalidation on this ground. Instead, the record evidences a careful effort on the part of the City to draw a balance between the commercial speech rights of the proprietors and the problems the Ordinance addresses.8

Appellants also contend that the Ordinance is invalid under Fla.Stat. § 166.0443, which prohibits municipalities (not employers) from requiring the "registration ... of any individual engaged in ... a specific type of category of employment" and also precludes municipalities from requiring "the carrying of an identification card as a result of such registration." We agree with the district court's conclusion that the Ordinance does not violate the Florida statute.

The district court read the statute as not applicable here, because the Ordinance requires registration of barkers based on the location of their canvassing activity. That is, the Ordinance requires registration based on the place, and not the "specific type or category" of the employment. This conclusion was confirmed by the fact that no permit or registration is required for barking activities other than in the locations specified in the Ordinance.

Discounting the accuracy of the district judge's conclusion that the statute does not apply, we agree that the Ordinance survives anyway because the terms of the savings clause contained in the statute are met: (1) Appellant does not contend the Ordinance is "preempted to the state or ... otherwise prohibited by law;" (2) it is a valid exercise of police power; (3) it is narrowly tailored, as described above; and (4) it does not unfairly discriminate against a class of persons. Id. § 166.0443(1)a-d. Therefore, the district court correctly concluded the statute does not prohibit enforcement of the Ordinance.

AFFIRMED.