FF Cosmetics FL, Inc. v. City of Miami Beach
2017 U.S. App. LEXIS 14801
11th Cir.2017Background
- Retailers operate cosmetic stores in Miami Beach’s Historic Art Deco District and rely heavily on greeters who solicit customers and distribute handbills on sidewalks; complaints reported harassment, congestion, and aesthetic harms.
- Miami Beach amended two ordinances: Section 74-1 (banning commercial solicitation on specified historic-area rights-of-way) and Section 46-92 (banning distribution of "commercial handbills" in the same areas), limiting restrictions to defined portions of the Historic District.
- Retailers challenged the amended ordinances under § 1983, asserting First Amendment violations (overbreadth, vagueness), due process, and equal protection; they sought a preliminary injunction.
- The district court preliminarily enjoined enforcement, finding the City’s interests substantial and advanced by the ordinances but that the solicitation ban (Sec. 74-1) was not narrowly tailored and the handbill ban (Sec. 46-92) was facially overbroad.
- The Eleventh Circuit affirmed: it agreed the City had substantial interests and that the solicitation rule directly advanced them, but concluded the City ignored numerous obvious, less-burdensome alternatives as to Sec. 74-1 and that Sec. 46-92’s definition of "commercial handbill" could chill noncommercial speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sec. 74-1 (ban on solicitation in defined historic areas) violates the First Amendment under Central Hudson’s tailoring prong | The ordinance is not narrowly tailored: City ignored numerous obvious, less-burdensome alternatives (permits, spacing, volume controls, zones) so Retailers likely to succeed | The ban directly advances substantial aesthetic, safety, and anti-harassment interests and is a reasonable fit; no least-restrictive-means requirement | Affirmed injunction: Sec. 74-1 likely not narrowly tailored because City disregarded obvious less-burdensome alternatives |
| Whether Sec. 46-92 (ban on "commercial handbills") is facially overbroad | Definition of "commercial handbill" sweeps beyond commercial transactions and could prohibit protected noncommercial speech (e.g., political or consumer-advocacy leaflets), chilling expression | The ordinance targets only commercial handbills and addresses the specific problems caused by commercial distribution | Affirmed injunction: Sec. 46-92 is susceptible to an overbreadth challenge because its language can encompass noncommercial speech |
| Whether Retailers’ speech is unprotected (false/misleading) such that restrictions are permissible | Retailers assert their solicitation is protected commercial speech and was not shown to be false or misleading in the record | City contends some product claims are false/misleading and therefore not fully protected | Held for Retailers at this stage: no evidence showed solicitation outside the store was false/misleading, so speech merits Central Hudson review |
| Whether injunction factors (irreparable harm, balance of harms, public interest) favor Retailers | Ongoing First Amendment violation is irreparable; harm to speech outweighs aesthetics; public interest favors free speech | City argues public interest in aesthetics, tourism, and pedestrian safety favors enforcement | Court found irreparable injury and balance/public-interest factors favor Retailers, supporting preliminary injunction |
Key Cases Cited
- Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989) (commercial-speech tailoring standard and discussion of reasonable fit vs. least-restrictive means)
- Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980) (four-part test for commercial speech regulation)
- City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) (consideration of obvious less-burdensome alternatives in tailoring analysis)
- Edenfield v. Fane, 507 U.S. 761 (1993) (burden on government to justify commercial-speech restriction)
- Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987) (overbreadth and sweeping bans on First Amendment activity)
- Sciarrino v. City of Key West, 83 F.3d 364 (11th Cir. 1996) (upholding solicitation regulation with permitting scheme)
- Dimmitt v. City of Clearwater, 985 F.2d 1565 (11th Cir. 1993) (limits of overbreadth doctrine where statute restricts only commercial speech)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine standards and sparing use)
- Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992) (upholding speech restrictions in historic districts)