The following order is from a County Court in Lee County, Florida. It has little to no value as precedent. That said, the reasoning is well-organized and appears solid (there is always a chance for appeal).

So here is the long legal answer to a simple question: is it constitutional for a city in Florida to ban begging at a bus stop?

STATE OF FLORIDA, Plaintiff, v. DAVID WATROUS, Defendant. County Court, 20th Judicial Circuit in and for Lee County, Criminal Division. Case Nos. 19-MO-20125 and 19-MM-23981. April 29, 2020. James R. Adams, Judge. Counsel: Brian K. Morrison, Assistant State Attorney, for Plaintiff. Dylan Rettig, for Defendant.ORDER DENYING MOTION TO DISMISS

THIS CAUSE comes before the Court on Defendant’s “Motion To Dismiss Trespass Order Is Unconstitutional As Applied,” filed by counsel on December 13, 2019. Having reviewed the motion, the State’s motion in opposition, the case file, the applicable law, and having heard argument on February 24, 2020, the Court finds as follows:

1. Defendant was charged by information in 19-MO-20125 with begging or soliciting alms in violation of Fort Myers municipal ordinance MO54-297. Defendant was charged by information in 19-MM-23981 with trespass.

2. In the the motion to dismiss, Defendant argued that the trespass order was an unconstitutional violation of his right to travel. The Court notes that the record reflects that 19-MM-23981 was dismissed on February 11, 2020, and Defendant’s argument related to the trespass order is moot.

3. The State argued that the municipal ordinance is constitutional, citing Smith v. City of Fort Lauderdale, 177 F.3d 954 (11th Cir. 1999).

4. The standard for considering a motion to dismiss is whether there are no material facts in dispute and whether in a light most favorable to the State, the evidence establishes a prima facie case of guilt.

5. Fort Myers municipal ordinance MO54-297(b) provides that a person is prohibited from asking, begging or soliciting alms in any public transportation vehicle, or at any bus stop.

6. A court reviews the constitutionality of a statute by presuming it to be constitutional, construing its provisions to effect a constitutional outcome where possible. Abdool v. Bondi, 141 So.3d 529, 538 (Fla. 2014) [39 Fla. L. Weekly S421a]. A facial challenge requires the court to consider only the text of the statute, and the challenger must demonstrate that no set of circumstances exists in which the statute can be constitutionally applied. Id. A statute cannot be invalidated as facially unconstitutional simply because it could operate unconstitutionally under hypothetical circumstances. Id.

7. The ordinance’s limitations on begging restricts speech in a public forum because begging is speech entitled to First Amendment protections. Smith, 177 F.3d at 956. “Even in a public forum, the government may ‘enforce regulations of the time, place, and manner of expression which [1] are content-neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.’ ” Id. quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 400 U.S. 37, 45 (1983).

8. A statute is content neutral if its purpose is unrelated to the content of the speech. State v. O’Daniels, 911 So. 2d 247, 251 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2283a], citing Ward, 491 U.S. at 791 (citing Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48 (1986)). Since the ordinance here is not based on the content of speech, then an intermediate scrutiny standard is applied such that the government may impose reasonable restrictions on the time, place or manner of protected speech as long as the restrictions are narrowly tailored to serve a significant state interest and leave open ample alternative channels for communication of the information. Id. Under intermediate scrutiny, a law need not be the least restrictive means of achieving the state interest as long as the interest would be achieved less effectively absent the regulation, and the law does not burden substantially more speech than is necessary to further the government’s legitimate interest. Id.

9. The first prong is met, since the ordinance is content neutral. As to the second prong, the government has a significant interest in providing a safe, pleasant environment for individuals waiting at a bus stop, and in eliminating nuisance activity such as begging. Smith, 177 F.3d at 956. As to the third prong, since the ordinance does not completely prohibit begging, the Court finds that the ordinance does not restrict more speech than necessary to achieve the government’s interest. The Court declines to find the ordinance unconstitutional, facially or as applied to Defendant.

ORDERED AND ADJUDGED that the motion to dismiss is DENIED.

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