Judge grants preliminary injunction in lawsuit challenging Daytona Beach ordinance that criminalizes requests for help

August 31, 2023, DAYTONA BEACH, FL – U.S. District Judge Wendy Berger has issued a preliminary injunction against enforcement of a Daytona Beach ordinance that prohibits asking for donations under certain circumstances and in certain public spaces, which plaintiffs argue is a violation of their First Amendment rights to freedom of expression.

Southern Legal Counsel, along with pro bono attorneys Sabarish Neelakanta and Holland & Knight’s Paul George, filed a federal lawsuit in November 2022 challenging the ordinance, which prohibits anyone from asking for money or other items of value in specified areas, including along streets, sidewalks, medians, and roadways that are traditional public fora, as well as within 20 feet of bus or trolley stops, city parking facilities and restrooms, ATMs, and the entrances or exits of commercially zoned property, and within 100 feet of schools and daycares.

The lawsuit follows cases brought against other Florida municipalities where laws criminalizing requests for charity have consequently been struck down, enjoined from enforcement, or repealed. These include Fort Lauderdale, Pompano Beach, Fort Myers, Tampa, West Palm Beach, Lake Worth Beach, and Miami.

Berger’s order indicates that the outcome is unlikely to be different in Daytona Beach.

“Here, the Court has already concluded that Plaintiffs are substantially likely to succeed on the merits of their First Amendment claims,” the order states.

SLC attorney Chelsea Dunn said the order should be taken by city officials as a clear indication that they are on the wrong side of the U.S. Constitution.

“The city must immediately cease enforcement of its unconstitutional ordinance,” Dunn said. “State and federal courts have found time and again that cities cannot ignore the First Amendment and ban requests for help while allowing other forms of speech in public places.”

Berger’s order is clear on this point, saying, “Requesting charity—whether it is labeled panhandling, begging, or soliciting—is protected under the First Amendment.”

The order cites numerous cases where content-based restrictions on speech were found to violate the First Amendment, quoting Police Dept. of City of Chicago v. Mosley, where U.S. Supreme Court Justice Thurgood Marshall’s order stated that “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

The lawsuit, filed in the U.S. District Court for the Middle District of Florida, Orlando Division, ultimately seeks a permanent injunction against enforcement of the ordinance, a declaration that the challenged provisions are unconstitutional, and damages on behalf of plaintiffs Dennis Scott, Chad Driggers, Douglas Willis and George Rowland.

Under the ordinance, which was adopted in February 2019 by the Daytona Beach City Commission, Daytona Beach police officers have either threatened arrest or arrested the plaintiffs multiple times.

In subsequent efforts to avoid arrest, the plaintiffs have taken measures that have curtailed their ability to solicit charitable donations that enable them to survive.

Scott, a person with a disability who sits in a wheelchair and solicits donations from passersby, including basic necessities such as food, water, clothing, hygiene products, and sometimes cash, has reduced the frequency of his solicitation. Other plaintiffs have stopped using a sign altogether or moved to soliciting outside the city limits.

The order states that the plaintiffs have “demonstrated that their speech has been, and is being, chilled by the Ordinance sufficient to establish irreparable harm.”

“We hope this ruling sends a clear message that local governments would better allocate resources towards solutions to end homelessness rather than toward arresting and imprisoning unhoused community members for engaging in protected speech,” Neelakanta said. 

The case is Scott v. City of Daytona Beach, Case. No. 6:22-cv-2192 (M. D. Fla.).

A copy of the order is available here.

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Southern Legal Counsel is a statewide, nonprofit law firm that works proactively to ensure fairness, social justice, and government accountability for Floridians through focused, high-impact initiatives, policy advocacy, and civil litigation.