Judge rules Daytona Beach ordinance criminalizing requests for help is unconstitutional, blocks its enforcement

DAYTONA BEACH, FL – U.S. District Judge Wendy Berger ruled July 18 that a Daytona Beach ordinance that criminalizes requests for donations under certain circumstances and in certain public spaces is unconstitutional. Berger’s order permanently blocks Daytona Beach from enforcing the ordinance and sets a damages trial for Sept. 16.  

“Plaintiffs have established that Defendant’s enforcement of the Ordinance violates Plaintiffs’ rights arising under the First Amendment,” the ruling states. “And the Ordinance is indisputably a legislative enactment of Defendant’s City Council and enforced by police officers employed by Defendant. Therefore, Defendant is liable to Plaintiffs for money damages for its past enforcement of the Ordinance.”

Southern Legal Counsel (SLC), along with pro bono attorney Sabarish Neelakanta, 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.

As in Berger’s order from August 2023 that preliminarily blocked enforcement of the ordinance, the judge’s latest order notes that the challenged provisions are content based, “because they apply only to solicitations for charitable donations.” The ordinance does not prohibit “solicitation to attend a church or to support a political cause,” she wrote, and thus does not regulate solicitation generally, foreclosing a key argument of the City.

The order cites the ruling in Reed v. Town of Gilbert, which states that, “Above all else, the First Amendment means that government generally has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

The order further notes that the ordinance failed to pass strict scrutiny in several respects, such as that it “has offered no evidence showing that the asserted traffic safety or health concerns are greater in the areas affected by the Ordinance compared to other areas.”

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.

“In an effort to sidestep the First Amendment, Daytona Beach created an offensive legislative record that perpetuated harmful narratives about unhoused community members. Fortunately, its expensive and misguided efforts to unconstitutionally criminalize those in need who simply ask for help have failed,” said lead attorney Chelsea Dunn, Director of SLC’s Decriminalizing Poverty Project. “If cities would put as many resources into supportive services as they do into passing and enforcing unconstitutional ordinances, then we might actually make progress as a society.”

The lawsuit was filed in the U.S. District Court for the Middle District of Florida, Orlando Division, and seeks damages on behalf of plaintiffs Dennis Scott, Chad Driggers, Douglas Willis and George Rowland, who were either threatened with arrest or arrested multiple times for violating the Daytona Beach ordinance.

“While we are pleased that we have won yet another victory for First Amendment rights, what we really want is for local governments to take more humane approaches to addressing the needs of those living in extreme poverty and confronting homelessness. Punitive measures solve nothing, and instead make matters worse for people who are struggling,” said SLC Executive Director Jodi Siegel. “It is not only unconstitutional, but it also defies logic to think that arresting and fining people will create the change that cities seek.”

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.