The opinion
United States Court of Appeals,
Eleventh Circuit.
No. 95-4070.
James P. SCIARRINO, an individual, d/b/a Clancy's Gourmet Pizza,
Plaintiff-Appellant,
Wade Ferrel, an individual, Plaintiff,
v.
CITY OF KEY WEST, FLORIDA, a Florida Municipal Corporation,
Defendant-Appellee.
May 16, 1996.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-10031-CIV), James Lawrence King,
Judge.
Before EDMONDSON and BIRCH, Circuit Judges, and FOREMAN*, Senior
District Judge.
EDMONDSON, Circuit Judge:
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
*
Honorable James L. Foreman, Senior U.S. District Judge for
the Southern District of Illinois, sitting by designation.
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.
I.
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 that
the 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.
II.
A.
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
1
Key West's City Attorney, Sadele Virginia Stones, related
the testimony—received at public hearings held by the city—about
the harassment and delay associated with OPC encounters. She
testified to her observation that barkers would congregate in
particular areas, resulting in increased congestion and also in
altercations among barkers.
Captain McNeill of the Key West Police Department
testified that before the Ordinance's passage, walking in
the historic district
became such a hassle. You couldn't walk but part of a
block until someone would be blocking you and handing
you a flyer ... trying to hustle you to some business
or another.... [I]f I was out in uniform we started to
get a lot of complaints from tourists and business
people.
Virginia Panico, Executive Vice President of the Key West
Chamber of Commerce, testified that her office received
"hundreds" of complaints from businesses upset with the OPC
activity. In addition, George Cooper, the city manager for
the City of Key West, testified that one walking on Duval
Street in the evening could expect to be approached several
times by the barkers and that the barkers were "very
irritable." He estimated that his office received thirty
phone calls about off-premises canvassing activity.
2
Virginia Panico described having to clean up the volume of
menus and handbills left on the street and ledge outside the
Chamber of Commerce building. Mr. Cooper, the city manager, also
testified that he personally observed pedestrians throwing
handbills on the streets on several occasions.
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
B.
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
3
We are not unmindful of Appellant's suggestion that the
actual reason for the regulation was anti-competitive
pressure—fear among owners of Duval Street businesses of
competition from the businesses engaged in OPC activity. Cf.
Edenfield, 507 U.S. at 768, 113 S.Ct. at 1798-99 (courts should
question whether the asserted justification for regulating is the
real one). But, the record indicates that the problem stemmed at
least in part from OPC activity by businesses not directly
competing with the complaining businesses. For example, Virginia
Panico testified that time-share resorts and glass-bottom boat
companies were sources of litter and complaints; and Mr. Cooper
concurs that the initial source of the problem was time share
companies, not restaurants. These businesses would appear to be
businesses not directly in competition with storefront owners on
Duval Street.
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
4
In the set of cases where the regulatory scheme is
self-evidently destined to succeed or fail, the Court has passed
on the constitutionality of the speech restrictions without
extensive examination of the available evidence. Compare Posados
de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S.
328, 343-42, 106 S.Ct. 2968, 2977, 92 L.Ed.2d 266 (1986) (evident
on face of regulatory scheme that it will work) with Coors
Brewing, --- U.S. at ----, 115 S.Ct. at 1592 (evident on face of
scheme that it will not work).
Here, it is far from self-evident whether the
regulation will fail or succeed in its goals. Therefore,
the determination of this case depends on our fact-intensive
record analysis. See generally Don's Porta Signs, 829 F.2d
at 1053 n. 9 ("In cases involving first amendment claims, an
appellate court must make an independent examination of the
whole record."); see also id. (clearly erroneous standard
does not apply to determinations of whether regulation
directly advances government interest in First Amendment
cases).
goals. In particular, the City introduced extensive anecdotal
evidence that the Ordinance reduced the number of instances of
5
pedestrian congestion and harassment 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
5
Ms. Panico of the Chamber of Commerce estimated that the
number of barkers by her office in Mallory Square dropped to
"three to five" after the ordinance, from their pre-ordinance
levels of "a minimum of fifteen to maybe a maximum of thirty."
She also testified to "marked improvement" in pedestrian traffic
at certain intersections. George Cooper, the city manager,
testified that the volume of complaints about pedestrian
harassment "was reduced," although "it hasn't been eliminated
entirely." And, significantly, Capt. McNeill stated that as
business owners came into compliance with the ordinance, the
number of complaints about OPC harassment dropped off sharply.
He also testified that he personally witnessed a marked decrease
in the aggressiveness of the barkers as they came into
compliance. In addition, Ms. Stones, the former City Attorney,
testified that following enactment, "complaints from the public
[about OPC activity] were substantially reduced if not
eliminated."
6
In view of the testimony cited above, we think the record
supports an inference that pedestrian congestion was reduced
considerably. And if there were contrary indications, they seem
to be attributable to the increase, recounted by Captain McNeill,
in the overall level of visitors to Key West over the last
several years.
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.7
C.
7
And, we reject the "underbreadth" strains of the
Appellant's argument. The Supreme Court has conclusively
indicated that a regulation may "directly advance" its asserted
ends, though it strikes at less than the entire problem. For
example, in Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (plurality opinion), the
Court noted the statute was effective in fact and concluded
simply that "[t]his [effectiveness] is not altered by the fact
that the ordinance is underinclusive because it permits onsite
advertising [while prohibiting offsite advertising]." 453 U.S.
at 511, 101 S.Ct. at 2894.
Thus, we cannot accept Appellant's argument that
because there are other sources of congestion, harassment,
and litter, "the ban on the distribution of written material
"in connection with a business' is not a reasonable fit
between the goal of preventing litter and the means used to
accomplish that goal." And, Cincinnati v. Discovery
Network, 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99
(1993), is not to the contrary. That case overturned a
narrow ban on commercial newsracks, where the majority of
the city's newsracks were noncommercial; but the Court
relied not on the statute's underbreadth per se so much as
on the irrationality of the content discrimination between
commercial and noncommercial speech. Rejecting Cincinnati's
explanation for the restriction's narrow breadth, the Court
wrote that "the city's argument attaches more importance to
the distinction between commercial and noncommercial speech
than our cases warrant and seriously underestimates the
value of commercial speech." 507 U.S. at 419, 113 S.Ct. at
1511.
Here, there has been no commensurate showing of
irrationality in banning the OPC activity of businesses only
(there has been no showing that non-business OPC activity
existed). Thus, Appellant's argument, that the ordinance is
invalid because it fails to address the preponderance of the
underlying problem, is without merit.
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
III.
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
8
Mr. Cooper, the city manager, testified that the city tried
to broker "administrative" arrangements or informal "agreements"
with businesses, but encountered frequent collective-action
problems: "[An] organization would say, well, if they are not
going to do it [then] I won't either.... Everyone seemed to say,
if there is not going to be a formal rule about this we will do
what we want to." Capt. McNeill's testimony also suggests that
informal arrangements failed because the sentiment among
businesspeople refraining from OPC activity was, "if all these
people are going to do this I might have to do this to stay in
business." The failure of these more limited attempts at redress
demonstrates that the legislative measures enacted by the city
are not so unduly burdensome as to offend Central Hudson. And,
as the district court noted, the city stopped short of enacting
an outright ban on OPC activity throughout the city.
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.