Lutrario v. City of Hollywood

683 F.Supp.3d 1361

Dean LUTRARIO, Plaintiff, v. CITY OF HOLLYWOOD, FLORIDA, Defendant.

CASE NO. 23-60806-CIVALTONAGA/Strauss

United States District Court, S.D. Florida

Entered July 24, 2023

Signed July 22, 2023

Dante Pasquale Trevisani, Raymond J. Taseff, Florida Justice Institute, Miami, FL, Mara Shlackman, Law Offices of Mara Shlackman, P.L., Fort Lauderdale, FL, for Plaintiff.

Daniel Lawrence Abbott, Lindsay Marie Behnke, Weiss Serota Helfman Cole Bierman & Popok, P.L., Fort Lauderdale, FL, for Defendant.

ORDER

CECILIA M. ALTONAGA, CHIEF UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court on Plaintiff Dean Lutrario's Renewed Motion for Preliminary Injunction [ECF No. 8], filed on May 8, 2023. Defendant City of Hollywood, Florida filed a Response [ECF No. 20], to which Plaintiff filed a Reply [ECF No. 21]. Plaintiff requests that the Court enter a preliminary injunction against Defendant City of Hollywood enjoining the enforcement of three Solicitation Ordinances, sections 122.27, 122.31, and 122.54 of the City Code. (See Mot. 1). The Court has carefully considered the Complaint [ECF No. 1], the parties' written submissions, and applicable law. For the following reasons, the Motion is granted.

I. BACKGROUND

Plaintiff, a 62-year-old disabled and homeless resident of Broward County, "panhandles in the City" (id. 2; see Compl. ¶¶ 7, 30, 32) and "has been cited and arrested for panhandling along the public streets in Hollywood" (id. ¶ 3). When Plaintiff engages in panhandling, he "requests donations from occupants of cars" by "stand[ing] on either the sidewalk adjacent to the street, or on a median, or on the edge/shoulder of a city street and verbally request[ing] a donation while holding a sign that requests assistance." (Id. ¶ 32 (alterations added)).

If a motorist or an occupant of a stopped car signals . . . they [sic] want to give him a donation, he walks to the car and accepts it, and then quickly returns to the shoulder, sidewalk, or median and resumes holding his sign. He does not obstruct or interfere with vehicular traffic.

(Id. (alteration added)). As a result of his panhandling, Plaintiff "has been formally charged with violations of [the Solicitation Ordinances] on four occasions[.]" (Id. ¶ 35 (alterations added)).

The Solicitation Ordinances regulate the solicitation of donations in the City. (See id. ¶¶ 19-23). Section 122.27 bans "any person [from soliciting] donations for charitable purposes within the city without first having obtained a permit[.]" Hollywood, Fla., Code of Ordinances ch. 122, § 122.27 (2022) (alterations added).

Section 122.31 requires persons conducting solicitations to comply with certain restrictions on behavior, including "carry[ing] and display[ing] an identification card" containing "the name, address and telephone number of the solicitor as well as the name of the person or organization for whose benefit . . . the solicitor is acting[;]" and they must not "unlawfully obstruct, delay or interfere with the free movements of any person against that person's will or seek to coerce[ ] or physically disturb any other person[;]" "unlawfully obstruct, delay or interfere with vehicular traffic within the city[;]" "solicit door-to-door at any residence between the hours of 9:00 p.m. and 8:00 a.m.[;]" or "solicit at [ ]or enter upon any premises within the city where a 'No Solicitation' sign is posted in accordance with the provisions of this subchapter, unless otherwise invited onto the premises for that purpose." Id. § 122.31 (alterations added).

Section 122.51 defines a "Right of Way Solicitor[,]" and section 122.54 makes it unlawful for "any person to act as a right-of-way panhandler or solicitor on a prohibited roadway or within 200 feet from the lateral curb or boundary line of an intersection located on the prohibited roadways identified in this section." Id. §§ 122.51, 122.54 (alteration added).

The penalties for violating the Solicitation Ordinances include "a fine not exceeding $500 or imprisonment not exceeding 60 days, or both." Id. § 122.99(A).

In the past 30 months, Plaintiff has been cited twice for violating section 122.31 and twice for violating section 122.54. (See Mot. 7). On September 28, 2020, Plaintiff was cited by the Hollywood Police Department ("HPD") and issued a Notice to Appear for violating section 122.54 by "panhandling and holding a sign which stated, 'Food and Water. Please Help. Anything Helps' " and "acting as a 'right-of-way-solicitor' at the intersection of two of the prohibited highways[.]" (Compl. ¶ 36 (alteration added)). "[W]hen [Plaintiff] failed to appear for his arraignment, a warrant was issued for his arrest." (Id. (alterations added)). Plaintiff "did not have a reliable address" and therefore "did not receive notice of the date of his court appearance[.]" (Id. (alteration added)). "At his first appearance hearing while he was in custody, he pleaded guilty and received a sentence of credit for time served in the county jail." (Id.).

On July 11, 2022, Plaintiff was again cited by HPD for violating section 122.54 by seeking donations from people in cars and holding a sign that stated, "Please help food!" and acting as a "right-of-way-solicitor" at the intersection of the same two prohibited highways. (Id. ¶ 37 (quotation marks omitted)). "On October 6, 2022, [Defendant] filed a Nolle Prosequi, and the charges were dismissed." (Id. (alteration added)).

On January 8, 2023, at the same intersection, HPD cited Plaintiff for violating section 122.31(F). (See id. ¶ 39). On January 22, 2023, Plaintiff was again charged with violating section 122.31(F). (See id. ¶ 40). On April 18, 2023, Defendant filed Nolle Prosequis, and both charges were dismissed. (See id. ¶¶ 39, 40).

Proceeding under 42 U.S.C. section 1983, Plaintiff asserts three claims for relief under the First Amendment — one for each Ordinance — and asks for the following relief: (1) declarations that the Solicitation Ordinances violate the First Amendment, facially and as applied to Plaintiff; (2) a preliminary and permanent injunction prohibiting Defendant from enforcing the Solicitation Ordinances; (3) money damages; and (4) attorneys' fees and costs. (See id. 13).

II. DISCUSSION

In the present Motion, Plaintiff asks the Court to issue a preliminary injunction and insists that "[t]he ongoing threat of citation and arrest has had a chilling effect on [his] exercise of his First Amendment rights[.]" (Mot. 7 (alterations added)). According to Defendant, the Motion should be denied as moot "because Plaintiff has already obtained . . . assurance that the [Solicitation Ordinances] can no longer affect his desired behavior." (Resp. 3 n.1 (alterations added)). Defendant states it is "no longer enforcing the [Solicitation Ordinances] and has already begun the formal process of repealing [them]." (Id. 1 (alterations added)). Defendant attaches to its Response email correspondence to the Chief of Police from the City Attorney "directing all police officers to stop enforcing the [Solicitation Ordinances]" and additional correspondence "notif[ying] the City Commissioners that [the City Attorney] is in the process of drafting an ordinance that will repeal the [Solicitation Ordinances]." (Id. (alterations added)).

Defendant requests denial of the Motion on mootness grounds; Defendant does not attempt to defend the constitutionality of the Solicitation Ordinances, nor does it address the requirements for injunctive relief. (See generally id.). Plaintiff argues his claim for injunctive relief is not moot because "[i]t is the [ ] actual passage of an amendment or repeal of a law that potentially moots Plaintiff's claim for injunctive relief, not [Defendant's] aspiration to do so." (Reply 4 (alterations added; emphasis omitted)). For the reasons below, the Court finds Plaintiff's request for a preliminary injunction is not moot and that Plaintiff is entitled to injunctive relief.

A. Mootness

Article III of the Constitution limits federal court subject matter jurisdiction to only "Cases" and "Controversies." U.S. Const. art. III, § 2. A plaintiff showing an injury traceable to a defendant's conduct and redressable by a favorable court decision presents such a case or controversy and has standing to sue. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Injuries no longer remediable by a court generally render a case moot and deprive a plaintiff of standing. See Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992).

Claims for injunctive relief may become moot if "(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Reich v. OSHRC, 102 F.3d 1200, 1201 (11th Cir. 1997) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)); Sec'y of Lab., U.S. Dep't of Lab. v. Burger King Corp., 955 F.2d 681, 684 (11th Cir. 1992) ("The test for mootness in cases such as this is a stringent one[.]" (alteration added; other alteration, quotation marks, and citations omitted)).

An important exception to the mootness rule is the voluntary cessation doctrine. Under the voluntary cessation doctrine, "a party choosing to end conduct alleged to be illegal does not necessarily deprive the tribunal of the power to hear and determine the case." Rich v. Sec'y, Fla. Dep't of Corr., 716 F.3d 525, 531 (11th Cir. 2013) (citing Harrell v. The Fla. Bar, 608 F.3d 1241, 1265 (11th Cir. 2010)). "Since the defendant is 'free to return to his old ways,' he bears a 'heavy burden' of demonstrating that his cessation of the challenged conduct renders the controversy moot[.]" Harrell, 608 F.3d at 1265 (alteration added; first quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); then quoting ...