Appeals Court Strikes Down Miami Beach Ordinance Banning Street Performers

Affiliate: ACLU of Florida
September 30, 2005 12:00 am

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ACLU Calls Ruling a “”Victory for Free Speech””

MIAMI — In a unanimous decision, the Third District Court of Appeal today struck down as unconstitutional a Miami Beach ordinance that bans musicians, artists and dancers from performing anywhere along the tourist-laden streets of Miami Beach, including Ocean Drive, Lincoln Road and Washington Avenue. The American Civil Liberties Union of Florida, which argued that the ordinance violates the First Amendment, hailed the ruling.

“City officials should have known before they passed this ordinance that the First Amendment rights of local artists cannot be curtailed simply because street performers do not provide an economic benefit to the city,” said Howard Simon, Executive Director of the ACLU of Florida.

At issue is City of Miami Beach Ordinance No. 2001-3313 entitled “”Street Performers and Art Vendors,”” which banned artists from performing or selling items on any public streets unless they obtained a permit that would only be granted after the city manager sought input from local businesses.

Miami Beach claimed the ordinance was necessary for pedestrian safety and crowd control along the busy sidewalks, which the city leases to many of the restaurants that line Ocean Drive and Lincoln Road Mall.

In July, the ACLU of Florida filed a friend-of-the-court brief arguing the ordinance unfairly discriminated against artists, while giving preference to commercial vendors. The ACLU said that even though the city entered into private lease agreements with the local restaurants, both Ocean Drive and Lincoln Road are public forums where First Amendment activities – both artistic and commercial – are protected under the Constitution.

The ACLU filed the brief on behalf of Ron O’Daniels, who was arrested in June 2003 for playing the guitar on Ocean Drive and 14th Street without a permit. The charges against O’Daniels were eventually dismissed when the ordinance was declared unconstitutional by Miami-Dade County Judge Mary Jo Francis.

In a 29-page decision issued on November 6, 2003, Judge Francis also ruled that the ordinance lacked “”adequate procedural safeguards to avoid unconstitutional censorship”” and is a content-based restriction that gives police officers “”unbridled discretion”” to determine when and how to enforce it. Today’s ruling affirms that decision.

A copy of the decision is online at http://www.aclufl.org/issues/free_speech/O’Danielsorder092805.pdf

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