AGENDA BACK UP MATERIALS FOR

DISCUSSION RE: SIT LIE ORDINANCE

1. Memo from City Attorney dated September 13, 2021

re: Proposal for sit lie ordinance; Page 2

2. Draft of sample sit lie ordinance for City of Sarasota

(Ordinance 21-XXXX); Page 10

3. Ordinance No. 15-5131 adopting cu11'ent no obstruction

Ordinance; Page 16

4. Memo from City Attorney dated March 27, 2015 re:

Ordinance No. 15-5131; Page 21

5. Motion to Dismiss: 2014 Constitutional Challenge to previous

version of Section 30-3 Sarasota City Code; Page 23

6. Excerpt from June 7, 2021 City Commission minutes. Page 34

Page 1 of 36
MEMORANDUM

TO: City Commission

FROM: Robert M. Fournier, City Attorne~MF'

RE: Proposal for "Sit Lie" Ordinance to prohibit sitting and lying on
sidewalk within designated zone during designated times

DATE: September 13, 2021

I. INTRODUCTION

At the regular City Commission meeting of June 7, 2021, the Commission

discussed the possibility of adopting an ordinance that would prohibit sitting and
lying on public sidewalks within a designated area or zone during certain specified
hours. The item was placed on the agenda by Mayor Brody. However, there was
no back up information in the agenda package, so the City Commission did not have
the ability to reference the current City ordinance intended to address obstruction of
public sidewalks. After public testimony and discussion, the City Commission
requested that a sample "sit lie" ordinance be drafted for review and brought back
for discussion (without setting for public hearing) together with other back up
information that would be relevant to the discussion, including the currently existing
ordinance pertaining to obstruction of sidewalks.

II. HISTORY OF SIDEWALK OBSTRUCTION ORDINANCE

For decades prior to April 6, 2015, when the current ordinance was adopted,
the City's "no obstruction" ordinance provided as follows:

"Sec. 30-3. Obstructing pedestrian or vehicular traffic.

It shall be unlawful for any person to place or attempt to place or cause to be

placed, himself or herself or any object of any nature or description upon or above
any public way, sidewalk, footpath or other area used by the public for pedestrian or
vehicular traffic in such a manner as to impede or interfere with the flow of
pedestrian or vehicular traffic."

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 After an individual was cited for a violation of the above quoted prior
ordinance in 2014, the Constitutional validity of the ordinance was challenged in
County Comt. A copy of the Motion to Dismiss the citation alleging that the
ordinance was unconstitutional is provided in the agenda back up materials. The
two major reasons that the former ordinance was alleged to be unconstitutional were
that: (1) the Ordinance impaired the fundamental right to travel guaranteed by the
federal and state constitutions; and (2) the Ordinance was void for vagueness
because of its failure to define "impede or interfere with the flow of (pedestrian)
traffic." The City Attorney's office was more concerned about the later allegation
than the former.

For reasons that I do not presently recall, (possibly because the defendant left
the jurisdiction or the state dropped the charges) the Motion to Dismiss was not heard
or ruled on by the comt. However, the experience prompted the City Attorney's
office to recommend that the ordinance be amended to better withstand a potential
future legal challenge based on the allegation that the ordinance is void because it is
unconstitutionally vague.

III. CURRENT SIDEWALK OBSTRUCTION ORDINANCE

On April 6, 2015, the City Commission amended Section 30-3 of the City
Code by the adoption of Ordinance 15-5131. The 2015 ordinance addressed the
potential for a subsequent challenge to Sec. 30-3 of the Code on the basis that it was
unconstitutionally vague after the above referenced 2014 challenge. An ordinance
will be held unconstitutional and void "on its face" (i.e. in all applications), if it is so
vague that persons "of common intelligence must necessarily guess at its meaning
and differ as to its application." A plaintiff asserting that an ordinance is void for
vagueness must show either: (1) the ordinance fails to give fair notice of the conduct
it prohibits; or (2) the ordinance lacks enforcement standards such that it could result
in arbitrary or discriminatory enforcement.

As noted above, the prior version of Sec. 30-3, in effect in 2014, prohibited
conduct that would "impede or interfere with the flow of pedestrian traffic."
Ordinance 15-5131 changed the description of the prohibited behavior to "block,
hinder or obstruct unreasonably the free passage of pedestrians ... " In State of
Florida v. Josh Leroy Kemp, Jr., 429 So.2d 822, (Fla. 2nd DCA, 1983), the Florida
Second District Comt of Appeal found that a Lee County ordinance prohibiting this
same behavior was not unconstitutionally vague. As to the first basis for a vagueness
challenge noted at the end of the last paragraph above, the comt found that there was
fair notice of the conduct prohibited by the ordinance because the ordinance required
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either an initial warning from a law enforcement officer or posting of signs. As to
the second basis for a vagueness challenge noted in the preceding paragraph, the
court found that the ordinance did not lack enforcement standards that could result
in arbitrary or discriminatory enforcement because the restriction of enforcement to
blockage, hindering or obstruction that is unreasonable was a limitation on the
unfettered discretion of police officers to enforce in an arbitrary or discriminatory
manner. The court noted that the use of the word "unreasonable" in the context of
the ordinance represented "a targeted effmt by the County to control (only) conduct
which justifiably wanants concern." Consequently, I have been comfortable with
the language in the current ordinance because it has insulated the City from any
facial challenges based on the contention that the ordinance is unconstitutionally
vague.

Since April of 2015, when Sec. 30-3 was amended to prohibit blocking
sidewalks unreasonably, the number of citations issued for violating the ordinance
is zero. I have spoken to former Deputy Chief of Police, now Deputy City Manager,
Pat Robinson, about the reasons for the lack of citations. He noted a possible
perception among the officers that a complete obstruction of the sidewalk is required
before a citation could be issued. Other possible reasons might include a general
relaxation of enforcement in favor of initially educating and encouraging alternative
lawful behavior. There is also the possibility that some individuals who might
otherwise have been cited were willing to move if requested to do so.

Another way the fmmer version of Sec. 30-3 was amended by Ordinance 15-
5131 was to make it applicable only to persons who were obstructing the sidewalk.
The reference to "objects of any nature" (i.e. personal property) obstructing the
sidewalk was removed and is now addressed separately in another section of the City
Code. Also, the current ordinance applies to individuals who are standing in addition
to sitting and lying down.

IV. PROPOSED "SIT LIE" ORDINANCE

The term "sit lie" ordinance is generally used and understood to mean a
municipal ordinance which prohibits sitting or lying (and sometimes sleeping) on a
public sidewalk or in other public places as opposed to obstructing pedestrians on
the sidewalk. These ordinances have been adopted more frequently in west coast
cities in states such as Washington, Oregon and California, all within the jurisdiction
of the U.S. Ninth Circuit Comt of Appeals. However, many of these cities had
situations where blocks of their public sidewalks were almost totally covered with
people reclining on blankets, in sleeping bags and in tents. However, many of the
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ordinances in these cities have not survived or may not survive in the wake of the
Ninth Circuit decision in Martin v. City ofBoise, which is discussed in Section IV.E
below.

In Florida, 11 Site lie ordinances .. have not been as prevalent as in cities on the
west coast. In a search of 25 Florida municipalities, three were found to have
ordinances that could accurately be described as 11 Sit lie 11 ordinances. These three
cities are Orlando, St. Petersburg and Clearwater. The Orlando prohibition applies
in a designated downtown zone from 7:00am until10:00 pm on weekdays and from
7:00 am until 1:00 am on Fridays and Saturdays. The St. Petersburg ordinance
applies in a zone called the 11 prohibited area 11 during 11 daylight hours. 11 The
Clearwater ordinance applies in certain zones where the City has made public
improvements at significant expense between the hours of7:00 am and 10:00 pm ..
The sample draft Sarasota ordinance would apply between 10:00 am and midnight.
However, these hours are of course subject to revision as desired by the City
Commission.

Because there is a reasonable probability that the legality of any 11 Sit lie 11
ordinance that might be adopted by the City of Sarasota could be challenged in court,
some of the arguments that have been made in cases challenging the legality of such
ordinances are summarized below.

A. Lack of proper municipal purpose

Generally speaking, the purposes of a sit lie ordinance are typically to

maintain and promote the economic vitality of a patticular business district,
(sometimes in an area with a tourist dependent economy) and to promote public
safety, which are both valid municipal purposes to enact legislation. Proponents of
these ordinances say that the impact of such an ordinance is to make the designated
zone more welcoming to visitors and shoppers, which helps local businesses.
However, opponents will claim that the ordinance is not motivated by economic
considerations or by a desire to ensure that public sidewalks are passable, but rather
by a desire to limit the visibility of a specific segment of the population, even if they
are not obstructing pedestrians.

Unf01tunately, the fact that there have been no citations issued for violation
of the existing no obstruction ordinance might be used to argue that there is no basis
for enactment of a sit lie ordinance because there is actually no problem to be
addressed. This is one reason that public testimony as to the need for the ordinance
would be especially important if an ordinance were adopted.
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 B. Equal Protection of the law

Detractors may argue that the ordinance disproportionately impacts persons

experiencing homelessness. A potential plaintiff could argue that the City enforces
the ordinance selectively against the homeless and that the homeless population is
intentionally targeted and treated differently from non-homeless persons through the
City's enforcement actions. A selective enforcement claim can be made if can be
shown that a municipal defendant based enforcement decisions on an arbitrary
classification, (i.e. homelessness) which will give rise to an inference that the City
11
intended to accomplish some forbidden aim against that group through selective
application of the laws. 11 Such a claim may need to wait until there is a record of
citations issued for violation of the ordinance.

C. First Amendment- Freedom of Speech

The First Amendment protects not only expression via the spoken word or
what appears in print. The First Amendment also protects symbolic speech in the
form of non-verbal activities or conduct that is 11 sufficiently imbued with elements
of communication11 such that it will be understood by those who observe it because
of the surrounding circumstances. The City of Seattle ordinance survived a challenge
alleging that the ordinance was facially unconstitutional under the First Amendment.
(A facial challenge to an ordinance alleges that the whole ordinance is invalid and
that there is no conceivable way it can be applied in a constitutional manner under
any circumstances. This is contrasted with an 11 as applied 11 challenge, which alleges
that the ordinance was unlawfully applied in a patticular situation.)

The plaintiffs in the suit against the City of Seattle alleged that sitting on the
sidewalk could constitute expressive conduct, such as when a homeless person
assumed a sitting posture to convey a message of passivity toward solicitees. The
plaintiffs might have argued that the Seattle ordinance was unconstitutional as
applied to a patticular instance of sitting on the sidewalk for an expressive purpose
(which is the reason for the exception found in Section 30-26(c)(7) of the sample
draft Sarasota ordinance provided) but instead they brought a facial challenge. The
comt did not seem impressed, finding that the fact that sitting might possibly
constitute expressive conduct in some situations was not sufficient to supp01t a facial
challenge to the Seattle ordinance based on the First Amendment. (I believe there
have been some situations when individuals were instructed to avoid the application
of these ordinances by holding a sign while sitting.)

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 D. Fomth Amendment- Unreasonable Search and/or Seizure

There is case law to the effect that a person can be "seized" in violation of the
Fomth Amendment if a situation is presented in which a reasonable person would
not feel free to leave an encounter with the police. Arguments have been made that
the converse can be a violation as well, that is that the Fomth Amendment can also
be violated if a reasonable person would not feel free to remain somewhere because
of some official action. The Seventh Circuit Comt of Appeals appears open to the
idea that denial of freedom to remain in a place can be a "seizure." (See, Kernats v.
O'Sullivan, 35 F.3d 1171, 1177-78 (7th Cir. 1994). Likewise, the federal Sixth
Circuit, in a case out of Eastpointe Michigan, has held that the Fomth Amendment
can encompass the right to remain in any public place. However, the Eleventh
Circuit (which includes Florida) has rejected this argument, making it less likely that
it would be raised.

E. Eighth Amendment- Cruel and Unusual Punishment

The "cruel and unusual punishment" clause of the Eighth Amendment can be
applied in three ways. First, it limits the type of punishment the government may
impose. Second, it proscribes punishment that is grossly disproportionate to the
severity of the crime. Third, it places substantive limits on what the government
may criminalize. It is the third application of the clause that is pertinent to a
challenge to a sit lie ordinance.

A prospective plaintiff could cite case law to suppmt the proposition that the
Eighth Amendment prohibits a state or local government from punishing an
involuntary act or condition if it is an unavoidable consequence of one's status or
being. The argument will be that the conduct made unlawful by a sit lie ordinance
is involuntaty and inseparable from status and that they are one and the same, given
that people are biologically compelled to rest whether by sitting, lying or sleeping.
(This argument is more persuasive in a challenge to an ordinance in which the
designated prohibition zone is a larger area or an entire City.)

In the Martin v. City ofBoise case referenced above the Ninth Circuit federal
comt of appeals held that the Eighth Amendment prohibits the imposition of
penalties for sitting, sleeping or lying outside on public propetty for homeless
individuals who cannot obtain shelter. More specifically, the court held as long as
there are a greater number of homeless individuals in a jurisdiction than the number
of available beds in shelters in a jurisdiction, that the jurisdiction "cannot prosecute
homeless individuals for involuntarily sitting, lying and sleeping in public." (This
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overlooks the probability that even if the number of available beds in a jurisdiction
exceeds the number of homeless people, some homeless individuals would still not
go to a shelter.) The Boise decision is not currently binding on Sarasota because the
City is outside the jurisdiction of the Ninth Circuit Court of Appeals, but it is an
argument that still might be made in the event a sit lie ordinance were adopted and
subsequently challenged.

F. Substantive Due Process

In order to prevail in a substantive due process violation claim, a plaintiff has

to show that the challenged ordinance effects a governmental deprivation of life,
liberty or property that is essentially arbitrary and unreasonable. In the context of a
sit lie ordinance, the claim would be that a plaintiff was deprived of his or her
"liberty" interest to remain free to roam or to remain in any public place for arbitrary
reasons. In the challenge to the City of Seattle sit lie ordinance, the plaintiffs alleged
a deprivation of their libetty interest and that the deprivation was arbitrary and
without a rational basis in the law because its real intent was to "drive unsightly
homeless people from the downtown commercial areas.''

In response, however, the City of Seattle was able to put sufficient evidence
into the record that its ordinance was a legitimate response to substantial public
concerns. The City's argument that the downtown area was becoming dangerous to
pedestrian safety and to economic vitality when individuals were blocking the public
sidewalks "causing a cycle of decline as residents and tourists were going elsewhere
to meet, shop and dine" was suppmted by the record, hence not arbitraty.

V. CONCLUSION

The City Commission has the legal authority to adopt a sit lie ordinance if the
Commission desires to do so similar to other Florida municipalities such as
Clearwater, St. Petersburg and Orlando. If so, I would recommend that the ordinance
be limited to a specified designated zone or area with a higher level of pedestrian
and commercial activity than other areas. The City Commission should be aware
that such an ordinance might result in complaints from business owners located in
areas excluded from the no sit lie zone. Some may complain that their area should
be included in the no sit lie zone. Others may complain that adoption of the
ordinance results in more people sitting or lying on the sidewalks in their areas
outside of the no sit lie zone.

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 Presently, I am inclined to believe that a City Commission decision on
whether to adopt a sit lie ordinance should be deferred for at least another six to nine
months to see how the current city ordinance will work out if appropriately applied
and enforced. The Police Department and Police Legal Advisor Joe Polzak should
have the oppmtunity to implement training focused on the current ordinance. It is
only by utilizing the ordinance that the City will have the chance to learn the
circumstances under which the courts will consider the passage of pedestrians to be
blocked, hindered or obstructed in an unreasonable manner.

Situations will arise when it can be credibly argued that someone lying or
sitting on the sidewalk is unreasonably blocking, hindering or obstructing
pedestrians. Finally, there has been a change in circumstances because Sarasota
police officers are now equipped with body cameras. Consequently, the interaction
between law enforcement officers and persons allegedly violating the ordinance can
now be captured and recorded by the cameras. So, in addition to hearing testimony,
a judge will be able to view the actual circumstances in which a citation was issued.

/lg

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 draft/rmf/lg/09- 13-21
Ordinance No. 21-:XXXX

AN ORDINANCE OF THE CITY OF SARASOTA AMENDING

THE SARASOTA CITY CODE, CHAPTER 30, STREETS,
SIDEWALKS AND OTHER PUBLIC PLACES, ARTICLE I, BY
ADDING A NEW SECTION TO BE KNOWN AND ENTITLED
AS SECTION 30-26, "SITTING OR LYING DOWN WITHIN
PUBLIC RIGHT-OF-WAYS IN PEDESTRIAN ACTIVITY
ZONE," BY MAKING IT UNLAWFUL TO SIT OR LIE UPON A
PUBLIC SIDEWALK AFTER WARNING, AS MORE FULLY
SPECIFIED HEREIN; MAKING FINDINGS; PROVIDING
FOR SEVERABILITY; REPEALING ORDINANCES OR
PARTS OF ORDINANCES IN CONFLICT HEREWITH;
PROVIDING FOR READING BY TITLE ONLY AND
PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, public streets and sidewalks are constructed and maintained for the
primary purposes of enabling pedestrians and lawfully permitted vehicles to safely and
efficiently move about from place to place, facilitating deliveries of goods and services
and providing the public with convenient access to goods and services; and,

WHEREAS, such public streets and sidewalks can be prone to congestion,

especially in the downtown core of the City where there is a higher level of pedestrian
activity; and,

WHEREAS, except in places provided for sitting or lying and where reasonably
necessary, sitting or lying on public sidewalks in the downtown Sarasota retail business
district interferes with the primary purpose of allowing the public to safely and efficiently
move about from place to place, thus deterring others from frequenting the downtown
retail business district and discouraging others from patronizing downtown shops,
restaurants, businesses and entertainment venues, thereby undermining the essential
economic viability of downtown Sarasota; and,

WHEREAS, the City Commission seeks to maintain a safe and orderly

environment within public rights-of-way in downtown Sarasota that is conducive to the
conduct of business and to retail commercial activity and that is inviting to patrons of
business establishments, including both residents and visitors; and,

WHEREAS, maintaining pedestrian activity and authorized commercial activity on

public sidewalks is essential to public safety and sitting or lying in public streets can also
endanger public safety, especially for the elderly, disabled and vision impaired, and be
otherwise injurious to the public welfare; and,

WHEREAS, sitting or lying down is not the customary use of public rights-of-way
including public sidewalks; and,

Page 10 of 36
 WHEREAS, there are numerous locations in downtown Sarasota and elsewhere,
other than the pedestrian activity zone designated by this ordinance, in which individuals
can sit or lie down; and,

WHEREAS, the City Commission recognizes the need to regulate pedestrian

traffic on public ways, streets, sidewalks and walkways in the interest of public safety;
and,

WHEREAS, the City Commission finds it necessary to prohibit occupation of those

public areas in a manner which inhibits pedestrians from safely and expeditiously utilizing
those public ways, streets, sidewalks and walkways; and,

WHEREAS, the City Commission recognizes that the City has a compelling
interest in complying with the requirements of the Americans with Disabilities Act which
include sidewalk access with minimal obstructions for those with disabilities; and,

WHEREAS, parking meters have been installed in downtown Sarasota in areas of

concentrated pedestrian activity due to concentrated retail business activity (including
restaurants which are classified as retail establishments by the City Zoning Code) along
Main Street east of Washington Boulevard and along Palm Avenue; and ,

WHEREAS, the City Commission finds that it is in the furtherance of the public
health, safety, welfare and common good, to amend Chapter 30, Article I, to add Section
30-26, as set forth herein.

NOW, THEREFORE, BE IT ENACTED BY THE PEOPLE OF THE CITY OF

SARASOTA, FLORIDA:

Section 1. The Code of the City of Sarasota; Chapter 30, Streets, Sidewalks
and Other Public Places, Article I, In General is hereby amended by the addition of a new
Section 30-26 to be entitled" ",which shall provide as follows: (All text shown below is
new additional text.),

"Sec. 30-26. Sitting or lying down within the public right of ways in pedestrian
activity zone

(a) Pedestrian Activity Zone. There is hereby designated an area in downtown

Sarasota to be known as the Pedestrian Activity zone. Said zone shall consist of the
public right of way of Main Street from U.S. Highway 41 on the west to U.S. Highway
301 (Washington Boulevard) on the east and the public right of way of Palm Avenue
from Cocoanut Avenue on the north to Ringling Boulevard on the south.

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(b) Prohibited Behavior.

(1) It shall be unlawful for any person to sit or lie down upon the right-of-way,
including the sidewalk, located between the curb line or the edge of the
pavement of a roadway and the adjacent property line of privately or publicly
owned properties, within the designated Pedestrian Activity Zone or upon a
blanket, sleeping bag, chair, stool, or any other object not permanently affixed
upon such area, between the hours of 10:00 am and midnight.

(2) No person shall be cited for a violation of Section 30-26(b )( 1) above for a first
violation unless the person continues to engage in conduct prohibited by that
section after having been (a) notified by a law enforcement officer that the
conduct violates Section 30-26(b)( 1) and (b) provided an opportunity to relocate
to an area where sitting or lying down would be lawful.

(3) It shall be a violation of Section 30-26(b)(1) for any person who has previously
violated that section and who has received notice pursuant to Section 30-
26(b)(2) to commit a second or subsequent violation within the designated
Pedestrian Activity Zone.

(c) Exemptions. Persons in the following situations shall be exempt from the
prohibitions of Section 30-26(b), unless any such exemption creates and/or causes a
hazardous condition or threatens public safety:

(1) Medical Emergency. A person sitting or lying in or upon a public right-of-way

because of a medical emergency is exempted from the prohibitions of Section
30-26(b) until the resolution of the medical emergency.

(2) Permitted Event. A person sitting or lying in or upon a public right-of-way

because the person is attending a permitted event in the City, such as but not
limited to parades, festivals , assemblies or concerts is exempt from the
prohibitions of this Section 30-26(b) during his or her attendance at said event.

(3) Government Agents. A person who is an agent of a government entity or a

person or number of persons acting pursuant to authority or direction from a
government agent are exempted from the prohibitions of Section 30-26(b).

(4) Seating supplied by public agencies. A person utilizing an object supplied

by the City or by another public agency in the manner it was intended, such as
sitting on a bench or a chair.

(5) Mobile seating. A person sitting or lying in or on a wheelchair, a baby

carriage, stroller or any other object or motor vehicle or other vehicle in order
to move about.

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 (6) Sidewalk Cafe. A person who is sitting down while patronizing a sidewalk
cafe which has a valid sidewalk cafe permit from the City while seated within
the permitted area.

(7) Expressive Activity. A person sitting or lying down while engaged in

expressive activity protected by the First Amendment when accompanied by
incidents of speech such as signs or literature explaining the expressive
activity.

(8) Public Transportation. A person sitting at a bus stop or trolley stop while
waiting for public transportation.

Nothing within the exceptions enumerated in subsections (1) through (8) above
shall be construed to authorize any conduct that is otherwise prohibited by
statute or by ordinance.

(d) Posted Notice. Upon the affirmative vote of the City Commission, the City may post,
or cause to be posted, notice of the prohibitions of Section 30-26(b)( 1) in City right-of-
way within the Pedestrian Activity Zone determined , by the City, to have heavy
pedestrian traffic utilizing said right-of-way. Said notice shall consist of signage
notifying the public that the prohibitions of Section 30-26(b)(1) thereby apply in the
posted right-of-way. Said signage shall comply with the following requirements:

(1) The signage shall be readable to pedestrians traveling in or upon the right-of-
way.

(2) The signage shall be prominently displayed in the right-of-way where the
prohibitions of Section 30-26(b)(1) apply.

(3) The signage shall publish the prohibitions of Section 30-26(b)(1) as follows ; "no
sitting or lying on the public right-of-way or sidewalk between 10:00 am and
midnight."

(4) The signage shall cite this Ordinance

Section 2. It is hereby declared to be the intention of the City Commission that

the sections, paragraphs, sentences, clauses and phrases of this Ordinance shall be

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deemed severable, and if any phrase, clause, sentence, paragraph or section of this

Ordinance is declared unconstitutional or otherwise invalid by the valid judgment of a

court of competent jurisdiction, such unconstitutionality or invalidity shall not affect any of

the remaining phrases, clauses, sentences, paragraphs or sections hereof.

Section 3. Ordinances in conflict herewith are hereby repealed to the extent of

such conflict. The City Commission specifically finds that no portion of Ordinance 15-

3151, codified as Section 30-3 of the Sarasota City Code, is in conflict with the provisions

hereof and that no provision of said Section 30-3 is repealed by the adoption of this

Ordinance.

Section 4. This ordinance shall take effect immediately upon second reading.

PASSED on first reading by title only, after posting on the bulletin board at City

Hall for at least three (3) days prior to first reading , as authorized by Article IV, Section 2,

Charter of the City of Sarasota, Florida this __ day of _ __ ____ , 2021.

PASSED on second reading and finally adopted this __ day of

- - -- - -- - ' 2021.

CITY OF SARASOTA, FLORIDA

Hagen Brody, Mayor

ATTEST:

Shayla Griggs
City Auditor and Clerk

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 Mayor Hagen Brody

Vice Mayor Erik Arroyo

Commissioner Jen Ahearn-Koch

Commissioner Liz Alpert

Commissioner Kyle Scott Battie

cityatty/ordinances/2 1-:XXXX(sit.lie.sidewalk)/rmf/lg/09- 13-2 1

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 Ordinance No. 15·5131

AN ORDINANCE OF THE CITY OF SARASOTA

AMENDING THE SARASOTA CITY CODE, CHAPTER 30,
STREETS, SIDEWALKS AND OTHER PUBLIC PLACES,
ARTICLE I, SECTION 30-3, "OBSTRUCTING VEHICULAR
OR PEDESTRIAN TRAFFIC," BY MAKING IT UNLAWFUL
TO OBSTRUCT FREE PASSAGE. IN OR UPON PUBLIC
RIGHTS OF WAY AFTER WARNING, AS MORE FULLY
DESCRIBED HEREIN; MAKING FINDINGS; PROVIDING A
STATEMENT OF PURPOSE; PROVIDING FOR
SEVERABILITY; REPEALIN-G ALL ORDINANCES OR
PARTS OF ORDINANCES IN CONFLICT HEREWITH;
PROVIDING FOR READING BY TITLE ONLY AND
PROVIDING FOR AN EFFECTIVE DATE.

WHEREAS, the City of Sarasota has a significant governmental interest in

vehicular and pedestrian traffic safety; and,

WHEREAS, the City Commission recognizes the need to regulate pedestrian

traffic on public ways, streets, sidewalks and walkways in the interest of public safety;
and,

WHEREAS, the City Commission finds it necessary in the interests of public

safety to prohibit occupation of those public areas in a manner which inhibits
pedestrians from safely and expeditiously utilizing those public ways, streets, sidewalks
and wal_kways; and,

WHEREAS, the City Commission recognizes that the City has a compelling
interest in complying with the requirements of the-Americans with Disabilities Act which
include sidewalk ac.cess with minimal obstructions for those with disabilities; and,

WHEREAS, the City Commission seeks to maintain a safe, orderly and pleasant
environment on public property and public rights-of-way; and,

WHEREAS, this ordinance is Intended to regulate conduct for the purpose of

promoting pedestrian and vehicular safety; and,

WHEREAS, Section 30-3 of the Sarasota City Code prohibits the interference
with the flow of pedestrian or vehicular traffic on public ways, streets, sidewalks and
walkways; and,

WHEREAS, it has come to the attention of the City Commission that Section
30-3, as currently enacted, may be construed to prevent utilization of those public areas
for bonafide, legal purposes; and,

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 ) )

WHEREAS, the City Commission finds that it is in the furtherance of the public
health, safety, welfare and common good, to amend Chapter 30, Article I, Section 3, as
set forth herein; and,

WHEREAS, the City Commission recognizes the holding of the Florida Second
District Court of Appeal in State v. Kemp, 429 So.2d 822, (FLA 2DCA, 1983), where an
ordinance of Lee County, Florida, similar to Sec. 30-3, as amended herein, was
determined by the Court to be constitutionally valid; and,

WHEREAS, the City Commission recognizes the holding of the United States
Supreme Court in McCullen v. Coakley, 134 S.ct. 2518, at 2535 (2014), that "ensuring
public safety and order, promoting the free flow of traffic on streets and sidewalks, [and]
protecting property rights" are legitimate and significant gbvernment interests; and,

WHEREAS, the City Commission recognizes the holding of the United District
Court for the Middle District of Florida, Fort Myers Division, in Minahan v. City of Fort
Myers, 2014 WL 7177998 (2014), where the Court concluded that a city ordinance
regulating conduct that "hinders or impedes' the "free and uninterrupted passage of
vehicles, traffic. or pedestrians" promotes a substantial government interest and is "not
broader than necessary to promote the City's interest in the free flow of traffic on streets
and sidewalks."

NOW, THEREFORE, BE IT ENACTED BY THE PEOPLE OF THE CITY OF

SARASOTA, FLORIDA:

Section 1. The Code of the City of Sarasota; Chapter 30, Streets, Sidewalks and Other
Public Places, Article I, In General, Section 30-3. Obstructing Pedestrian or Vehicular
Traffic is hereby amended as follows: (New text is shown by underline. Deleted text is
shown in strike through format.),

"Sec. 30·3. Ob.slru~ing pedestrian or •Jehicular traffic.

It shall be unla'Jiful for any person to place or attempt to place or cause to be

placed, himself or herself or any object of any nature or description upon or
abo¥e any public \WJy, sidewalk, footpath or other area used by the public for
pedestrian or vehicular traffic in such a manner a& to impede or interfere with the
flow of pedestrian or 'Jehlcular traffic."

Obstructing free passage in or upon public rights-of-way after warning.

(a) Purpose. It is the intent of this section to eliminate the obstruction of free passage
in or upon a public right-of-way. whether such obstruction results from the manner in
which a person .or number of persons stand. sit or lie in or upon said right-of-way.

(b) Prohibited Behavior.

2
Page 17 of 36
 )

(1) It shall be unlawful for any person or any number of p_ersons to stand, sit. or
lie in or upon any City right-of-way, to include but not limited to any public
sidewalk, street. curb, crosswalk, walkway area, median or that portion of
private property utilized for public use. so as to block, hinder or obstruct
unreasonably the free passage of pedestrians or vehicles thereon; after first
being warned by a law enforcement officer of the prohibition of this section
and requested by the law enforcement officer to move or relocate so as to
cease blocking . hindering or obstructing free passage theron, or where a "no
obstructing free passage" sign or signs have been posted.

(2) It shall be unlaWful for any person or any number of persons to stand, sit. or
lie in or upon any City right-of-way, to include but not limited to any public
sidewalk. street. curb. crosswalk, walkway area. median or that portion of
private property utilized for public use, so as to block. hinder or obstruct
unreasonably the free access to the entrance of any building open to the
public: after first being warned by a law enforcement officer of the prohibition
of this section and requested by the law enforcement officer to move or
relocate so as to cease blocking, hindering or obstructing free access to the
entrance of a building open to the public. or where a "no obstructing free
passage" sign or signs have been posted.

(c) Exemptions. The following situations shall be exempt from the prohibitions of
Section 30-3(b), unless any such exemption creates and/or causes a hazardous
condition or threatens public safety:

(1) Medical Emergency. A person or number of persons standing, sitting or

lying in or upon any public right-of-way because of a medical emergency are
exempted from the prohibitions of Section 30-3(b) until the resolution of the
medical emergency.

(2) Permitted Event. A person or number of persons standing, sitting or lying in or

upon any public right-of-way because they are attending a permitted event in
the City, such as but not limited to parades, festivals, assemblies or concerts
are exempted from the prohibitions of this Section 30-3(b) during their
attendance at said event.

(3) Government Agents. An agent or agents of a government entity or a person

or number of persons acting pursuant to authority or direction from a
government agent are exempted from the prohibitions of Section 30-3(b).

(d) Pbsted Notice. Upon the affirmative vote of the City Commission. the City may
post or cause to be posted, notice of the prohibitions of Section 30-3(b) in any City
right-of-way determined, by the City, to have pedestrian traffic utilizing said right-of-
way. Said notice shall consist of signage notifying the public that the prohibitions of

Page 18 of 36
 )

Section 30-3(b) thereby apply in the posted right-of-way. Said signage shall comply
with the following requirements:

(1) The signage shall be readable to pedestrians traveling in or upon the right-of-
way.

(2) The signage shall be prominently displayed in the right-of-way where the
prohibitions of Section 30-3(b) apply.

(3) The signage shall publish the prohibitions of Section 30-3(b) as follows: "no
standing. sitting or lying so as to unreasonably block. hinder or obstruct free
passage in this right-of-way."

(4) The signage shall cite this Ordinance.

Section 2. It is hereby declared to be the intention of the City Commission that

the sections, paragraphs, sentences, clauses and phrases of this Ordinance shall be

deemed severable, and if any phrase, clause, sentence, paragraph or section of this

Ordinance is declared unconstitutional or otherwise invalid by the valid judgment of a

court of competent jurisdiction, such unconstitutionality or invalidity shall not affect any

of the remaining phrases, clauses, sentences, paragraphs or sections hereof.

Section 3. Ordinances in conflict herewith are hereby repealed to the extent of

such conflict.

Section 4. This ordinance shall take effect immediately upon second reading.

PASSED on first reading by title only, after posting on the bulletin board at City

Hall for at least three (3) days prior to first reading, as authorized by Article IV, Section

2, Charter of the City of Sarasota, Florida this 16th day of March, 2015.

PASSED on second reading and finally adopted this 6th day of April, 2015.

Page 19 of 36
 )

CITY OF SARASOTA, FLORIDA

u:.~Q...Q~~'-
Willie Charles Shaw, Mayor

ATTEST:

Willie Charles Shaw, Mayor

No Susan L. Chapman, Vice Mayor

Commissioner Suzanne Atwell

Commissioner Eileen Walsh Normile

Commissioner Stan Zimmerman

cityatty/ordinances/15-5131 (obstruct. free. passage)/nnfl'lg/04-07-15

Page 20 of 36
MEMORANDUM

TO: City Commission

FROM: Robett M. Fournier, City Attorney~({J'f

RE: Proposed Ordinance 15-5131
Responses to comments made on first reading

DATE: March 27,2015

1. Comment: The proposed ordinance would violate rights guaranteed

by the First Amendment. Summary of Response: Disagree. Recommendation is
that no changes to the ordinance are required to safeguard the exercise of First
Amendment rights. [See, Minihan v. City ofFt. Myers 2014 WL 7177998]

The question was asked as to whether a "sit in" could violate the proposed
ordinance. The answer is yes, it could, if the "sit in" were conducted in such a way
so as to block the entrance to a building or to unreasonably obstruct the passage of
the public over the public right of way. Local governments are allowed to place
reasonable "time place and manner" restrictions on the exercise of First
Amendment rights in a traditional public forum (i.e. the public right of way);
provided that such restrictions are content neutral, allow alternative channels for
communication and are narrowly tailored to serve a significant governmental
objective. This ordinance could easily pass this test under the standard known as
"intermediate Qudicial) scrutiny."

2. Comment: The word "unreasonably" utilized in the context of the

phrase "so as to block, hinder or obstruct unreasonably" should be deleted or
defined. Summary of Response: Disagree. Recommendation is to retain the
word "unreasonably" and to leave the word undefined in light of the holding in
State v. Kemp, 429 So. 2d 822 (Fla. 2nd DCA 1983).

In the Kemp case cited above, the Florida Second District Court of Appeal
found that a Lee County ordinance prohibiting standing, sitting or lying upon a
public sidewalk "so as to hinder or obstruct um·easonably" the free passage of
pedestrians was not unconstitutionally vague or overbroad on its face. The coutt
perceived the use of the word "um·easonably" as limiting the scope of the conduct
that would constitute a violation and noted approvingly that this limitation did not
give the police unfettered discretion, which might have encouraged arbitrary

Page 21 of 36
enforcement. The Kemp case presented a situation in which it was alleged that the
ordinance was facially unconstitutional as distinguished from unconstitutional as
applied.

At the public hearing on first reading it was argued that it is not possible to
interfere with the flow of pedestrian traffic in a reasonable way. But, actually it is.
If someone walking along a sidewalk meets a friend by chance and they stand in
the middle of the sidewalk talking for five minutes, that would be an obstruction of
pedestrian traffic. However, most people would likely feel that it was not an
unreasonable obstruction. Whether an obstruction is "unreasonable" or not and
thus a violation of the ordinance will be determined on a case by case basis
depending on the particular facts and circumstances of each case. If a law
enforcement officer is too zealous about issuing a citation, there could well be a
finding that the obstruction was reasonable under the circumstances and not a
violation of the ordinance.

The only way to eliminate officer discretion in the context of such an

ordinance is to provide a measurable standard such as to make it a violation only if
more than 50% of the sidewalk is blocked or more than 60% or whatever the "cut
off' might be. On the other hand, to delete the word "unreasonably" would leave
the ordinance open to a vagueness challenge because it would be argued that it
applied to all citizens present on public sidewalks for any reason and that anyone's
presence on the sidewalk could and does obstruct or interfere with the movement
of other pedestrians. The claim would be that the terms "block or obstruct" have to
be defined to describe the prohibited conduct more precisely.

3. Comment: The definition of "block, hinder or obstruct" causes

confusion and the section regarding "applicability" that required "actual" blockage,
hindrance or obstruction for a violation causes confusion. Summary of Response:
Agree. Recommendation: These provisions might well cause confusion and were
not essential to the ordinance. The provisions were therefore deleted as
unnecessary. The meaning of the words "block," "hinder" and "obstruct" is
generally understood without the need to define them for purposes of the
ordinance.

Page 22 of 36
Filing# 19651 361 Electronically Filed 10/21/2014 05:08:46 PM

IN THE COUNTYCOURT FOR THE FOURTH JUDICIAL CIRCUIT

lN AND FOR SARASOTA COUNTY, FLORIDA
CRIMINAL DIVISION

STATE OF FLORIDA )
Defendant, )
)
v. ) CASE NO. 2014 MO 016384 NC
)
MERLE D. MILLER, )
Defendant. )

MOTION TO DISMISS
CONSTITUTIONAL CHALLENGE TO
SARASOTA MUNICIPAL ORDINANCE 30-3
(PURSUANT TO Fla.R. Crim. P. 3.190(b))

Defendant in the above cause, through undersigned counsel, pursuant to Fla.R.

Crim. P. 3.190(b), moves this Honorable Court to enter an Order dismissing the Citation

filed in this cause. The Defendant MERLE D. MILLER requests, under the following

authority, that this Court find that the City of Sarasota Municipal Ordinance No. 30-3,

Obstructing Pedestrian or Vehicular Traffic, is unconstitutional on its face, or in the

alternative as applied. As grounds for said motion Defendant states:

On August 24, 2014 at 1:11 p.m. in the 400 block of Kumquat Court, Sarasota,

Florida. The Defendant, Merle Douglass Miller was speaking to another person on the

sidewalk. Officer Cespedes of the Sarasota Police Department asked him for

identification, which was provided, and then issued him a citation for his presence on

the sidewalk. Interestingly, Officer Cespedes observed on the Defendant's driver' s

license a residential address, but listed him as ''homeless" on the citation. When Mr.

1
Page 23 of 36
Miller pointed this out to the Officer, his residential address was added to the citation,

but the designation of "homeless" was not removed. Mr. Miller is not, in fact, homeless.

The ordinance under which Mr. Miller was cited states as follows:

o Sec. 30-3. - Obstructing pedestrian or vehicular traffic.

It shall be unlawful for any person to place or attempt to

place or cause to be placed, himself or herself or any object
of any nature or description upon or above any public way,
sidewalk, footpath or other area used by the public for
pedestrian or vehicular traffic in such a manner as to
impede or interfere with the flow of pedestrian or
vehicular traffic.
(Code 1971, § 37-2)

A. Defendant, MERLE D. MILLER, challenges the facial validity of City of

Sarasota Municipal Ordinance 30-3 as unconstitutional on its face as it is an

unconstitutional burden on the fundamental right to travel.

B. Defendant, MERLE D. MILLER, challenges the City of Sarasota Municipal

Ordinance 30-3 as unconstitutionally applied, as it is unconstitutionally

vague.

C. Defendant, MERLE D. MILLER, challenges the facial validity of City of

Sarasota Municipal Ordinance 30-3, in the alternative, as unconstitutional

as applied for the lack of due process.

D. The foregoing constitutional challenges are based upon and provided for

the protections outlined in the United States Constitution, Amendments I,

IV, V, VI, , and XIV; the Florida Constitution, Article I, Sections 2, 5, 9, 12,

2
Page 24 of 36
 16, and 23; and the Florida Constitution, Article I, Sections 2, 5, 9, 12, 16, and

23;

E. Other grounds to be argued ORE TENUS.

MEMORANDUM OF LAW

FUNDAMENTAL RIGHT TO TRAVEL

Defendant has a constitutionally protected liberty interest to be in parks or on

other city and public lands of their choosing that are open to the public generally.

Catron v. City of St. Petersberg, 658 F.3d 1260 (11th Cir. App. 2011), citing City of Chicago

.v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 1858, 144 L.Ed.2d 67 (1999) (plurality opinion)

(citations omitted) ("[A]n individual's decision to remain in a public place of his choice

is as much a part of his liberty as the freedom of movement inside frontiers that is 'a

part of our heritage/ or the right to move 'to whatsoever place one 1S own inclination

may direct."')

In addition to a federal right to travel, the Florida Supreme Court recognizes,

under its ·state constitution, a fundamental right to intrastate travel. State v. J.P., 907

So.2d 1101, 1113 (Fla.2004); see Fla. Const. Art. I, § 2. All Florida citizens have a right

under the Florida Constitution to "chat on a public street," "stroll aimlessly/' and

''saunter down a sidewalk." J.P., 907 So.2d at 1113 (quoting Wyche v. State, 619 So.2d

231, 235 (Fla.1993)). The City ordinance limits Defendants' right of intrastate travel as

defined by the Florida Supreme Court. If properly drafted, a City ordinance may

3
Page 25 of 36
constitutionally burden this right. But the City must meet a two-part condition

City's ordinance must be 1) narrowly tailored 2) to advance a compelling governmental

interest. Catron at 1270- 71. See also J.P., 907 So.2d at 1115-16. Because the City's

ordinance burdens this fundamental right, is subject to the strict scrutiny test as

required .by Florida law.

When a statute or ordinance operates to the disadvantage of a suspect class or

impairs the exercise of a fundamental right, then the law must pass constitutional

muster under a strict scrutiny standard. See, e.g., Reno v . Flores, 507 U.S. 292, 302, 113

S.Ct. 1439, 123 L.Ed.2d 1 (1993); Mitchell v. Moore, 786 So.2d 521, 527 (Fla.2001). These

conditions precedent are in the alternative rather than in the conjunctive. Strict

scrutiny is applicable here, not because Defendant is a member of a protected class, but

because fundamental rights are implicated by the ordinance.

A fundamental right is one which has its source in and is explicitly guaranteed

by the federal or Florida Constitution. See, e.g., T.M., 784 So.2d at 444 n. 1; Reno v . Flores,

507 U.S. at 302, 113 S.Ct. 1439. The fundamental rights to privacy and freedom of

movement are implicated by these ordinances. It is settled law that each of the personal

liberties enumerated in the Declaration of Rights of the Florida Constitution is a

fundamental right. See generally Traylor v. State, 596 So.2d 957 (Fla.1992). "Florida courts

consistently have applied the 'strict' scrutiny standard whenever the Right of Privacy

Clause was implicated, regardless of the nature of the activity." N. Fla. Women's Health

& Counseling Servs., Inc. v. State, 866 So.2d 612, 635 (Fla.2003). To withstand strict

4
Page 26 of 36
scrutiny, a law must be necessary to promote a compelling governmental interest and

must be narrowly tailored to advance that interest through the use of the least intrusive

means. See Qutb v. Strauss, 11 F.3d 488, 492 (5th Cir.1993) (applying strict scrutiny to

review a Dallas juvenile curfew ordinance). See Winfield v. Div. of Pari-Mutuel Wagering,

477 So.2d.544 (Fla.1985); State v. J.P:/ 907 So. 2d 1101,1109-10 (Fla. 2004) (applying strict

scrutiny to a review of Florida's juvenile curfew ordinance.)

The State, in this case, cannot demonstrate a compelling government interest in

the convenience of persons traveling on a City sidewalk, in and of itself, and certainly

cannot demonstrate a compelling governmental interest that outweighs the Defendant's

fundamental, constitutional rights. However, even if the State could demonstrate such

an interest, the ordinance is not narrowly tailored to accomplish its goal through the use

of the least intrusive means.

In Pottiger v. City ofMiami, 720 F. Supp. 955, 1583 (S.D. Fla. 1989), the court held

public inconvenience and annoyance was not compelling governmental interest, and

that arrest and incarceration are not the least intrusive means of accomplishing any

governmental interest in the context of homeless sleeping.

Similarly, although the idea of homeless people sleeping

in public parks may disturb or offend some portion of
society, the answer is not in arresting individuals who
have arguably only committed the offense of being
without shelter. There exist other means of preventing
crime that are less drastic than arresting the homeless for
harmless conduct that poses no threat to society. Rather
than arrest the homeless, the City could increase police
patrols of the park. It could allow homeless persons who

5
Page 27 of 36
 have no alternative place to sleep to remain in a limited
area instead of banishing them from the park entirely. In
addition, the City could issue warnings to both homeless
and non-homeless people about high-crime areas. In short,
arresting homeless people is not the least intrusive means
of achieving the City's compelling interest in preventing
crime in public parks. Accordingly, the court rejects the
City's contention that its interest in crime prevention
justifies the infringement on the fundamental right to
travel. In summary, arresting homeless individuals for
such harmless acts as sleeping, eating, or lying down in
public generally serves no compelling governmental
interest. Furthermore, in no case are such arrests the least
intrusive means of accomplishing the City's interests.
Consequently, arresting the homeless for the harmless acts
which they are forced to perform in public infringes on
their fundamental right to travel.

Pottinger v. City ofMiami, 720 F. Supp. 955,1583 (S.D. Fla. 1989).

In this corrununity and indeed in this case, the Defendant has been summoned to

Court and criminally prosecuted for the act of being present on a public sidewalk. As

the Pottinger court opined, this is not the least restrictive means to accomplish whatever

interest the goverrunent has in discouraging the inconvenience of pedestrian travelers

in Sarasota.

If the Defendant, as a citizen in this community, cannot remain in this city

without facing arrest and prosecution for being present on a public sidewalk, the right

to interstate travel and the right to intrastate travel are both impermissibly burdened

and the ordinance should be found to be constitutionally invalid on its face.

6
Page 28 of 36
 VOID FOR VAGUENESS

A conviction for an offense so poorly defined as to leave reasonable doubt

whether the conduct of the accused falls within the ambit of the law cannot stand. Such

is the import o£ the void-for-vagueness doctrine-a corollary of the notion that no

person shall be deprived of life, liberty or property without due process of law which is

applicable to all laws, but which is applied most rigorously to laws defining crimes.

Except in those instances in which First Amendment, or constitutionally protected

privacy rights are implicated, the question of vagueness is addressed within the context

of the facts of the case before the court. In Maynard v. Cartwright, 486 U.S. 356, 358, 108

S. Ct. 1853,1856,100 L. Ed. 2d 372 (1988) the Supreme Court observed that:" [o]bjections

to vagueness under the Due Process Clause rest on the lack of notice".

In what is perhaps the most famous of the void-for~vagueness cases, Lanzetta v.

New Jersey, 306 U.S. 451,83 L. Ed. 888,59 S. Ct. 618 (1939), the Supreme Court examined

a state statute which made being a gangster a crime, the offense defined as follows:

Any person not engaged in any lawful occupation, known

to be a member of any gang consisting of two or more
persons, who has been convicted at least three times of
being a disorderly person, or who has been convicted of
any crime, in this or any other State, is declared to be a
gangster.

The Court unanimously found the absence of any definition of the term 11 gang/ other

than 11 consisting of two or more persons/' to render the statute void.

7
Page 29 of 36
 Even had 11 gangster 11 been adequately defined, however, the Court found

troubling ambiguity in the phrase 11known to be a member" as well.

There immediately arises the doubt whether actual or

putative association is meant. If actual membership is
required, that status must be established as a fact, and the
word 11 known" would be without significance. If reputed
membership is enough, there is uncertainty whether that
reputation must be general or extend only to some persons.
And the statute fails to indicate what constitutes
membership or how one may join a "gang11 •

Considering the ordinance under discussion, the City criminalizes the following:

It shall be unlawful for any person to place or attempt to

place or cause to be placed, himself or herself or any object
of any nature or description upon or above any public way,
sidewalk, footpath or other area used by the public for
pedestrian or vehicular traffic in such a manner as to
impede or interfere with the flow of pedestrian or
vehicular traffic

Sarasota Municipal Code Sec. 30-3.- Obstructing pedestrian or vehicular traffic.

The ordinance fails for vagueness, as it applies, literally, to all citizens present

upon public sidewalks and right of ways, for any reason whatsoever; indeed, any time a

person is present in public one's presence could and does impede or interfere with the

movement of other pedestrians, should they happen upon the same route. If a couple is

walking arm and arm down the sidewalk, and an individual is coming in the other

direction and must move to the left or the right, has the couple's conduct become

criminal? The statute fails for a failure to define "impede or interfere with the flow of

traffic," and indeed, criminalizes lawful behavior such as strolling, stopping to window

shop, or chat with passersby.

8
Page 30 of 36
 The ordinance fails to define "flow of traffic" and also fails to define "impede or

interfere." It would appear from the ordinance, and indeed from the Defendant's

prosecution in this case, that the most minimal conflict in attempted human space

usage, or even a potential conflict in space usage in a public place subjects persons in

Sarasota to criminal prosecution. The ordinance does not require actual inconvenience;

rather it is a criminal event, under this ordinance as drafted and as applied to "attempt

to place oneself .. .in such a manner ... as to impede the flow"

obstruction of pedestrian traffic is not required.

DUE PROCESS

In a limited category of circumstances, 'the omission of a mens rea element from

the definition of a criminal offense has been held to violate due process. A salient

example of such circumstance is found in the Supreme Court's decision in Lambert v.

California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), which addressed a Los

Angeles municipal code provision requiring that felons present in the municipality for

more than five days register with law enforcement. The code provision applied to "a

person who has no actual knowledge of his duty to register." Id. at 227, 78 S.Ct. 240. In

Lambert, the Supreme Court concluded that:

a legislative body may not criminalize otherwise entirely

innocent, passive conduct-such as a convicted felon
remaining in Los Angeles for more than five days-
without sufficiently informing the population of the legal
requirement.

9
Page 31 of 36
Id. at 227, 78 S.Ct. 240. As a result, the Supreme Court concluded that the registration

requirement then at issue could be enforced only when the defendant was aware of the

ordinance. State v. Adkins, 96 So. 3d 412/ 419 (Fla. 2012).

In this instance, there is no criminal intent required in City of Sarasota Ordinance

30-3. Indeed, the intent to impede the flow of traffic1 nor the knowledge that one is

impeding the flow of traffic, is not required. A person can be subject to arrest and

criminal prosecution for merely using the public right of ways as they are intended to

be used. Further, it is not apparent from the face of the statute whether actual traffic

need exist to be impeded, as discussed above. This municipal ordinance criminalizes

otherwise entirely innocent and passive conduct without sufficiently informing the

population of the difference between innocent and prohibited conduct/ and the legal

requirements that differentiate them. As in Lambert, the City of Sarasota has

criminalized otherwise entirely innocent, passive conduct, that is, being present on a

sidewalk/ without sufficiently informing the population, to include visitors to our City,

of the legal requirements. Therefore, the ordinance violates due process, facially and as

applied.

Defendant, through undersigned counsel, asserts that City of Sarasota Ordinance

30-3 is facially invalid, or in the alternative/ unconstitutional as applied;

WHEREFORE, Defendant respectfully requests this Court to dismiss the above-

styled charging document.

10
Page 32 of 36
, 1, {

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished, by
0AP
electronic delivery atiounds@scgov.net, 2071 Ringling Boulevard, 4th Floor, Sarasota,

Florida, 34237, and a courtesy copy to The Office of the City Attorney at

MOGENSEN
Attorney at Law
Law Office of Andrea Flynn Mogensen P A.,
200 S. Washington Blvd, Suite 7
Sarasota, Florida 34236
Florida Bar No. 0549681
941.955.1066
Andrea@SarasotaCriminalLayyyer.com
EIRossi@SarasotaCriminalLawyer .com

11
Page 33 of 36
9:03:23 P.M.

A motion was made by Vice Mayor Arroyo, seconded by Commissioner Alpert for the Charter
Review Committee (CRC) to come before the Commission at the March 07, 2022, Regular
Sarasota City Commission Meeting to present their completed CRC Report, which carried by a 5-0
vote.

9:03:34 P.M.

11 . NEW BUSINESS (AGENDA ITEM X)

1) DISCUSSION RE: CREATION OF A NEW CITY ORDINANCE RELATED TO "SITTING,

LYING ON A SIDEWALK IN A DESIGNATED ZONE" (AGENDA ITEM X-1)

9:03:44 P.M.

Mayor Brody stated that this is a potential new Ordinance for a specific area of the City which would
add a stronger prohibition regarding sitting or lying on the sidewalk in a designated zone which can
be enforced.

9:04:23 P.M .

City Attorney Fournier stated that one misconception which needs to be corrected is the City
currently does not have an Ordinance to address this issue; however, the City does have an
Ordinance which was not included in the Agenda backup material since the Item was placed on
the Agenda after the Agenda Review Meeting; that the Ordinance was emailed to the Commission.

9:05:16 P.M.

City Attorney Fournier continued and provided a brief overview of the current Ordinance and the
challenges.

City Auditor and Clerk Griggs left and 'returned to her seat at 9:04P.M.

9:11 :46 P.M.

In response to a comment from Mayor Brody that the concern is on Main Street and some side
streets where the need is to have a vibrant Downtown which is critical for success, and City Attorney
Fournier stated that keeping good records prior to the adoption of a proposed Ordinance will show
the City is addressing an existing problem, and afford an opportunity for merchants and people to
come before the Commission to place their experiences on the record.

9:12:46 P.M.

Mayor Brody posed questions which were addressed by the City Attorney.

9:16:07 P.M .

Citizens' Input received from individuals at City Hall in the Chambers.

9:19:15 P.M.

Harmoni Krusing, Owner of Lotus, displayed photographs on the Chambers monitors, indicating
individuals are obstructing the entrance of her business, and the proposed Ordinance is favored .

Book 67 Page 39309

06/07/21 6:00 P.M.
Page 34 of 36
 Book67 Page39310
06/07/21 6:00P .M.

9:21 :22 P.M .

Citizens' Input continued from individuals at City Hall in the Chambers.

City Auditor and Clerk Griggs left and returned to her seat at 9:22 P.M.

City Auditor and Clerk Griggs left and returned to her seat at 9:23 P.M.

9:24:06 P.M .

Mayor Brody stated that conversations were had with a number of people about possibly leasing
some of the small portions of property between the sidewalk and the roadway in front of some
stores Downtown, similar to the Sidewalk Cafes.

9:25 :03 P.M.

Coordinator Homeless/Housing Joseph "Kevin" Stiff, Homeless Response, City Manager's Office
came before the Commission to address questions.

9:25:09 P.M.

Commissioner Ahearn-Koch posed questions which were addressed by Mr. Stiff and the City
Attorney.

9:30:21 P.M.

Vice Mayor Arroyo stated that today he sent the City Attorney and City Manager the McArdle vs .
City of Ocala, Florida case from February 2021 ; that their Ordinance was challenged, and posed a
question which was addressed by Mr. Stiff.

9:33:20 P.M.

Commissioner Alpert provided input on the McArdle vs. City of Ocala, Florida case from February
2021, asked what can be done legally, and requested Mr. Stiff to expand on the homeless services
the City provides, and Mr. Stiff provided a brief overview.

City Auditor and Clerk Griggs left and returned to the Dais at 9:34P.M.

City Auditor and Clerk Griggs left and returned to the Dais at 9:36P.M.

9:38:34 P.M.

Commissioner Battle stated that perhaps the designated area can be extended to the Rosemary
District.

9:46:29 P.M.

Mayor Brody stated that the belief is the Commission should move forward with directing the City
Attorney to conduct research, draft a proposed Ordinance, and return back before the Commission;
that the Commission should also hear from the public and business owners, and City Attorney
Fournier stated that if the Commission's desire Is to keep the discussion going, then the item should
return back on an Agenda for discussion since any public input or testimony can be incorporated
into a subsequent Public Hearing and referenced .

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9:50:38 P.M.

Commissioner Ahearn-Koch cautioned the Commission to be respectful with this issue because
these are human-beings and there is a need to be sensitive as well; however, the hope Is there is
a middle-ground to be respectful but also try to do what is in the best interest of the citizens as well.

9:51 :50 P.M.

Mayor Brody provided input and spoke in favor of moving forward.

9:55:24 P.M.

A motion was made by Commissioner Alpert, seconded by Vice Mayor Arroyo to move forward with
a discussion on how to draft an proposed Ordinance which will restrict in a very designated zone
sitting and lying on the sidewalk, and for the City Attorney to provide to the Commission acceptable
parameters to consider, and should the City Attorney deem the proposed draft Ordinance is helpful,
then he should present a proposed draft Ordinance based on that criteria, which carried by a 5-0
vote.

9:56:37 P.M.

12. ADJOURN (AGENDA ITEM XU

The Commission adjourned at 9:56 P.M.

Book 67 Page 39311

06/07/21 6:00P.M.
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