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                                                                       [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                          Nos. 15-14394 & 15-15256
                         ________________________

                      D.C. Docket No. 1:14-cv-22072-JLK



FF COSMETICS FL, INC.,
a Florida corporation,
d.b.a. Forever Flawless Cosmetics 1,
TIMELESS COSMETICS FL, INC.,
a Florida corporation,
BRILLIANCE NEW YORK, LLC,
a New York limited liability company,
f.k.a. Brilliance New York, Inc.,
OCEANE FL COSMETICS, INC.,

                                                Plaintiffs - Appellees,

versus

CITY OF MIAMI BEACH,

                                                Defendant - Appellant.

                         ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                         ________________________

                               (August 10, 2017)
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Before MARCUS and DUBINA, Circuit Judges, and GOLDBERG, * Judge.

DUBINA, Circuit Judge:

       In this consolidated interlocutory appeal, Appellant City of Miami Beach

(“City”) challenges the district court’s order granting Appellees FF Cosmetics FL

Inc., Timeless Cosmetics FL Inc., Brilliance New York LLC, and Oceane FL

Cosmetics Inc.’s (“Retailers”) renewed motion for a preliminary injunction, and

denying the City’s motions for clarification and for reconsideration. The

preliminary injunction enjoins the enforcement of two City ordinances that restrict

commercial solicitation and handbilling in sections of five streets in the Historic

Art Deco District.

       After careful review, and having the benefit of oral argument, we affirm.

                                     I. BACKGROUND

       Retailers operate cosmetic stores along Lincoln Road in the City of Miami

Beach’s Historic District. Each store depends on solicitation as its primary, and

most effective, form of advertisement, employing several greeters to stand outside

the storefront and attract potential customers inside. Reports of the greeters’

methods range from benign salutations, offers of free samples, and distribution of

handbills to allegations of cat-calling, harassment, and uninvited touching. There


*
  Honorable Richard W. Goldberg, Judge of the United States Court of International Trade,
sitting by designation.


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is no evidence presented to suggest that the Retailers engaged in direct sales

pitches of products outside of the stores.

      The City is not primarily concerned with the individual actions of Retailers,

but rather with the collective effects of the numerous greeters employed by many

stores and restaurants along Lincoln Road and certain other areas of the City’s

Historic District. Visitors, storeowners, and residents of the Historic District

testified to the annoyance, inconvenience, and general unpleasantness of being

barraged with menus, free samples, and comments from greeters. The record

shows that individuals expressed concerns about the effects on tourism, property

values, quality of life, and the unique aesthetic of the City’s Historic District.

      In response to the flood of complaints stemming from solicitation and

handbilling activities in the Historic District, the City began enforcing Section 74-

1, an anti-solicitation ordinance, and Section 46-92, an anti-handbilling ordinance.

Testimony from the Director of Code Compliance for the City indicated that the

number of complaints in the Historic District increased substantially, resulting in

Code Compliance staff being pulled from other locations to deal with the

commercial solicitation problem.

      After receiving a number of citations pursuant to Section 74-1 and Section

46-92, Retailers brought suit against the City under 42 U.S.C. § 1983, challenging

the constitutionality of the ordinances. Specifically, Retailers argued that the


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ordinances were overbroad, unconstitutionally vague, and violative of the Due

Process Clause, the Equal Protection Clause, and the First Amendment. Retailers

sought permanent injunctive relief, as well as damages incurred from fines and lost

business resulting from the enforcement of the ordinances. Retailers also filed for

a preliminary injunction.

      Both parties agreed to stay litigation pending the outcome of the City’s

attempts to amend the ordinances at issue. The City held public hearings to

address the problem and employed other fact-finding tactics, such as requesting

public feedback on social media, searching review websites such as Yelp, and

reviewing past complaints filed with the City.

      The City presented evidence showing that it considered a number of

alternative prohibitions. First, the former Assistant City Manager testified that the

City considered “free speech ‘bubbles,’ which would essentially require that any

commercial solicitation activities take place beyond a minimum threshold distance

surrounding a pedestrian.” As to the viability of this regulation, he stated,

      “[Free speech bubbles] would have never worked. First of all, what’s the
      difference between 2 feet 8 inches and 3 feet? Evidentiary problem at a
      hearing. And it’s so congested now. It’s a popular street, all of them are, it
      would be a looser [sic]. You can’t keep that level of distance from people
      on Lincoln Road without bumping into somebody else’s zone. You know, it
      doesn’t exist in the one person vacuum so we just didn’t feel that that was
      feasible.”




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      Second, the former Assistant City Manager stated the City considered

creating zones in which commercial solicitation would be permitted. This idea was

ultimately rejected because, “enforcement is a problem. We tried not to write

something that we couldn’t understand how to enforce. If everybody is just in this

box, it becomes a bazaar. There would be yelling. It would have had the opposite

effect in my opinion.”

      Finally, the former Assistant City Manager testified that the City considered

banning only aggressive solicitation, but determined that establishing an

“aggressive” standard would be an enforcement nightmare, and that it wouldn’t

solve the problem of the volume of solicitation.

       Ultimately, the City amended both ordinances to read as follows:

      Sec. 74-1. Soliciting business in public.
      (a) Prohibitions. It shall be unlawful to solicit any person for the purpose of
          inducing such person to purchase any property, real or personal, or any
          food, beverage, or service, or to solicit such person to enter any place of
          business for the purpose of inducing or attempting to induce such person
          to purchase any property, real or personal, or any food, beverage, or
          service.

         This Section shall apply when the solicitor or the person being solicited is
         located on any public right-of-way, which means and includes, but is not
         limited to, any street, sidewalk, street corner, curb, bicycle path, or
         pedestrian walkway, in any of the following areas in the City of Miami
         Beach. This Section shall also apply to any doorway, stairway, window
         or other opening of a building abutting on or adjacent to such right-of-
         way, in any of the following areas in the City of Miami Beach:

            (1) The area bounded on the north by, but not including, 17th Street,
                bounded on the east by, but not including, Washington Avenue,

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                bounded on the south by Lincoln Lane, and bounded on the west
                by Alton Road;
            (2) Ocean Drive from 5th to 15th Streets;
            (3) Collins Avenue from 5th to 15th Streets;
            (4) Washington Avenue from 5th to Lincoln Road;
            (5) All cross streets and bystreets bounded on the north by 15th Street,
                bounded on the east by Ocean Drive, bounded on the south by 5th
                Street, and bounded on the west by Washington Ave;
            (6) Española Way from Pennsylvania Avenue to Collins Avenue; and
            (7) Lummus Park.

Sec. 46-92. Litter; definitions; prohibitions on litter; penalties for litter
and commercial handbill violations; commercial handbill regulations,
fines, and rebuttable presumptions; seizure and removal of litter by the
city; enforcement; appeals; liens.
(a) Definitions. The following words, terms and phrases, when used in this
    article, shall have the meanings ascribed to them in this section, except
    where the context clearly indicates a different meaning:

      ...

      (3) Handbill means any handbill, flyer, paper, document, dodger,
      circular, folder, booklet, letter, card, pamphlet, sheet, poster, sticker,
      banner, notice or other written, printed or painted matter or object that
      conveys any information, except that “handbill” shall not include a
      newspaper or its contents.

      (4) Commercial handbill means any handbill that conveys any
      information about any good or service provided by a business.

...

(g) Prohibitions on commercial handbill distribution.

   (1) Historic Areas. It shall be unlawful for any person to distribute
       commercial handbills on the right-of-way in any of the following
       areas in the City of Miami Beach:
          a. The area bounded on the north by, but not including, 17th
              Street, bounded on the east by, but not including, Washington


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                     Avenue, bounded on the south by Lincoln Lane, and bounded
                     on the west by Alton Road;
                b.   Ocean Drive from 5th to 15th Streets;
                c.   Collins Avenue from 5th to 15th Streets;
                d.   Washington Avenue from 5th to Lincoln Road;
                e.   All cross streets and bystreets bounded on the north by 15th
                     Street, bounded on the east by Ocean Drive, bounded on the
                     south by 5th Street, and bounded on the west by Washington
                     Ave;
                f.   Española Way from Pennsylvania Avenue to Collins Avenue;
                     and
                g.   Lummus Park.

             The prohibitions in this subsection (g) shall apply to the distribution
             of commercial handbills on any right-of-way, including but not
             limited to any doorway, stairway, window or other opening of a
             building abutting on or adjacent to such right-of-way. All rights-of-
             way identified as prohibited areas shall include the entire width of the
             right-of-way, including all sidewalks.

         (2) Sidewalk cafes. Commercial handbills shall not be distributed on the
             right-of-way:
                a. Within 20 feet in any direction from the outside perimeter of
                    any approved sidewalk cafe (as indicated in the approved site
                    plan attached to the city-issued permit); and
                b. On any right-of-way within the approved sidewalk cafe.

         (3) Beaches. Commercial handbills shall not be distributed on any city
             beach east of the dunes.

      The effect of the amendments was to limit the commercial solicitation and

handbilling prohibitions to within defined boundaries in the Historic District. The

Amended Ordinances regulate approximately 11.75% of the Art Deco District,

5.7% of the City’s Historic District, and 3% of the City of Miami Beach. All other

previous restrictions on solicitation and handbilling were rescinded.


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      As support for the amended ordinances, the City cited ten interests: (1)

protecting the historic character of the District; (2) developing the high-end retail

and high-end sidewalk café promenades in the District; (3) promoting luxury

tourism; (4) minimizing harassment of pedestrians along the public right-of-way;

(5) minimizing congestion; (6) reducing litter; (7) improving the aesthetic of the

District for residents and visitors; (8) protecting pedestrians’ right to be left alone;

(9) maintaining the unique ambiance of the District; and (10) encouraging

expansion in other areas of the City where commercial solicitation is allowed.

      On December 3, 2014, Retailers filed an amended complaint and renewed

their motion for a preliminary injunction, seeking to invalidate the amended

ordinances. The district court held five hearings over the course of several months

and ultimately granted Retailers’ motion for a preliminary injunction. Critically,

the district court held–while acknowledging that the City’s interests are substantial

and that the ordinances directly advance those interests–that the ordinances were

not narrowly tailored, and thus that Retailers were likely to succeed on the merits.

Additionally, the district court found that Retailers were likely to succeed on their

claim that the anti-handbilling ordinance was facially overbroad. The City filed

motions for clarification and reconsideration, which the district court denied. In

this appeal, the City challenges the district court’s grant of a preliminary injunction

with respect to the amended ordinances.


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                            II. STANDARDS OF REVIEW

      Preliminary injunctions are reviewed for an abuse of discretion, and the legal

conclusions on which they are based are reviewed de novo. Am. Civil Liberties

Union of Fla., Inc. v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir.

2009). Whether a regulation is narrowly tailored is a legal question that is

reviewed de novo. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234,

1251 n.17.

      Generally, if a district court makes a clearly erroneous finding of fact it is an

abuse of discretion. However, we review issues of constitutional fact de novo.

Am. Civil Liberties Union of Fla., 557 F.3d at 1198. Thus, if we disagree with the

district court’s findings of fact as to whether the ordinance is more extensive than

necessary, the decision to enter a preliminary injunction is an abuse of discretion.

See Don’s Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051, 1053 n.9 (11th

Cir. 1987) (“In cases involving first amendment claims, an appellate court must

make an independent examination of the whole record. . . . [A]n appellate court is

not bound by the ‘clearly erroneous’ standard of review in determining whether a

commercial speech regulation directly advances the government’s goals or is more

extensive than necessary.”); see also Am. Civil Liberties Union of Fla., 557 F.3d at

1198 (“[W]e review de novo the core constitutional fact relating to the Board’s

motive. That means if we disagree with the district court’s finding about the


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Board’s motive, its decision to enter a preliminary injunction was an abuse of

discretion.”).

                                    III. DISCUSSION

      “A district court may grant injunctive relief only if the moving party shows

that: (1) it has a substantial likelihood of success on the merits; (2) irreparable

injury will be suffered unless the injunction issues; (3) the threatened injury to the

movant outweighs whatever damage the proposed injunction may cause the

opposing party; and (4) if issued, the injunction would not be adverse to the public

interest.” Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc). A

preliminary injunction is an “extraordinary and drastic remedy” and should not be

granted unless “the movant clearly establishe[s] the ‘burden of persuasion’ as to

each of the four prerequisites.” Id. (quoting McDonald’s Corp. v. Robertson, 147

F.3d 1301, 1306 (11th Cir.1998)) (quotations omitted). Although the initial burden

of persuasion is on the moving party, the ultimate burden is on the party who

would have the burden at trial. See Edenfield v. Fane, 507 U.S. 761, 770, 113 S.

Ct. 1792, 1800 (1993) (noting that a party who seeks to uphold a commercial

speech restriction bears the burden of justifying it).

      The district court correctly noted that an ongoing violation of the First

Amendment constitutes an irreparable injury. See Elrod v. Burns, 427 U.S. 347,

373-74, 96 S. Ct. 2673, 2690 (1976). Likewise, the district court correctly


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concluded that in this case the injury to Retailers’ First Amendment rights

outweighs the City’s interests in aesthetics. See KH Outdoor, LLC v. Trussville,

458 F.3d 1261, 1272 (11th Cir. 2006). Finally, the district court correctly ruled

that enjoining the ordinances, if they were found to be in violation of the First

Amendment, would advance the public’s interest in freedom of speech. See id. at

1272-73.

       Thus, the critical question we must decide is whether Retailers are

substantially likely to prevail on the claims that Sections 74-1 and 46-92 violate the

First Amendment. 1

A. THE DISTRICT COURT DID NOT ERR IN FINDING THAT RETAILERS WERE LIKELY
   TO SUCCEED ON THE MERITS WITH RESPECT TO SECTION 74-1.

       The law is clear that commercial speech is afforded lesser protections than

those traditionally given to noncommercial speech. See Bd. of Trs. of State Univ.

of N.Y. v. Fox, 492 U.S. 469, 477, 109 S. Ct. 3028, 3033 (1989). Thus, a

restriction on commercial speech is valid under the First Amendment if (1) the

speech is not misleading and does not concern unlawful activity, (2) the

government has a substantial interest in restricting the speech, (3) the regulation

directly advances the asserted government interest, and (4) the regulation “is not


1
  Retailers make several other arguments as to why Sections 74-1 and 46-92 should be struck
down as unconstitutional. Specifically, Retailers argue that (1) Section 46-92 is underinclusive,
(2) the ordinances are void for vagueness, and (3) the ordinances violate equal protection. We
find these arguments unpersuasive.


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more extensive than is necessary to serve that interest.” Cent. Hudson Gas & Elec.

Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557, 566, 100 S. Ct. 2343, 2351

(1980).

       As an initial matter, the district court correctly discerned that the solicitation

ordinance targets commercial speech. See id. at 561, 100 S. Ct. at 2349 (defining

commercial speech as “expression related solely to the economic interests of the

speaker and its audience”). Furthermore, the district court also correctly found that

Retailers’ commercial speech falls under the protection of the First Amendment. 2

       Moreover, the district court correctly found that the City’s asserted interests

are substantial: “substantial witness testimony” demonstrated that “solicitations

and handbilling in Miami Beach’s historic district is a problem that exists in fact,

and that it causes annoyance and aesthetic harm.” See also Members of City

Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 806, 104 S. Ct.

2118, 2129 (1984) (“[M]unicipalities have a weighty, essentially esthetic interest

in proscribing intrusive and unpleasant formats for expression.”); Messer v. City of
2
  The City alleges that Retailers’ speech is false and misleading, and provided expert witness
testimony showing that Retailers’ claims about the ingredients and effectiveness of the products
sold were “preposterous.” However, the district court did not abuse its discretion in finding that
there was no evidence proving that these sales pitches were made outside of the store. Because
the ordinance seeks to prohibit commercial solicitation on the public right-of-way–not to regulate
the efficacy of cosmetics–the district court correctly held that Retailers showed a substantial
likelihood of success on their claim that this commercial speech was entitled to First Amendment
protection. See Edenfield, 507 U.S. at 765, 113 S. Ct. at 1797 (“We need not parse [Plaintiff’s]
proposed communications to see if some parts are entitled to greater protection than the
solicitation itself. This case comes to us testing the solicitation, nothing more. That is what the
State prohibits and [Plaintiff] proposes.”).


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Douglasville, Ga., 975 F.2d 1505, 1510 (11th Cir. 1992) (“A government has a

more significant interest in the aesthetics of designated historical areas than in

other areas.”).

      Relatedly, the district court correctly noted that the anti-solicitation

ordinance likely directly advances the City’s interest, finding that “[t]he City

adduced sufficient evidence . . . that the anti-solicitation ordinance has helped to

reduce solicitations.” See also Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555,

121 S. Ct. 2404, 2422 (2001) (permitting the use of consensus, anecdotes, and

“simple common sense” to justify speech restrictions) (quotations omitted). As

such, the only remaining question is whether Section 74-1 is narrowly tailored to

serve the substantial interests of the City. Because the preliminary record shows

that the City disregarded numerous and obvious less-burdensome alternatives, the

district court did not err when it concluded that Section 74-1 is not narrowly

tailored.

      The City bears the burden of demonstrating that Section 74-1 is

appropriately tailored in light of the substantial interests it seeks to achieve. See

Edenfield, 507 U.S. at 770-71, 113 S. Ct. at 1800. To survive First Amendment

scrutiny, a commercial speech prohibition must employ “a fit that is not necessarily

perfect, but reasonable; that represents not necessarily the single best disposition

but one whose scope is in proportion to the interest served, that employs not


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necessarily the least restrictive means but . . . a means narrowly tailored to achieve

the desired objective. Within those bounds we leave it to governmental

decisionmakers to judge what manner of regulation may best be employed.” Fox,

492 U.S. at 480, 109 S. Ct. at 3035 (quotations and citation omitted). “By

declining to impose . . . a least-restrictive-means requirement, we take account of

the difficulty of establishing with precision the point at which restrictions become

more extensive than their objective requires, and provide the Legislative and

Executive Branches needed leeway in a field (commercial speech) traditionally

subject to governmental regulation.” Id. at 480-81, 109 S. Ct. at 3035 (quotations

omitted).

      In Fox, the Supreme Court provided concrete examples of what does and

does not violate the First Amendment. The Court explained,

      None of our cases invalidating the regulation of commercial speech involved
      a provision that went only marginally beyond what would adequately have
      served the governmental interest. To the contrary, almost all of the
      restrictions disallowed under Central Hudson’s fourth prong have been
      substantially excessive, disregarding far less restrictive and more precise
      means. On the other hand, our decisions upholding the regulation of
      commercial speech cannot be reconciled with a requirement of least
      restrictive means. In Posadas, for example, where we sustained Puerto
      Rico’s blanket ban on promotional advertising of casino gambling to Puerto
      Rican residents, we did not first satisfy ourselves that the governmental goal
      of deterring casino gambling could not adequately have been served (as the
      appellant contended) not by suppressing commercial speech that might
      encourage such gambling, but by promulgating additional speech designed
      to discourage it. Rather, we said that it was up to the legislature to decide
      that point, so long as its judgment was reasonable. Similarly, in
      Metromedia, Inc. v. San Diego, where we upheld San Diego’s complete ban

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      of off-site billboard advertising, we did not inquire whether any less
      restrictive measure (for example, controlling the size and appearance of the
      signs) would suffice to meet the city’s concerns for traffic safety and
      esthetics.

Id. at 479, 109 S. Ct. at 3034 (citations and quotations omitted) (emphasis in

original).

      Similarly, this court has upheld prohibitions on commercial speech despite

the availability of potentially less-restrictive alternatives. See, e.g., Messer, 975

F.2d at 1511 (upholding a complete ban on off-premises signs in the City of

Douglasville’s historic district); Supersign of Boca Raton, Inc. v. City of Fort

Lauderdale, 766 F.2d 1528, 1532 (11th Cir. 1985) (“The district court also reached

an erroneous conclusion under the fourth part of the Central Hudson analysis. It

found that less restrictive means were available to effectuate the desired goals

because the city could have employed time, place and manner restrictions on the

operation of advertising vehicles rather than impose an outright ban. . . . In this

case, Fort Lauderdale has not attempted to prohibit any advertising that offers no

threat to traffic safety or aesthetic improvement: each advertising vehicle and craft

contributes to the problem.”).

      However, there is a significant distinction between failing to employ less-

restrictive means and completely disregarding obvious less-burdensome

alternatives. While our analysis is “limited to whether the means are reasonably

and narrowly drawn to further the objective,” and we “should not attempt to

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speculate as to whether less restrictive means exist,” Harnish v. Manatee Cty., 783

F.2d 1535, 1540 (11th Cir. 1986), “if there are numerous and obvious less-

burdensome alternatives to the restriction on commercial speech, that is certainly a

relevant consideration in determining whether the ‘fit’ between ends and means is

reasonable.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417

n.13, 113 S. Ct. 1505, 1510 n.13 (1993). By ignoring far less restrictive and

precise means, it is likely that an ordinance burdens substantially more speech than

necessary. See Fox, 492 U.S. at 479, 109 S. Ct. at 3034.

       Here, we affirm the preliminary injunction prohibiting the enforcement of

Section 74-1 because the record suggests that the ordinance is not narrowly

tailored–specifically that the City failed to consider numerous and obvious less-

burdensome alternatives.3 We need not speculate about potential alternatives

because this preliminary record is replete with numerous and obvious less-

burdensome options. The City itself offered these alternatives for the trial court’s

consideration. Thus, for example, the former Assistant City Manager testified that

“things like charitable solicitations” are allowed in the same areas but are regulated


       3
         The district court found that Section 74-1 was a disfavored “blanket ban,” and
consequently not narrowly tailored. It is unclear whether Section 74-1 is a blanket ban, and
whether such status warrants an injunction. See Metromedia, Inc. v. City of San Diego, 453 U.S.
490, 508, 101 S. Ct. 2882, 2893 (1981) (stating that a blanket ban is permissible when it is “the
most direct and perhaps only effective approach”). Because the record suggests that there are
numerous and obvious less-burdensome alternative commercial speech restrictions, we conclude
that Section 74-1 is not narrowly tailored, and we decline to reach the blanket ban issue.


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by permits. Further, artists and vendors are allowed to sell their goods, but they

are regulated “by a lottery,” “they are spaced appropriately,” their “volume is

regulated,” and “[t]he footprint[s] of the[ir] display[s] . . . [are] also heavily

regulated.” The City offered no explanation why it did not even consider these

less-restrictive alternatives, which currently regulate charities, artists, and vendors,

or why these alternatives could not also be used to regulate commercial

solicitation.

       Comparing Section 74-1 to the Key West ordinance at issue in Sciarrino v.

City of Key West further highlights the existence of numerous and obvious less-

burdensome alternatives. 83 F.3d 364 (11th Cir. 1996). While the Key West

ordinance completely banned solicitation on public parking lots and public

beaches, solicitation “was significantly restricted, but not banned, on five historic

streets heavily trafficked by pedestrians.” Id. at 366. Importantly, Key West

allowed solicitation through a permitting system, which gave each business a

certain number of solicitation permits and set other restrictions on solicitation. See

id. Again, here, the City failed to even address the potential viability of such a

system. While the law does not require the use of the least-restrictive means, such

as a permitting system, an ordinance cannot be said to be narrowly tailored if the

record shows that obvious less-burdensome alternatives were completely

disregarded.


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   In short, the clear availability of obvious less-restrictive alternatives suggests,

as it did to the district court on this preliminary record, that Retailers have

established a substantial likelihood of success on the merits. As such, we affirm

the grant of a preliminary injunction with respect to Section 74-1.

B. THE DISTRICT COURT CORRECTLY FOUND THAT RETAILERS WERE LIKELY TO
   SUCCEED ON THE MERITS WITH RESPECT TO SECTION 46-92.

      Unlike Section 74-1, the district court proceeded directly to an overbreadth

analysis when it considered Section 46-92, the anti-handbilling ordinance. To

determine whether Section 46-92 is unconstitutionally overbroad, first it must be

determined that the ordinance regulates more than just commercial speech. See

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-

95, 102 S. Ct. 1186, 1191-92 (1982). Second, if non-commercial speech is

prohibited, there must be a substantial risk that Section 46-92 will have an

impermissible chilling effect on protected speech. Broadrick v. Oklahoma, 413

U.S. 601, 612-13, 93 S. Ct. 2908, 2916 (1973). Although overbreadth challenges

are a disfavored mechanism for invalidating an ordinance, given the fact that

Section 46-92 prohibits the distribution of “any handbill that conveys any

information about any good or service provided by a business,” the district court

properly found that Retailers showed a substantial likelihood of success on their

claim that the handbilling ordinance was overbroad.



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      In Dimmitt, we noted that the “overbreadth doctrine does not apply where

the entire scope of the statute restricts only commercial speech.” Dimmitt v. City

of Clearwater, 985 F.2d 1565, 1571 (11th Cir. 1993) (emphasis in original).

However, “[w]here the statute governs both commercial and noncommercial

speech . . . a litigant with a commercial speech interest may nonetheless qualify by

virtue of the overbreadth rule to assert the speech rights of third parties with

noncommercial speech interests.” Id.

      The Supreme Court in Fox considered the State University System of New

York’s (SUNY’s) prohibition of “private commercial enterprises [] operat[ing] on

State University campuses or in facilities furnished by the University.” Fox, 492

U.S. at 471-72, 109 S. Ct. at 3030 (quotations omitted). SUNY defined prohibited

commercial speech as speech “where the end result is the intent to make a profit by

the invitee.” Id. at 482, 109 S. Ct. at 3036 (quotations omitted). The Court

concluded that such a broad definition covered more than just “speech that

proposes a commercial transaction,” e.g., newspapers, and political advertisements.

Id. (emphasis omitted). As such, the prohibition regulated both commercial and

non-commercial speech and was subject to an overbreadth attack. Id.

      Similarly, in Solomon, we found that Section 29-100(b)(2) of the Gainesville

code, which prohibited “street graphics: signs or any other street graphics

displaying any statement, word, character or illustration of an obscene, indecent or


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immoral nature,” regulated both commercial and non-commercial speech.

Solomon v. City of Gainesville, 763 F.2d 1212, 1213 (11th Cir. 1985). This court

looked at the stated intent, “to authorize street graphics, large enough to

sufficiently convey a message about the owner or occupants of a particular

property, the products or services available on such property, or the business

activities conducted on such property, yet small enough to preserve and protect the

natural beauty of the City and limit distractions to motorists,” id. at 1214

(quotations and alteration omitted), and concluded “[n]owhere does the ordinance

explicitly differentiate between commercial and non-commercial speech. Indeed,

owners or occupants of a particular property in Gainesville may wish to display a

street graphic with no commercial purposes but which involves protected speech.”

Id.

      In contrast, while not analyzing the language under an overbreadth

challenge, this court upheld the Key West ordinance that defined off-premise

canvassing as the “distribution of information or solicitation of customers . . . in

connection with a business.” Sciarrino, 83 F.3d at 370.

      Here, Section 46-92 prohibits the “distribution of commercial handbills,”

defined as “any handbill that conveys any information about any good or service

provided by a business.” The district court found that the prohibition extends to

non-commercial speech. Specifically, the district court provided a number of


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examples of non-commercial speech seemingly prohibited by Section 46-92, such

as an animal-rights activist protesting McDonalds, the distribution of bumper

stickers protesting the Seaquarium’s treatment of whales, and a food critic who

distributes flyers listing restaurant reviews in order to attract more visitors to her

website.

      By defining commercial handbills to include any information about a

business, the language of Section 46-92 is similar to the prohibition in Fox. The

ordinance seemingly covers more than just speech proposing a commercial

transaction. Although the City argues that the ordinance distinguishes between

commercial and non-commercial messages because it explicitly targets only

commercial speech, the City’s definition of “commercial handbilling” is

problematic. The language is unlike the prohibition in Sciarrino where the text of

the ordinance clearly stated that the prohibition applies when the target audience is

a “customer.” In contrast, a prohibition on “any” message about “any” good or

service provided by a business can reasonably be read to prohibit non-commercial

messages. Thus, Retailers have shown a substantial likelihood of success on their

claim that Section 46-92 is susceptible to an overbreadth attack.

      To succeed on an overbreadth challenge, Retailers “bear[] the burden of

demonstrating, ‘from the text of [the law] and from actual fact,’ that substantial

overbreadth exists.” Virginia v. Hicks, 539 U.S. 113, 122, 123 S. Ct. 2191, 2198


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(2003) (quoting N.Y. State Club Ass’n, Inc. v. City of N.Y., 487 U.S. 1, 14, 108 S.

Ct. 2225, 2234 (1988)). The overbreadth doctrine is designed to remedy the

chilling effects of overbroad statutes–statutes that “have such a deterrent effect on

free expression that they should be subject to challenge even by a party whose own

conduct may be unprotected.” Taxpayers for Vincent, 466 U.S. at 798, 104 S. Ct.

at 2125. Given the threat to freedom of expression, traditional rules of standing are

altered to permit litigants “to challenge a statute not because their own rights of

free expression are violated, but because of a judicial prediction or assumption that

the statute’s very existence may cause others not before the court to refrain from

constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612, 93 S.

Ct. at 2916. Thus, a statute found to be overbroad is “totally forbidden until and

unless a limiting construction or partial invalidation so narrows it as to remove the

seeming threat or deterrence to constitutionally protected expression.” Id. at 613,

93 S. Ct. at 2916.

      The Supreme Court, however, has recognized the overbreadth doctrine as

“strong medicine” that should be “employed . . . sparingly and only as a last

resort.” Id. Thus, “the overbreadth of a statute must not only be real, but

substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id.

at 615, 93 S. Ct. at 2918. The fact that there may be some conceivable




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impermissible applications is not enough to render a statute overbroad. Taxpayers

for Vincent, 466 U.S. at 800, 104 S. Ct. at 2126.

      In Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus,

Inc., the Supreme Court struck down an ordinance banning all First Amendment

activity within Los Angeles International Airport as unconstitutional under the

overbreadth doctrine. 482 U.S. 569, 574-75, 107 S. Ct. 2568, 2572 (1987). The

Court found that the resolution

      [D]oes not merely regulate expressive activity in the Central Terminal Area
      that might create problems such as congestion or the disruption of the
      activities of those who use LAX. . . . [I]t prohibits even talking and reading,
      or the wearing of campaign buttons or symbolic clothing. Under such a
      sweeping ban, virtually every individual who enters LAX may be found to
      violate the resolution.

Id.

      Similarly, here, the prohibition on “any” message about “any” good or

service provided by a business is overbroad. Section 46-92 burdens substantially

more speech than necessary to further the City’s interests. As the district court

correctly points out, everything from a PETA demonstrator passing out flyers

about a fast-food chain’s treatment of animals to a Rabbi distributing a list of

restaurants that serve kosher meals could potentially be prohibited under Section

46-92.

      Moreover, there is no evidence in the record that this traditional non-

commercial speech presents the same problems that commercial handbilling does.

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The City acknowledges that the problems stem from commercial handbilling and it

seeks to regulate only commercial handbilling. However, Section 46-92 is not

worded in a sufficiently narrow manner to target only commercial handbilling.

Thus, the district court correctly concluded that Retailers showed a substantial

likelihood of success on their claim that Section 46-92 is overbroad.

                                 IV. CONCLUSION

      For the aforementioned reasons, we affirm the district court’s order granting

the preliminary injunction.

      AFFIRMED.




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