232 F.3d 1353 (11th Cir. 2000)
James S. JOEL, Plaintiff-Appellant,v.CITY OF ORLANDO, Defendant-Appellee.
No. 99-14535.
United States Court of Appeals, Eleventh Circuit.
November 13, 2000.November 28, 2000

[Copyrighted Material Omitted]
Appeal from the United States District Court for the Middle District of  Florida.(No. 98-00344-CV-ORL-22B), Anne C. Conway, Judge.
Before BLACK, CARNES and KRAVITCH, Circuit Judges.
CARNES, Circuit Judge:


1
James Joel, a homeless person, was arrested by City of Orlando ("City") police  officers for violating Section 43.52 of the City's Code. That provision  prohibits "camping" on public property, which is defined to include, among other  things, "sleeping out-of-doors." Joel filed a complaint in the district court  claiming that Section 43.52 violates his rights under the Fifth, Eighth, and  Fourteenth Amendments to the United States Constitution.


2
The district court granted summary judgment in favor of the City and Joel  appeals. For the reasons that follow, we affirm.

I. BACKGROUND
A. FACTS

3
James Joel is a homeless person. Twice in 1998, City police officers found Joel sleeping on the sidewalk and arrested him for violating Section 43.52 of the  City Code. Joel's first arrest was February 28, 1998, for which he spent one day  in jail. He pleaded guilty and was sentenced to time served. His second arrest  was March 2, 1998. To that charge, Joel pleaded not guilty and remained in jail  until March 9, 1998, at which time the City prosecutor declined to prosecute.

Section 43.52 of the City Code provides:

4
Camping Prohibited; exceptions.


5
(1) For the purposes of this section, "camping" is defined as:


6
(a)Sleeping or otherwise being in a temporary shelter out-of-doors; or


7
(b)Sleeping out-of-doors; or


8
(c)Cooking over an open flame or fire out-of-doors.


9
(2) Camping is prohibited on all public property, except as may be  specifically authorized by the appropriate governmental authority.


10
(3) Camping is prohibited on all property in the City used for residential  purposes; provided, however, that camping is permitted on such property with  the permission and consent of the property owner.


11
To assist the police in enforcing city ordinances, the City promulgated a  handbook entitled the Most Used City Ordinance Book, which the parties refer to  by the acronym "MUCOB." The notes concerning Section 43.52 that are contained in  the MUCOB read as follows:


12
Local court rulings have held that in order to "camp", the suspect must do  more than simply fall asleep on city property. There must be some indication  of actual camping. One or more of the following should exist before an arrest  under this section is appropriate:


13
(1)the property must be public property, including highway overpasses;


14
(2)the suspect is inside a tent or sleeping bag, or the suspect is asleep atop  and/or covered by materials (i.e.bedroll, cardboard, newspapers), or inside  some form of temporary shelter;


15
(3)the suspect has built a campfire;


16
(4)the suspect is asleep and when awakened volunteers that he has no other  place to live. Homeless persons should additionally be advised of alternative  shelter available at the Coalition for the Homeless.


17
(5)Upon arrest, evidence of camping (sleeping bags, bedroll, cardboard,  newspapers, etc.), should not be destroyed, but should be seized and placed in  Property and Evidence. Other personal property of the Defendant, which is not  evidence, should be taken to the Orange County Jail with the Defendant.


18
Simply being asleep in a public place during late night or early morning hours  makes the camping case stronger, but is not alone sufficient to justify an  arrest under this section unless there is some indicia of true "camping" as  noted above.


19
The Coalition for the Homeless of Central Florida, Inc. ("Coalition"), referred  to in the quote from Section 4 of the MUCOB, is an organization which provides  shelter, food, housing, education, and support services to the homeless. It  operates a 3.3 acre campus in downtown Orlando, including a Men's Pavilion that  accommodates 500 homeless men and provides them with shelter, meals, showers,  and laundry facilities. The Coalition charges a one dollar per day fee for  staying in the shelter and is open 24 hours per day, year round. The shelter has  never reached its maximum capacity and no individual has been turned away for  lack of space or for inability to pay the one dollar fee. Other local  organizations also exist to provide shelter and resources for the homeless in  Orlando.

B. PROCEDURAL HISTORY

20
Joel filed a three-count complaint in the district court on March 26, 1998,  challenging under the Fifth, Eighth, and Fourteenth Amendments Section 43.52, in  particular the prohibition against sleeping in public. He contended that Section  43.52:(1) encouraged discriminatory, oppressive, and arbitrary enforcement, (2)  was unconstitutionally vague, (3) bore no rational relationship to a legitimate  governmental purpose, (4) violated his right to travel, and (5) violated his  right to be free from cruel and unusual punishment. He sought a declaratory  judgment, injunctive relief, and money damages under 42 U.S.C.  1983.


21
The parties filed cross-motions for summary judgment and stipulated that  "[t]here are no material facts left for litigation." In an order dated October  22, 1999, the district court granted summary judgment in favor of the City. Joel  appeals, raising the same arguments as in the district court except that he has  abandoned any contention that Section 43.52 violates his right to travel.1

II. DISCUSSION

22
We review de novo a district court's entry of summary judgment, see Browning v.  Peyton, 918 F.2d 1516, 1520 (11th Cir.1990), and decide de novo any legal issues  relating to the constitutionality of a city ordinance, see Rodriguez v. United  States, 169 F.3d 1342, 1346 (11th Cir.1999).

A. THE EQUAL PROTECTION CLAIM

23
If an ordinance does not infringe upon a fundamental right or target a protected  class, equal protection claims relating to it are judged under the rational  basis test; specifically, the ordinance must be rationally related to the  achievement of a legitimate government purpose. See Bannum, Inc., v. City of  Fort Lauderdale, 157 F.3d 819, 822 (11th Cir.1998).


24
Homeless persons are not a suspect class, nor is sleeping out-of-doors a  fundamental right. See D'Aguanno v. Gallagher, 50 F.3d 877, 879 n. 2 (11th  Cir.1995) (homeless not a suspect class); Kreimer v. Bureau of Police for the  Town of Morristown, 958 F.2d 1242, 1269 n. 36 (3rd Cir.1992) (same); Davison v.  City of Tucson, 924 F.Supp. 989, 993 (D.Ariz.1996) (same); Johnson v. City of  Dallas, 860 F.Supp. 344, 355 (N.D.Tex.1994) (same), rev'd on other grounds, 61  F.3d 442 (5th Cir.1995); Joyce v. City and County of San Francisco, 846 F.Supp.  843, 859 (N.D.Ca.1994) (declining to be the first court to recognize fundamental  right to sleep), dismissed, 87 F.3d 1320 (9th Cir.1996); State of Hawaii v.  Sturch, 82 Hawai'i 269, 921 P.2d 1170, 1176 (App.1996) (noting that there is "no  authority supporting a specific constitutional right to sleep in a public place"  unless it is expressive conduct within the ambit of the First Amendment or is  protected by other fundamental rights). But see Pottinger v. City of Miami, 810  F.Supp. 1551, 1578 (S.D.Fla.1992) (indicating in dicta that homeless might  constitute a suspect class), remanded for limited purposes, 40 F.3d 1155 (11th  Cir.1994), and directed to undertake settlement discussions, 76 F.3d 1154  (1996). Consequently, rational basis review is appropriate.


25
The rational basis test is applied in two steps, which we have described as  follows:


26
The first step in determining whether legislation survives rational-basis  scrutiny is identifying a legitimate government purpose-a goal-which the  enacting government body could have been pursuing. The actual motivations of  the enacting governmental body are entirely irrelevant.... The second step of  rational-basis scrutiny asks whether a rational basis exists for the enacting  governmental body to believe that the legislation would further the  hypothesized purpose. The proper inquiry is concerned with the existence of a  conceivably rational basis, not whether that basis was actually considered by  the legislative body. As long as reasons for the legislative classification  may have been considered to be true, and the relationship between the  classification and the goal is not so attenuated as to render the distinction  arbitrary or irrational, the legislation survives rational-basis scrutiny.


27
Haves v. City of Miami, 52 F.3d 918, 921-22 (11th Cir.1995) (internal quotations  and citations omitted); see also TRM, Inc. v. United States, 52 F.3d 941, 945-46  (11th Cir.1995). Under rational basis analysis, an ordinance or other  legislative enactment is entitled to a "strong presumption of validity," F.C.C.  v. Beach Communications, Inc., 508 U.S. 307, 314-315, 113 S.Ct. 2096, 2101-02,  124 L.Ed.2d 211 (1993) (citing Lyng v. Int'l Union, United Auto., Workers, 485  U.S. 360, 370, 108 S.Ct. 1184, 1192, 99 L.Ed.2d 380 (1988)), so much so that our  review of enactments under the rational basis standard must be "a paradigm of  judicial restraint," id. at 314, 113 S.Ct. at 2101.


28
Applying the first step of the rational basis test, we readily conclude that the  City could have been pursuing a legitimate governmental purpose with Section  43.52. It could have been seeking to promote aesthetics, sanitation, public  health, and safety by enacting an ordinance to prevent sleeping out-of-doors on  public property. As for the second step, a rational basis exists for believing  that prohibiting sleeping out-of-doors on public property would further  aesthetics, sanitation, public health, and safety. See Clark v. Community for  Creative Non-Violence, 468 U.S. 288, 296-98, 104 S.Ct. 3065, 3070-71, 82 L.Ed.2d  221 (1984)2; Hershey v. City of Clearwater, 834 F.2d 937, 940 (11th Cir.1987)  (prohibition against use of vehicles as dwellings furthers legitimate purpose of  sanitation and safety); Johnson, 860 F.Supp. at 358 (prohibition against  sleeping in public rationally related to safety); Sturch, 921 P.2d at 1178 ("A  lack of appropriate sanitation facilities in vehicles used as dwellings is one  obvious hazard to the public health."). Accordingly, Section 43.52 easily  survives rational basis review.


29
Joel contends that even if Section 43.52 satisfies the rational basis test, it  still violates equal protection principles because it encourages  "discriminatory, oppressive and arbitrary enforcement." He introduced evidence  in the district court indicating that at least 98 percent of those arrested  under the ordinance were homeless. From that fact, he contends that the City is  using Section 43.52 to discriminate against the homeless because it finds them  offensive, and he argues that there is no other evidence in the record which  explains the City's motivation in enacting and enforcing the ordinance.


30
In order to establish a constitutional violation, however, it is not enough to  show that the ordinance has a disproportionate impact upon the homeless. As we  noted earlier, homeless persons are not a suspect class. Even where a group is  entitled to more protection and a higher degree of scrutiny is applied, a law  neutral on its face, yet having a disproportionate effect on the group will be  deemed to violate the Equal Protection Clause only if a discriminatory purpose  can be proven. See Washington v. Davis, 426 U.S. 229, 239-40, 96 S.Ct. 2040,  2047-48, 48 L.Ed.2d 597 (1976) (Equal Protection Clause not implicated by  classifications resulting in disparate racial impact absent evidence of  discriminatory intent); see also Personnel Adm'r of Mass. v. Feeney, 442 U.S.  256, 272-281, 99 S.Ct. 2282, 2292-97, 60 L.Ed.2d 870 (1979) (neutral law that  disproportionately impacts women does not violate Equal Protection Clause unless  impact can be traced to discriminatory purpose).


31
Joel has not proven that Section 43.52 was enacted for the purpose of  discriminating against the homeless. Consequently, a disparate effect on the  homeless does not violate equal protection. See Joyce, 846 F.Supp. at 858 ("[A]  neutral law found to have a disproportionally adverse effect upon a minority  classification will be deemed unconstitutional only if that impact can be traced  to a discriminatory purpose.").

B. THE DUE PROCESS CLAIM

32
Joel challenges the ordinance under the Due Process Clause as impermissibly  vague both on its face and as applied to him.3 He argues that the failure of the  ordinance to sufficiently define the proscribed conduct has led to arbitrary  application of it by City police officers, and he supports his argument by  citing ostensibly contradictory statements of City police officers and a police  advisor about what constitutes a violation of the ordinance.


33
Joel's facial challenge to Section 43.52 on vagueness grounds must necessarily  fail because his conduct was clearly within the scope of the ordinance's  prohibition against sleeping out-of-doors on public property.4 See Village of  Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct.  1186, 1191, 71 L.Ed.2d 362 (1982) ("A plaintiff who engages in some conduct that  is clearly proscribed cannot complain of the vagueness of the law as applied to  the conduct of others. A court should therefore examine the complainant's  conduct before analyzing other hypothetical applications of the law.") (footnote  omitted).


34
We turn now to Joel's vagueness challenge to the ordinance as applied to him.  "[T]he void-for-vagueness doctrine requires that a penal statute define the  criminal offense with sufficient definiteness that ordinary people can  understand what conduct is prohibited and in a manner that does not encourage  arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352,  357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983). By its terms, Section 43.52  prohibits sleeping out-of-doors on public property. The MUCOB, although  inartfully drafted, explains further that merely falling asleep on public  property is not sufficient, but that there must be some additional indicia of  actual "camping" (as defined), such as being asleep atop or covered by  materials, including a bedroll, cardboard, or newspapers. Joel's conduct on the  nights of his arrests clearly falls within this description.


35
When Section 43.52, as interpreted in the MUCOB, is read in context, the  ordinance is sufficiently specific that a person of ordinary intelligence could  reasonably understand the conduct that is prohibited. We do not find the  evidence which Joel submitted indicating that the ordinance is subject to  varying interpretations by City police officers problematic. As the Supreme  Court has observed:


36
[T]here are limitations in the English language with respect to being both  specific and manageably brief, and it seems to us that although the  prohibitions may not satisfy those intent on finding fault at any cost, they  are set out in terms that the ordinary person exercising ordinary common sense  can sufficiently understand and comply with, without sacrifice to the public  interest.


37
United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S.  548, 578-79, 93 S.Ct. 2880, 2897, 37 L.Ed.2d 796 (1973). See also United States  v. Thomas, 864 F.2d 188, 195 (D.C.Cir.1988) ("[L]anguage is unavoidably inexact  and ... statutes cannot, in reason, define proscribed behavior exhaustively or  with consummate precision.") (internal citation omitted). That Section 43.52 may  not have defined "camping" as precisely as Joel would have wished is of no  constitutional moment.


38
Nor does the ordinance encourage arbitrary and discriminatory enforcement. The  police officers charged with enforcing the ordinance necessarily must exercise  some ordinary level of discretion as to what constitutes prohibited conduct, but  must also hew to the guidelines set forth in the MUCOB. See Thomas, 864 F.2d at  199. Those guidelines substantially decrease the likelihood that Section 43.52  will be subject to arbitrary and discriminatory enforcement.5 See Joyce, 846  F.Supp. at 862. Consequently, we hold that the ordinance is not impermissibly  vague.6

C. CRUEL AND UNUSUAL PUNISHMENT

39
The Eighth Amendment states: "Excessive bail shall not be required, nor  excessive fines imposed, nor cruel and unusual punishments inflicted." U.S.  Const. Amend. VIII. In addition to "limit[ing] the kinds of punishment that can  be imposed on those convicted of crimes," and "proscrib[ing] punishment grossly  disproportionate to the severity of the crime," the Eighth Amendment also  "imposes substantive limits on what can be made criminal and punished as such."  Ingraham v. Wright, 430 U.S. 651, 667, 97 S.Ct. 1401, 1410, 51 L.Ed.2d 711  (1977) (internal citations omitted). A distinction exists between applying  criminal laws to punish conduct, which is constitutionally permissible, and  applying them to punish status, which is not. See Robinson v. California, 370  U.S. 660, 666, 82 S.Ct. 1417, 1420, 8 L.Ed.2d 758 (1962) (state statute  providing criminal punishment for addiction to narcotics violates Eighth  Amendment because it punishes the status of being addicted to narcotics rather  than the commission of any act); United States v. Collier, 478 F.2d 268, 273  (5th Cir.1973) (recognizing distinction).


40
Joel argues that Section 43.52 violates his Eighth Amendment right to be free of  cruel and unusual punishment (as applicable through the Fourteenth Amendment)  because it punishes persons as a result of their status of being homeless. He  argues that the MUCOB guidelines show that a person's homeless status, combined  with sleeping, constitutes a criminal offense. Joel relies upon Robinson, as  well as Pottinger v. City of Miami, 810 F.Supp. 1551 (S.D.Fla.1992), remanded  for limited purposes, 40 F.3d 1155 (11th Cir.1994), and directed to undertake  settlement discussions, 76 F.3d 1154 (1996), where the district court held that  the City of Miami's practice of arresting homeless individuals for such basic  activities as sleeping and eating in public places constitutes cruel and unusual  punishment in violation of the Eighth Amendment. See also Johnson v. City of  Dallas, 860 F.Supp. 344, 350 (N.D.Tex.1994) (holding that "sleeping in public  ordinance as applied against the homeless is unconstitutional"), rev'd on other  grounds, 61 F.3d 442 (5th Cir.1995).


41
In concluding that the ordinances in those cases violated the Eighth Amendment  rights of the homeless, the district courts in Pottinger and Johnson explicitly  relied on the lack of sufficient homeless shelter space in those cases, which  the courts reasoned made sleeping in public involuntary conduct for those who  could not get in a shelter. See Johnson, 860 F.Supp. at 351 ("[A]s long as the  homeless have no other place to be, they may not be prevented from sleeping in  public."); Pottinger, 810 F.Supp. at 1564 ("Because of the unavailability of  low-income housing or alternative shelter, plaintiffs have no choice but to  conduct involuntary, life-sustaining activities in public places.").


42
By contrast, here the City has presented unrefuted evidence that the Coalition,  a large homeless shelter, has never reached its maximum capacity and that no  individual has been turned away because there was no space available or for  failure to pay the one dollar nightly fee.7 Consequently, even if we followed  the reasoning of the district courts in Pottinger and Johnson this case is  clearly distinguishable. The ordinance in question here does not criminalize  involuntary behavior. The City is constitutionally allowed to regulate where  "camping" occurs, and the availability of shelter space means that Joel had an  opportunity to comply with the ordinance. Section 43.52 targets conduct, and  does not provide criminal punishment based on a person's status. See Powell v.  Texas, 392 U.S. 514, 532, 88 S.Ct. 2145, 2154, 20 L.Ed.2d 1254 (1968) (plurality  opinion) (state statute punishing public intoxication is constitutionally  permissible because it punishes an act, "being in public while drunk on a  particular occasion," not a status, "being a chronic alcoholic."); cf. Joyce,  846 F.Supp. at 856-58 (homelessness is not a "status" within the meaning of the  Eighth Amendment). We hold that it does not violate the Eighth Amendment.

III. CONCLUSION

43
For the foregoing reasons, we AFFIRM the district court's order granting summary  judgment in favor of the City.



NOTES:


1
 Joel does not challenge the cooking or temporary shelter provisions of Section  43.52(1), either.


2
 The Clark case concerned a Park Service regulation that prohibited camping on  park lands that were not designated for that purpose. Clark, 468 U.S. at 290-91,  104 S.Ct. at 3067. Camping was defined as "the use of park land for living  accommodation purposes such as sleeping activities, or making preparations to  sleep (including the laying down of bedding for the purpose of sleeping), or  storing personal belongings, or making any fire, or using any tents or ... other  structure ... for sleeping ..." Id. (citing 36 C.F.R.  50.27(a) (1983)). The  plaintiffs wanted to demonstrate "the plight of the homeless" by sleeping in two  tent cities on park land that was not designated for camping. Id. at 291-92, 104  S.Ct. at 3068. The Supreme Court assumed, without deciding, that sleeping in  connection with the demonstration was expressive conduct protected to some  degree by the First Amendment. See id. at 293, 104 S.Ct. at 3069. Nonetheless,  the Court held that the government had a substantial interest in the aesthetics  of the parks and that the prohibition against camping was a reasonable means of  achieving that goal. See id. at 296-98, 104 S.Ct. at 3070-71.


3
 Joel also argues, but only in a cursory fashion, that Section 43.52 violates  substantive due process. His substantive due process arguments substantially  overlap with his vagueness arguments discussed in the text, above, and we reject  them for the same reasons. He also appears to argue that it is a violation of  substantive due process to outlaw sleeping. That may well be, but the ordinance  does not outlaw sleeping per se. Instead, as applied in the circumstances of  this case, Section 43.52 at most outlaws sleeping in public when there are  alternative places to sleep.


4
 The affidavit supporting the first arrest stated that Joel was sleeping atop,  and covered by, cardboard. Joel did not mention cardboard in his deposition, but  stated instead that he was probably using clothing in a bag as a pillow. The  affidavit supporting Joel's second arrest stated that he "had his head on his  plastic shopping bag that contained miscellaneous clothing." In his deposition,  Joel stated he did not have any miscellaneous clothing with him, but rather that  he was covered with a blanket. In his summary judgment affidavit, Joel stated  that he was using a plastic bag with some possessions as a pillow. Regardless of  which version of the facts this Court accepts as true-remember the parties  stipulated that there were no material facts in dispute-Joel's conduct is within  the definition of "camping" as "sleeping out-of-doors," at least as Section  43.52 is interpreted and explained in the MUCOB.


5
 The fact that the vast majority of people arrested for violating the ordinance  are homeless does not, by itself, show that City police officers discriminate  against homeless persons in the enforcement of the ordinance. It seems entirely  reasonable to conclude that homeless persons would be more likely to engage in  the type of conduct prohibited by the ordinance and would therefore constitute  the majority of people arrested for violating its provisions. To illustrate with  an analogy, the fact that the vast majority of people arrested for violating  laws against public intoxication are alcoholics would not by itself show that  those laws were being applied in a discriminatory fashion against those who  suffer from alcoholism. See Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20  L.Ed.2d 1254 (1968) (plurality opinion).


6
 Joel cites Hershey v. City of Clearwater, 834 F.2d 937 (11th Cir.1987), but that  decision does not help his position. In Hershey the defendant was arrested for  violating a city ordinance stating that "[i]t shall be unlawful for any person  to lodge or sleep in, on or about any automobile ... or similar vehicle in any  public street ... or other public property within the limits" of the city. Id.  at 939. On appeal, the Court severed the words "to sleep" from the statute  (under provisions of state law and the ordinance itself) and held that it was  not impermissibly vague. Id. at 939-940. The Court never reached the question of  whether the ordinance as written was unconstitutional, but indicated in dicta  that, with a limiting judicial construction, it would probably not be  impermissibly vague. Id. at 940 n. 5.
We are not persuaded by the other decisions Joel cites in support of his  position. The ordinance in State of Florida v. Penley, 276 So.2d 180  (Fla.Dist.Ct.App.1973), stated: "No person shall sleep upon or in any street,  park, wharf or other public place." Id. at 180. The court concluded without much  analysis that the ordinance was subject to arbitrary enforcement and void for  vagueness. See id. at 181. In addition to the dearth of analysis, there was no  indication in the opinion in Penley that the city had promulgated any  enforcement guidelines or limiting instructions for the ordinance involved in  that case.
The ordinance in City of Pompano Beach v. Capalbo, 455 So.2d 468  (Fla.Dist.Ct.App.1984), was nearly identical to the one in Hershey, prohibiting  lodging or sleeping in an automobile on public property. The majority concluded  that it was void for vagueness because the prohibition against sleeping  subjected a wide range of persons to enforcement, from a child in a car seat to  a truck driver in the bunk of a tractor-trailer, and left it in the "unbridled  discretion of the police officer whether or not to arrest one asleep in a motor  vehicle on a public street or way or in a parking lot." See Capalbo at 470. The  dissent argued that the ordinance's use of the term "lodge" showed that the  legislature intended for the ordinance to prohibit the use of a vehicle as a  dwelling. Accordingly, the dissent would have construed the ordinance as such  and held it to be neither vague nor overbroad. See id. at 471-72. Unlike the  present case, in Capalbo there apparently were no guidelines or interpretations  of the ordinance. To the extent that the Capalbo majority opinion would apply in  these circumstances, we find it unpersuasive.


7
 In his initial brief to this Court, Joel objects to the City's evidence  establishing that there is sufficient space in homeless shelters: [T]his issue was never litigated by Mr. Joel. The question of adequate housing  was never raised in Mr. Joel's complaint and he never addressed the issue during  pretrial discovery. The city filed an affidavit from a local shelter director  but Mr. Joel never attempted to determine whether the affidavit was factual. In  other words, there may or may not be adequate "housing" in Orlando. However,  from Mr. Joel's perspective, this has nothing to do with whether the ordinance  discriminates against the homeless.
Similarly, in his reply brief he states:
... Mr. Joel is explaining to the court that he never litigated whether there  were enough homeless shelters in Orlando because that has nothing to do with  whether the ordinance is facially constitutional ... shelter space has nothing  to do with whether Section 43.52 violates the Fifth, Eighth and Fourteenth  Amendments to the United States Constitution.
Having made the strategic decision not to contest in the district court the  City's proof that there is sufficient shelter space, Joel may not question that  proof now.


