TO: Mayor and Commissioners
FROM: R. Max Lohman, City Attorney
DATE: April 4, 2017
Title
ORDINANCE NO. 10-17: AMENDING CHAPTER 118, “SOLICITORS AND PEDDLERS AND DISTRIBUTION OF HANDBILLS” (SECOND READING)
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Recommended Action:
Recommendation
Motion to Approve Ordinance 10-17 on second reading.
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Background:
This proposed ordinance amends the current Chapter 118, section 118.13 “Hours of Solicitation” of the City of Delray Beach’s Code of Ordinances. In its current state, section 118.13 is not in compliance with established case law addressing a municipality’s ability to place curfew restrictions on commercial transactions. Specifically, the permissible hours of solicitation are not in accord with legal precedent. Various courts, including the United States Supreme Court and federal courts, have invalidated ordinances that placed unconstitutional curfew restrictions on commercial speech. This proposed ordinances serves to comport the City’s current ordinance with long-standing precedent relating to the regulation of commercial speech and the First Amendment.
Commercial speech that “does no more than propose a commercial transaction” is protected by the First Amendment. Virginia Board of Pharmacy v. Virginia Citizen’s Consumer Council, 425 U.S. 748 (1976). However, commercial speech can be subject to time, place and manner restrictions provided that such restrictions are imposed without reference to the content of the speech, serve significant governmental interests and leave open ample alternative channels for communication of the information. See Kortum v. Sink, 54 So. 3d 1012 (Fla. 1st DCA 2010) (citations omitted). A four prong test, established in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, is utilized to determine the constitutionality of restrictions on commercial speech. Central Hudson, 447 U.S. 557m 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980):
At the out...
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