Wednesday, October 10, 2012
Help Me Howard: No Flyer
A city hands out flyers and calls it legal. A businessman hands out flyers and the city calls it a code violation. Make sense to you? It doesn't make sense to one Miami Beach man, so he called Help Me Howard with Patrick Fraser.
Daniel Bajaroff: "Definitely there's been ups and downs, but yes we have survived."
As the owner of DK International, Daniel tries to do everything for his customers, including their property taxes.
Daniel Bajaroff: "We help people lower their property taxes whether is commercial or residential."
In particular with condos. And a few days ago, one of his employees had a few flyers that advertises the tax lowering business.
Daniel Bajaroff: "We went ahead and thought, "Oh, it's great there's a few cars in front of the condo association. Let's pass them out.'"
They put out 32 flyers under the windshield wipers and then..
We are here from the government. Miami Beach Code Compliance. And of course, we all know the government does not come to deliver good news.
Daniel Bajaroff: "He said, 'I got a violation for you for $1700,' and I'm like, 'Well what is it for?'. He said, 'Well, I found 32 pamphlets on cars.' The first one is $100 and the next one, every thereafter is $50."
A $1700 fine was for placing 32 of the pieces of paper on cars and Daniel said the city employee had taken the time to take a picture of each flyer.
Daniel Bajaroff: "Then he shows me his phone and he starts showing me pictures of every single car he saw it on."
Daniel tried to reason with the gentleman from the code compliance office.
Daniel Bajaroff: "I just thought, 'Is there any way you can give me a warning? Anything else that we can do and discuss about?', and again, 'Absolutely not. That's the violation. That's the penalty and that is what you get.'"
Daniel said he has been in business on the beach since the 1990's and had no idea you could not place flyers on a car. Not after seeing them all over Miami Beach. He said, especially not after the city stuck a flyer on his car.
Daniel Bajaroff: "It was stating that their was some kind of smoke detecting system passed through the water line and they went ahead and posted those on cars, on houses pretty much everywhere."
Daniel said it's apparently OK for Miami Beach city officials to put out flyers. It's not OK for a taxpayer to do it.
Daniel Bajaroff: "I think the law has to be made clear, and I think if the city is putting papers in people's cars, they're violating the statute. What gives the city rights to it verses not?"
So Howard, can a city fine you for each flyer? Even though Daniel said the city is also handing out flyers?
Howard Finkelstein: "If the Miami Beach law is valid, yes they can. But I don't think their law will hold up in court because this is what the law calls commercial speech, and for the city to stop it they would have to prove that a significant littering problem occurs when people put handbills on windshields. In similar cases, most courts have ruled the city or county failed to prove that."
A city spokesperson said they do allow the passing of flyers, but not putting them on cars because that is considered litter.
We were told if Daniel wanted to fight the $1700 fine, he should file an appeal. Daniel is doing that.
When we asked why the city hands out flyers if they block businesses and residents from doing it, the City Attorney, Jose Smith replied and said they did not put the notice on Daniel's car. They are only placed at homes as allowed by Miami-Dade county law. He added, this notice is not litter and in capital letters wrote, 'There is no story here.'
Howard said, actually there may not be a valid law here.
Howard Finkelstein: "The fact that the city uses the same procedure to hand out flyers that they forbid taxpayers to do, undercuts their argument that the law is necessary to prevent littering. In other words, its disingenuous."
Daniel will fight the $1700 flyer fine and he warns other people watch out.
Daniel Bajaroff: "Everyday I'm seeing businesses locally passing these out which obviously don't know what the consequences are."
The City Attorney believes they can block people from handing out flyers. Howard said, 'I don't think so.' Who is right? Howard is basing his opinion on three United States appealate court decisions. Obviously, Miami Beach either disagrees with those federal judges or doesn't know about them. If you want to read those court cases and see if you agree with Howard or the City Attorney, the link is listed below.
Not so nice notices plastering your life? Ready to hand out the problem to us? Pass it over. We won't litter. We'll landscape the ground with legal language.
http://caselaw.Findlaw.Com/us-7th-circuit/1359949.html - link to the 7th circuit case - favorable
http://caselaw.Findlaw.Com/us-8th-circuit/1381522.html - link to the 8th circuit case - favorable
http://caselaw.Findlaw.Com/us-9th-circuit/1498408.html - link to the 9th circuit case - favorable
Miami Beach City Attorney Jose Smith disagrees with our story and Howard’s legal opinion. Howard stands by his legal interpretation and as a courtesy to Mr. Smith we are posting his letter to Help Me Howard below.
October 11, 2012
Mr. Patrick Frazer
Help Me Howard
1401 79th Street Causeway
Miami, FL 33141
Re: “Help Me Howard: No Flyer” Report of October 10, 2012
Dear Mr. Frazer:
The “Help Me Howard: No Flyer” report was both factually and legally wrong. It was one sided and biased. Mr. Finkelstein incorrectly assumed that “the city uses the same procedure to hand out flyers that they forbid taxpayers to do…” There is no such policy. The city does not place flyers on car windshields. It is against the law.
Furthermore, the three cases cited in the report are irrelevant because (unlike this case) they did not involve “commercial speech”. The only case directly on point is Jobe v. City of Catlettsburg, 409 F. 3rd 261 (6th Cir 2005), (please see attached), which Mr. Finkelstein ignored, and your website does not cite.
In declaring that a city may prohibit individuals from placing leaflets on car windshields, consistent with the First and Fourteenth Amendment, the 6th U.S. Circuit Court of Appeal noted:
“If a city may ban signs from utility poles due to the visual blight caused by them, it follows that a city may ban the placement of leaflets and signs on privately owned cars. For the Catlettsburg law not only corrects the visual blight stemming from all manner of unrequested advertisements being placed on cars, it also prevents littering on private property (e.g., on the privately owned cars), prevents littering on public property (when wind, rain or the inadequacy of a windshield wiper as a receptacle for information causes the leaflets to fall to the ground) and prevents private property from being co-opted for uses that the owner neither intended nor welcomed.”
The Court went on to say that:
“…parking a car on a public street is not an invitation to place literature on the car or, worse, to become a vehicular sandwich board for another citizen’s message of the day.” Further, “a windshield wiper is not a communications device and has never taken on the trappings of one.”
Mr. Finkelstein and his researchers also failed to consider that the U.S. 11th Circuit of Appeals, which governs Florida, while silent on this specific issue, has given wide latitude to municipalities in their efforts to reduce litter by regulating the distribution of handbills and flyers. See Sciarrino v. City of Key West, Florida, 83 F. 3d 364 (11 Cir 1996).
I respectfully request that you correct the record and that you post this letter on your website.
Very truly yours,
Jose Smith, City Attorney
CONTACT HELP ME HOWARD:
EMAIL: firstname.lastname@example.org (Please include your contact phone number when e-mailing)
REPORTER: Patrick Fraser at email@example.com