Florida Supreme Court Declines to Hear South Florida Vending Case

Institute for Justice · June 28, 2016

Hialeah, Fla.—Late yesterday,  in a decision that could have consequences for all Florida entrepreneurs, the Florida Supreme Court denied review of a challenge to a Hialeah law that makes it illegal for street vendors to stand still and display their merchandise—two things essential to building a successful business. This is a disappointing end to the lawsuit that was filed by the Institute for Justice on behalf of a group of vendors in 2011, but is not the end of IJ’s work protecting the economic liberty of all Floridians.

The challenged laws represent the bidding of brick-and-mortar florists who only wanted to restrict competition, which is why the ordinance originally included a ban on vending within 300 feet of brick-and-mortar establishments. In response to the lawsuit, Hialeah repealed its 300-foot proximity ban while simultaneously strengthening other restrictions to obtain the same result, thus serving the wishes of the most-powerful constituents. By turning a blind eye, the Florida Supreme Court has failed to protect the rights of politically powerless competitors.

Today’s decision means vendors like lead plaintiff and flower vendor Silvio Membreno, who sought to earn an honest living by vending in private parking lots with the owner’s permission, are less safe when vending because they will constantly need to be moving. And if vendors cannot stay in one place and display their merchandise, they cannot provide a much needed service to customers and therefore cannot run a viable business. The Florida Supreme Court missed the opportunity to vindicate the rights of vendors like Silvio and to carry out its duty to halt unconstitutional government overreach.

The implications of the Florida Supreme Court denying review are far-reaching. The undisputed facts demonstrated that Hialeah’s law actually makes vending less safe. IJ sought to affirm the Florida Constitution’s legal test for economic liberty, which requires parties to litigate based on a factual record.  Astonishingly, the intermediate appellate court panel concluded that under the Florida test, plaintiffs are not even allowed to “disprove[]” the effects of a law “by evidence admitted in a court of law.”  Without comment, the Florida Supreme Court refused to review the case further and thus allowed the right to earn an honest living to be trampled by arbitrary government action with no protection from the courts. As a result, all occupations in Florida are now more vulnerable to aggressive and protectionist legislation.

“Vendors deserve protection of their right to earn an honest living, but the courts failed them,” said IJ Attorney Rob Peccola. “By letting such a blatant violation pass with no review, the Florida Supreme Court has abdicated its duty to serve as a check on the excesses of local governments.”  Peccola added that IJ “will keep fighting for Floridians’ right to earn an honest living so that that vendors and everyone else get the protection they deserve—and which the Florida Constitution guarantees to them.”