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A Hobson’s Choice is having no real choice at all, it’s a “take it or leave it” situation. Thomas Hobson was livery stable owner in Cambridge, England in the 16th century. To rotate the use of his horses, and to keep his best horses from being overused, he offered customers the choice of either taking the horse in the stall nearest the door, or to take none at all.

HOBSON COMES TO MIAMI BEACH – Florida is blessed with many beautiful locations for photography, South Beach on Miami Beach being one of the most popular. Like Hobson, the citizens and local government of Miami Beach became “burned out” from overuse of public and private locations for photographic and film productions, and passed a municipal ordinance requiring that certain kinds of photographers (not all photographers) obtain a permit to shoot in Miami Beach, as a method to try to limit and control the perceived local problem. Many other Florida counties and cities have similar ordinances that require permits for shooting in public places. The City of Miami Beach offers the permits free of charge, but if you are a certain kind of photographer (as defined in the ordinance, and explained in more detail below) and you fail to obtain a permit the fines are hefty, starting at a minimum of $1,000 for the first offense.

TO SHOOT OR NOT TO SHOOT – So for example, if you are seen by the City of Miami Beach Police taking photos in a public park like on South Beach, and they have probable cause to believe you need a permit and you don’t have one, then you are told by the police that if you don’t clear out or you continue shooting photos, that you will be issued a citation to pay a $1,000 fine. Or you can go home, get a permit for free, and shoot on another day.

So, now you have a Hobson’s choice to make, pay a $1,000 fine (i.e. take the horse closest to the door), or take no more pictures at all today (i.e. take no horse at all). Which of Hobson’s horses do you want now, if any? I guess you’ll be walking home from Hobson’s livery on South Beach.  It would seem reasonable that if you were presented with this choice, you would choose to stop shooting, and go get a permit for the next time because they are free, versus paying a $1,000 fine. Never mind that it’s an additional inconvenience to have to obtain a permit well in advance each time you want to head out the the beach or other public place to do a shoot with a model. (Note: The ordinance actually requires permits for shooting on private property too, but that topic is beyond the scope of this article).

GO BIG OR GO HOME – Recently a Florida commercial photographer that attended STC in Miami Beach in March, came back to Miami Beach for a swimwear photoshoot with a model in a public park, not knowing that a permit was required. The Miami Beach Police stepped in during the shoot and informed photographer and his model that they needed a permit to take pictures on the beach, and that he’d be subject to a large fine if he did not pack up his gear and leave. Faced with the Hobson’s choice, he really had no choice but to cut his photoshoot short, send the model home, and drive back to his home in Central Florida because he didn’t want to risk being charged with a $1,000 fine. Perhaps highly paid photographers with big budgets provided by their clients can afford this risk, but I doubt that anyone is willing to take the risk more than once after they have been threatened with a fine, or actually issued a citation by the police.

HOLD THAT POSE! – So what’s wrong with this minor inconvenience of having to get a permit to take photographs from the City of Miami Beach, you ask? In my opinion, plenty of things. For starters, the ordinance is unconstitutional because it violates the First Amendment of the Constitution of the United States. Second, the fines imposed by The City of Miami Beach violate Florida state law that limits the amount of municipal fines that can be imposed. Last, and not least, the enforcement of the ordinance by the City of Miami Beach Police Department unlawfully denies certain photographers of their constitutional rights, and amounts to a violation of the Civil Rights Act.

ARE YOU TALKIN’ TO ME? – At the beginning of this article, I pointed out that the City of Miami Beach ordinance (Sec. 12-1. – Film and Print Production Permits) applies to certain photographers, but not to all. The ordinance requires that (for lack of a better term because the ordinance does not specifically use this word) a “Professional” photographer obtain a permit for photographing anything in the City of Miami Beach. However, if you were just an “individual” shooting for “personal or educational use” then no permit is required. Also exempt from the permit requirements are “professional journalists” photographing “news.” So personal use photographers, let’s call them “Hobbyists” and Photojournalists (as defined in the Florida Statutes) are free to shoot as many bikini-clad women as they want to on South Beach without a permit, or police interference, or threats of imposing fines. But if you’re a Professional photographer you’ve got to chose the horse closest to the door from Mr. Hobson’s stable, and get a permit before you start shooting.

“Except for filming by individuals for personal or educational use, and “professional journalists” collecting, photographing, recording, or reporting “news,” as such terms are defined in F.S. § 90.5015, it shall be unlawful to engage in film and print production activities on public property, residentially zoned (private) property, or in film and print activities that require any city services, without a film and print permit.” 

City of Miami Beach Ordinance Sec. 12-1. – Film and Print Production Permits

FREE SPEECH DOES NOT APPLY TO HOBBYIST PHOTOGRAPHERS – No Supreme Court cases directly address a photographer’s First Amendment rights; however, the court has said “To achieve First Amendment protection, a plaintiff must show that he possessed: (1) a message to be communicated; and (2) an audience to receive that message, regardless of the medium in which the message is to be expressed.” So the act of taking photographs that satisfies both of the elements above is allowed and protected by the First Amendment because they are taken in a “public forum.”  Let’s now look at other court decisions and we find one type of photography that is not protected by the First Amendment, odd as it may seem… private recreational photography that is for one’s own personal use.

In 2003, Ram Z. Porat was on a public street in New York City taking pictures of Lincoln Towers. He was asked by a security guard why he was taking photos, and Porat replied that “he was taking pictures for aesthetic and recreational reasons.” Police were called, and issued Porat an appearance ticket for trespassing. Porat filed suit arguing that the guards and police officers “violated his First Amendment rights by issuing him an appearance ticket for trespass in retaliation for his exercise of conduct protected under the First Amendment.” The court found that “communicative photography is well-protected by the First Amendment.” but then examined “whether the First Amendment protects purely private recreational, non-communicative photography.” The judge found that Porat could not satisfy either of these elements because “he effectively disclaim[ed] any communicative property of his photography as well as any intended audience by describing himself as a ‘photo hobbyist,’ and alleg[ed] that the photographs were only intended for ‘aesthetic and recreational’ purposes.” Porat v. Lincoln Towers Community Association. (2005).

This is where a potential problem arises with the City of Miami Beach ordinance and the way it discriminates between Hobbyist photographers that are exempt from the ordinance, versus Professional photographers that must obtain a permit or be subject to a fine. The ordinance prohibits Professional photographers from taking photographs in a public place without a permit, but it does not restrict a Hobbyist photographer, that according to the Porat case, do not have a First Amendment right to take photographs in a public forum, when it is for personal use only.

SOME ARE MORE EQUAL THAN OTHERS – Likewise, the ordinance exempts Photojournalists from having to obtain a permit in order to avoid being fined. The Florida Statutes defines a Photojournalist as “a person regularly engaged in … photographing … or publishing news, for gain or livelihood.” A Professional photographer also works for gain or livelihood, the difference being that a Professional photographer does not publish “news” as that term is defined in the statutes. The Miami Beach Film and Print Production Permits ordinance unfairly discriminates between these two forms of “commercial free speech” which are protected by the First Amendment by prohibiting a Professional photographer’s ability to take photos in a public place without a permit, while Photojournalists are unfettered by the same restrictions and have no exposure to penalties or fines for a violation of the ordinance. “Freedom of the Press” is a well understood catch-phrase, but when it comes to “Freedom of Speech” in general, government has a lot more leeway to restrict certain forms of speech, and this is where the law is not so clear cut.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” First Amendment to the United States Constitution

TOO MUCH IS NEVER ENOUGH ON SOUTH BEACH – The Miami Beach Film and Print Production Permits ordinance imposes fines of $1,000/$2,000/$3,000 for the 1st/2nd/3rd offenses for failing to obtain a permit; however, state law which trumps local ordinances, limits the amount of municipal ordinance violation fines to a maximum of $500, pursuant to Chapter 162 of the Florida Statutes. So the penalties for violating the ordinance are two, four and six times the maximum amount allowed by law.

The icing on this cake is that if you were to be issued a citation for not having a permit, and you contested it by requesting a hearing in front of a “Special Master” (kind of like a judge appointed by the City), the ordinance prohibits the fine from being reduced by the Special Master. In other words, the Special Master has no choice but to impose a fine which exceeds the maximum fine allowed under Florida law. The irony of this is that the Special Master now has a Hobson’s Choice… impose the the full amount of the fine (which s/he knows, or should know, exceeds the maximum allowed by State law) or impose no fine at all, and find a reason to dismiss the case instead.

Likewise, if you don’t request a hearing and choose to pay the fine instead, you are being forced to pay the City of Miami Beach an illegal amount for the fine. So you are in a classic no-win situation if you are issued a citation for failure to have a permit… damned if you do, damned if you don’t. It’s because of the fatal conflict between the ordinance and the state law, that the provisions of the ordinance that set the amount of the fines are likely to be found unenforceable if challenged in court.

RIDING OFF INTO THE SUNSET – I am not suggesting that anyone shoot without obtaining a permit, however, if you do get a citation for a violation of the ordinance, there may be a valid defense that can be raised in court to defeat the fine. There is however, in my opinion, with the right facts and with the right Professional photographer that gets a photoshoot cut short by the police ( e.g. where they send the photographer packing and threaten issuing a citation for $1,000 for not having a permit), then there may be a viable Civil Rights Act lawsuit against the City of Miami Beach, together with a judgment finding the ordinance is unconstitutional. But until some Professional photographer decides not to accept the Hobson’s Choice, and wants to ride off into the sunset with the best horse in the barn, and doesn’t want to be sent walking home by Mr. Hobson to come back another day with a permit… having to obtain permits to take photographs in Miami Beach will continue, no matter how badly written and strongly enforced the ordinance may be. Just because the cost of permit is free, that doesn’t mean that the ordinance doesn’t violate your free speech rights as a Professional photographer.

By: Dana L. Manner, Attorney & Photographer based in Miami, Florida.

DISCLAIMER: This article expresses the opinion of the author, who is a Florida attorney, and is not to be construed as legal advice and is for information purposes only, and is not intended to be a solicitation for clients. Consult with an attorney before taking any action based on the information presented.

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