Yet another limitation on our freedom of speech
Publix uses law to boot gadfly
By JENNIFER LIBERTO, Times Staff Writer
Published August 8, 2007
TALLAHASSEE – Florida’s largest grocery chain lobbied hard for a new law that gives businesses the right to boot from their property unwanted signature gatherers hawking ballot proposals.
Didn’t take long to use it.
The state had no clear policy on the issue, and Florida’s courts had delivered mixed messages about whether shopping malls and parking lots should be considered public places open for political purposes.
While Publix wanted the right to prohibit all ballot groups from gathering signatures on their property, they particularly dislike a proposal being pushed by a group called Hometown Democracy that would require all land-use changes to be put to a local vote. Hometown Democracy wants the land-use change added to the state Constitution and is aiming for Election Day in November 2008 to get statewide voter approval.
The new anti-petition law had only been on the books a week on July 8, when a 68-year-old South Florida gadfly was handcuffed and arrested for breaking it. She spent two days in jail.
Joyce Tarnow was the new law’s prime target: she was gathering signatures for Hometown Democracy at a Pompano Beach Publix parking lot when she was arrested and charged with trespassing.
Tarnow would like to be a test case. She’d like to be the one whose arrest sparks the legal challenge that knocks out the new state law against gathering petitions on private property.
But it’s not working out that way.
"I wasn’t being impolite, I wasn’t harassing anybody, and I didn’t block any entrances," she said. "I just told them I believe the Constitution says I have a right to be here."
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Tarnow is a magnet for controversy. While the Publix trespassing incident was her first arrest, she knows the state’s trespassing laws through and through. She is now retired, but in an earlier life she ran an often-attacked abortion clinic in South Florida that regularly made headlines.
Widowed with grown children and grandchildren, Tarnow is a veteran of political protests, a frequent contributor to newspaper editorial pages and a bit of a free spirit. She also runs her own anti-sprawl organization called Floridians for a Sustainable Population.
"It’s not like I woke up on a Sunday morning and thought I should go out and try to get arrested," she said.
The arrest report details how she was gathering signatures at the Publix on 531 East McNab Road in Pompano Beach and how Publix Manager Andy Greenberg told her she was violating a new law. He asked her to leave. She refused.
Her stay in jail was lengthy for a second-degree misdemeanor but she acknowledges that was due more to circumstances than anything against her. She was arrested without her wallet and couldn’t reach anyone to help her until late on Sunday. A judge ordered her release on Monday morning, but she didn’t walk out until after 1 a.m. on Tuesday.
Publix spokeswoman Maria Brous said that while corporate headquarters was not aware of the arrest until the Times asked about it, they are not surprised.
"As a company, we have long fought for the rights of our customers to shop without political solicitation or signing petitions," Brous said. "We believe we have that right, since it is private property."
Even before getting the new law passed, Publix appeared to be on solid legal ground to stop petition-gathering. Publix won a case similar to Tarnow’s in Leon County Circuit Court, when a judge ruled that citizen rights to speech and petition don’t trump Publix’s private property rights.
The new law solidifies that view, but the Florida ACLU’s legal director, Randall Marshall, thinks the new law, and the old theories behind it, can still be challenged. He just doesn’t want to use the Tarnow case.
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Several years ago in Bay County, a gadfly named Kevin Wood, was gathering signatures to run for public office at the Panama City Mall when he was arrested for trespassing.
A Bay County Circuit Judge ruled that a shopping mall is a "quasi-public" place, where petition signatures can be collected. Marshall wants to use that judge’s opinion to go after the new law.
"There is a legal theory that would support the right to be petition-gathering in an enclosed mall, and perhaps strip mall," Marshall said. "But only after those cases got extended would it be advisable to take on a stand-alone store."
In other words, Tarnow’s trespass at Publix is harder to fight.
And she’s got another problem with her bid to be come a constitutional martyr. After her arrest, Tarnow pleaded no contest, which means she officially declared that she wasn’t challenging the charge against her. Lawyers have since advised her that’s not the way you build a case of wrongful arrest.
But Tarnow is undaunted. She says places that invite the public to gather should also be open to the "exchange of ideas." So she plans to continue collecting signatures in parking lots and shopping plazas, even if it means getting arrested again.
"We have to persist in order to keep our constitutional rights," she said. "So if it means challenging the law at another venue at another time, I’m going to do it."