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SR-8-B (75) CA:f:\atty\muni\strpts\mjm\meals.h&s city council Meeting 10-18-94 Q8 - 'rrlT181991t Santa Monica, California TO: city council FROM: city Attorney RE: Ordinance of the Cl ty of Santa Monica Making County Health Code Standards Applicable To The Charitable Distribution of Food To the Public INTRODUCTION The City council has directed the city Attorney's Office to analyze two different possibilities for regulating the charitable distribution of meals in parks and other outdoor public places: (1) an ordinance prohibiting outdoor meals programs on public property; and (2) enforcement of the County Health Code standards relating to food handling and serVlce. This report responds to that directive and recommends the latter approach. A proposed ordinance making County Health Code standards applicable to meals programs is attached. ANALYSIS Our information from Human Services staff is that the number of groups conducting meals programs on public property 1S significantly smaller than it was a year ago. Also, the distribution of meals and food is occurring at fewer locations. However, there are still several religious and other groups 1 w~~lh 1 8 1994 88 give meals to homeless persons on public property on a regular basis. Legal staff has evaluated the prospects for drafting a legally viable ordinance which would prohibit the charitable distribution of meals and other food in City parks and other outdoor, public places. The prospects are dubl0US because such an ordinance would likely impact both constitutional and statutory rights of groups operating feeding programs. In 1993, Congress adopted the Rellgious Freedom Restoration Act (PL 103-141) . It provides that the government may not substantially burden the exercise of religion, even by a rule of general application, unless the government has a compelling interest and utilizes the least restrictive means available to achieve its ends. It appears likely that one or more of the churches which distribute meals to homeless persons in the City could establish that feeding the homeless is a tenet of their religion. (The question would be whether feeding where the homeless llve is a basic tenet.) Therefore, if an ordinance were adopted which purported to prohibit feeding homeless people in parks, such a church could challenge the ordinance on the ground that the City either does not have a compelling interest in prohibiting such programs in parks or that, whatever the City's interest, it may be accomplished in a less restrictive way. We believe that if a court made the threshold finding (that feeding the homeless in parks is a basic tenet of 2 plaintiff's religion), then the city would have difficulty showing that the City's interest could not be accomplished in a less restrictive way. In addition to implicating religious freedoms, an ordinance prohibiting feeding needy members of the public in parks would be subject to constitutional challenge on First Amendment grounds. Presumably, this type of challenge would be similar to the lawsuit testing the City's prior ordinance regulating meals programs in parks. As the council is aware, a federal district court granted a preliminary injunction in that case based upon its conclusion that the City's prior ordinance violated First Amendment guarantees. Moreover, any ordinance which purported to prohibit or restrict the distribution of food to particular classes or groups would be subject to constitutional attack on equal protection grounds. Additionally, an ordinance which limited the service of food in parks in general, but which was enforced only against those who feed homeless persons, would be subject to both equal protection and due process challenges. At present, there is almost no case law available to help us predict how a court would apply statutory and constitutional constraints to an ordinance prohib1t1ng the distribution of meals in public parks. However, a case recently decided by a federal 3 court in Washington, D.C. gives certain indications. In Western Presbyterian Church v. Board of Zoning Adjustment, 849 F.Supp. 77 (D.D.C.-~994), the District of Columbia applied an ordinance regulating programs operated by churches in R-l zones to prohibit a church from operating a long-standing feeding program at a new location owned by the church in a l1mixed zone". The church sued claiming violation of members' rights under the Religious Freedom Restoration Act of 1993, the clvil Rights Act of 1964, and the united states Constitution. The federal court found that feeding the homeless was a tenet of the church member's reI ig ion and issued a preliminary injunction preventing the District from stopping the feeding program. In doing so, the court went out of its way to admonish the Distr1ct. The court said that the District "should welcome this type of service from non-governmental sources rather than moving to treat it as an offensive activity" and that the District's action was based upon the "unfounded and irrational fears of some res1dents "The Court concluded that the program should be allowed to the extent that it was not a nU1sance. Of course, the feeding program in that case was being operated on the church's property -- not in a public park; and a court might reach a different result based on that fact. (On the other hand, the exercise of First Amendment rights in parks receives stringent judicial protection.) Moreover, the qualification -- that the program could continue as long as it was not a nuisance -- suggests 4 that a program which was a nuisance could be stopped. In any event, the case clearly illustrates the proposition that the Religious Freedom Restoration Act and the federal Constitution afford significant protections to churches which feed homeless people as part of their ministry. Thus, the case suggests that, if possible, the Council should avoid the alternative of prohibiting the distribution of food to the public in parks because strong legal arguments may be made against such a prohibition. In contrast, reasonable health and safety restrictions, fairly applied, are not likely to overturned by a court. At present, the Santa Monica Municipal Code contains an antiquated incorporation by reference of Los Angeles County Health Code standards applicable to food service. Several of the referenced sections apply whether food is sold or given away. However, the present language of the Municipal Code is outdated because the county Health Code has been revised. Moreover, the present Municipal Code language does not make explicit that certain provisions of the Health Code standards apply whether food is sold or given away. The attached ordinance would make that clear. If adopted, this ordinance would be enforced by County personnel, who already enforce the County Health Code standards within the City. The City is presently charged for this service, and adoption of the proposed ordinance would effectively increase the charge if enforcement services were maintained at their present level. 5 RECOMMENDATION It is respectfully recommended that the City Council adopt the proposed ordinance. Prepared by: Marsha Jones Moutrie 6 CA:f:\atty\muni\laws\mjm\meals.h&s city council Meeting 10-18-94 Santa Monica, California ORDINANCE NO. (CCS) ORDINANCE OF THE CITY OF SANTA MONICA RELATING TO THE APPLICATION OF HEALTH AND SAFETY STANDARDS TO THE SERVICE OF MEALS TO THE PUBLIC WITHOUT CHARGE WHEREAS, various groups, associations, corporations and individuals distributing meals and other food within the City of Santa Monica to the public without charge; WHEREAS, the same concerns which underlie health and safety standards for food storage, preparation, handling and transport when meals and other food are sold apply equally when food is distributed to the public without charge; WHEREAS, the Los Angeles County Health Code standards relating to food preparation and handling are already incorporated by reference into the Municipal Code and many of them apply, by their terms, to the distribution of meals and food to the public without charge, but the Municipal Code does not explicitly state that they apply; WHEREAS, the public interest is served by making the Municipal Code's requirements clear; 1 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES ORDAIN AS FOLLOWS: SECTION 1. Section 5.08.370 of the Santa Monica Municipal Code is amended to read as follows: 5.08.370 Incorporation of Certain County of Los Anqeles '"........., ..:- ... ........~....... Health and Safety Code requirements. (a) sections I' I . .., . 100 ......_ .... n.. .....'" ~~-,......., inclusive, with the exception of Sections : II _ . - II II. . . I "... I . I. _ I) ., . I . .. I :0 I 1 . I",. ) ,; , .. II ,.- '. ::: t. . . (.1 I. I . . t. . ..J. I ~ . I .. I 1 . .~ n . l)': ') , I!. ~ '" ~ . 11:.':".:( .''1 n C.lt., ~-, -""%..&..1 and 542 of the r~~li~ Healtl 1 ~ : 1.' Code of the County of Los Angeles, ~= _....:J__....._...:J -.......-.t'--....... __ 1\....._....._..... _..... ..1.6-."='............_ ...'" ..._, ., n-=n ........_-, l.o.u ~.z ..1.0.._ '0__.........:3 _.I..&.- ~_'-"'.&.......... _-+: C"I.,...____...,..,,: ____.... _~ .....\..._ .....,..&.. ~....J::"-..... .............................:1 ........... ...........- ,....-....-.......... ............................... :l ~. ....... T ~~ ........... '71___' __ ........... ~.I...':J........._- -:1 ~_~~_____ ~~~_k__ __..... _................................_ .... -..LLI__...... ...,.~n~ '--...", __.J _ ~ -....--. -- ____~_..:I \...~... ^_~--= _____ lLT...._1.o.___ '-1..1.11...._..................... ..., J _..... .............................__ ..... ........LLA.I_.&.. ....... nnnl:= ""'---, n"'\nA "-".lI:;.o_""':EI OAP'1IC _""11=~-', n~nn ----, ~~d e51~, an I ~I: II sequent ordinance. .11"" ~ "d l:"l i -'.' .. .! F. : I - '!: t :.,j I" (.... . c . ~ : C.d I l I to r l' I.,: ... -C".:!.' I 'I . '.:our": ~ ~. if', are hereby adopted and incorporated herein by reference as if set forth in full herein. The provisions of =:::..::..= I'~~li;:: the Heal l ! I.J :. .,1.. I. Code fully express the will and intention of the City Council of the City of Santa Monica as 2 to those matters relating to public health which are contained thereln and adopted hereby. (b) The provisions of this Ordinance, insofar as they are substantially the same as provisions of the Santa Monica Municipal Code relating to the same subject matter existing immediately preceding adoption of this Ordinance, shall be construed as restatements and continuances, and not as new enactments. (c) The issuance of a permit, certification, or approval under the provisions of this Ordinance shall not constitute a waiver of any other requirement contained in the Santa Monica Municipal Code or any other law or ordinance, and all such requirements shall be complied with in addition to the obtaining of a permit, certification, or approval under the provisions of this Ordinance. (d) The lssuance of a permit, certification, or approval under the provisions of this Ordinance shall not constitute an approval of any violation of any provision of this Ordinance, or any law or ordinance, and a permit, certification, approval, or other document purporting to give authority to 3 violate any law or ordinance shall not be valid with respect thereto. ( I'" ~ ., I. ~ 'I r ~ ....~, ~I- ':I.r. ..:.J: jJ:::Jr..t I....:... ....r a:.'::'~;..". 1.1:.: 'II :'l ... h ' 'I 11- ['),'-', I .. ~ -' - I c. !'I 'liI.i,'.n',I: .od t." .t p- :. ..I.-:....t;II....::.:-1 11 l~~-."i~ 1 ....':t~ ~rl'" rtl:". II I.... .J1 till II" ;'.~(J'...il.. i cc:.'"r.,. dr,~ ; tt ,. " = ';: f .: ~. '.Jf', '. : C"n 'n' ,I H~ f 1 ('.J .! II ~ I .....= -, r p "") ~ Il '. 'd :. ::" t ~, ; '. (",,: t I ,.11 .,' t ..... : :'1 ~ : - i'1l'1.':.";I' ....(' :1. I l "r! :"1 t .' I L." ~ ~:;I... 1 rl I:'''; 1 ~ ::..: , ;'!'"C"Of .:I!' t': ll. n , it.:.! "I' . ~ ... ("" - C ...- .. .--. . -,'- t t. · ::; ~r. I- . r IhJ :, I l'~,x III . I ". d':...; 'I . Ii' I: t. ~- !,;! ~f:'-' ....,) I (~,:'Jl'. SECTION 2. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, are hereby repealed or modified to that extent necessary to affect the provisions of this Ordinance. SECTION 3. If any section, subsection, sentence, clause, or phrase of this ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this ordinance, and each and every section, subsection, sentence, clause, or phrase not declared 4 invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional. SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective after 30 days from its adoption. APPROVED AS TO FORM: By MARSHA JONES MOUTRIE City Attorney 5