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
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Health
and
Safety
Code
requirements.
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inclusive, with the exception of
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hereby adopted and incorporated herein by
reference as if set forth in full herein. The
provisions of =:::..::..= I'~~li;:: the Heal l !
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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.
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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