Posted by: Patricia Salkin | August 6, 2010

11th Circuit Court of Appeals Finds Large Group Feeding Ordinance Does Not Violate First Amendment

In response to complaints about large numbers of homeless people dispersing from the park and into neighborhoods after feeding events sponsored by a church and advocacy group, the City of Orlando adopted a Large Group Feeding Ordinance requiring a permit for “large group feeding” (meaning a gathering expected to attract 25 people or more) within the downtown parks area, such permits to be limited to two per year per applicant for any particular park.  First Vagabonds Church of God, a Christian Church consisting of forty members, most of whom are homeless, holds services every Sunday in a park in Orlando, and the service also includes a meal. The Advocacy Group, Orlando Food Not Bombs (OFNB), is a loosely structured group that believes in providing food to all of its members.    

The district court found for the City on the Flordia Religious Freedom Restoration Act (RFRA) claim, but ruled in favor of the Church on its free exercise claim, in favor of OFNB on its as-applied free speech claim, and in favor of the City on the Plaintiffs’ free assembly claims, and enjoined the City from enforcing the Ordinance. The City appealed the free speech and free exercise claims, and the resulting permanent injunction, and both Plaintiffs appealed the summary judgment to the City on their due process (void-for-vagueness) claims. The Church appealed the grant of summary judgment in favor of the City on its equal protection claim, as well as the conclusion that the Ordinance does not violate the FRFRA. 

The 11th Circuit Court of Appeals held that the ordinance does not violate the First Amendment, noting that “we are unpersuaded that the conduct of simply feeding people–the only conduct regulated by the Ordinance–is expressive for First Amendment purposes.”  Nor does the ordinance violate the church’s free exercise rights, as it “is a neutral law of general applicability” and it serves the rational purpose of rotating parks’ frequent large users among all available parks in the area.  Further, the Court said that the ordinance did not violate Florida’s Religious Freedom Restoration Act.

First Vagabonds Church of God v. City of Orlando, 2010 WL 2652472 (11th Cir. (FL) 7/6/2010) 

The opinion can be accessed at: http://www.ca11.uscourts.gov/opinions/ops/200816788.pdf

Update April 2011 from IMLA E-News:

In a 10-0 decision (one judge abstained), the full Eleventh Circuit upheld the City of Orlando’s ordinance restricting feeding the homeless in public parks. Approximately 42 parks were located in Orlando’s Greater Downtown Park District, which was the area within a two-mile radius of City Hall. Orlando Food Not Bombs (OFNB), a “group of political activists dedicated to the idea that food is a fundamental human right,” began distributing free food at one park, Lake Eola Park, every week at 5:00 p.m. The First Vagabonds Church of God likewise began holding services and food distribution at the park. These events attracted upwards of 50 people at a time, and residents complained to the City regarding what happened when the attendees dispersed into the surrounding community. The City held public hearings before passing an ordinance that restricted such events: sponsors of mass feedings within the Greater Downtown Park District had to get a permit, and the ordinance limited the number of permits that a permitee could obtain for any one park to two a year. The ordinance defined a “large group feeding” as “an event intended to attract, attracting, or likely to attract twenty-five (25) or more people[] . . . for the delivery or service of food.” The intention was to spread the events around several parks and give the City some advance notice.  

The plaintiffs, OFNB and the Church, contended that the ordinance, facially and as applied, violated the First Amendment’s Free Exercise Clause and the Free Assembly Clause, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment (one plaintiff raised a Free Speech Clause claim). The district court granted summary judgment in favor of the City on the Due Process and Equal Protection Clause claims, and granted summary judgment against the facial challenge under the Free Speech Clause as being without merit, because the conduct regulated by the ordinance was not, on its face, expressive activity. The district court ruled in favor of the Church on its claim under the Free Exercise Clause, in favor of OFNB on its as-applied claim under the Free Speech Clause, and in favor of the City on the claim under the Free Assembly Clause.  It enjoined further enforcement of the ordinance. A panel of the Eleventh Circuit previously affirmed in part, reversed in part, and vacated the injunction, and a petition for en banc review was granted. 

The en banc court found in favor of the City. “We assume, without deciding, that the feeding of homeless persons by Orlando Food Not Bombs is expressive conduct protected by the First Amendment, but … uphold the ordinance of the City of Orlando both as a reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct…. We cannot ‘replace the [City] as the manager of [its] parks,’ nor decide ‘how much protection of park lands is wise and how that level of conservation is to be attained.’ ” Even if feeding was expressive conduct, the court declined to conclude that an ordinance that regulated that conduct violated the Free Speech Clause, citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (ban on overnight sleeping in park, as a symbolic statement about the plight of the homeless, withstands constitutional scrutiny).  The ordinance here restricted feedings even less than the regulation in Clark restricted sleeping, as the ordinance would allow each group to apply for 84 group feedings a year, and had no limit on events in any parks outside the Greater Downtown Park District. The ordinance was not content-based, left open alternative avenues of communication (e.g., political rallies, demonstrations, distributions of literature, or any other expressive activities), and narrowly furthered the substantial interest of the City in managing its parks and “be[ing] fair to individual neighborhoods.” See http://www.ca11.uscourts.gov/opinions/ops/200816788op2.pdf


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