Requiring permits to feed homeless in parks upheld

Friday, July 9, 2010

An Orlando, Fla., ordinance that requires groups to obtain a permit before “large group feedings” in its park district does not violate the First Amendment or religious-liberty rights under Florida law.

The city had enacted the law after complaints that groups of homeless people would descend from Lake Eola Park into residential neighborhoods after meals offered by a local church in the park. The feeding ordinance required churches and other groups to apply for a permit if the group was likely to attract 25 or more people. Orlando’s park district encompasses several parks within two miles of city hall.

The First Vagabonds Church of God, a Christian church with many homeless members, and Orlando Food Not Bombs, a political group that feeds the homeless, challenged the ordinance in federal court. The church alleged that the ordinance violated its religious liberties under the free-exercise clause of the First Amendment and under the Florida Religious Freedom Restoration Act. Orlando Food Not Bombs asserted that the ordinance violated its freedom of speech. Both groups claimed that the ordinance infringed their free-assembly rights.

A federal district court rejected the church’s argument that the law violated the Florida Religious Freedom Restoration Act, finding that the church failed to show that applying the ordinance imposed a substantial burden on the church. But the lower court agreed with the church that the ordinance violated its free-exercise rights. The lower court also agreed with Orlando Food Not Bombs that the ordinance violated its free speech. Because of these findings, the court enjoined the city from enforcing the ordinance.

On appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals reversed and ruled for the city in its July 6 opinion in First Vagabonds Church of God v. City of Orlando.

On the free-speech issue, Orlando Food Not Bombs asserted that it provided large-group meals to express the message that society should feed its homeless. However, the 11th Circuit said this conduct wasn’t expressive enough to constitute a perceptible free-speech claim. Under First Amendment law, a party asserting a free-speech claim based on expressive conduct must establish (1) the intent to convey a particularized message and (2) that a reasonable observer would understand the message.

“We accept that OFNB had the requisite expressive intent, but we believe that the feedings in this case present at most an ambiguous situation to an objective reasonable observer,” the appeals court wrote. “Just feeding people in the park is conduct too ambiguous to allow us to conclude that a great likelihood exists that an objective reasonable observer would understand that the feeders are trying to convey a message.”

The appeals court also reversed the federal district court on the free-exercise clause claim, noting that the ordinance was a neutral law that applied generally to any groups in parks. The law did not single out a specific church or group. Thus the question became whether the city had a rational basis for its law. The appeals court determined that the city’s interest in reducing overall wear and tear on its parks was rational.

The court wrote that “it is far from irrational for the City to conclude that an overall reduction in the wear and tear of its park resources will result from rotating the park’s frequent large users among all available parks in the District.” The court added that “although more effective means might be available to the City to accomplish its goal of park preservation, it is not for federal courts to judge the wisdom or effectiveness of an ordinance on rational basis review.”

The appeals court upheld the lower court finding that the law did not violate the church’s religious liberty rights under the Florida statute. The panel concluded that the ordinance was constitutional and that city officials could enforce the ordinance.

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