Are Food Sharing Programs Illegal? Well, In Orlando, FL…

By Kristen Sherman, Esq.

As many readers are undoubtedly aware, it can be extremely difficult to obtain food while homeless. Since many food pantries and soup kitchens are overcrowded, have limited hours, or are inaccessible due to lack of transportation, many homeless people rely on the generosity of groups and individuals who run formal or informal food sharing programs. Unfortunately, some cities and towns throughout the country have used local laws to limit or prohibit food sharing programs. These restrictions take several forms. Some cities and towns have restricted or limited food sharing through the enforcement of existing zoning laws. While these local ordinances may appear neutral in application, they have the practical effect of limiting food distribution. Other cities and towns have adopted ordinances specifically targeting food sharing. As set forth below, these local ordinances may violate the state or federal Constitutions and may be subject to challenge in court.

The recent decision on July 6, 2010 from the Eleventh Circuit Court of Appeals in First Vagabonds Church of God v. City of Orlando exemplifies the opportunities and difficulties in challenging local food restrictions.  In that case, the City of Orlando, Florida passed an ordinance that prohibited the sharing of food by groups to 25 or more people in the downtown park district without a city-issued permit. Because the permit was only available twice a year, the ordinance severely curtailed the ability of groups to share food to the homeless. The two plaintiffs, a local religious organization that served food to its homeless members and a local non-profit group dedicated to providing free food to the homeless challenged the ordinance on constitutional grounds, arguing that it violated their First Amendment rights to free speech and free exercise of religion. The Plaintiffs also argued that the law violated the Due Process and Equal Protection Clauses in the Fourteenth Amendment to the U.S. Constitution. Although a U.S. District Court judge for the Middle District of Florida found the ordinance unconstitutional, his decision was overturned on appeal by the Court of Appeals.

In reaching its decision, the Court of Appeals explained that the ordinance did not violate the Free Speech Clause because the conduct at issue (the food sharing events) was not “expressive” enough for an objective observer to understand the message being conveyed. The Court stated that, without t-shits, buttons, banners and other similar “explanatory speech” an observer would not know if the gathering was a family reunion or a form of political speech. However, the Court left open the possibility that the act of feeding might under different circumstances be expressive enough to justify constitutional protection.

As for the Free Exercise Clause claim asserted by the church, the Court found that the ordinance was neutral on its face and only had to have a “rational basis” to survive. The ordinance was determined to serve the government’s legitimate interest in preserving its parks from “wear and tear.”  Therefore, it was not unconstitutional.

Finally, the ordinance did not violate the Due Process or Equal Protection Clauses of the Fourteenth Amendment. The Court stated that the ordinance did not violate the Due Process Clause because it was clear enough that a person of ordinary intelligence would understand what conduct was prohibited.  Nor was there an Equal Protection Clause problem because the ordinance did not impermissibly distinguish between people with permits and those who did not have permits for purposes of imposing liability.

A review of Rhode Island case law suggests that food sharing restrictions have not been implemented in Rhode Island, or, if they have been implemented, they have not been challenged in court. However, if such ordinances exist or arise, the City of Orlando decision leaves open the door to First and Fourteenth Amendment challenges.