CAO 02-13TO:
FROM:
SUBJECT:
DATE:
CITY OF MIAMI BEACH
Jorge Gonzalez
City Manager
Murray H. Dubbi~[i I
City Attorney
DebOra J. Tumer
First Assistant City Attorney
California Penal Code and City of Santa Monica Ordinances CMO#l-11/02
C~r~o c~- I..3
March 4, 2003
Pursuant to your request, we have reviewed and evaluated two City of Santa Monica
ordinances as possible models for ordinances to be drafted in the City of Miami Beach.
Specifically, the two ordinances from the City of Santa Monica concern provisions (a)
prohibiting sitting or lying in doorways in the downtown and main street areas between 11:00
p.m. and 7:00 a.m. and (b) provisions specifying requirements for the outdoor distribution of
food to the public. You have also requested this Office to review State of California Penal Code
Section 639-653(g) regarding individuals loitering in public places where children normally
congregate in order to determine whether similar legislation may be adopted on a local level by
the City. The following are our conclusions as to what may he accomplished locally relative to
your inquiries.
I. PROHIBITIONS REGARDING SITTING OR LYING IN
DOORWAYS IN CERTAIN DOWNTOWN AREAS DURING
NIGHTTIME HOURS
The adoption of similar legislation in the City of Miami Beach is not recommended given
the effect of the Pottinger decision from the Federal District Court for the Southern District of
Florida and the existence of other laws which currently may be enforced, l Although some
jurisdictions in other parts of the country have been able to adopt legislation which is more
liberal and aggressive with regard to regulating persons lying in public places, we are
constrained to a certain extent in the Southern District by the Pottinger decision and the protocol
established by the Settlement Agreement approved by the Federal Court. (See Exhibit B). The
holdings in that case limit our ability to regulate persons, particularly the homeless, when it
comes to certain harmless and "life sustaining" activities such as sitting and sleeping on public
1Some of our concerns with legislation in this regard are addressed in the attached memo
prepared by Martha Diaz Perez, Senior Assistant City Attorney, dated January 3, 2002. (See
Exhibit A). The state of the law has not changed since the writing of that memo.
special events permit as it would be properly allowed under the institution's zoning designation,
unless, for example, it was creating a situation to implicate Section 82-151 of the City Code.
When a special events permit is not applicable, then a permit may be required under
Section 82-151 of the City Code. Pursuant to Section 82-151,
[n]o person or entity shall obstruct or cause to be obstructed any
street or sidewalk in this city or impede the general movement of
vehicular or pedestrian traffic thereon without first obtaining a
permit from the City's Public Works Department ....
Thus, if streets or sidewalks would be obstructed by a feeding program, then a Public Works
pemfit would be required.
With regard to legislation regulating the locations for the distribution of food to the
public, it is noted that the Santa Monica ordinance was supported by the local county health
department which had made various factual findings that the distribution of food posed
significant public health risks. In addition, and more importantly, the county had notified the
City of Santa Monica that serving and distributing food to the public falls under the jurisdiction
of the State of California's Health and Safety Code which regulates the methods and frequency
of various classes of meals and food distribution activities. Indeed, the county had notified the
City of Santa Monica that it must cooperate in administering the county's permitting system by
approving particular locations for food service on city property (i.e., in city parks and on the City
Hall lawn). Unless the City of Miami Beach has been given a similar directive by its State or
County Health Departments, an approach similar to the one taken by the City of Miami should
be considered. In addition, legislation similar to Section 5.06.010 to the Santa Monica Code is
sufficiently innocuous to also be considered. (See Exhibit D).
III. LOITERING IN PUBLIC PLACES
With regard to the legislation regulating loitering on school grounds, there are state laws
prohibiting trespass on school grounds and restrictions on the employment opportunities of
sexual predators. Under Section 810.097 of the Florida Statutes, the trespass upon the grounds
or facilities of a school by any person who does not have "legitimate business on the campus, or
any other authorization, license, or invitation to enter or remain upon school property" is an
arrestable offense constituting a second degree misdemeanor. Moreover, if such person fails to
leave after being so directed, the offense is a first degree misdemeanor. Thus, with regard to
school property, Florida law is similar to Section 639-653.1 of the California Penal Code.
Moreover, under Section 775.21 of the Florida Statutes ("The Florida Sexual Predators
Act"), convicted sexual offenders are designated as "sexual predators" and are subject to
registration with the Department of Law Enforcement and members of the community; in
addition, the public is notified of the predator's presence. Also, sexual predators are subject to
specified tem,s and conditions at sentencing, or at the time of release, and are prohibited from
working with children, either for compensation or as a volunteer, at any business, school, day
care center, park, playground, or other place where children regularly congregate)
Generally, laws relating to vagrancy and loitering in public places, such as parks, are
problematic as discussed in the attached memo. See also City of Morales v. Chicago, 527 U.S.
41, (1999)(city's gang loitering ordinance that prohibited remaining in any public place with no
apparent purpose did not distinguish between innocent loitering and conduct threatening harm,
thus was held unconstitutionally vague) and Headley v. Selkowitz, 171 So. 2d 363 (Fla. 1965)
(ordinance providing that one who is found standing, loitering or strolling any place in city and
not able to give satisfactory account of himself was unconstitutionally vague). To the extent that
the California Penal Code covers all "other public places" besides schools where children may
congregate, no standards are provided which would identify what is meant by loitering "without
lawful business for being present." Indeed, such standard may be difficult to establish and
justify legally in places such as parks..
In some jurisdictions, ordinances prohibiting the act of loitering, when combined with
some other overt act or evidence of criminal intent, have been upheld. See Tacoma v. Luverne,
827 P. 2d 1374(1992) (upholding ordinance criminalizing loitering with purpose to engage in
drug-related purpose and requiring overt acts manifesting such intent) and People v. Superior
Court, 758 P. 2d 1046 (1988) (upholding ordinance criminalizing loitering for the purpose of
engaging in or soliciting lewd act). However, in Florida, even when combined with overt acts,
loitering ordinances, virtually identical to those upheld in other jurisdictions, have been held
unconstitutional by the Florida Supreme Court. See E.L. andR. ~ v. State, 619 So. 2d 252 (Fla.
1993)(ordinance prohibiting loitering for purpose of engaging in drug-related activity was
unconstitutional as vague, overbroad, and violative of substantive due process); Holiday v. City
of Tampa, 619 So. 2d 244 (Fla. 1993)(ordifiance prohibiting loitering while manifesting purpose
of illegally using controlled substance was unconstitutional as vague, overbroad, and violated
substantive due process) and Wyche v. State, 619 So. 231 (Fla. 1993)(ordinance prohibiting
loitering in manner and under circumstances manifesting purpose of engaging in acts of
prostitution was unconstitutionally vague, overbroad, and violated substantive due process).
Due to the problems inherent with legislation concerning vagrancy and loitering, no
additional legislation in this area is recommended. However, a special "children's park" could
be considered, if sufficiently supported by record evidence, wherein only adults who were the
parents, legal guardians, or authorized caregivers of children present in the park would be
allowed, as well as authorized City employees, police, and fire personnel.
3 However, the parameters of The Sexual Predators Act have recently been called into
question. In January, 2003, the Third District Court of Appeal issued an opinion in Espindola v.
State, So. 2d , (Fla. 3d DCA 2003) finding that the provisions in the Act concerning the
registration and the automatic determination of a "sexual predator," if one of the requirements
and certain enumerated crimes had been committed, were unconstitutional as violative of
procedural due process protections. That case is pending further appeal. The provisions
prohibiting sexual predators from working with children or in any place where children regularly
congregate remain intact.
F:~atto\TURN\CAO~istribulion of food and loitering by homeless, elc.doc
CITY OF MIAMI BEACH
Interoffice Memorandum
TO:
VIA:
FROM:
SUBJECT:
MAYOR DERMER
MURRAY H. DUBBIN
CITY ATTORNEY
DATE: January 3, 2002
MARTHA DIAZ PEREZ
SENIOR ASSISTANT CITY ATTORNEY
LEGAL ANALYSIS OF QUALITY OF LIFE ORDINANCES: CITY
COMMISSION HOMELESS WORKSHOP: JANUARY 7, 2002
I. INTRODUCTION
There is a trend in American cities to develop and implement "get tough" policies and
restrictive ordinances in an effort to protect health and safety, promote economic vitality in tourist
areas and maintain the aesthetic qualities of the cities. Often, these goals are achieved through the
enactment of ordinances which invariably affect the rights of homeless individuals. Generally, the
enforcement of these ordinances via criminal sanctions exposes cities to burdensome civil rights
litigation and allegations of discriminatory practices and cruel and unusual punishment against
homeless persons by virtue of their status. Cities are often placed in a dilemma: protecting and
promoting the safety, health and welfare of the citizens without violating the constitutional rights
o f others.
Courts throughout the United States are continuously reviewing challenges to municipal
ordinances which prohibit, limit or regulate the enjoyment and use of public places in an attempt to
control or even eradicate public disorder. The following is a synopsis of court cases and opinions
dealing with ordinances primarily designed to protect and promote quality of life while also affecting
the homeless population.
II. QUALITY OF LIFE ORDINANCES AND THEIR EFFECT ON HOMELESS
A. VAGRANCY LAWS.
Vagrancy has been defined by the courts as a status or condition, not conduct. Hence, courts
Memorandum to
January 3, 2002
Page 2
have struck down ordinances which punish vagrants for their status rather than their undesirable
actions. Papachristou v. City of Jacsonville 92 SCt. 839 (1972): Vagrancy ordinance which
prohibited among other things, persons wandering from place to place without a lawful purpose
(vagabonds), is void for vagueness because it "fails to give a person of ordinary, intelligence fair
notice that his contemplated conduct is forbidden by the statute"; it encourages arbitrary and erratic
arrests; it makes criminal activities that are nom~ally innocent; and. it places unfettered discretion
in the hands of the police.
B. SLEEPING IN PUBLIC PLACES
Ordinances prohibiting persons from sleeping in public places have been struck down as
unconstitutionally vague and overbroad.
1. State v. Penlev, 276 So. 2d 180 (Fla. 2d DCA 1973): Penley was arrested by
a St. Petersburg officer for sleeping on a public bus bench, in violation of an ordinance which
prohibited persons from sleeping on public places. The court affirmed the lower court's declaration
that the ordinance was unconstitutional concluding that the ordinance punished "unoffending
behavior" and was thus vague.
2. Hershey v. City of Clearwater. 834 F. 2d 937 (I 1~h Cir. 1987): The court
reviewed a City ordinance which prohibited lodging and sleeping in motor vehicles. Hershey had
laid down in the back of his car on a mattress because he was not feeling well. He was cited and
arrested for violation of the ordinance. The court struck the "sleep" portion of the ordinance as
unconstitutional on void-for-vagueness grounds.
3. City of Pompano Beach v. Capalbo, 455 So. 2d 468 (Fla. 4~ DCA 1984): City
of Pompano Beach Code Section 21.66 prohibited lodging or sleeping in a vehicle in public
property. Capalbo was arrested. The trial court held the ordinance unconstitutional and the City
appealed. The court concluded that the "sleeping" provision was unconstitutional because of its
vagueness and overbreath, thus lending itself to arbitrary enforcement.
C. CLOSING ON PUBLIC PARKS, BEACHES
Section 82-2 of the City of Miami Beach Code prohibits persons form being or remaining
in a public park, beach or golf course between midnight and 5:00 a.m., except that persons may pass
through without stopping.
See Porringer for effect of ordinance and its enforcement on homeless persons.
D. URINATING/DEFECATING IN PUBLIC VIEW
Memorandum to
January 3, 2002
Page 3
Section 70-42 of the City of Miami Beach Code prohibits a person from intentionally
urinating or defecating in plan view of the public. Although the Pottineer decision ma,,' affect the
enforcement of this "life-sustaining" ordinance, the ordinance may withstand challenges of
unconstitutionality based on vagueness or equal protection because the ordinance punishes
intentional conduct which is clearly defined.
E. PEDDLING
Section 70-4 of the City of Miami Beach Code prohibits peddling within the City.
F. CAMPING
On December 19, 2001, the Mayor and City Commission referred a proposed ordinance
prohibiting camping to the "Homeless Workshop" scheduled for January 7, 2002. The ordinance,
as presented, was drafted after model ordinances enacted in the City of Orlando and the City of
Daytona Beach. It defines camping and prohibits camping on public places; it provides for factors
to consider in order to determine whether a person is in violation; and, in light of Porringer the
ordinance also provides for enforcement procedures for homeless persons.
Joel v. City of Orlando, 232 F. 3d 1353 (I 1'h Cir. 2000): Joel, a homeless person, was
arrested for violation of Orlando's camping ordinance. Orlando's ordinance prohibited persons from
camping on all public property and provided a definition for "camping". Although no procedures
or guidelines were codified, the city developed guidelines for its enforcement which it compiled in
a handbook. Interestingly, the handbook provided that "local court rulings have held that in order
to camp, the suspect must do more than simply fall asleep on city property"; and, "homeless persons
shall be advised of alternative shelter". The handbook developed by the city (presumably in
response to ?ottinger) provided a strong argument for the constitutionality of the ordinance. Mr.
Joel alleged that the ordinance encouraged discriminatory and arbitrary enforcement because 98%
of those arrested were homeless and it appeared that the city had enacted it to discriminate against
the homeless. The court did not find discrimination but it acknowledged that the Equal Protection
Clause would be violated if a discriminatory purpose was proven.
The court concluded that the ordinance was neither vague nor did it encourage arbitrary
enforcement. In fact, the language of the ordinance was "sufficiently specific that a person of
ordinary intelligence could reasonably understand what is prohibited". Finally, Mr. Joel argued that
the ordinance punished homeless as a result of their involuntary status and that constituted cruel and
unusual punishment per Porringer. The court rejected that argument by pointing out that the offer
of available shelter changed the "involuntary" status of the homeless person thereby divesting any
cruel and unusual punishment.
G. PANHANDLING (BEGGING) PROHIBITED; AGGRE,SSIVE
Memorandum to
January 3, 2002
Page 4
PANHANDLING
Ordinances prohibiting begging have been held by some courts not to violate the right of free
speech; yet, other courts have held them invalid under the First Amendment. Hence, cities have
opted for a more neutral approach to anti-begging laws by regulating such activities to specific areas.
1. Loper v. New York Ciw Police Devartment. 999 F2d 699 ( ?d Cir.): Beggars
brought an action against the NYC Police Department to enjoin enforcement of a statute which
prohibited loitering in public places for the purpose of begging. The court declared the statute
unconstitutional on First Amendment grounds. The appellate court affirmed. In this case, the City
Police believed the statute was an "essential tool to address the evils associated with begging on the
streets of New York ... [where] residents are intimidated and local businesses suffer". The court, in
its analysis, concluded that sidewalks are a category of public property traditionally held open to the
public for expressive activity and there was no compelling state interest served by total prohibition
of begging. Begging may be regulated in a specific area as long as the city proves that such
regulation advances a substantial government interest not related to the suppression of flee'
expression. Youn~ v. NYC Transit Authority. 903 F. 2d 1436 (2d Cir.) [regulation prohibiting
begging in the NYC subway system upheld].
2. Gresham v. Peterson, 225 F. 3d 899 (7"~ Cir.): A homeless person sued
challenging a City of Indianapolis ordinance which prohibited aggressive panhandling and
panhandling at specified locations in the City. The ordinance provided for fines, not imprisonment
The court analyzed the constitutionality of the ordinance by comparing it to similar restrictions and
regulations placed on charitable solicitations which are also entitled to First Amendment protection
and subject to reasonable regulation. "Because the Indianapolis ordinance does not ban all
panhandling, we agree that the law could be understood as a time, place or manner regulation."
3. Smith v. City of Fort Lauderdale, Florida, 177 F. 3d 954 (11''' Cir.): Homeless
persons sued the City of Fort Lauderdale on First Amendment grounds challenging a regulation
implemented by the City Parks and Beaches proscribing begging on a five-mile strip of beach and
two attendant commercial sidewalks. The court, acknowledging that the beach area is a public
forum, concluded that the City could "enforce regulations of the time, place and manner of
expression which [I ] are content-neutral, [2] are narrowly tailored to serve a significant government
interest, and [3] leave open ample alternative channels &communication". (The city in this instance
expressed its interest in providing a safe, pleasant environment and eliminating nuisance activity on
the beach which adversely impacted tourism).
4. Section 21-31.4, Miami-Dade County Code/A~gressive or Obstructive
panhandling prohibited: This ordinance is enforced in the City of Miami Beach. It prohibits (1)
aggressive panhandling in public places; and (2) pedestrian interference. Incidentally, pedestrian
interference ordinances have been upheld as not unconstitutionally vague or violative of equal
Memorandum to
January 3, 2002
Page 5
protection rights of the homeless. City of Seattle v. Webster, 802 P. 2d 1333 (Sup. Ct. Washington,
1990).
H. SITTING/LYING DOWN ON SPECIFIED AREAS PROHIBITED
I. Seelv v. State of Arizona. 655 P. 2d 803 (Ariz. Ct. App. 1982): Transients
sued State of Arizona contending that a City of Phoenix ordinance which prohibited lying, sleeping
or sittin_- in a public rieht-of-wav was unconstitutional. Petitioners alleeed the ordinance was vac, ue,
overbroad, violative of equal protection and right to travel. The court upheld the constitutionality
of the ordinance. In its opinion, it concluded there was no violation of equal protection because there
was no indication in the record that transients were being singled out for prosecution.
2. Roulette v. City of Seanle, 97 F. 3d 300 (9'h Cir. 1996): Plaintiffs consisting
of homeless persons, social service providers, street performers, and civic organizations, brought suit
challenging a City of Seattle ordinance prohibiting people from sitting or lying on public sidewalks
in specified commercial areas between 7:00 a.m. and 9:00 p.m. (with exceptions), and claiming the
ordinance violated their rights to equal protection, trawl and free speech. The court detemfined that
sitting or lying on a sidewalk did not constitute expression and was thus, not subject to First
Amendment scrutiny. The plaintiffs also argued that the ordinance was "nothing more than a thinly
veiled attempt to drive unsightly homeless people from Seattle's commercial areas". The court
rejected that claim concluding that the fact that legislation might operate unconstitutionally is
insufficient to render it wholly invalid. There is a strong dissent in this opinion which objects to the
majority's refusal to recognize sitting as expressive conduct protected by the First Amendment.
The ease law in this area provides for the ability of cities to regulate sitting and/or
lying down in public rights-of-way with the proviso that such restrictions must not discriminate
against homeless people as a consequence of their condition. Cities need to be cognizant of the
vagueness and overbreath challenges which may prevail given the effect of Porringer on daily life
activities such as sitting, sleeping, eating in public.
/II, THE POTTINGER DECISION AND ITS EFFECT ON THE ENFORCEMENT OF
QUALITY OF LIFE ORDINANCES
In Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D. Fla. 1992), a class of approximately
6,000 "involuntary homeless" plaintiffs challenged the City's policy and practice of arresting them
for engaging in basic activities of daily life such as sleeping, eating, standing and congregating in
public places, and for confiscating and destroying their belongings. They further claimed that the
city applied several ordinances against the homeless for inoffensive conduct which they were forced
to perform in public. The plaintiffs asked the court to enjoin the city from conducting systematic
"sweeps" of homeless. The court ultimately granted injunctive relief and found that the city had
violated the court's order. The court held a non-jury trial on the issue of liability, making several
findings of fact and conclusions of law which would undoubtedly impact future legislation and
Memorandum to
January3,2002
Page 6
policy on quality of life concerns.
A. FINDINGS OF FACT:
(1)
Most homeless individuals have no alternative to living in public areas;
(testimony of expert witnesses).
(2) Property of the homeless is easily identifiable;
(3)
The city arrested homeless persons for standing, sleeping or sitting on
sidewalks; for sleeping on benches, sidewalks, or parks, for obstructing the
sidewalk, loitering or being in the park after hours, in violation of several
code provisions. ( This was supported by arrest records and testimony of the
homeless persons).
B. CONCLUSIONS OF LAW:
The court found municipal liability. The evidence suggested a custom or policy by
the police department and city officials of targeting the homeless in an effort to disperse them and
using the arrest process for the ulterior purpose of harassing and dissipating them. The court was
presented with arrest records; police internal memoranda regarding search for ordinances,
elimination of food distribution and driving them from public areas; and, local newspaper articles.
The court held that "as long as the homeless plaintiffs do not have a single place where they can
lawfully be, the challenged ordinances, as applied to them, effectively punish them for something
for which they may not be convicted under the Eighth Amendment - sleeping, eating and other
innocent conduct." In other words, the court found that the criminalization of essential acts
performed in public, when there was no alternative, violated the plaintiffs' constitutional rights.
Particularly, the court concluded that the challenged ordinances (discussed above) as applied to
homeless persons are overbroad to the extent that they result in homeless persons being arrested for
harmless, inoffensive conduct that they are forced to perfona in public places.
The court recognized the city's compelling interests in maintaining parks and public
areas, promoting tourism, enhancing aesthetics and ensuring the safety of its residents. Nonetheless,
the court reasoned that these interests could be accomplished in a manner less intrusive than the
arrest of homeless persons, i.e. alternative shelter and services. ("Although the idea of homeless
people sleeping in public parks may disturb or offend some portion of society, the answer is not in
arresting individuals who have arguably only committed the offense of being without shelter.")
Hence, the court enjoined the police department from arresting homeless persons for "life-
sustaining" activities; ordered the establishment of "safe zones" where the homeless may remain
if no shelter is available; enjoined the city from destroying their property; and, directed the parties
to engage in settlement discussions.
Memorandum to
January 3, 2002
Page 7
The Porringer settlement was approved in December 1997. Of particular interest, the
city agreed that if an officer observed a homeless person commit a "life-sustaining" misdemeanor
or ordinance violation, the officer shall otter available shelter in lieu of arrest and may arrest only
if such offer is refused. (There were other provisions in the settlement which are not discussed
herein). The decision announced in this case has not been overruled. The settlement agreement has
been considered a landmark development in the effort to implement constructive alternatives to
criminalization through tile implementation of ordinances.
IV. CONCLUSION
The enactment of legislation designed to protect and promote public safety, health and
welfare is essential to a city's quality of life. To that end, it is inevitable and essential to enforce
ordinances and promulgate policies designed to protect and enhance public places while not
abridging the constitutional fights of individuals. Quality of life ordinances should be carefully
scrutinized to ensure that any claims for vagueness, overbreath or equal protection violations go
unchallenged. The cases mentioned herein provide us with some guidance on how the courts are
addressing these ordinances and how cities may wish to create ordinances which will withstand
constitutional challenges while addressing quality of life concerns.
Enclosures
MDP/ag
Settlement Agreement Page 1 of 15
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 88-2406-CIV-ATKINS
MICHAEL POTTINGER, PETER
CARTERAND BERRY YOUNG
Plaintiffs,
VS.
CITY OF MIAMI,
Defendant
SETTLEMENT AGREEMENT
The Plaintiffs, MICHAEL POTTINGER, et al., and the class of Plaintiffs they represent (hereinafter
collectively referred to as "Plaintiffs"), and the Defendant, THE CITY OF MIAMI (hereinafter "CITY"),
by and through their respective undersigned counsel, agree to the complete settlement of this litigation,
subject to the approval of this Court, on the following terms and conditions:
I. Introduction
1. This is a lawsuit by Plaintiffs against the CITY for violation of various civil liberties and
constitutional rights pursuant to Title 42, U.S.C. section 1983 et seq. The lawsuit was filed in December,
1988. The district court certified this case as a class action lawsuit. Pottinger v. City of Miami, 720
F.Supp. 955 (S.D. Fla. 1989). On November 16. 1992, the district court entered its Findings of Fact and
Conclusions and Order on Plaintiffs' Request for Declaratory and Injunctive Relief. Porringer v. City of
Miami, 810 F.Supp. 1551 (S.D. Fla. 1992). The district court ruled that the CITY, through a municipal
policy, violated various constitutional rights of the Plaintiffs, involuntarily homeless residents of Miami.
Accordingly, this court enjoined the CITY from arresting Plaintiffs for the involuntary, harmless acts
they were forced to perfomi in public and seizing and destroying the Plaintiffs' property without
following its owns procedures for handling found or seized property. Id. at 1584. The district court also
directed the establishment of two or more arrest-free zones where the CITY would be enjoined from
arresting homeless individuals for engaging in such harmless, involuntary conduct.
2. The City appealed the district court's judgment. Following briefing and omi argument, the Eleventh
Circuit Court of Appeals remanded the case to the district court to make further findings of fact and to
clarify its judgment. Pottinger v. City of Miami, 40 F.3d 1155 (11th Cir. 1994). On April 7, 1995,
following an evidentiary hearing, the district court entered its Findings and Order on Limited Remand
from the Eleventh Circuit Court of Appeals. The district court ultimately concluded that "[t]hough
improvement in the overall situation is occurring via the [Dade County Homeless Assistance] Trust,"
"the salient facts of this case have not changed substantially .... "Thus, the district court determined that
its original injunction should remain in effect with few modifications.
http://www.law.miami.edu/-schnably/pottinger/Settlement.html 3/3/2003
Settlement Agreement Page 2 of 15
3. On February 7, 1996, following further briefing and oral argument, the Eleventh Circuit Court of
Appeals entered its Interim Order referring this matter to its Chief Circuit Mediator for settlement
discussions. Pottinger v. City of Miami, 76 F.3d 1154 (11 th Cir. 1996). Accordingly, the parties have
engaged in extensive settlement negotiations and have agreed to resolve each and every remaining issue
in this case as set forth herein.
4. As a result of this lawsuit, the CITY has participated in a countywide effort to provide services and
assistance to homeless people. In keeping with these past and ongoing efforts, the CITY is committed to
ensuring that the legal and constitutional rights of all homeless persons be fully respected by all city
policies, rules, regulations, practices, officials and personnel.
II. Dismissal/Release
5. The parties agree that this lawsuit, including the three pending appeals, Case Nos. 91-5316, 92-5145,
and 95-4555, will be dismissed with prejudice and without costs or attorneys fees (except such attorneys
fees as are specifically provided for herein), subject to the terms of this Settlement Agreement and the
District Court retaining jurisdiction to enforce this Settlement Agreement. Upon the District Court's
approval of this Settlement Agreement, this Settlement Agreement shall operate as a general release of
the CITY (including its agents, officers, and employees) for all claims of ali class members betwee
December 23, 1984, and the effective date of this Settlement Agreement for the types or kinds of
injuries alleged in the Plaintiffs' Second Amended Complaint (docketed September 8, 1989) in this
action. This release does not cover injuries suffered by class members which were outside the scope of
the Plaintiffs' Second Amended Complaint (docketed September 8, 1989).
III. No Admission of Liability
The CITY does not admit liability by virtue of entering into this Settlement Agreement.
IV. Law Enforcement Training
The City agrees to implement, various forms of training (as specified herein) for its law enforcement
officers for the purpose of sensitizing them to the unique struggle and circumstances of homeless
persons and to ensure that their legal rights shall be fully respected. This training shall include, either (A
& C) or (B & C) below, but not both A & B:
A. Training and education provided at the School of Justice and Safety Administration at Miami Dade
Community College - North Campus (hereinafter ACADEMY). The CITY shall attempt to secure
approval by the governing Board of the ACADEMY for training that includes instruction by academics,
service providers, or homeless persons and shall focus on the causes of homelessness and the
circumstances, needs, and rights of homeless persons.
B. Post-Academy Training. If the CITY is unsuccessful in securing approval by the governing Board of
the ACADEMY for training that includes instruction by academics, service providers, or homeless
persons focusing on the causes of homelessness, circumstances, needs, and rights of homeless persons,
said training shall be taught in Post- Academy Training. This three week post-Academy course presently
taught by the Miami Police Department, and any modification or change in the course to be incorporated
in the future, shall include education and training similar to that specified above with an emphasis on
http://www.law.miami.edu/-schnably/pottinger/Settlement.html 3/3/2003
Settlement Agreement Page 3 of 15
local issues concerning homelessness in Miami and the City of Miami Police Department's law
enforcement protocol (as set forth below).
C. In-Service Training. This training, including the Survival Training Course, roll calls, NOBLE
training, and other formal/informal training, shall contain segments that focus on local homeless issues,
the City of Miami Police Department's law enforcement protocol, and current issues involving law
enforcement, provision of services, and patterns of contact with homeless persons.
V. Adoption of Departmental Order
7. The City of Miami Police Department shall adopt a Departmental Order (D.O.) regarding the
treatment of the homeless within the CITY which reflects the CITY's commitment to respect the rights
of homeless people and implements the protocol which law enforcement officers must follow when they
encounter homeless persons. This departmental order is attached as Exhibit A, and it may be revised
from time to time to reflect future technical (non-substantive) changes in police procedures. This
departmental order shall be circulated to, and read by, all City of Miami police officers within 30 days
after this Settlement Agreement is approved by the district court. It shall also be read by all future City
of Miami police officers in the course of their normal training.
VI. Compliance/Enforcement
9. The CITY hereby expressly adopts a policy as provided for herein to protect the constitutional rights
of homeless persons, to prevent arrests and harassment of these persons, and the destruction of their
property, inconsistent with the provisions of this Settlement Agreement. Any activities by a CITY police
officer or other employee that are contrary to this policy shall cease immediately. Any CITY police
officer or other employee of the CITY who is determined to be acting contrary to this policy or the
protocol set forth in this Settlement Agreement shall be disciplined in accordance with CITY and/or
CITY Police Department procedures. This policy statement and the law enforcement protocol set forth
below shall be made a part of the Departmental Order referenced above. Additionally, it shall be read by
all other CITY employees with responsibilities regarding homeless people within 30 days of its
issuance.
VII. Law Enforcement Protocol
10. Definition of "Homeless Person". An individual is considered a "homeless person" if he or she
"lacks a fixed, regular, and adequate night time residence and has a primary night-time residency that is:
(a) a supervised publicly or privately operated shelter designed to provide temporary living
accommodations; (b) an institution that provides a temporary residence for individuals intended to be
institutionalized; or (c) a public or private place not designed for, or ordinarily used as, a regular
sleeping accommodation for human beings. The term 'homeless person' does not include any person
imprisoned or otherwise detained pursuant to an Act of Congress or a state law." 42 U.S.C. § 11301, et
seq. (1994). An officer is allowed to make reasonable inquiry to make this determination.
11. Definition of "Available Shelter". An "available shelter" means a shelter, with a bed at no cost to
the homeless person, within the territorial boundaries of the CITY or within one mile thereof, that treats
homeless persons with dignity and respect, imposes no religious requirements, and does not impose
involuntary substance abuse or mental health treatment.
12 Definition of"Public Property". "Public Property" includes all property owned by any governmental
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entity (federal, state or local). "Public Property" shall not include property which has become subject to
a leasehold interest, management agreement or other possessory interest of a nongovernmental lessee,
licensee or manager, which is operated as a private business. A public park shall always be considered
pubic property within the meaning of this Settlement Agreement.
12a. Definition of "Exempt Public Property." The following are "exempt public properties": (1) City of
Miami, City Hall, 3200 Pan American Drive, (2) Mihmi Riverside Center, 444 S.W. 2nd Avenue; (3)
City of Miami Fire Stations; (4) City of Miami Police Stations; and (5) City of Miami NET
(Neighborhood Enhancement Team) Offices.
13. Purpose. It is agreed that a specified protocol is necessary to guide Miami police officers in their
interactions and contacts with homeless persons. The protocol is a prescribed response when the police
observe specified conduct or activity.
14. Law Enforcement Protocol: The City hereby adopts a protocol to further protect the rights of
homeless persons, by limiting the circumstances under which arrests can be made, including the
handling of their personal property:
A. Homeless Person Observed Not Engaging in Any Criminal Conduct:
There can be no arrest or detention. A law enforcement officer, social worker, or CITY outreach
worker may approach the homeless person and advise him or her of shelter, services, or assistance which
are then currently available. When the contact with the homeless person has been initiated by a "citizen's
complaint," the law enforcement officer may, whenever appropriate, call for the assistance of an
outreach worker, who, if available, may begin the process of engaging the homeless person in a dialogue
which is intended to advise the homeless person of shelter, services or assistance that is/are available.
Required Records: (1) If such an approach and advice concerning shelter, services, or assistance occurs
by a law enforcement officer, the law enforcement offcer shall complete a Field Information Card.
Records Filing: A copy of all required records shall be filed with the appropriate unit within the Miami
Police Department.
B. Homeless Person Reasonably Believed to be Mentally Ilk Where a homeless person meets the
criteria for involuntary examination under Florida Law (currently section 394.463, F.S.), "Baker Act," a
law enforcement officer may, in his or her discretion, take the homeless person to a receiving facility for
involuntary examination. Required Records: If the homeless person is taken to a receiving facility for
involuntary examination, a copy of the forms required by section 394.463 (hereinafter "Baker Act
Forms"), shall be filed with the Mental Health Crisis Center at Jackson Memorial Hospital and an
Incident Report shall be completed. Records Filing: A copy of all required records shall be filed with the
appropriate unit within the Miami Police Department.
C. Homeless Person Observed Violating a "Life Sustaining Conduct" Misdemeanor:
1. "Life sustaining conduct" misdemeanors are those which a homeless individual commits by the mere
fact that he or she is without shelter, and must conduct life sustaining activities, such as eating, sleeping,
sitting, congregating, or walking in public.
2. If the homeless person described above is observed committing one Of the below listed "life
sustaining conduct" misdemeanors, the law enforcement officer may warn the homeless person to stop
the unlawful conduct. If there is no "available shelter," no warning shall be given. If there is an
"available shelter," the law enforcement offcer may advise the homeless person of its availability. If
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there is an "available shelter," and the shelter has been offered to the homeless person, and that person
accepts this assistance, no arrest shall take place and arrangements shall be made to transport the
homeless person to the shelter. Only if there is an "available shelter" and the homeless person refuses to
accept the shelter, may the law enforcement offcer arrest the homeless person for a "life sustaining
conduct" misdemeanor. Required Records: (1) If a homeless person is transported to an "available
shelter," the law enforcement offcer shall complete a Field Information Card; (2) If an arrest is made, an
Arrest Affidavit shall be completed. Records Filing: A copy of all required records shall be filed with
the appropriate unit within the Miami Police Department.
3. The "life sustaining conduct" misdemeanors referenced above are as follows:
a. Being in park after hours. Current Provisions:, §§38-3 & 1- 13, City of Miami Code ('CMC");
§162.22, F.S. (1994);
b. Public nudity where necessary to carry on the daily necessities of life, such as bathing or responding
to a call of nature. Current Provisions: §800.03. F.S. (1994), §37-1, 38-62, CMC.
c. Fires in parks. Current Provisions: §38-53 & 1-13, CMC; §162.22, F.S. (1994);
d. Obstructing passage on sidewalks. Obstructing a street, road, or highway shall not be construed to be
a "life sustaining conduct" misdemeanor within the meaning of this protocol. Current Provisions: §§54-1
to 54-3, 37-3, CMC; §316.2045, F.S. (1994).
e. Vehicles, living or sleeping in. Current Provision: §37-4,
f. Loitering in Restrooms. Current Provision: §38-68, CMC;
g. Littering. Current Provisions: §403.314, Fla. Stat.; §22-6, 38-17, 38-63 CMC; and
h. Camping in parks. Current Provision: §38-71, CMC;
i. Use of facilities for other than intended purpose (e.g., sleeping on park bench). Current Provisions:
§38-54, CMC;
j. Temporary structures in park. Current Provisions: §38-52, CMC;
k. Trespass on "public property" other than structure or conveyance. Current Provision:, §810.09(1),
Fla. Stat. Trespass on private properly or an "exempt public property" is not a "life sustaining conduct"
misdemeanor within the meaning of this protocol, and such violation should always be treated either as
specified under paragraph D or E below. A homeless persons' presence interior of an "exempt public
property" is not a trespass within the meanng of this paragraph where the homeless person's actvities are
reasonably related to the governmental business activities noxmally performed within these physical
structures.
4. Nothing in this paragraph discussing "life sustaining conduct" misdemeanors shall prevent an
immediate arrest under §800.04, F.S., entitled, "Lewd, lascivious, or indecent assault or act upon or in
presence of child," if a law enforcement officer has probable cause to make such an arrest.
D. Homeless Person Observed Violating a Misdemeanor (which is not classified above as "Life
. Sustaining Conduct"):
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1. The "non-life sustaining conduct" misdemeanors are those which a homeless individual commits,
but are not associated with "life sustaining activities," such as eating, sleeping, sitting, congregating, or
walking in public.
2. If the homeless person described above is observed violating a misdemeanor (which is not classified
in this Protocol as "life sustaining conduct"), the law enforcement officer may warn the homeless person
to stop the unlawful conduct, or, if the officer deems it appropriate, the officer may detain or arrest the
homeless person. A law enforcement officer may, in his or her discretion, approach the homeless person
and advise him or her of shelter, services or assistance which is then currently available. If the law
enforcement officer deems it appropriate, he or she may also offer to call an outreach worker to the
scene so that the homeless person can be transported to an "available shelter" that is appropriate for the
homeless person's needs at that time. Records required: (1) Ifa homeless person is transported to an
available shelter, the law enforcement officer shall complete a Field Information Card; (2) If an arrest is
made, an Arrest Affidavit shall be completed; (3) If the law enforcement officer warns the homeless
person to stop the unlawful conduct, but no arrest is made, then the law enforcement officer shall
complete a Field Information Card; (4) If an approach and advice concerning shelter, services or
assistance occurs by a law enforcement officer, or if an outreach worker is called, the law enforcement
officer shall complete a Field Information Card. Records Filing: A copy of all required records shall be
filed with the appropriate unit within the Miami Police Department.
E. Homeless Person Committing Felony Offense:
If a law enforcement officer has probable cause to believe that a homeless person is committing, or has
committed, a felony, the law enforcement officer may detain or arrest the homeless person. Required
Records: If an arrest is made, an Arrest Affdavit shall be completed. Records Filing: A copy of all
required records shall be filed with the appropriate unit within the Miami Police Department.
F. Disposition of Personal Property Belonging to a Homeless Person who is Arrested.
1. The CITY shall respect the personal property of all homeless people. The Miami Police Department
(and all other Departments including but not limited to Parks and Recreation and Solid Waste) shall
follow their own internal procedures for taking custody of personal property. In no event shall any city
official or worker destroy any personal property known to belong to a homeless person, or readily
recognizable as property of a homeless person (i.e., bedding or clothing and other belongings organized
or packaged together in a way indicating it has not been abandoned), except as permissible by law and in
accordance with the department's operating procedure, or if the property is contaminated or otherwise
poses a health hazard to CITY workers or to members of the public. Notwithstanding any language in
this Settlement Agreement to the contrary, the CITY is not responsible for taking custody of mattresses.
2. The disposition of personal property shall never prevent a law enforcement officer from effectuating
an arrest authorized trader the previous sections of this protocol. However, the following safeguards
shall be undertaken by the arresting officer or any other CITY agent or official to preserve the property
of a homeless person, to the extent feasible:
a. The arresting officer shall always attempt to secure personal items such as identification, medicines
and eyeglasses and other small items of importance identified by the arrestee, which are not large or
bulky, in accordance with the police department's existing procedures;
b. The arresting officer shall ensure that large or bulky items (which are not contaminated or otherwise
pose a health hazard to CITY officers or workers or to members of the public) are not abandoned at the
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point of arrest, but rather secured by an outreach worker and maintained in accordance with existing
outreach procedures, or, if an outreach worker is unavailable, secured by the arresting officer until an
outreach worker becomes available to assume its maintenance in accordance with existing outreach
procedures.
VIII. Record Generation/Maintenance/Access 15. The CITY shall, within 30 days of the execution of
this Settlement Agreement, adopt a rocedure for monitoring and accounting for its police officers'
encounters with the homeless persons. This procedure shall include the following:
(a). generating form records of all City of Miami police arrests and detentions of homeless persons, and
either entering them into a computer database or creating a paper data base;
(b). generating similar form records of all City of Miami police encounters with homeless persons as
described in the above protocol and either entering them into a computer database or creating a paper
data base. This Settlement Agreement shall not create any obligation on the part of a homeless person to
produce any informaton to a law enforcement officer that would not otherwise be required of any other
person.
(c). The records and statistics such as the number of arrests, detentions, and encounters which result in
a warning or a referral; the nature of the underlying conduct; the ordinance or statute which formed the
basis of the arrest, detention, or warning; and the number of actual referrals to homeless programs, if
generated by the CITY, shall be provided to the members of the "Advisory Committee" (set forth below)
as requested to monitor and ensure compliance with this Settlement Agreement."
(d). Within the limitations of the Florida Public Records Act, Chapter 119, Fla. Stat., access to other
records, documents, and information relevant to this Settlement Agreement shall be readily available.
(e). The CITY shall preserve all existing arrest records relevant to class members making claims under
the Compensatory Damages provisions of this Settlement Agreement for such period of time as is
necessary to accomplish that goal.
IX. Advisory Committee To ensure the CITY's compliance with this Settlement Agreement, there shall
be an Advisory Committee (hereinafter the "Committee"). The Committee shall consist of one person
selected by the CITY, one person selected by the American Civil Liberties Union (hereinafter the
"ACLU"), and a third person selected by the other two. The third person shall be someone with
experience or expertise concerning homelessness in South Florida, but that individual shall not have
been aligned with, or have testified on behalf of either party at any time during the pendency of this
litigation. If any person selected refuses to serve, the selecting party or Advisory Committee members
(whoever originally selected the member) shall have thirty (30) days to select another individual. If any
member of the Committee resigns, the entity responsible for selecting the resigning member shall have
ninety (90) days to select a replacement.
17. The members of the Committee shall serve as volunteers, without compensation, and strictly as a
public service. They shall make every good faith effort to meet at the designated times and to carry out
all responsibilities under this Settlement Agreement. The CITY shall provide reasonable copying and
secretarial services (consistent with the functions of the advisory committee as set forth in this
Settlement Agreement) and a meeting room.
18. The Committee shall remain in existence for a period of three (3) years following the date of the
Court's approval of this Settlement Agreement, renewable for one three year period upon a majority vote
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of the Committee.
19. The responsibility of the Committee will be to monitor all police contacts with homeless persons,
and other matters contemplated by this Settlement Agreement. These responsibilities shall be
accomplished by interviewing homeless persons on the streets and in patrolling with police officers,
accompanying CITY outreach workers in areas with high concentrations of homeless persons, observing
the police training, reviewing the training curriculum, and reviewing information on file with the
appropriate unit within the Miami Police Department, the City of Miami, regarding matters set forth in
this Settlement Agreement.
20. The Advisory Committee shall also receive and investigate complaints by homeless persons who
claim to have been aggrieved by the CITY's non-compliance with this Settlement Agreement and shall
take appropriate responsive action, which may include, advising the aggrieved person and approprate
City officials of the validity of the claim, and making recommendations to the parties to prevent
additional, similar grievances,
21. The Advisory Committee shall meet quarterly or more frequently as necessary to conduct its
business, at a mutually acceptable date and time to the members. Three members of the Committee shall
constitute a quorum. All decisions or other action of the Committee shall require a majority vote of the
members. The meetings of the Committee shall be open only to the CITY and the ACLU. The
Committee's business shall be kept confidential by the Committee members, who shall not discuss the
Committee's business with anyone (including any members of the Press) but themselves or with the
CITY and the ACLU, or other persons providing assistance to the Committee.
Additionally, the Committee shall issue a report every six months setting forth its activities for that
reporting period. Every third year the Committee shall issue a summary report on its activities for that
period and the CITY's compliance with this Settlement Agreement, and report to the parties on the need
for its continuing existence.
22. If the Committee deems it appropriate, the Committee may advise the CITY Police Department
regarding the law enforcement protocol and police training set forth in this Settlement Agreement and
may recommend to the parties any proposed changes.
22a. The Committee shall not have the authority to seek Court intervention into any matter concerned
with this Settlement Agreement, and its recommendations shall not be binding upon the parties.
X. Compensatory Damages
23. As compensatory damages the CITY agrees to:
a. Create a Compensation Fund, which will be used to compensate members of the class (as amended,
altered and modified in this Settlement Agreement) who between December 23, 1984, and the effective
date of this Settlement Agreement, suffered the types or kinds of injuries alleged in the Plaintiffs'
Complaint (as amended) in this action. Irrespective of the number of arrests or the number of times
personal property may have been destroyed, a single individual member of the class may only
participate in the compensation fund once, e.g., only one claim shall be allowed per person. The
Compensation Fund shall be administered as follows:
(1). Appointment of Magistrae. A U.S. Magistrate shall be appointed by the Court to rule upon and
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determine objections to claims made pursuant to the procedure set forth herein.
(2). Distribution of "Proof of Claim Forms." Proof of Claim Forms may be obtained in person at the
front reception desk of the CITY OF MIAMI Police Department, Central Station, 400 N.W. 2nd
Avenue, Miami., Florida, and from all CITY NET (Neighborhood Enhancement Team) Offices, the City
of Miami Office of Homeless Programs, and the ACLU's Miami Office. Proof of Claim Forms shall be
available by mail or telephone, or in person. They shall be made available in English, Spanish, and
Creole. The Proof of Claim Forms shall be available as soon as practicable after the Settlement
Agreement is approved, and shall be available during the entire 90 day period established by the
Magistrate for the filing of claims.
(3). Contents of Proof of Claim Form. Class members who wish to file a claim ("claimants") shall be
required to file Proof of Claim Forms (attached) providing details about their claim. The Proof of Claim
Form (with Instructions) is attached as Exhibit "B" (English version). It may be revised if necessary to
reflect the payment form and mechanism [See paragraphs 23(a)(4) and 23(a)(6)].
(4). Filing of Proof of Claim Forms.
(i). After selection of the Magistrate, the Magistrate will enter an order establishing the 90 day period
during which claims may be filed with the Clerk of the Court for the Southern District of Florida, or in
some other manner designated by the U.S. District Court. The 90 day period shall not be set to begin
running until Proof of Claims Forms are available for distribution as specified in paragraph 23(a)(2)
above. To be considered, all claims must be filed on a Proof of Claim Form. Both parties shall have
access to the Proof of Claim Forms on file and shall have the right to make copies at their own expense.
At the close of the 90 day period, the Magistrate shall notify the parties of the number of claims filed
during the 90 day period and make them available for photocopying at their own expense. The Court or
the Clerk shall release the claims fomis (and all supporting documentation) to a third party
photocopying service, e.g., Black's Photocopy Service, for reproduction on behalf of either the ACLU or
the CITY.
(ii). Prior to filing, upon presentation of a Proof of Claim From to the public window of the Records
Unit of the City of Miami Police Department, Central Station, including the name and date of birth of
the claimant, the Records Unit shall provide certified copies of all arress records (from December 23,
1984 through the effective date of the Settlement Agreement) on file with the City of Miami Police
Department concerning the claimant to the claimant at no charge. These records shall also be made
available at no charge through request by mail with an accompanying copy of the Proof of Claim Form.
In addition, at the same time and place, and under the same conditions, the CITY shall make available to
homeless persons for free the services of a notary public for the purpose of notarizing the signature of
the claimant.
(iii). All claims against the Compensation Fund must be filed within the 90 day period established by
the Magistrate, or be forever barred.
(iv). Each Proof of Claim Form filed shall be verified under penally ofperury by the claimant (or,
where applicable, the claimant's representative).
(5). Determination of Claims
(i). Objections:
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(a) The CITY may file an objection to any claim only as follows:
[1]. The claimant or the injured person is not who he or she claims to be. [2]. The claim was not timely
filed; [3]. The claim was not signed, or verified; [4]. The claim was withdrawn by the claimant; [5]. The
claimant has filed more than one (1) claim [see paragraph 23(a)]; [6]. The claimant's proof of
membership in the class is insufficient; and [7]. The claimant's proof of injury at the hands of a CITY
official or employee is insufficient; and [8]. The claimant's proof that he suffered an injury of the type
and kind alleged in Plaintiffs' Second Amended Complaint (docketed September 8, 1989) in this action
is insufficient.
(ii). The CITY shall have 20 days (as computed by the Federal Rules of Civil Procedure) from the date
the parties are notified by the Magistrate at the end of the 90 day period established for the filing of
Proof of Claim Form, to present objections to any claim filed with the Magistrate. The CITY shall mail
a copy of the objection to the ACLU and'to the claimant at the mailing address given on the Proof of
Claim Form. At the close of the 20 day period, the Magistrate and shall make the objections available
for inspection and/or photocopying at the ACLU's own expense. The Court or the Clerk shall release the
objections (and all supporting documentation) to a third party photocopying service, e.g., Black's
Photocopy Service, for reproduction on behalf of the ACLU.
(iii). The Magistrate shall determine the validity of all claims upon the written record upon such terms
and under such conditions as the Magistrate deems just.
(iv). The Magistrate shall accept the validity of any claim as to which no timely objection has been
filed by the CITY. Upon the Magistrate's acceptance of a claim as to which no objection has been filed,
the Magistrate shall so notify the parties and the claimant (or his representative, if any). The notice shall
contain the following information:
(a). The Magi strate's acceptance of the claim because of a lack of objection; and
(b). the entitlement of the claimant to an award (as set out below); and
(c). Where and how the award can be collected.
(v). In the case of a timely objection to a claim, the determination of the validity of the claim shall be
made by the Magistrate.
(a). The Magistrate shall do so on the basis of the written record unless he or she determines that an
interview or discussion with the claimant (and the claimant's representative, if any) is necessary. If the
Magistrate determines that such an interview of discussion is necessary, the Magistrate shall set it at a
time, date, and place that is feasible for the claimant, and, if at all possible, confirm its feasibility with
the claimant. For claimants who reside outside Dade or who are otherwise unable to be personally
present, the Magistrate shall have the discretion to conduct an interview by telephone. The Magistrate
shall notify the parties to this Consent Decree of the date, time, and place of the meeting or interview,
and the parties shall have the right to be present and informally present arguments and evidence.
(b). In determining whether to accept a claim to which a timely objection has been filed, the Magistrate
should seek to ensure that compensation is reserved for claimants rightfully entitled to receive it, taking
into account that documentation of claims should be no more burdensome than necessary to implement
the settlement and that the amount and specificity of evidence that might be needed to establish injury at
trial is not required.
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(vi). If the Magistrate accepts a claim as valid, notwithstanding the CITY's objection, then the
Magistrate shall so notify the parties and the claimant (or his representative, if any). The CITY may
move for reconsideration within 15 days. The notice shall contain the following information:
(a). The Magistrate's acceptance of the claim, and the reason for overruling the objection; and
(b). the entitlement of the claimant to an award (as set out below); and
(c). Where and how the award can be collected.
(vii). If the Magistrate rejects a claim, then the Magistrate shall so notify the parties and the claimant
(or his or her representative, if any). The claimant may move for reconsideration within 15 days. The
notice shall contain the following information:
(a). The Magistrate's rejection of the claim and the reasons for rejecting it; and
(b). The right of the claimant to move for reconsideration within 15 days. This notice shall be displayed
prominently in bold typeface, and shall also include a notice that the claimant may contact the ACLU
immediately for assistance. The notice shall have the telephone number for the ACLU.
(viii). The decisions of the Magistrate shall be final, with no right of appeal or reconsideration other
than provided for hereinabove.
(6) Awards:
(i). If the CITY is able to devise and implement a "debit card" program by the date this Settlement
Agreement is approved, then each successful claimant, shall be awarded a debit card in the amount of
$1,500.00. Such debit cards shall be accessible by a nationally recognized card such as Visa or
Mastercard, widely accepted by memhants, and will be set up to be used for purchases but not cash
withdrawals or advances. Administrative costs of setting up and administering the accounts shall be born
by the CITY.
(ii). If the CITY is not able to devise and implement a "debit card" program by the date of this
Settlement Agreement is approved, then each successful claimant, shall be awarded damages in the form
of $1,250.00 in cash or $1,500.00 in non-cash awards, as provided herein.
(iii). Cash Payments. Successful claimants who are no longer homeless shall qualify for a lump-sum
cash payment of $1,250.00. Whether a claimant is no longer homeless shall be determined by the
Magistrate pursuant to the same procedures for the determination of claims. A successful claimant who
was homeless at the time the Proof of Claim Form was filed, but is no longer homeless by the time
awards are distributed, may execute a Form (Exhibit "C") so indicating. The CITY shall have 15 days to
object to the truthfulness of the information in that Fomi, in which case the Magistrate shall make the
final determination whether the successful claimant is no longer homeless. Cash payments shall be made
by check payable to the claimant. Claimants who qualify for a lump-sum cash payment of $1,250.00
may choose instead to participate in the non-cash program described below.
(iv). Non-cash Program. Successful claimants who do not qualify for cash payments (or who so qualify
but choose instead to participate in the non-cash program) shall participate in a non-cash program as
described herein. Such claimants shall be given vouchers for food, clothing, housing, or travel, or may
have third party payments made on their behalf, in the amount of $1,500.00 per participating claimant.
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Administrative costs of setting up and administering the voucher and third party payments shall be born
by the CITY. However, if a non-cash program complying with all the requirements set out in paragraph
23(a)(6)(iv)(a-e) below cannot be devised by the date the Proof of Claims Forms are made available to
claimants, then all successful claimants shall receive cash payments of $1,500.00 each. Ifa non-cash
program complying with all such requirements except for that set out in paragraph 23(a)(6)(iv)(d) below
is devised by the date the Proof of Claims Forms are made available to claimants, then successful
claimants who are homeless and reside outside Miami shall receive cash payments of $1,500.00 each.
(a). In establishing the voucher program, the CITY shall provide vouchers or certificates for food or
clothing at easily accessible stores such as but not limited to Publix, Winn-Dixie, K-Mart, Burdines, or
similar establishments who agree to participate. The program shall also provide for vouchers or vendor
payments for claimants to use at apartments, residential hotels, SRO dwellings, or similar
establishments. The CITY shall make a good faith effort to persuade clothing, food, and department
stores and housing providers to participate in the voucher program.
(b). The voucher program shall be designed so that the claimant is not narrowly limited by store or
location. The vouchers shall be valid at stores, apartments, etc., within the territorial boundaries of the
City of Miami, and at such additional locations in the Dade County Metropolitan Area as are
appropriate.
(c). Claimants may take part of their voucher entitlement in the form of third party payments by the
CITY on behalf of the claimant. Such payments shall be made only for a debt owed by the claimant
himself or herself or for a transaction in which the claimant is the purchaser of goods or services. Third
party payments shall only be made for legal debts and purchases, to establish merchants, financial
institutions, and other established providers of goods and services (e.g., landlords).
(d). The voucher and third-party payment program shall be designed so that it satisfies the needs of
successful claimants who do not qualify for cash and who live outside Miami, in a fashion comparable
to those who live in Miami.
(e). Claimants shall be entitled to choose the mix of types of vouchers (food, clothing, housing travel)
or third party payments they prefer.
(7). Payment of Awards/Releases. The CITY's Office of Homeless Programs (OHP) shall distribute the
cash and non-cash awards. The vouchers shall be distributed in such a manner as to discourage their
being bartered, sold, or otherwise used by anyone but the claimant. The distribution of cash awards shall
begin immediately after all claims have been so determined (including the expiration of the time for
reconsideration). The non-cash program shall begin thirty days after all claims have been finally
determined including the expiration of the time for reconsideration). In no event shall cash or non-cash
awards be distributed earlier than January 5, 1998. Prior to distribution of any cash or non-cash award,
the claimant shall execute a full release in the form attached as Exhibit "D" of the CITY, including all
CITY agents, officials and employees, for all claims between December 23, 1984, and the effective date
of this Settlement Agreement for the types and kinds of injuries alleged in Plaintiffs' Second Amended
Complaint (docketed September 8, 1989) in this action. This release does not cover injuries suffered
which were outside the scope of Plaintiffs' Second Amended Complaint (docketed September 8, 1989).
The release may be revised if necessary to reflect the payment form and mechanism [See paragraphs 23
(a)(4) and 23(a)(6)].
(8). Amount of Fund. In no event shall the City's aggregate responsibility under the Compensation
Fund for all claims exceed $600,000 If the cash and non-cash value of all valid claims exceeds
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Settlement Agreement Page 13 of 15
$600,000, claimants with valid claims shall be awarded a pro rata share of the $600,000 compensation
fund, notwithstanding the specific amounts specified above.
b. If the total value of all valid claims is less than $600,000, the City will create a "Start Off Fund." The
total amount of the Start Off Fund will be the difference between $600,000 and the total value of all
claims awarded from the Compensation Fund. Payments from the Start Off Fund will be made in the
form of vendor payments not to exceed $1,000.00 per person. They will be available to any homeless
person or homeless family in Miami to help achieve permanent housing (e.g., to pay for rent, security
and utility deposits, clothing furniture, or other necessities of life). The Advisory Committee will
determine the guidelines for payment from the Start Off Fund. The actual amount to be received by any
given person or family group shall be determined by the City's Office of Homeless Persons, following
such guidelines. Funding for the Start Off Fund shall be appropriated thirty days following the
disposition of all claims by the Magistrate, including any requests for reconsideration, but not earlier
than January 5, 1998. The funds from the Start-Off Fund shall be paid out within two years of the
effective date of this Settlement Agreement. The CITY's Department of Internal Audits shall perform an
audit of the Start-Off Fund program at its conclusion, and plaintiffs and their counsel shall be entitled to
a copy of that audit. In addition, the books and records of the Start-Off Fund program will be available
to plaintiffs and their counsel at any time during regular government business hours.
IX. Attorney Fees
25. The underlying litigation has spanned nearly ten years, during which there were two trials and
numerous other hearings before the district court, two appeals including two oral arguments before the
Court of Appeals for the Eleventh Circuit, as well as extensive court-ordered negotiations and mediation
between the parties spanning eighteen months, all requiring substantial commitments of time and
professional services on the part of more than ten attorneys for the plaintiffs over this period of time. In
light of the foregoing, and considering similar payments of attorneys fees to plaintiffs' counsel in other
civil rights cases, the City shall pay to the Plaintiffs' attorneys the sum of $900,000 (plus interest as
provided for herein) as and for attorneys fees and costs, without any admission of liability to pay such
fees, but rather, as a part of the comprehensive settlement to be adopted through the implementation of
this Settlement Agreement. Additionally, said payment is made to conclude ali claims for attorneys fees
in the underlying litigation, including pending appeals, and in regard to all other matters connected with
this Settlement Agreement, except enforcement proceedings, should such become necessary after non-
binding mediation as provided for below.
The parties agree that the $900,000.00 (together with interest at rate payable on federal judgments on
the date this Consent Decree is approved by the Court) shall be paid within one year of the effective date
of this Settlement Agreement. I f this payment is not made on time in its entirety, the entire amount
including interest, and any further attorneys fees necessary for collection, shall be awarded by the
District Court.
X. Enforcement/Mediation
25a. Prior to any party seeking court enforcement against any other party to this Settlement Agreement,
the parties shall attempt to informally mediate a dispute in a non-binding mediation. During the
existence of the Advisory Committee, the Advisory Committee shall appoint one of its members to act
as the mediator. After the expiration of the Advisory Committee, unless the parties can agree upon a
mediator, the aggrieved party shall notify the Court for the need for the appointment of a mediator, and
the Court shall appoint a mediator from its list of approved mediators, the cost of which shall be borne
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Settlement Agreement Page 14 of 15
by the CITY. Mediation shall take place within ten (10) days of a request made by either party to the
other party. This requirement to mediate prior to seeking court enforcement shall not prevent a party
from seeking immediate court enforcement if it clearly appears from specific facts shown by affdavit
that immediate and irreparable injury, loss or damage will result to the aggrieved party before the
aggrieved party and the other party can conduct mediation as contemplated in this paragraph.
XII. Class Approval/Notice to Class Members
26. The class certified in Pottinger v. City of Miami, 720 F.Supp. 955, 960 (S.D. Fla. 1989), shall be
amended, altered and modified under Rule 23(c)(1), Fed. R. Civ. Proc., to consist of all homeless
persons who reside, have resided, or will reside on the streets, sidewalks, parks, and in other public
places within the geographical boundaries of the City of Miami, who have been, expect to be, or will be
in contact with members of the City of Miami Police Department.
27. Notice to the class of the amendment, alteration and modification of the class, and of this proposed
Settlement Agreement, pursuant to Rule 23(e), Fed. R. Civ. Proc., shall be given simultaneously by
publication in The Miami Herald, E1 Nuevo Herald, Miami Times, and New Times, on three different
days, including one weekend day, of three consecutive weeks, which shall not be less than a 1/3 page in
the Local (Locales) section of each paper, to maximize the chance of actual notice to the class members.
The costs of such notices shall be borne by the CITY. The notice shall advise class members of the
status of this case, and describe, generally, the proposed settlement and monetary relief available to class
members, and how to obtain it, including where Proof of Claims Forms will be available after approval
of the Settlement Agreement. The notice shall be subject to court approval. Class members shall have 30
days following the final notice within which to file any written objections to the Settlement Agreement.
The court shall convene a hearing at the convenience of its calendar, but at least 30 days thereafter to
consider any such objections after which the court shall approve or disapprove the Settlement
Agreement. The notice shall state the date, time, and location of this hearing. The Court shall set the date
for the hearing to consider objections at the time it approves the content of the notice.
XIII. Oversight Committee Approval
28. This Settlement Agreement shall be of no force or effect, nor submitted to the Court for approval,
until it is approved by the Oversight Committee, appointed by the Governor of the State of Florida to
assist the CITY overcome its current fiscal crisis. Oversight Committee Approval shall not be sought
until after the parties execute this agreement.
XIV. Court Approval
This Settlement Agreement shall not be effective until approved by the Court, after the hearing
described in Section XII above, which, upon approval, shall become the Settlement Agreement between
the parties. The Court shall retain jurisdiction to enforce the terms hereof.
XV. Modification
30. This Settlement Agreement may be modified by written agreement of the parties, or upon a
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Settlement Agreement Page 15 of 15
showing of a significant change of circumstances warranting revision of the Agreement in a way
suitably tailored to the change of circumstances, but in either event, only after approval by the Court.
XVI. Integration Clause
This Settlement Agreement, including the attached exhibits as listed below, contains the entire
agreement of the parties, and supersedes all previous oral or written representations or agreements. This
Settlement Agreement shall not be supplemented by parol evidence.
Exhibit A: Departmental Order
Exhibit B: Proof of Claim Form, with Instructions (English Version)
Exhibit C: Verified Statement regarding Current Status
Exhibit D: Release
BENJAMIN S. WAXMAN
STEPHEN J. SCHNABLY
Attorneys for Plaintiffs
Cooperating Attorneys for the Greater Miami Chapter of the American Civil Liberties Union
Southwest Third Avenue, 4th Fl.
Miami, Florida 33129
Telephone: (305) 858-9550
KENDALL COFFEY, ESQ.
Coffey, Diaz & O'Naghten
1100 Grand Bay Plaza
2665 South Bayshore Drive
Coconut Grove, FL 33133
(305) 285-0800
A. QUINN JONES, III,
Ci.ty Attorney
City of Miami Attorney's Office
Attorney for Defendant
Miami Riverside Center, Suite 945
444 S.W. 2nd Avenue
Miami, Florida 33130
Tel: (305) 416-1800
Fax: (305) 416-1801
Back to the Pottinger Volunteer Page
Back to Professor Schnably's Homepage
This personal Web page is not an official University of Miami Web page. See disclaimer.
http://www.law.miami.edu/-schnably/pottinger/Settlement.html 3/3/2003
~-i~-~d 16:44 CITY ATTORNEYS OFFICE 305 416 1801 P.16
CITY OF MIAMI
CITY MANAGER'S OFFICE
ADMINISTRATIVE POLICY
DATE:
SUBJECT:
pURPOSE:
Scptembc~ 12, 2000
HOMELESS FEEDING PROGRAM; CITY PROPERTY PERMIT~. ED HOURS
AND LOCATIONS.
To delineate City of Miami policy with reference to permitted mobile homeless
feeding programs in the City; setting forth hours of operation and locations.
THE POLICY WILL BE AS FOLLOWS:
Effective October 1, 2000, this Administrative Policy will supersede all previous directives
relating to Mobile Homeless Feeding Programs operated within the boundaries of the City of
Miami.
Thc City of Miami recognizes, cncourages and applauds the efforts of responsible and
conscicntions volunteer organizations providing feeding programs for homeless indivi&mls.
Currently three groups and organizations conduct feeding programs on thci~ property in
accorclanc~ with applicable zoning rcgulations-~
However, for the past sevcral years a number of other organizations situated outside the City
boundaries, for the most part, have operated mobile street feeding programs on city streets
and public rights-of-way.2 Often these organizations have conducted such mobile feeding
programs without considering the possible effect on (a) neighboring propertics (b) city
tourism and recreation (c) pedestrian and vehicular traffic (d) thc general welfare of residents
and tourists and (c) participation in the Continuum of Care System of thc Miami-Dado
County Homeless Trust. For the past several years thc City has made numerous informal
efforts with these organizations to ensure areas used for mobile feeding programs arc
' Camilu~ House; Miami Rescue Mission; and the Homeless Assisumce Center.
~ ST Augustine Catholic Church, lglesia Del Nazareno, Jesus People Ministries Inc., St John Ncumann Catholic
Church, St Timothy Catholic Church, Good Sheperd Lutheran Church, Old Culler Presbysterian Church, St John
Bos~O Catholic Church, Saint Michael Catholic Church, River of Life Ministries, United Christian Church of Christ,
]us Halia Inc.. Evangilist Annie Wiggins, Episcopal Church of the Transfiguration, God's House Outreach
Ministries, La Charles Metellus, Opa Locka Baptist Church, Saint Michael Catholic Church, The Beneficient
Foundation of St. Anthony Inc., Iglesia Cristo Rompe Las Cadenas, Tcmplo De La Biblia Abierto, Jesus World
Outreach, New Vision for Christ Ministries, Daphne Henry, and Touching Miami with Love me the emiries know lo
the civ/.
H~B-19-2005 16:45 CITY ATTORNEYS OFFICE 505 416 1801 P.i?
September 12, 2000
ADMINISTRATIVE POLICY
Mobile Homeless Feeding Program
minimally of sufficient size and include necessary sanitation services, as well as pro,,4de for
the safety of the providers, recipients and the public in general, but such efforts have proven
unsuccessful.
Currently, these unregulated mobile feeding programs have compromised and adversely
affected (a) neighboring properties (b) city tourism and recreation (e) pedestrian and vehicular
traffic and (d) the general welfare of residents and tourists. Additionally, these unregulated
existing programs have operated as a dmnccnu e for recipients to participate in the
Continuum of Care System of the Miami-Dade County Homeless Trust ("System") since
recipients have not been advised of the availability of System services. As a result of the
foregoing, fids Policy is being promulgated as the least restrictive means possible to ensure
the furthering of the aforementioned significant and compelling governmental interests.
Statement of Policy
Any and all organizations &siting to provide mobile feeding programs within the municipal
boundaries of the City of Miami shall (a) notify the City in writing, in advance of
commencing such programs (b) conduct such program services on private property properly
permitted and zoned as Rescue Missions3 or at the City Locations as herein specified. All
wrimm notices should be addressed to the Office of Miami Homeless Program at 779 West
Flagler Street, Miami, Florida 33130 (facsimile #305-575-2034).
Duration of Policy; Initial 90 Day Downtown District Pilot Project.
This Policy will initially be in effect for a period of ninety days following the commencement
date set forth above in the Downtown District as defined in section 14-27 of the City Code.
During this time compliance and adherence to this Policy by mobile feeding program
providers will be closely monitored. At the conclusion of the initial period if substantial
compliance (a) is achieved, this Policy will remain in place indefinitely (b) is not achieved,
this Policy will te, minate and the matter will be forwarded to the City Commission for
legislative action.
~ For example: Catullus House, Miami Rescue Mission and the Homeless Assistance Center are properly permitted
and zoned to permit such programs.
FEB-19-2005 16:45 CITY ATTORNEYS OFFICE 305 416 1801 P.18
September 12, 2000
ADMINISTRATIVE POLICY
Mobile Homeless Feeding Program
Implementation & Application to provide Services at City Locations
Following proper Notification and the pre-Implementation Meeting set forth below. The City'
shall make the City Locations available to interested mobile feeding program providers on a
first come first serve basis. All reasonable efforts will be made by the City to try to
accommodate as many program providers as possible. Each program provider shall notify the
City, in writing, of its desire to provide program services at the City Locations in advance of
commencing any programs. All written notices should be addressed to the Office of Miami
Homeless Program at 779 West Flagler Su'eet and shall include the organization's name and
telephone number of the contact person. The City will respond to each program provider in
writing approving or rejecting their request depending on space availability at the City
Locations.
City Locations
Miami Riverside Center Parking Lot #16 located a North River Drive between S.W. 2'a and
S.W. 3'~ Street, West entrance (the "City Parking Lot Location").
City of Miami Park located at N.W. 11~" Strect and N.W. 4"' Avcnue, I Ia Street entrance (thc
"City Park Location").
Hours of Operations at City Locations
Monday-Friday 5:00 p.m. to 8:30 p.m.
Saturday & Sunday 10:00a. m. to 1 p.m. andS:00p.m.~oS:30p.m-
Hours of Operation means that the gates at the City Locations will open and close at the above
stated times. Therefore, any and all program provider services at these locations shall be
commenced and concluded within these prescribed time frames.
Refuse and Sanitation Services provided at City Locations
The City's Department of Off-Street Parking will provide refuse containers and ensure timely
and proper sanitation services are provided to the City Parking Lot Location and provide
containers to the City Park Location. The City Solid Waste Department will provide timely
and proper sanitation services to the City Park Location.
FEB-19-2~05 16:44
September 19, ~.000
~DMINLSI-R.~.T]VE POLICY
Mnhik Homeless Feeding Pro,ram
CITY RTTORNEYS OFFICE
305 416 1881
P, 14
]mro~d~e_~c.~ulations for ~Locaxions: p~r~lties fo___r
pr~s ~d ~ula~O~ove ~d Ho~s of ~on.
(b) Con~uci o~ni~ l~ed~s fi,r ~'ON-P~MI~ES CONSUMF~ON O~'.
(c) Clc~ up ~t=r ca~ lke~g wl~ch a% · mi~ntum s~l ~cludc; pro~dc pl~ic
~0n_ f~o-llug l~vgr~m p£ovldcrs presenHy kaown to the Cilv will be given ~otic~
All of U'~ mobile certified m~l ~mm rcc~ ~qu~ted m ~v~e ~f t~ ~lncnt
of ~hls ~1~ by U.S.
~m offs Pohcy.
~or ~ fl~c co~e~cm~t ~tc of ~s Policy ~ in ~ujuncSon ~ ~ abovc ~
No~flcafiom ~c Ci~ ~gcr or ~s desi~ ~ll ~h~e aad ~6~e a ~dug ~ ~e
able mentioned ~o~ mobile f~g ~o~m~ pmvi~rs o~ra~n~ in ~ City m d~c~s
~c provisions of ~s Policy- ~em~er, d~g lt~ i~g~ Pilo~ Projc~ ~ m~dngs may
be sch~Ul~ ~ ~r di~s thc implem~ion ~d op~xion offl~ss P0hcy.
Camillus House
?01 N.B. l" Avem,e
IvDami, Fio~id' 33136
~05-}74--106~
1550 Nor~ biiami Avenue
lviimmi. Flo[ida 33136
Mi?m{ Re~cuc Mission
2159 N.W. 1s Com't
Miami, Florida 33242
FEB-19-2803 16:45 CITY ATTORNEYS OFFICE 585 416 1881 P.19
September 1 ~. 2000
ADMINI$-I i~TIVE POL{.CY
Mobile I-Iomeles~ Feeding Pro,ram
flows of Oper~iou$ at Ot~ Lo~afion?
Camillua House
Mcnldal~-FridaY; arrive by ~.:00 p.m.
S~m~lay; arrive by 10:00 a.m.
Sm~day; clo~cd.
Homelcas Assis:ance Cenl~f
Suuday-Mor~y; anive by ~:00 pxa.
Miami Kc~uc Mission
Stmday-M,,nday; 8:00 a.m. ~o $:00 p.m.
· Note: Artan~cUlcrtt$ laced W 'De made. ahead of time with tl~ volun~et coordinator hi calling
the shellers dhcctly.
f:\atty\muni\laws\mjm\fooddistribution-2d.wpd
City Council Meeting 10-22-02
Santa Monica, California
ORDINANCE NUMBER 2o55(CCS)
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA
MONICA SPECIFYING REQUIREMENTS FOR THE OUTDOOR
DISTRIBUTION OF FOOD TO THE PUBLIC
WHEREAS, a large and growing number of individuals and groups operate private
projects which routinely distribute meals and food to large numbers of people in Santa
Monica's parks and other public spaces; and
WHEREAS, between 20 and 30 such private projects now operate in the City, each
distributing meals and food weekly or more often to as many as 300 people per
distribution; and
WHEREAS, thousands of meals are distributed this way in the City each month; and
WHEREAS, this ongoing and repetitive outdoor distribution of food to large numbers
of people has significant adverse imPacts upon City parks and upon park users; and
WHEREAS, the City has therefore suggested alternatives to persons distributing
food on City property, including the alternative of contributing time or resources to City-
funded programs which provide food indoors in compliance with health standards and in
conjunction with other services intended to help needy people become more self-sufficient;
however, these alternatives have been rejected; and
WHEREAS, the County Health Department has concluded that the private food
distributions on public property in Santa Monica pose significant public health risks; and
WHEREAS, some of the food distributions occur on public sidewalks and streets;
WHEREAS, public sidewalks and streets are not suitable locations for distributing
or serving free meals or food because sanitary facilities are not readily available and
because the activity attracts significant and stationery crowds which interfere with the free
flow of pedestrian and vehicular traffic; and
WHEREAS, the health risks of distributing food in parks and similar spaces arise
from a variety of factors including the limited sanitary facilities, the presence of birds and
animals, and the lack of facilities for storing food and keeping it at proper temperatures;
and
WHEREAS, the health risks attendant upon distributing food to the public in City
parks or on the City Hall lawn are exacerbated by the fact that the vast majority of the food
consumers are homeless persons who are particularly vulnerable to health risks because
many have chronic health problems, and all have very limited access to medical care and
to sanitary facilities; and
WHEREAS, the County Health Department has further notified the City that the
activity of serving and distributing food to the public falls within the purview of California
Health and Safety Code Sections 113700 and following; and
WHEREAS, these state provisions regulate the methods and frequencies of various
classes of meal and food distribution activities; and
WHEREAS, these provisions are interpreted and enforced by the County through
a permitting system which the County operates; and
WHEREAS, the County has notified the City that it must cooperate in administering
the permitting system by approving particular locations for food service on City property;
and
WHEREAS, the City can facilitate the County's enforcement of state laws regulating
food distribution by authorizing locations based upon criteria similar to those applied to
applications for Community Event permits; and
WHEREAS, the City wishes to ensure that all groups and individuals who wish to
feed needy people in Santa Monica understand both applicable legal requirements and
opportunities for contributing to City-funded services,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Chapter 5.06 is hereby added to the Santa Monica Municipal Code
to read as follows:
CHAPTER 5.06
Food Distribution On Public Property
Section 5.06.0'10. Food Distribution In Public Parks and on the
City Hall Lawn.
Persons and groups who wish to give foOd to needy people in Santa
Monica are encouraged to participate in programs which provide meals and
food indoors in conjunction with other services. Information on how to
participate in programs which provide meals and food indoors, along with
3
other services, and information on state and local laws regulating food
service and use of City property by groups may be obtained from the
Department of Community and Cultural Services.
Any person who serves or distributes food to the public in City pa!~ks
or on the City Hall lawrt must:
(a) complywith applicable state health and safety standards regulating
food service and distribution, including, but not limited to, the requirements
of obtaining and displaying a valid permit from the Los Angeles County
Department of Health which includes City approval as to location; and
(b) comply with all applicable requirements of the City of Santa
Monica's Community Events Law.
Section 5.06.020. Food Distribution On Public Streets and
Sidewalks Prohibited Without City Authorization.
No person shall distribute or serve food to the public on a public street
or sidewalk without City authorization. Any person violating this Section shall
be guilty of a misdemeanor which shall be punishable by a fine not
exceeding One Thousand Dollars per violation, or by imprisonment in the
County Jail for a period not exceeding six months, or by both such fine and
imprisonment.
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 fudher, is hereby repealed or modified to that extent necessary to
effect 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 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 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 30
days from its adoption,
APPROVED AS TO FORM:
IVI'ARS~IA Jo~S MOUTRIE
City AttorneyL,X
Adopted and approved this 22"~ day of October, 2002. ,~) ~
Michael Fei~stejK, Mayor
State of California )
County of Los Angeles ) ss.
City of Santa Monica )
I, Maria M. Stewart, City Clerk of the City of Santa Monica, do hereby certify that the
foregoing Ordinance No. 2055 (CCS) had it's introduction on October 8, 2002, and
adoption on at the Santa Monica City Council meeting held on October 22, 2002 by the
following vote:
Ayes: Council members: Holbrook, O'Connor, Bloom, Genser, Katz,
Noes: Council members: McKeown, Feinstein
Abstain: Council members: None
Absent: Council members: None
ATTEST:
iMaria
M. Stewart, City