Introduced by the Council President at the request of the Mayor and amended on the Council floor:

ORDINANCE 2008-682-E

AN ORDINANCE REGARDING THE PUBLIC DISTRIBUTION OF GOODS AND SERVICES ON PUBLIC AND PRIVATE PROPERTY; AMENDING CHAPTER 250 (MISCELLANEOUS BUSINESS REGULATIONS), ORDINANCE CODE, AS AMENDED IN ORDINANCE 2007-611-E, BY AMENDING SECTIONS 250.101(G)(DEFINITIONS), 250.121 (FOOD DISTRIBUTORS; TRASH RECEPTACLES AND ACCESS TO RESTROOM FACILITIES REQUIRED), AND BY CREATING A NEW SECTION 250.123 (FEEDING OF THE HOMELESS FOR BONA FIDE RELIGIOUS MOTIVATIONS), REGARDING PERSONS OR ORGANIZATIONS MOTIVATED BY BONA FIDE RELIGIOUS BELIEFS WHO FEED THE HOMELESS; PROVIDING EXEMPTIONS FOR SUCH PERSONS OR ORGANIZATIONS FROM OTHERWISE APPLICABLE REQUIREMENTS OF CHAPTER 250; PROVIDING FOR PERMITTING IN SINGLE FAMILY RESIDENTIAL DISTRICTS AND IN THE EVENT THAT THE NUMBER OF HOMELESS PERSONS FED AT A SINGLE TIME WILL EQUAL OR EXCEED 21 IN NUMBER; PROVIDING AN EXEMPTION FROM REQUIREMENTS THAT SUCH ACTIVITY OF FEEDING THE HOMELESS TAKE PLACE WITHIN 100 YARDS OF ANY RESTROOM FACILITY; PROVIDING AN INDIGENCY EXCEPTION FOR PERMITTING COSTS IN LIMITED CIRCUMSTANCES; PROVIDING AN APPELLATE PROCEDURE AS TO FIRST AMENDMENT ISSUES; APPROVING THE SETTLEMENT OF PENDING LITIGATION IN HERKOV V. CITY, REGARDING FEEDING OF THE HOMELESS; PROVIDING AN EFFECTIVE DATE.

 

WHEREAS, the City has enacted various rules and regulations contained within Chapter 250, Ordinance Code, regarding distribution or sale of various goods, products and services within Duval County, on public property or private property, including via door-to-door solicitation activities; and

WHEREAS, with respect to persons feeding the homeless due to bona fide religious beliefs, the Council enacted Ordinance 2007-611-E, which modified several sections of Chapter 250 Ordinance Code; and

WHEREAS, one individual who has regularly engaged in organized activities for feeding of the homeless due to bona fide religious beliefs filed litigation in the local division of the United States District Court challenging various aspects of Chapter 250, prior to the amendment of portions of Chapter 250 in Ordinance 2007-611-E, just referenced, styled: Michael J. Herkov, Ph.D. vs. The Consolidated City of Jacksonville, Case No.: 3:07-cv-113-J-25MCR; and

WHEREAS, the litigation remains pending, but representatives of the City and the above individual plaintiff have met and mediated in good faith in an attempt to resolve the pending litigation in a mutually beneficial manner; and

WHEREAS, one of the agreed terms for resolution of the litigation was to request that the City Council make certain limited modifications to the provisions of Chapter 250, Ordinance Code; and

WHEREAS, during the mediation process and in the course of reviewing the present provisions of Chapter 250, it was determined that Chapter 250 also should be amended and modified so as to (1) provide for an additional permitting procedure as to feeding substantial groups of the homeless for bona fide religious purposes; (2) provide additional exclusions from other requirements of Chapter 250; and (3) provide a waiver for indigency provisions consistent with First Amendment requirements; and

WHEREAS, the Council finds the proposed revisions to be warranted and appropriate, and wishes to resolve the pending litigation by passage of modifications requested, and certain other modifications herein contained, and to approve the settlement of the pending litigation; now therefore

BE IT ORDAINED by the Council of the City of Jacksonville:

Section 1.  Chapter 250 Amended. Chapter 250 (Miscellaneous Business Regulations) Ordinance Code, is hereby amended by amending sections 250.101(g) (Definitions), and 250.121 (Food distributors; trash receptacles and access to restroom facilities required), and by creating a new section 250.123, (Feeding of the homeless for bona fide religious motivations) Ordinance Code, all to read as follows:

CHAPTER 250 MISCELLANEOUS BUSINESS REGULATIONS

PART 1  IN GENERAL

*  *  *

Sec. 250.101.  Definitions.

As used in this Chapter:

*  *  *

(g) For the purposes of this Part, Duval County Health Department requirements include, but are not limited to, the requirement that a person shall not distribute food or beverage to any person unless a trash receptacle is located within 50 feet of the location of such distribution of any food or beverage, and shall not distribute any food or beverage to any person unless a restroom facility is available for the use by such person and unless the restroom facility is located within 100 feet of the location where the distribution of such food or beverage shall occur.  The foregoing requirement regarding proximity to restroom facilities shall not apply to the feeding of the homeless pursuant to Section 250.123, Ordinance Code. 

*  *  *

Sec. 250.121. Food distributors; trash receptacles and access to restroom facilities required.

Any distributor, who intends to distribute any food or beverage as provided in Section 250.101 (e) above, shall not distribute such food or beverage  unless a trash receptacle is located within 50 feet of the location of such distribution of any food or beverage, and shall not distribute any food or beverage to any person unless a restroom facility is available for the use by such person and unless the restroom facility is located within 100 feet of the location where the distribution of such food or beverage shall occur.  A distributor shall not distribute any food or beverage unless the restroom facility located within such 100 foot location is open for use by any person to whom such distributor shall distribute any food or beverage. The foregoing requirement regarding proximity to restroom facilities shall not apply to the feeding of the homeless pursuant to Section 250.123, Ordinance Code.

*  *  *

Sec. 250.123.     Feeding of the homeless for bona fide religious motivations.  Notwithstanding any other provisions in Chapter 250, Part 1, Ordinance Code (Sections 250.101 through 250.122, Ordinance Code), special considerations warrant the following modified procedures for instances in which persons or organizations feed the homeless due to protected bona fide First Amendment religious motivations.   

     (a)     Permit required.      Presently, persons who feed the homeless because they are motivated by bona fide protected religious beliefs are excluded from the definition of “Distributor” under section 250.101(f), Ordinance Code, and thus from permitting requirements under part I, Chapter 250, Ordinance Code under certain circumstances.   However, notwithstanding this exclusion, a permit shall be required in single family residential zoning districts and when twenty-one (21) or more homeless persons are being fed by persons so motivated by such religious beliefs simultaneously or contemporaneously at the same contiguous place or physical location. This requirement is for purposes of coordination as to other events on public property which may be occurring at the same time in the area; to avoid potential disruption of vehicular and pedestrian traffic; and for other similar considerations.  

     (b)     Issuance of Permit.         Notwithstanding any other provisions of Chapter 250, Part I, including in particular section 250.103 as to issuance of permits, the permit required under subsection (a) shall be issued by the Manager of the Office of Consumer Affairs, or his or her designee (“Manager”). 

     (c)     Duration and Condition of Permit.     Upon receipt of an appropriate application and the determination of appropriate qualifications for permitting, as hereinafter described, a permit shall be issued for a period of one (1) calendar year to the Applicant, hereinafter defined, by the Manager.  No Applicant shall charge any price, fee or cost to any homeless person fed hereunder.

     (d)     Permit Fee.     The fee for issuing such permit authorized under Sections 250.123(a), (b) and (c), above, shall be at the actual cost to the Office of Consumer Affairs for investigating, accepting and processing the application.  Such costs shall be determined by the Manager, and the Council shall be notified annually of such costs by an appropriate notification to be filed by the Manager with the Legislative Services Division and the Council Auditor. 

     (e)     Limited Modification of Proximity Requirement.  Notwithstanding any other provision or requirement in Chapter 250, Part I, Ordinance Code, regarding Distributors who distribute food or beverage to the public, there shall be no requirement pertaining to proximity of available rest room facilities (either for toilets or sinks or any other related purpose) before homeless persons may be fed for religious purposes, with or without a permit, whether under this section, or as provided elsewhere in this Chapter.  In particular, the requirements of Section 250.121, Ordinance Code, regarding availability of restroom facilities within 100 feet of the location where distribution of food or beverages occurs shall not apply to the activity of feeding of the homeless for bona fide religious purposes. 

     (f)     Application procedures and processing of application.  Where permits for feeding the homeless are required under this section, the application shall be made to the Manager on a form to be developed by the Manager in conjunction with the Office of General Counsel.  Such form shall identify the person or organization submitting the application to feed the homeless for bona fide religious reasons (the “Applicant”), and shall include the address and a working telephone number where the Applicant can be reached as to permitting application decisions.  Additional relevant information may be required in the discretion of the Manager and the General Counsel, or their respective designees, such as the date, place and anticipated duration when a projected event or activity for feeding of the homeless is anticipated to occur.

     (g)     Time Limit.     Applications submitted shall be acted upon by the Manager within no later than ten (10) business days of submittal. 

     (h)     Approval or denial of permit.     The granting of an application shall be deemed and considered to be essentially a ministerial activity, provided truthful information has been supplied and all requested information has been provided, and provided that the expressed religious motivation or intent of the Applicant does not appear to the Manager to be an obvious sham or a ruse.  However, permits may be denied for the reasons stated in Section 250.104, Ordinance Code.  In addition, a permit may be denied or conditioned, as to a particular date or location, if:

(i)     the activity will substantially interfere with any special event for which a permit already has been granted pursuant to Chapter 191;

(ii)     the activity will substantially interfere with the provision of public safety or other City services in support of such other previously scheduled special event;

(iii)     if the activity will have an unmitigatable adverse impact upon residential or business access and traffic circulation in the area in which the activity is to be conducted; 

(iv)     if the activity will substantially interrupt the safe and orderly movement of public transportation or other vehicular or pedestrian traffic in the area of the requested activity;

(v) if the activity will cause unresolvable conflict with construction or development in public rights-of-way or at the public property where the activity is to be held; if it is to be held on public property;

(vi) if it will close streets during peak commuter hours on weekdays between 7:00 a.m. to 9:00 a.m., or between 4:00 p.m. to 6:00 p.m., so as to cause unsafe conditions for the public; or

(vii)     if the expected attendance at the activity will exceed the lawful capacity of the property under the City’s Fire Code, if applicable. 

     (i)     Appeals.  If a permit is denied, the Manager shall provide the Applicant with written reasons for denial within five (5) business days.  The Applicant, within five (5) business days after denial, may appeal the denial to a committee composed of the Chief Administrative Officer, the Director of the Environmental and Compliance Department (or successor), the Sheriff, the Fire Chief and the General Counsel, or their respective designees, for a final decision by majority vote based upon the documents and circumstances presented. Such decision shall be rendered within five (5) business days after receipt of the appeal.  Except for the provisions of subsection (j) below, judicial review of any such final decision may be obtained by the Applicant by a writ of common law certiorari in the Circuit Court of the Fourth Judicial Circuit, within five (5) business days of rendition of the final decision.

     (j)     City invoked judicial review.     In the event that an Applicant alleges that a permit denial is a First Amendment prior restraint, and if any appeal under subsection (i) immediately above has been denied, the City will promptly institute judicial proceedings and must prove that any alleged protected First Amendment expression either (1)  is without constitutional or statutory protection; or (2) that the permit denial is not based on expressive content; or (3) that denial is otherwise permissible under the First Amendment or the State Constitution, or any Religious Freedom Restoration Act of the State or Federal government.  Permit denial, in the face of such judicial review, will continue only to preserve the status quo until such time as judicial review and determination is complete.  The City will request expedited judicial determination to ensure a prompt final judicial resolution. 

     (k)     Limited cost waivers generally.  The Manager is authorized to waive the fee for applying for a permit under this section if the Manager, upon consultation with the General Counsel, or his or her respective designee, determines that the proposed event or activity is exclusively or primarily for speech or other expressive or religious expression or activity protected by the First Amendment to the United States Constitution, and that the permit fee is unreasonably burdensome or cannot be met due to insolvency or indigency as set forth below.

     (l)     Cost waivers authorized to avoid unreasonable burdens upon protected First Amendment expression; alternative venues for activities.  In order to secure a waiver of costs,

     (1) the Applicant shall file an affidavit stating that it is made under oath and under penalty of perjury and that the Applicant believes the subject feeding activity’s purpose is exclusively or primarily for bona fide religious motivations, or for First Amendment speech or expression purposes, and that the Applicant has determined that the cost for the permit is so financially burdensome that it would constitute an unreasonable restriction on the right of First Amendment activity, belief or expression, or that it has been or would be impossible due to the insolvency or indigency of the Applicant to conduct the proposed feeding event or activity for the group of homeless individuals anticipated to attend if the permit fee were not to be waived; and

     (2) the Applicant shall complete as part of the affidavit, a listing on a monthly basis of the information about his, her or its income, assets, expenses and liabilities contained in a form to be developed by the Manager in consultation with the Office of General Counsel and to be made available to the Applicant.

 

(3) Notwithstanding any waiver or reduction authorized by this section, the Applicant shall be required by contract to defend, indemnify and hold harmless the City from any claim or liability occasioned by the permitted activity. 

(4) Upon receipt of the affidavit, the Manager shall conduct an examination as expeditiously as possible, but in any event within thirty (30) days, as to the income, assets, expenses, and liabilities listed to the extent practicable from information available as part of the public record to determine if any discrepancies exist.  If any discrepancies are found, the Applicant shall be so notified within ten (10) business days after the conclusion of the investigation and shall be given an additional ten (10) business days to explain or correct any incorrect information discovered.  If the discrepancies are due to inaccurate or incomplete information provided to the Manager in the affidavit, the request for a waiver of costs due to indigency or insolvency shall be denied. In such event, all costs required by this chapter shall be paid and posted, or the activity in issue shall not be permitted to proceed.

(5) Approvals of waivers shall be granted by the Manager within five (5) business days after completion of the financial investigation, unless a discrepancy has been discovered.  A waiver may be denied if the Manager determines that

(i) inaccurate or incomplete information was provided;

(ii) there is no undue burden on First Amendment rights; or

(iii) there is no demonstrated insolvency or indigency. 

The Manager shall provide the applicant with written reasons for any denial within five (5) business days after completion of the investigation.  The denial may be appealed within five (5) business days after denial, to a committee composed of the Chief Administrative Officer, the Director of the Neighborhoods Department, and the General Counsel, or their designees, for a final decision by majority vote based upon the documents and circumstances presented.  The decision on the appeal shall be rendered within five (5) business days of receiving the appeal.  If the Manager’s decision is sustained, the denial shall stand.  If the Manager’s decision is overturned, the waiver shall be deemed granted.

     (6) For purposes of this section, an Applicant shall be considered insolvent or indigent if the monthly expenses and liabilities disclosed by the affidavit exceed the monthly income and the equity available in any owned assets.  Further, for purposes of this section, payment of the permit fee requirements of this section shall be deemed unduly burdensome and unreasonably restrictive of First Amendment rights of expression or the exercise of protected religious rights if such compliance would impose a severe hardship financially which could foreseeably cause insolvency or indigency to occur within ninety (90) days after compliance.

     (7) In any case where an Applicant permit fee waiver is granted, the requested activity shall be allowed to proceed if any other applicable requirements of this section and this chapter are timely met.

     (8)     With respect to requested activities that are exclusively or primarily for protected First Amendment expressive activity, a particular venue need not be made available if there are scheduling conflicts, or one or more of the circumstances described in section 250.123(h) are or reasonably may be present as to a particular date or location.  In such situation, the City will make available an alternate venue at which the activity can be conducted.

Section 2.   Settlement approved.     The Council hereby authorizes, approves, ratifies and confirms the settlement of the above-referenced litigation reached by the parties pursuant to the Court ordered mediation process, as more particularly described in the General Settlement Terms attached hereto as Exhibit 1.

Section 3.   This Ordinance shall become effective upon signature by the Mayor or upon becoming effective without the Mayor’s signature.

 

Form Approved:

 

                                           

Office of General Counsel

Legislation Prepared By:  Michael B. Wedner, Assistant General

Counsel

G:\SHARED\LEGIS.CC\2008\ord\Herkov Settlement.Enrolled.doc

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