Case Summaries and Litigation Documents

A.           Federal Court Cases

Big Hart Ministries v. City of Dallas, No. 3-07CV0216-P, 2007 WL 606343 (N.D. Tex. Jan. 31, 2007).

Plaintiffs Big Hart Ministries and Rip Parker Memorial Homeless Ministry are each non-profit religious organizations which conduct food sharing programs for and share religious teachings with homeless individuals in the city of Dallas.  These organizations jointly filed a suit challenging the enforcement of Dallas City Ordinance 26023, which requires all operators of "Food Establishments" (as defined in the ordinance and including churches and other charitable organizations operating out of a mobile facility) to obtain a permit from the Director of the Department of Environmental Health Services for the City of Dallas.  Exceptions are made to the permit requirement, but only if food distribution takes place in specified areas of the city, of which only two areas are practicable for the plaintiffs.  Violation of the ordinance is punishable by a fine of between $50 and $2,000 per day. 

Plaintiffs' claims are based on constitutional grounds, and allege that the ordinance violates such organizations' right to freely exercise their religious beliefs, guaranteed by the First and Fourteenth Amendments, (ii) violates such organizations' and homeless persons' right to free association, also guaranteed by the First and Fourteenth Amendments, (iii) violates such organizations' and the homeless persons' right to travel, as guaranteed by the Fourteenth Amendment, and (iv) violates certain Texas state constitutional and statutory provisions. 

The complaint was filed in January 2007, following extensive negotiation with the city of Dallas to reduce the impact of the ordinance on the plaintiffs and the homeless population, and an amended complaint was filed in May 2007. 

Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F. Supp. 1554 (M.D. Fla. 1995).

Plaintiffs, Daytona Rescue Mission and its founder, president and executive director, Gabriel J. Varga, brought suit against the City of Daytona Beach and the Daytona Beach City Commission, alleging that enforcement of a city ordinance would violate their rights under the Establishment Clause and the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment and the Religious Freedom Restoration Act of 1993 (the "RFRA"). Plaintiffs, who provide the homeless with portable bags of food and other services, sought injunctive and declaratory relief. Plaintiffs argued that because the zoning code's definition of Church or Religious Institution "excludes homeless shelters and food banks as customarily related activities," their application for semi-public use in their facility's zone was denied. 

The court held that because the zoning code provisions were neutral and generally applicable and furthered the city's significant interest, plaintiffs' rights under the Free Exercise Clause were not violated. Similarly, "the burden on religion is at the lower end of the spectrum" and other facilities exist for the homeless in the city. Therefore, the court held that protections under the RFRA did not apply. Lastly, the court found that the city had a compelling interest in regulating shelters and food banks for the homeless and the zoning code was the least restrictive means to furthering that interest.

First Assembly of God of Naples, Florida, Inc. v. Collier County, Florida, 27 F.3d 526 (11th Cir. 1994).

First Assembly was zoned as a multi-family residential district that also permitted various community uses, including churches and their "customary accessory uses."  In 1989, First Assembly converted a relatively new building into a homeless shelter.  The surrounding community raised health and safety concerns.  In 1991, a county official alleged that First Assembly's shelter violated several zoning ordinances.  The Collier County Code Enforcement Board agreed that the shelter did not constitute a "customary accessory use" of the church.  First Assembly closed the shelter.

First Assembly and plaintiffs brought suit against Collier County, seeking a temporary restraining order, a preliminary injunction, and permanent injunctive relief.  The lower court denied plaintiffs' motions and granted the County's motion for summary judgment.

First Assembly filed an appeal, arguing that it was denied due process in the enactment of the zoning laws and in the County's failure to codify the laws annually as required under Florida law.  In addition, First Assembly argued that by enforcing the zoning laws, the County prevented the church from practicing an essential aspect of its religion: sheltering the homeless.  Therefore, the County violated the Free Exercise Clause of the First Amendment. 

The Eleventh Circuit affirmed the lower court ruling.  Regarding the due process claim, the court found that although First Assembly had a protectable property interest, it was given a notice and an opportunity to be heard that was adequate under the federal Constitution.  The court did not agree with plaintiffs that the published notice, which was smaller than a quarter page in size, did not include a geographic location map, and did not have a headline in 18 point font, was inadequate.  Regarding the Free Exercise claim, the court found that the zoning law was neutral and of general applicability.  The law applied to group homes generally and provided regulations and locations for their operation.  The intent was to address health and safety concerns, not to inhibit or oppress any religion.

First Assembly's petition for writ of certiorari was denied.

First Vagabonds Church of God v. City of Orlando, No. 6:06-CV-1583-Orl-31KRS (M.D. Fla. filed Oct. 12, 2006).

First Vagabonds Church of God and Food Not Bombs, a homeless ministry and anti-poverty group, respectively, filed suit in federal court challenging a city ordinance that prohibits "large group feedings" in parks in downtown Orlando without a permit, and also limits the number of permits for each park to two per year per applicant.[1]  "Large group feedings" are defined under the ordinance as events that intend to, actually or are likely to feed 25 or more people. 

Prior to the enactment of the ordinance, the plaintiff organizations regularly distributed food in certain Orlando parks for a long period of time.  Following enactment of the ordinance, the organizations attempted to remain in compliance with the law by distributing food outside of or adjacent to city parks, but found such distribution to be impracticable.  The plaintiffs' suit seeks a declaration that the ordinance is unconstitutional (under the First and Fourteenth Amendments and due to vagueness and overbreadth) and in violation of certain Florida statutes, including Florida's Religious Freedom Restoration Act.  Further, the complaint seeks an injunction prohibiting enforcement of the ordinance and unspecified damages. 

In December 2006, the court dismissed the plaintiffs' cause of action which claimed that the ordinance violated Florida's Religious Freedom Restoration Act, which provides that the government shall not substantially burden a person's exercise of religion, unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering such interest.  However, in January 2007, following the amendment of plaintiffs' complaint, the court effectively reinstated this claim by denying a motion to dismiss the pertinent claim in the amended complaint.  NLCHP Amicus Brief 2008

McHenry v. Agnos, 983 F.2d 1076 (9th Cir. 1993). 

Keith McHenry is the co-founder of Food Not Bombs, an organization which distributes free food to, and advocates increased public assistance for, the homeless and hungry of San Francisco.  McHenry filed suit against the city of San Francisco and various city officials after being enjoined from distributing food to members of the homeless community in San Francisco based on the organization's failure to comply with ordinances regarding the distribution of food in public.  Specifically, the ordinances required that organizations which distribute food to more than 25 persons in public parks obtain a permit and meet certain sanitation standards. 

McHenry's suit alleged that such city ordinances and the injunction violated his First Amendment rights and were facially invalid.  The district court granted summary judgment in favor of the defendants, finding that McHenry's food distribution activity did not constitute protected expression and that even if it did, the permit ordinances would constitute reasonable time, place, and manner restrictions on such expression.  On appeal, the Ninth Circuit upheld the district court's decision, finding that the ordinances were constitutional, as the government interests behind the ordinances were substantial and the ordinances were sufficiently content neutral and narrowly-tailored. 

Pacific Beach United Methodist Church v. City of San Diego, Docket No. 07-CV-2305-LAB-PCL (S. D. Cal. Dec. 7, 2007).

Pacific Beach United Methodist Church, its pastor and its congregation brought suit against the City of San Diego, alleging that the city had threatened to fine and punish them for sharing a meal and religious services with the poor, hungry, homeless and others on Wednesday nights.  Approximately 150 people attend each "Wednesday Night Ministry" at the church and everyone leaves the premises when the service is over.  Plaintiffs argue that ministering to and caring for the hungry, homeless and poor is at the core of their religious and spiritual identities and, therefore, the city's actions violated the United States and California Constitutions, the Federal Civil Rights laws, prior Orders of the Court, and the Religious Land Use & Institutionalized Persons Act.

Plaintiffs alleged that, on Wednesday, October 31, 2007, while Plaintiffs were preparing for that evening's service, defendants "raided" Plaintiffs' church property "without warning, in a show of authority designed to chill the Plaintiffs' exercise of their ministry and intimidate Plaintiffs."  Defendants stated that they were acting on an anonymous complaint to perform an inspection to determine whether Plaintiffs' activities were violating any laws, ordinances or municipal codes.  Plaintiffs contended in their complaint that the search was motivated by "a hostility to homeless people based on the misperception that homeless people are undesirable neighbors whose presence should be invisible, and a desire to foster politically-beneficial relations with wealthy constituents and interests." 

On November 29, 2007, Plaintiffs received a voicemail from Defendants that Plaintiffs' religious activities were a violation of four San Diego municipal codes relating to residential multiple unit dwelling developments, use regulations of residential zones, and homeless facilities.  Plaintiffs argued in their complaint that these ordinances are facially inapplicable to Plaintiffs' activities.  Further, Plaintiffs argued that the city's actions violated the Religious Land Use and Institutionalized Persons Act of 2000 and the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution.  Plaintiffs have sought injunctive relief to protect their freedom to continue their ministries to the poor, hungry and homeless.

Sacco v. City of Las Vegas, Docket No. 2:06-CV-0714-RCJ-LRL (D. Nev. June 12, 2006).

Plaintiff group is comprised of several individuals who feed the homeless as a component of their charity work and as a part of a broader political demonstration associated with Food Not Bombs.  Plaintiffs filed suit in federal court challenging the enforcement of Las Vegas Municipal Code § 13.36.055(A)(6), which prohibits "the providing of food or meals to the indigent for free or a nominal fee" in public parks, (ii) city ordinances requiring that a permit be obtained in order to hold events in city parks that are attended by more than 25 people, (iii) the city's establishment of three parks as parks solely for the use of children or supervisors/guardians of children and (iv) laws permitting the police to ban people who commit crimes on city property from entering public parks. 

In January 2007, the federal district court granted a preliminary injunction against enforcement of the ordinance prohibiting the providing of food or meals to the indigent.  In August 2007, the court ruled on the plaintiff's motion to make the injunction permanent and to approve the other measures being sought, including the challenges to the permit requirements and the children's parks and trespass laws (described above).  Basing its decision on the plaintiff's Fourteenth and First Amendment arguments, the court granted the motion to make permanent the injunction against enforcement of Las Vegas Municipal Code § 13.36.055(A)(6), but denied the plaintiff's other challenges.  NLCHP Amicus Brief 2006

Stuart Circle Parish v. Board of Zoning Appeals of the City of Richmond, 946 F. Supp. 1225 (E.D. Va. 1996).

Stuart Circle Parish, a partnership of six churches of different dominations in the Stuart Circle area of Richmond, Virginia, sought a temporary restraining order and permanent injunctive relief to bar enforcement against them of a zoning code limiting feeding and housing programs for homeless individuals. The ordinance limited feeding and housing programs to up to 30 homeless individuals for up to seven days between October and April. Plaintiffs conduct a "meal ministry" for 45 minutes every Sunday, to provide "worship, hospitality, pastoral care, and a healthful meal to the urban poor of Richmond." Some, but not all, of the attendees are homeless. Neighbors of the host church complained to the city's zoning administrator, alleging unruly behavior by attendees of the meal ministry. The zoning administrator found that plaintiffs violated the city ordinance limiting feeding and housing programs. Although plaintiffs appealed, the Board of Zoning Appeals upheld the determination.

Plaintiffs then brought suit in federal district court. Plaintiffs alleged that their rights to free exercise of religion were protected by the First Amendment and the Religious Freedom of Restoration Act (the "RFRA")[2] and would be violated if the ordinance were enforced against them.  To plaintiffs, the meal ministry is "the physical embodiment of a central tenet of the Christian faith, ministering to the poor, the hungry and the homeless in the community." Furthermore, plaintiffs argued that injunctive relief would not work irreparable injury on the city and that the city failed to show a compelling state interest, especially given that there was no showing of unruly and disruptive behavior on more than one occasion.

The court granted plaintiffs' motion for a temporary restraining order. The court held that plaintiffs would suffer irreparable injury without such injunctive relief because they would otherwise be prevented from engaging in the free exercise of their religion. In addition, defendants failed to show that the injunctive relief would work irreparable injury on them; such injunctive relief would only "return the parties to their status quo ante positions." The court also found that plaintiffs were likely to succeed on the merits because the plaintiffs demonstrated that the meal ministry is a central tenet of their religious practice and that it is important that the meal ministry be provided in the church. On the other hand, the city failed to show a compelling state interest in prohibiting plaintiffs from continuing their meal ministry as currently conducted. Lastly, the court found that granting the temporary restraining order serves the public interest by providing a federal forum in which plaintiffs can vindicate their federal rights, which they were unable to do in the state process.

Western Presbyterian Church v. The Board of Zoning Adjustment of the District of Columbia,862 F. Supp. 538 (D.D.C. 1994).

Western Presbyterian Church brought suit against defendants to enjoin enforcement of a decision of the District of Columbia Zoning Administrator, which was upheld by the Board of Zoning Adjustment of the District of Columbia, and (ii) the District of Columbia zoning regulations as applied to the Church's program to feed homeless individuals on its premises.  Section 216 regulates programs conducted by church congregations or groups of churches in an R-1 (residential) district.  The zoning regulations provide that "any other accessory use . . . customarily incidental to the uses otherwise authorized by this chapter shall be permitted in [a special purpose] district."

Plaintiffs sought protection of their rights under the Religious Freedom Restoration Act of 1993 (the "RFRA"),[3] the Civil Rights Act of 1964, and the First and Fifth Amendments.  Plaintiffs argued that defendants violated their rights to free exercise of religion and their due process and equal protection rights by enforcing the Zoning Regulations in an arbitrary and capricious manner, (ii) denying fair notice and chilling their First Amendment rights, (iii) interpreting the Zoning Regulations so as to impose a more onerous burden on churches in special purpose zones than that imposed on churches in residential zones, and (iv) interpreting the Zoning Regulations to deny churches the ability to engage in accessory uses as a matter of right in special purpose zones, to the extent such uses are considered church programs under Section 216.  

The court granted plaintiffs a permanent injunction and granted plaintiffs' motion for summary judgment.  The court noted that "[i]t is difficult to imagine a more worthwhile program," and that "[t]he federal government and the District of Columbia have been unable to deal with the problem of the homeless, but here, a private religious congregation is spending its own funds to help alleviate a serious societal problem."  The court added that "[i]t is paradoxical that local authorities would attempt to impede such a worthwhile effort."  The court held that the enforcement of the zoning laws to regulate religious conduct violated plaintiffs' right to free exercise of religion in violation of the First Amendment and the RFRA.

B.           State Court Cases

Abbott v. City of Fort Lauderdale, 783 So. 2d 1213 (Fla. Dist. Ct. App. 2001).

Plaintiff, who conducted a feeding program on the beach in Fort Lauderdale for homeless individuals, sought injunctive and declaratory relief to prevent the city from enforcing against him a city ordinance that prohibited the use of parks "for business or social service purposes unless authorized pursuant to a written agreement with the City." Arnold Abbot and his group, Love Thy Neighbor, had fed poor and homeless people each Wednesday on the public beach across from the Radisson Bahia Mar, as part of their religious beliefs. The city believed that the regular feedings at a set location constituted a social service agency. Moreover, the city noted that there were other services and agencies in the city that the homeless could rely upon, including at the Homeless Assistance Center, which allegedly made plaintiff's feedings unnecessary.

The trial judge rejected plaintiff's claims that the ordinance violated his rights to equal protection and due process of law as well as his First Amendment rights under the Florida Religious Freedom Restoration Act of 1998 (the "FRFRA"). The trial judge held that because the rule violated plaintiff's rights under the FRFRA, the city would have to provide an alternative public property site where plaintiff could conduct the feeding program.

Plaintiff appealed, challenging on post-trial motion that the city's site selection did not follow the intent of the trial court's order. The city cross-appealed the trial court's holding that the rule violated the FRFRA. On appeal, the court concluded that the trial court's order implied that the alternative public property site "would at least be minimally suitable for the purposes intended" and would "represent[] the 'least intrusive means' of furthering the government's compelling interests." The court reversed and remanded to the trial judge to determine whether the selected site complied with the order's requirements and with the FRFRA. 

[1] Code of the City of Orlando § 18A.09-2 (2007).
[2] In 1997, the RFRA was struck down as unconstitutional.  City of Boerne v. Flores, 521 U.S. 507.  However, a number of states have similar laws.
[3] In 1997, the RFRA was struck down as unconstitutional.  City of Boerne v. Flores, 521 U.S. 507.  However, a number of states have similar laws.