11th Circuit finds Fort Lauderdale limits on food sharing in parks unconstitutional

ATLANTA (CN) — In a unanimous ruling Tuesday, a panel of the 11th Circuit found that a rule limiting food-sharing inside Fort Lauderdale parks is unconstitutional as applied to Food Not Bombs’ hosting of free vegan meals for the homeless.

A three-judge panel of the Atlanta-based appeals court overturned a Florida federal court’s summary judgment in favor of the city, finding that a rule which banned the sharing of food as a social service in city parks without written permission violated Food Not Bombs’ First Amendment rights.

Fort Lauderdale Park Rule 2.2 requires city permission for social service food-sharing events in all Fort Lauderdale parks and allows officials to charge as much as $6,000 for the permitting process.

In a 64-page ruling issued Tuesday, the panel determined the rule cannot lawfully qualify as a “valid regulation” of Food Not Bombs’ expressive conduct due to its “utterly standardless permission requirement.”

The rule is therefore unconstitutional as applied to Food Not Bombs’ protected expression, the panel found.

Writing on behalf of the panel Tuesday, Senior U.S. Circuit Judge Stanley Marcus, a Bill Clinton appointee, opined that the rule “amounts to an outright ban on public food sharing in all of Fort Lauderdale’s parks; any exception is subject only to the standardless whims of city permitting officials.”

Marcus found the rule imposes a permitting requirement without implementing standards to guide officials' discretion in granting a permit.

“Under the terms of the rule, a city official may deny a request for permission to hold an expressive food sharing event in the park because he disagrees with the demonstration’s message, because he doesn’t feel like completing the necessary paperwork, because he has a practice of rejecting all applications submitted on Tuesdays, or for no reason at all," Marcus wrote for the panel. "In a word, the complete lack of any standards allows for arbitrary enforcement and even for discrimination based on viewpoint.”

Fort Lauderdale city attorney Alain E. Boileau said the city is “certainly disappointed” in the ruling.

“However, we are continuing to analyze the court’s lengthy opinion, and will determine the city’s next steps in consultation with the City Commission,” Boileau added.

As part of its mission to combat poverty and homelessness, Food Not Bombs has hosted weekly food-sharing events in Fort Lauderdale’s downtown Stranahan Park for the last 15 years.

The organization has spent seven of those years battling the city in court to stop the enforcement of provisions blocking its members from giving out food without a permit.

In 2018, an 11th Circuit panel ruled outdoor food-sharing qualifies as expressive conduct protected under the First Amendment.

The case was returned to Senior U.S. District Judge William Zloch, a Ronald Reagan appointee, who ruled in 2019 that the city’s regulations were not unlawfully vague and did not violate the First Amendment.

Tuesday’s ruling explains that the city enacted the rule, as well as a now-repealed city ordinance, to address problems associated with large-group food events in public parks, like trash buildup, food safety issues, and crowds.

Marcus wrote that although the city has an interest in making sure citizens can enjoy the benefits of the parks, the rule “is not narrowly tailored to the city’s interest in park maintenance.”

“Moreover, the park rule’s sweeping grant of discretion to city permitting officials is not necessary to further the city’s interests in crowd control and park conservation,” the ruling states.

Jodi Siegel, executive director of Southern Legal Counsel, which represents the plaintiffs in the case, celebrated the decision in a statement Tuesday.

"We are excited by the court’s ruling today, vindicating the free speech rights of our client Fort Lauderdale Food Not Bombs who shares food to communicate their political message that food is a human right. This is a significant First Amendment victory, hard won after nearly seven years of litigation and two federal court appeals," Siegel said.

Marcus was joined on the panel by U.S. Circuit Judge Barbara Lagoa, a Donald Trump appointee, and Senior U.S. Circuit Judge Frank Hull, also a Clinton appointee.

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