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Chosen 300 Ministries, Inc. et al v. City of Philadelphia and Mayor Michael Nutter

August 9, 2012

CHOSEN 300 MINISTRIES, INC. ET AL., PLAINTIFFS,
v.
CITY OF PHILADELPHIA AND MAYOR MICHAEL NUTTER, INDIVIDUALLY AND AS THE MAYOR OF THE CITY OF PHILADELPHIA, DEFENDANTS.



The opinion of the court was delivered by: Yohn, J.

Findings of Fact & Conclusions of Law

Plaintiffs, churches and their leaders, seek a preliminary injunction barring defendants, the City of Philadelphia (the "City") and Mayor Michael Nutter ("Mayor Nutter"), from enforcing the Department of Parks and Recreation Regulation Regarding Outdoor Public Serving of Food ("section 110" or "the ban"), which, with exceptions, bans the distribution of food free of charge to three or more members of the public within Fairmount Park, and the Regulations of the Board of Health Concerning: Outdoor Public Serving of Food: Food Safety (the "health regulations"), which prescribe a food-safety training, permit, and inspection process for groups engaged in serving food free of charge to three or more members of the public in an outdoor public space. Plaintiffs, who have conducted outdoor food-sharing programs that serve the homeless in Fairmount Park for up to two decades, allege that the ban and the health regulations violate the Pennsylvania Religious Freedom Protection Act, 71 Pa. Stat. Ann. §§ 2401 et seq., and the free-exercise and free-speech clauses of the First Amendment to the United States Constitution.

I held an evidentiary hearing on July 9 and 10, 2012, and heard argument by counsel on July 12, 2012. Following oral argument, I made preliminary findings of fact from the bench and enjoined the City from enforcing the ban on a temporary basis pending my formal findings of fact and conclusions of law. Having considered all of the testimony and exhibits offered into evidence as well as the parties' written submissions, I make the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52.

I. Findings of Fact

A. Background

1. Philadelphia has a large homeless population that numbers in the thousands.

2. The highest concentration of homeless people living on the streets in Philadelphia is along the Benjamin Franklin Parkway (the "Parkway"). Various homeless persons have lived on the Parkway for decades. (Test. of Sister Mary Scullion (July 9, 2012) ("Scullion Test.").)

3. Defendants do not contest the right of the homeless to live on the Parkway.

4. The Parkway is a boulevard running through the heart of Philadelphia and is home to many major museums, cultural institutions, and tourist attractions. (Test. of Michael DiBerardinis (July 9, 2012) ("DiBerardinis Test."); Test. of Mayor Michael Nutter (July 10, 2012) ("Nutter Test.").) The green park space that lines the Parkway, which is approximately one block wide, is part of Fairmount Park. (DiBerardinis Test.)

5. Fairmount Park is a system of 63 municipal parks spanning 9,200 acres that is operated by the Philadelphia Department of Parks and Recreation ("Parks Department"). (Id.)

6. There are approximately 25 to 30 groups that offer free food at various times to the hungry and homeless along the Parkway. (Pls.' Ex. A, Aff. of Reverend Brian Jenkins (May 22, 2012) ("Jenkins Aff.") ¶ 15.) Many of these groups have been engaged in food sharing for over ten years. (Id.; DiBerardinis Test.)

7. Plaintiffs are among the religious organizations that conduct outdoor food-sharing programs with the homeless along the Parkway, and have done so for many years without regulation by the City. (Jenkins Test.)

8. On March 15, 2012, Mayor Nutter announced a new policy initiative aimed at moving all programs that share food with the homeless to indoor locations. (DiBerardinis Test.; Pls.' Ex. G.)

9. Mayor Nutter instructed the Parks Department to issue a regulation that would ban outdoor feeding in all City parks. (Pls.' Ex. G at 2.) And the Parks Department did that by promulgating section 110, effective June 1, 2012.*fn1 (DiBerardinis Test.; Pls.' Ex. J.)

10. As part of the transition process, Mayor Nutter instructed the Commissioner of Public Property to establish a temporary food-distribution site on the north side of the City Hall apron that will be available for up to one year. (Pls.' Ex. G at 2.)

11. There is no evidence that the regulation or the addition of a temporary food-sharing site at the City Hall apron does anything to accomplish the objective of moving food sharing with the homeless indoors.

12. With Mayor Nutter's support, the Board of Health, the departmental board of the Philadelphia Department of Public Health, issued regulations establishing a system for food-safety training, permits, and inspection of outdoor food-sharing programs. (Pls.' Exs. G, K.)

B. Homelessness in Philadelphia

13. A recent study conducted between the hours of midnight and 4 a.m. found between 130 and 160 homeless Philadelphians living on the Parkway. (Scullion Test.)

14. An earlier case study conducted by the City surveyed 375 homeless individuals living on the Parkway. Of the homeless who participated, 44% had substance-abuse issues, 11% had mental illness, and 34% suffered from both. (Defs.' Ex. D.)

15. A minority of homeless also suffer from physical disabilities. (Scullion Test.)

16. During the case study, a majority (69%) of homeless living on the Parkway were encountered at Logan Circle at 19th Street and the Parkway. (Defs.' Ex. D.)

17. The City spends over $100 million annually to address the needs of the homeless. (Defs.' Ex. F.) Nevertheless, City-run programs that serve the needy are overwhelmed. (Scullion Test.)

18. The City recently closed the Ridge Avenue Shelter, which provided about 300 to 400 beds for homeless men each night, and has not yet replaced all of these beds. (Id.)

19. There are several private indoor facilities that provide food or shelter for the homeless and hungry in Philadelphia. Many of these facilities are overwhelmed and have insufficient resources to accommodate more needy individuals.*fn2 (Id.)

20. Currently, the Sunday Breakfast Rescue Mission at 13th and Arch Streets has room to accommodate more people at their indoor food-sharing programs. The facility was recently renovated and can now accommodate approximately 250 individuals per meal. The facility serves about 500 meals a day but could serve up to 1000. The facility also has 250 beds for the homeless, about 70 of which are not currently being used. The facility also offers GED assistance, resume building, and job counseling. Richard McMillen, the executive director of the Sunday Breakfast Rescue Mission, is willing to share the facility with others. (Test. of Richard McMillen (July 10, 2012) ("McMillen Test.").)

21. Broad Street Ministries, at Pine and Broad Streets, also has additional space to accommodate more individuals for indoor food service but needs additional resources, including food and funding, to expand its food service.*fn3 (Test. of Susan Kretsge (July 10, 2012) ("Kretsge Test.").)

22. Even with the outdoor food-sharing programs on the Parkway and the myriad of services provided by the City, charities, religious groups, and well-meaning citizens, the community of Philadelphia does not currently meet the needs of homeless and hungry Philadelphians. (Scullion Test.)

23. A state-level budget cut of $160 million for the General Assistance Program took effect on August 1, 2012. This will terminate $200 of monthly assistance for 30,000 single adults in Philadelphia, the anticipated effect of which may be to increase the number of homeless and needy. (Id.)

24. Some homeless are resistant to going to indoor food-service programs. Some homeless do not want to leave their possessions unguarded on the Parkway in order to travel to indoor facilities. Some have physical disabilities that make travel difficult, many have mental disabilities that make it difficult. For example, some homeless have difficulty keeping track of time or place and some have auditory hallucinations that tell them not to go indoors. (Scullion Test.)

25. Sister Mary Scullion is an expert on homelessness. She received her religious training from the Congregation of the Sisters of Mercy in Merion, Pennsylvania, received a bachelor's degree in psychology from St. Joseph's University and a masters of social work from Temple University. (Pls.' Ex. P.) She has worked with the homeless for over 35 years. (Scullion Test.)

26. In Sister Mary Scullion's expert opinion, it is possible to work with the homeless over time to get them to come indoors, but the City has not yet committed the resources or preparation necessary to achieve this. (Id.)

27. Defendants desire to feed all of the homeless indoors and argue that there are organizations capable of doing this. However, many of the homeless resist going indoors. Defendants need time and a program to persuade those homeless to eat at indoor locations and there is no evidence at this stage of the litigation that such a program exists.

C. Plaintiffs' Religious Activities and Beliefs*fn4

28. Feeding the poor is central to Christian worship and to other religions as well. (Test. of Reverend Violet Little (June 9, 2012) ("Little Test."); Test. of Monsignor Arthur Rodgers (July 9, 2012) ("Rodgers Test.").)

29. Plaintiffs engage in food sharing with the homeless and hungry on the Parkway as a form of religious worship. It is their sincere and deeply held belief that they are called by the teachings of Jesus Christ to share food, comfort, prayer, and fellowship with the poor where the poor are found. Defendants do not contest the sincerity of plaintiffs' religious beliefs and purposes.

i. Chosen 300 Ministries

30. Chosen 300 Ministries, Inc. ("Chosen 300 Ministries"), is a religious organization. (Test. of Rev. Jenkins (June 9, 2012) ("Jenkins Test.").)

31. Reverend Brian Jenkins ("Rev. Jenkins") is an ordained minister with the Suburban Baptists Association of Southeastern Pennsylvania and the executive director of Chosen 300 Ministries. (Jenkins Aff. ¶ 2.)

32. The mission of the members of Chosen 300 Ministries is to observe their faith by sharing the Gospel of Jesus Christ and sharing sustenance with the poor, needy, and homeless. (Id. ¶ 3.)

33. The homeless are congregants of Chosen 300 Ministries. Rev. Jenkins performs marriages and baptisms for his homeless congregants. (Jenkins Test.)

34. Chosen 300 Ministries has been providing free meals to the needy and homeless in Philadelphia since 1996. (Jenkins Aff. ¶ 5.)

35. Chosen 300 Ministries has operated an outdoor food-sharing program at 16th Street and the Parkway on Saturdays between 4:30 and 6:00 p.m. for more than ten years. Chosen 300 Ministries feeds between 150 and 250 homeless and hungry people at every outdoor service. (Jenkins Test.)

36. This outdoor food-sharing program begins with a worship service that incorporates prayer, scripture readings, songs, a Gospel message, an invitation to Christian discipleship, and a blessing of the meal. (Id.; Jenkins Aff. ¶ 8.) Following this service, Chosen 300 Ministries provides hot meals and non-alcoholic beverages to those who seek to participate. (Jenkins Aff. ¶¶ 8, 10.)

37. Sharing food in this manner enables the members of Chosen 300 Ministries to meet their religious obligation to provide sustenance to the poor, a critical part of their religious worship. (Id. ¶ 4.)

38. A fundamental tenet of Rev. Jenkins's faith is to serve the poor and needy as if he were serving Jesus Christ.*fn5 (Jenkins Test.)

39. Chosen 300 Ministries practices the Christian idea of fellowship by sharing a meal with the homeless and hungry.*fn6 (Id.)

40. As part of the outdoor program, Chosen 300 Ministries also connects those in need with help obtaining identification, with job-readiness programs, and with computer classes. Chosen 300 Ministries works with City Outreach to engage the homeless and provide them with additional services. (Id.)

41. Members of Chosen 300 Ministries arrive before the outdoor food-sharing program begins in order to clean the area and they clean again after the program has concluded. Since 2003, the City has performed an additional garbage-collection service following the outdoor food-sharing program. (Id.)

42. Chosen 300 Ministries also operates food-sharing programs in Pennsylvania at three indoor locations. (Jenkins Aff. ¶ 5.) While there is some overlap between the individuals who attend the outdoor food-sharing program and the indoor food-sharing programs sponsored by Chosen 300 Ministries, some individuals who attend the outdoor food-sharing program cannot or will not attend the indoor food-sharing programs. (Jenkins Test.)

43. Chosen 300 Ministries conducts its outdoor food-sharing program at 16th Street and the Parkway because this is an area where the homeless have traditionally congregated. (Id.; Jenkins Aff. ¶ 9.) Approximately 10 to 20 homeless people live in this section of the Parkway. Other homeless travel a few blocks from where they live on the Parkway to attend the food-sharing program sponsored by Chosen 300 Ministries. (Jenkins Test.) The location is safe and dignified. (Jenkins Aff. ¶ 9.)

44. Rev. Jenkins believes that he was called by God to this location, which he believes is God's ground. He believes it is central to the religious worship of Chosen 300 Ministries to be able to meet the homeless where they are. (Jenkins Test.)

45. This location does not have indoor restroom facilities, hand-washing stations, or portable restrooms, but Chosen 300 Ministries brings hand sanitizer. (Id.)

46. Members of Chosen 300 Ministries will not relocate their outdoor food-sharing program to the City Hall apron because it would violate their central religious beliefs. Rev. Jenkins will not relocate to the City Hall apron because he believes that he was called by God to the Parkway and that God has not directed him to relocate. (Id.)

47. Chosen 300 Ministries complies with the health regulations. These regulations are not a burden on Chosen 300 Ministries. (Id.)

ii. The Welcome Church

48. The Welcome Church is a church without walls serving people experiencing homelessness. (Pls.' Ex. B, Aff. of Reverend Violet Little (May 29, 2012) ("Little Aff.")

¶ 2). The Welcome Church is a recognized parish with tax-exempt status and a congregation identification number with the Evangelical Lutheran Church in America ("ELCA"). (Little Test.)

49. Reverend Violet Little ("Rev. Little") is an ordained minister of the ELCA, a psychotherapist, and the pastor of the Welcome Church. (Id.; Little Aff. ¶ 2.)

50. The purpose of the Welcome Church is to provide hope and fellowship, and to build relationships between congregants. The Welcome Church strives to nourish the body and the spirit. (Little Test.)

51. The hungry and the homeless are Rev. Little's congregation. (Id.)

52. The Welcome Church conducts an outdoor food-sharing program on the last Sunday of every month at 3:00 p.m. in the park in front of the Philadelphia Family Court at 18th Street and the Parkway. (Id.)

53. Rev. Little has known some of her congregants for over seven years, but there are often new visitors at each food-sharing program. (Id.)

54. The Welcome Church conducts services on the Parkway because that is where the homeless are and because there are some homeless who can only be reached in their own context. (Id.) The Welcome Church considers this location sacred ground for prayer and communion because it is in nature and because it is where the homeless live. (Little Aff. ¶ 6.)

55. Rev. Little arrives an hour or two before each service to clean the grounds. (Little Test.)

56. The Welcome Church begins the food-sharing program with a worship service consisting of prayer, scripture readings, songs, a Gospel message, and Communion, which is the sharing of sacramental bread and grape juice that represent the body and blood of Christ, after which members share light refreshments such as pastries and coffee. (Id.; Little Aff. ΒΆ 8.) Provision of food to the needy is an extension of the church's Communion ...


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