Should the City Regulate Homeless Meal Distributions?

by Sarah Owens and Michael Livingston

Draft regulations would limit when and where

Mark Becktel, Public Works Operations Manager will be talking with CANDO about the City's proposal to limit the distribution of free food and "sundries" in City parks and rights of way at the May meeting at the First Christian Church on Tuesday, May 21, at 6p.

This post focuses on the proposal to limit food (meal) distributions.  It concludes that the City has failed to assess the situation properly, and needs to start over. 
 
Benevolent meal distributions are already regulated by state laws and rules that require permits and licenses.  These regulations are supposed to be enforced by county health officials, but, up until now, they haven't been.  They are now being enforced on a limited basis.

The City is proposing to set up an independent regulatory scheme that the City would either have to enforce, or that would depend on voluntary compliance.  Under the City's scheme, benevolent meals could be served only in certain areas of certain parks, regardless of the number of guests.  More about that provision later.

The City's proposal to regulate meal distributions arises out of the Public Works Department's decision in late 2017/early 2018, to install (without notice to CANDO) garbage cans and concrete tables and benches in the area posted “no trespassing” under the Marion Street bridge and instruct groups serving meals to the homeless community in that area to obtain permits through its "Reserve a City Facility or Park" system.  See SRC 94.200(c), which provides that a "park or a portion thereof, may be reserved for organized or group activities," emphasis added.  Some groups obtained permits, others did not.  People attached tents and tarps to the concrete furniture.  The area eventually became a large, unsanitary, unsafe homeless camp.  

Then, in January 2019, the City posted the area for eviction, stopped issuing permits and removed the garbage cans and concrete tables and benches.  See, Brynelson, T. and Alexander, R. "Salem to evict homeless camp at Marion Square Park." (9 January 2019, Salem Reporter.)  Bach, J. and Barreda, V. "Salem Bans Volunteers from Feeding Homeless Under the Marion Street Bridge." (11 January 2019, Statesman Journal.)  Alexander, R. "With eviction looming for homeless camp, its residents and leaders left with questions." (11 January 2019, Salem Reporter.)  Barreda, V. "Homeless advocates rally under the Marion Street Bridge." (13 January 2019, Statesman Journal.)  Brynelson, T. "City, police, service providers prepare for homeless eviction Tuesday." (14 January 2019, Salem Reporter.) and "Marion Square Park homeless camp evicted, organizations offer aid." (15 January 2019, Salem Reporter.)  See also “Meals Under Bridge on Shutdown.”

Shortly thereafter, even though there was not at the time any legal prohibition against distributing food and charitable donations in Salem parks per se, the City formed a task force “to find ways to allow distribution of food and other charitable donations to the homeless population in Salem parks while significantly minimizing the impact to the properties and its users.”  The task force was not asked to determine the need for outdoor meals, or for parks as a place to serve them.

As was noted during the task force proceedings, the Salem Revised Code does not regulate benevolent distributions per se, but requires a permit only when someone wishes to reserve a City park or facility (SRC 94.200(c)) for the purpose, or when s/he “expects or intends to involve 200 or more persons assembling on public property” (SRC 104.030).

Back in 2018, when the City placed garbage cans and concrete tables and benches in the area under Marion Street Bridge, it effectively created a reservable City "facility."  Then, by asking meal providers to seek permits to reserve the area and eventually putting the area off limits and announcing the permit program was "suspended," the City gave people (including the media) the impression that you had to have a City permit to serve benevolent meals in City parks.  But, as noted above, you don't.  You only have to have a county permit.  So, the question is, should the City also regulate benevolent meal distributions? The answer is, we don't yet know.

When the City announced it was "suspending" permits in January 2019, the meals moved to the parking lot at 615 Commercial Street NE, just north of Marion Square Park, by arrangement with the owner, the Mid Willamette Valley Community Action Agency (MWVCAA), and Marion County Environmental Health, pending completion of renovations which include a commercial kitchen.  When that happens, meals will have to move either indoors, or somewhere else.  Most sensible people would prefer that the meals move indoors.  See here for a detailed description of the effect of the parking lot meals on MWVCAA.     

So, what is the City proposing?  The Director of Public Works is authorized under SRC 94.200(d) to "regulate the activities in park areas when necessary to prevent congestion and to procure the maximum use and safety for the convenience of all.”  An undated draft staff report sent to the City Manager on March 27, 2019, proposes to institute the requirement of a permit to “engage in benevolent distributions on City property” by amending the City’s rules and regulations (not the code), specifically, the Parks Streets and Open Spaces rules and regs, a portion of which appears at the top of this post.  The proposed rules would restrict distributions to certain parks designated “reservable or common areas” and require distributors to reserve them (i.e., obtain a permit), without regard to how many people are intended to be served.   

Put briefly, the City is proposing to adopt a rule saying that, no matter how many people are involved, benevolent distributions must be restricted to certain areas of certain parks, and those areas must be reserved.  Because a reservation is required, a permit under SRC 94.200(c) is required.  

The proposed rule might be a clever way to avoid having to amend the code, except that it's hard to make the case that restricting benevolent distributions to certain areas of certain parks, regardless of the number of people involved, is "necessary to prevent congestion and to procure the maximum use and safety for the convenience of all” under SRC 94.200(d).  If it isn't, the proposed rule is not within the Director's regulatory authority, and a code amendment (i.e., action by City Council) is required.   

The proposed rule was originally scheduled to go before the City Council on April 8, but it was removed from the agenda and not rescheduled.  What we know happened next comes from the unpublished draft minutes of the Salem Parks and Recreation Advisory Board (SPRAB)'s April meeting.  They say the City Manager and City Council sent Becktel to SPRAB to ask what should be done, even though SPRAB was represented on the task force.  

An excerpt of the draft minutes is pasted below.  It gives SPRAB four options.  Notice that the options  reduce the number of parks where meals will be allowed from 13 (as provided in the proposed rule) to 10 (option 1) or 5 (option 2).  The reason given SPRAB for the choice of parks was that homeless individuals live or congregate in them, and/or the parks have a sheltered area and restrooms. 

Draft minutes of April 11 SPRAB meeting

       

The draft minutes also state "Chair Quillinan is concerned about holding these activities in parks. Parks are for recreation and this is a social issue that needs to be addressed. There should be other potential locations other than parks for these feedings."  SPRAB took no action.

Of course, there are other potential locations, but the City has people very confused to the point they believe that meal distributions are not allowed anywhere unless one has a City permit, which is simply not true.  Unless a reservation is involved, or 200+ guests are expected, the only permit that's currently required is the one from the county.

The SPRAB minutes say Becktel put the issue this way:  "[T]he focus is to get as many of the homeless to established shelters as possible.  Acknowledging there will be some people who will not go to a shelter facility, there will still be a need to feed outdoors.  The question was: Where to conduct the feedings?"

But the question Becktel put to SPRAB was, Which parks do you want to restrict "outdoor feedings" to?  Ten?  or Five? 

Our question is, who decided the City should restrict benevolent distributions in parks, regardless of whether reservations or 200+ guests are involved?  The answer is, no one. 

The City has needlessly complicated things by failing to ask very basic questions and examining assumptions, including its own.  Questions like, Is there an objective need to "feed outdoors?"  How big is it?  Does it need to occur in City parks?  Does anyone want it to occur in parks?  Which parks?  How often?  Are they currently taking place in parks?  Which parks?  How often?  What issues, if any, have there been?

City Manager's Update on the clean up under the MSB

To be clear, the problem was never benevolent meal distributions generally.

The problem was the daily meals under the Marion Street Bridge, because in between them, people lingered, camped, were preyed upon, and engaged in anti-social behavior there, and in the adjacent Marion Square Park, and the police, who spent 80% of their time at the park during the summer already, didn't have the resources to enforce the camping prohibition.

But, all along, the area under the bridge, which was not part of the park, was posted no trespassing.  When the City finally decided to enforce the order, the immediate problem was solved.  With no daily meal service, a lot of people went to UGM for meals, and people stopped hanging about in Marion Square Park. 

MWVCAA's involvement with the meal providers using its parking lot has kept things fairly orderly and predictable.  They will be more so once the renovations are completed, and the meals move inside.  That's expected to be some time in August.
 
If providers don't choose to move inside in August, they will need to obtain permits from the county every 30 days.  Marion County has waived fees through August 1.  But, after that, the county must charge in order to cover costs.

Before the City undertakes to regulate benevolent meal distributions in parks, it should first find out whether the groups currently serving meals in MWVCAA's parking lot expect to move indoors in August, or whether they, or some of them, plan obtain county permits so that they may continue serving meals outdoors somewhere.  The City should ask whether those county permittees will want to use City parks for meal distributions, and how often.  Then, and only then, should the City decide whether to adopt regulations mandating that benevolent meals be restricted to certain facilities in certain parks, or whether to reject them as stigmatizing and invidious, status-based discrimination in favor of some less restrictive, more humane scheme. 

The City might, or might not need to regulate homeless meal distributions some time in the future, but not along the lines that are currently being proposed.  The City needs to stop, back out its erroneous assumptions and reassess the situation.  If that's what is meant by "Do nothing" (option 4), then that's what SPRAB and CANDO should recommend. 

6/10/19 Update:  from the City Manager's Update of June 5, 2019