Tuesday, September 8, 2009

Bauer Exploring Changes in Food Distribution Ordinance

"The way the ordinance is written now," Councilman David Bauer said over the phone to me yesterday. "If a Girl Scout shows up at my door selling cookies, I could have her arrested. If a church members are selling a cake at a bake sale, I could have them arrested."

Bauer is referring to an ordinance recently cited in the summons and "arrest" of a Food Not Bombs member for distributing food in one of their weekly shared meals.

"I'm looking to make sure that a whole variety of people are protected in their activities," Bauer said. "And I want to be sure that we are not applying the law selectively."

While Bauer cites the Girls Scouts, Boy Scouts and church groups in his effort to amend 166-5, which defines activities in which a license must be obtained for the production or distribution of food, it is Food Not Bombs which is the catalyst for the debate.

Bauer will attempt to bring the proposed ordinance change before the Health Department at their regular meeting Monday afternoon (5:15 PM, Room 208, City Hall), but he has been warned that it may be tabled because of a lawsuit filed by Food Not Bombs against the city.

Food Not Bombs members were cited by the City Health Department after being warned that their weekly meals were illegal according to city and state ordinance. One member, Wesleyan student Abe Bobman, also received a summons and has requested a jury trial for his offense. The State Department of Health is currently conducting a hearing into the matter, and Food Not Bombs has sued the city and state for infringement of its rights to express itself through these weekly meals.

Bauer feels the solution to the problem is one that will be beneficial to all groups who share or distribute food occasionally to the public.

In his proposed version of the law, he extends the groups excepted from licensing.

Ordinance as currently written:

§ 166-5 Activities excluded.

The following activities are excluded from the licensing and fee requirements of this chapter: nonpermanent fruit and vegetable stands which do not require preparation, refrigeration, cooking and/or heating of any kind, including but not limited to farmers' markets and roadside stands.

Ordinance as proposed:

§ 166-5 Activities excluded.

The following activities are excluded from the licensing and fee requirements of this chapter:

A. Nonpermanent fruit and vegetable stands which do not require preparation, refrigeration, cooking and/or heating of any kind, including but not limited to farmers' markets and roadside stands.

B. A non-profit cooperative wherein no permanent facilities are used for storing or handling food, and which gives food to its members or guests at no charge.

C. A private home, church, private club, or other nonprofit association that gives or sells food to its members and guests at occasional events.

D. A for-profit entity that gives or sells food at occasional events, for the benefit of a nonprofit association, if the

for-profit entity receives no monetary benefit, other than that resulting from recognition for participating in the event.

If the Health Department accepts his amendments, Bauer plans to bring the proposed ordinance change to the City Council for consideration.


Anonymous said...

This seems like real common sense. Keep it up Bauer!

joseph getter said...

Bauer is correct that the law as written does seem to prohibit bake sales and Girl Scout cookies; probably picnics, too.

Below is the part just before the exceptions list in the original post. It's fascinating in the breadth of its reach:

"B. No person shall store, process and/or prepare and/or sell, dispense and/or offer for sale any food products for human consumption without first obtaining a license from the Director of Health or his duly authorized designee.

C. The provisions of this section shall apply to all persons engaged in the business of manufacture, processing, preparation, storage, sale and/or dispensing of food products, including but not limited to restaurants, lunchrooms, soda fountains, itinerant food vendors and caterers and other eating places or facilities for the accommodation of the general public and dining facilities maintained by private businesses, educational institutions, fraternal organizations, religious organizations and social and other organizations, where the general public may or may not be admitted but where food products are manufactured, processed, prepared, stored, sold and/or dispensed. Caterers, whether operating in public or semipublic dining facilities or as a service to the public generally, are also required to obtain a license as are itinerant food vendors, whether selling from any type of vehicle or on foot."

James Streeto said...

I don't think it would actually prohibit girl scout cookies--those are prepackaged. He's right it would prohibit bake sales....

But perhaps exempting an organization that is suing the city sends the wrong message to both the court in which we're getting sued, and to the citizens at large about enforcement? I'd suggest that it might both expose us to liability on the suit, and, also, might send the message that if you're stubborn enough, the city'll cave in, and let you have your own way.

A pity David didn't raise this a year ago, before all the suits went back and forth.

Anonymous said...

For at state employee who works 8-4 Jim Streeto sure does make a lot of comments????
This needs to be looked into!!!

James Streeto said...

Took the afternoon off Anonymous.... yes, we're actually allowed to do that.

David Sauer said...

Jim Streeto believes that the ordinance as it currently exists bans bake sales. However, despite the fact that this result is absurd Mr. Streeto believes that we cannot consider fixing what is wrong because it might send the wrong message? I think that the message that David Bauer's proposal sends is that the City is willing to examine its position and change it if it is not accomplishing its desired purposed and retain it if it is. To simply say that once a City position is challenged it must be defended, whether or not it makes sense is silly.

If Mr. Streeto is really worried about exposing the City to litigation then he should not have posted his position that bake sales are banned by the ordinance. He has now put into writing his position that the Department of Health is enforcing the ordinance inconsistently. Isn't that the whole claim of the suit against the City?

Instead of exposing the City to liability, as Jim Streeto fears, changing the ordinance might actually end the litigation.

Finally, it seems a little cheap to ridicule Mr. Bauer for not offering this change before the problem developed. I don't think it is his fault he is unable to see into the future and spot every problem before it develops. I give him credit for being willing to raise the issue, which is sure to be controversial.

James Streeto said...

Mr. Sauer--

I posted this after reading your post, but it didn't go through. It might be because of the length, so I'll break it up:

1. I read your remarks with interest, and, as I began formulating a response, realized you were functionally right--and I owe Councilman Bauer an apology. So David (Davids?)--I am sorry, and my last para in my posting was not only unfair; it was also inaccurate, for reasons discussed in next posting.

2. Thank you, btw, for bringing this thread back onto topic. I shouldn't get overly sensitive about such things, but shots at my work ethic tend to get taken very personally by me--I take my job very, very seriously, and it is a lot of responsibility.

Substantive posting follows.

James Streeto said...

Substantive posting:

I earlier accused David (Bauer, not Sauer) of coming a little late to the party, but realized, afterward, that the reason he didn't act was probably the same reason none of us did--we all thought the issue resolved by an amicable compromise. FNB cooks at First Church, the health dept. inspects that kitchen, everyone's happy. The the litigation commenced (over the summer, don't remember exactly when).

Mr. Sauer--you'd be right about this ending the state licensing issue (mootness); but there is also a civil rights suit pending in federal court, asking for attorneys' fees and money damages. Even if we act on this ordinance, that wouldn't necessarily go away. It would require consensus on the part of FNB.

The problem as I perceive it is this is an extremely well meaning but somewhat anarchic group, and it would appear some of the membership doesn't care for group consensus. Which is probably why two proposed compromises which FNB apparently agreed to haven't worked--some people in the group feel strongly and differently than the people who are orchestrating the compromises.

I'm very frustrated by this situation. My parents taught me feeding the hungry is God's work, and I'd like to see it continue. I'd like to support FNB.

A bought with salmonella taught me that the Health Dept. is ALSO doing God's work. I already knew they were overworked, and had a pretty thankless job. When a complaint comes in (even if its dispatched from the top of Mount Crumpet) they must act....otherwise, the city is liable. I'd like to support them too.

My friends and neighbors in town have taught me that MIddletown taxpayers are quite squeezed, and my oath of office (and inclination) requires me to support them as well.

The commencement of the litigation, in my view, makes it impossible for me to do all 3. This is probably why I got snippy in my very first post. I'm not sure of a good course of action right now--suggestions are welcome. I'll be following this thread.