Why do people get in trouble for feeding the homeless?

One of the ways that the legal system protects homeless people is to keep them from being victimized, in various ways, by dangerous handouts. Food handouts, for example, when they are not cooked or stored properly, can make recipients very sick. So there are laws about food preparation and management. Restaurants, organizations, and food trucks all have to follow these laws. Typically, these are health department regulations. But there can also be criminal laws that apply–such as homicide and battery laws that would punish one person for poisoning another.

Some people think that they are being helpful by collecting and handing out unused prescription medicines to people on the street. That is illegal drug distribution in every jurisdiction. Only licensed medical doctors can legally decide which kinds of medicine a patient needs. Most of the donation punishment stories that upset the public are about food donations.

When companies or nonprofit groups operate a system for distributing food to the homeless, they have a limited degree of protection from the Bill Emerson Good Samaritan Food Donation Act. This is a federal law that protects food donors (whether they donate groceries or cooked meals) from various kinds of liability unless the food that they donate either makes a homeless person sick or kills a homeless person. Most of the time, these donors are not supposed to be charged with violating the federal laws about food packaging and food handling unless they are grossly negligent or intentionally commit misconduct with the food. If they know that something has gone wrong with the food and they are donating it to an organization that will then distribute it to the homeless, they have to tell the organization what went wrong.

Here is an example: Suppose a canned food company has a mix-up at its factory and a hundred cases of canned black beans are mistakenly labeled as canned tomatoes. The company cannot sell those, so they decide to donate them to the poor. This Food Donation Act requires that the canned food company explain the problem to the organization that they donate the cans to. The organization receiving those cans of beans has to (1) be able to fix those labels and then it has to (2) actually fix them. This is not a hard task: They can just print any normal white labels in their usual printer and write on those labels that a mistake was made in the factory packaging and these cans actually hold black beans, not tomatoes.

There is nothing in this federal law that treats major corporations differently than small local food donation services. However, the law specifically says that nothing in it “shall be construed to supercede State or local health regulations.” This is why food donors can still get in trouble for not having the right kind of dish washing facilities or not keeping food at the right temperature.

A chef in San Antonio, Texas who was serving gourmet meals to homeless people got all kinds of media attention when the police cited her for not operating out of a food truck. This chef had a permit for a food truck, but on the night that the police ticketed her, she was distributing food out of a different vehicle. The reasons for the food truck permit laws are all about food safety. Those trucks have to have a certain level of cleanliness and they need refrigeration and adequately warm operating areas for keeping hot food at a safe temperature, plus other features. This chef obviously knew about these rules since she had satisfied the requirements to get the permit, but on that night she brought out food that was not properly stored because it was not in a registered food truck. She truly did break the law and put people at risk.

Her response to the ticket, at least in the media, (she has not gone to court as of this writing) is that she has a First Amendment freedom of religion right to give food to poor people. That is a nice position to take, but it is not relevant to the law she broke. No matter what motivated her, she was only allowed to distribute food from the safe food truck for which she had a permit.

The federal Good Samaritan Food Donation Act only deals with punishment after food recipients have gotten sick. Local, county, and state laws aim to prevent anyone from getting sick by regulating what happens to the food before it gets served. Anybody hoping to offer food donations to the homeless should contact the county health department and the local police to find out in advance how they can be sure that their donations will be safe and legal. And anyone who does get in trouble for violating a food or medicine donation law should appreciate that the authorities are trying to keep the recipients safe.

1. Here is the federal food safety information that applies in all of the states. http://www.foodsafety.gov/

2. Here are links to state agencies regulating food safety. http://www.fsis.usda.gov/wps/portal/fsis/topics/recalls-and-public-health-alerts/additional-recall-links/state-departments-of-public-health/ct_index

3. Here is a portal to the various sorts of laws relating to drugs. http://criminal.findlaw.com/criminal-charges/drug-charges.html

Is it illegal to take food from dumpsters?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Sometimes because of local ordinances against providing food to the homeless, such as laws requiring costly permits to conduct group meals, hungry people seek out food that has been thrown away.  

If property, including leftover food, has been abandoned, then it no longer belongs to the previous owner and taking it is not stealing.  In most cases, generally when trash is outside and expected to be picked up by the trash collectors, the courts have considered the trash to be abandoned property. 

These abandonment cases were not about hungry people taking food.  These cases were about police officers who, in gathering potential evidence from garbage cans, were accused of conducting illegal searches.  See California v. Greenwood at http://supreme.justia.com/us/486/35/case.html and State v. Beltz 160 P.3d 154 (Alaska Ct. of Appeals June, 2008) and Young v. State 72 P.3d 1250 (Alaska Ct. of Appeals July, 2003).

When the trash is stored indoors or in a secluded area, it is often not considered abandoned.

Business-owned dumpsters, located on a business’s own private property and not shared by multiple businesses might not contain abandoned property.  Dumpster companies provide lockable lids, so businesses can lock their dumpsters and keep their trash inaccessible can lock their dumpsters.  Many businesses lock their dumpsters to prevent thieves from stealing account numbers and other private information.

If you think of locking the dumpster as a safety precaution that businesses can take to avoid problems when it is likely that thieves will go through the trash, you might also think that restaurants should take safety precautions when they know that hungry people take food from their dumpsters. Maybe the law should require that non-perishable food be bagged separately or that food be packaged against bacteria and labeled with the date.  To research this kind of idea, look for court cases about “premises liability.”  The most efficient way to find court cases is to go through a printed case index or an electronic database.  Google Scholar and Justia.com both reproduce lots of case decisions for free online. Look for print sources and other databases at your county law library.  See also the list of self-help legal research guides available from the State, Court, and County Law Libraries section of the American Association of Law Libraries. On the topic of food safety, know that there is a federal law called the Bill Emerson Good Samaritan Food Donation Act that authorizes restaurants, caterers, stores, individuals, churches, etc… to donate “apparently wholesome food or an apparently fit grocery product” to non-profit organizations that will distribute it to needy people without being liable for problems that might be inherent in that food.

When trash is not considered “abandoned” and it is still considered the private property of the trash can or dumpster owner then, obviously, taking all or part of that private property is theft.  In some municipalities and states, there are specific theft laws punishing dumpster diving.  Even if those laws don’t exist in a particular place, generic theft laws can be used against people who take someone else’s property whether it was in the house, in the yard, in his hands, in a trash container or anywhere else.
Look for city and state laws at http://law.justia.com/.

There is a whole article about trash ownership and abandonment in  62 ALR 5th 1 (volume 62 of American Law Reports page 1) which is available at most county and university law libraries.  The article is titled “Searches and Seizures: Reasonable Expectation of Privacy in Contents of Garbage or Trash Receptacle” and the author is Kimberly Winbush.

 

Do you need an address to get access to government services such as Welfare, Food Stamps, Medicaid, and Social Security Disability?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

Government agencies have to verify residency and citizenship when providing ongoing services to clients. They realize, however, that residency for the homeless is in places like lobbies, halfway houses, bus stations, churches, and other people’s houses.  When people have those kinds of non-permanent residences, the agencies have a variety of ways to confirm that somebody is who he claims to be and that he generally resides in the place he claims.

The Social Security Administration, which provides financial support for the elderly and disabled, has detailed policies in place for verifying an applicant’s identity.[i] Because that agency is one of the country’s official registrars of citizens,[ii] it has an enormous database of identifying facts about each person here. Using that database, the staff can ask applicants to state their social security number and then answer simple questions including date of birth and parents’ names to establish their identity without having to show an ID card with a street address.
When determining where an applicant can usually be located, Social Security staff are required to “assume that transient or homeless individuals need assistance in providing evidence of their living arrangements.”[iii] This means that the staff will make note of the shelters and other services and places where the applicant reports spending time and will rely on verifications from witnesses who regularly see the claimant at any of those places.

There is a specific provision of the Social Security Disability regulations asserting that people are still eligible for the benefits when they are in a homeless shelter.[iv]

Food stamps, Temporary Aid to Needy Families (a.k.a. “TANF” or “cash assistance”), and Medicaid are federally funded public assistance programs that are administered through state agencies rather than through federal branch offices located in those states. All of these are available to homeless people but, because they have state administration, do not follow exact federal identification rules the way the Social Security programs do. Instead, the public assistance or welfare office in each state makes its own rules about how claimants can prove that they are homeless and lack sufficient financial resources to pay for their own food,[v] healthcare, and other basic needs.[vi]

The United States Code has a basic standard for states to follow in establishing their public assistance eligibility requirements. “The State shall require…that each applicant for or recipient of benefits under that program furnish to the State his social security account number and the State shall utilize such account numbers so as to enable the association of the records pertaining to the applicant or recipient with his account number.”[vii] In other words, if someone does not have a street address, his social security number will be used as the fall-back I.D. validation.

Supplemental to that, the Department of Health and Human Services declares in its fact sheet about Medicaid prescription drug coverage for the homeless that “a Post Office Box, an address of a shelter or clinic, or the address where the individual receives mail (e.g. social security checks) may be considered the place of permanent residence.”[viii]

The United States Department of Agriculture, in its regulations about how states can verify the residency of food stamp applicants says that if a homeless person does not have documents showing that he is affiliated with a street address, “the State agency shall use a collateral contact or other readily available documentary evidence…Any documents or collateral contact which reasonably establish the applicant’s residency must be accepted and no requirement for a specific type of verification may be imposed. No durational residency requirement shall be established.”[ix]

The State offices tend to follow these guidelines with minor variations.

Sample laws:

In California, the residency regulation for food stamps says that the welfare department “shall not require an otherwise eligible household to reside in a permanent dwelling or have a fixed mailing address as a condition of eligibility”.[x] If a California applicant declares a shelter as his residence, the local food stamp office has to confirm that the shelter primarily houses people who are homeless, limits the amount of time that people can stay there, and does not have any kind of lease arrangements with people who stay there.[xi] If a California applicant is not affiliated with a shelter, the food stamp office will decide, after interviewing the applicant, what proof of residency to obtain.New York’s regulations merely declare that an application for food stamps will be accepted even if it only has the applicant’s name and signature and no other information, not even an address. Those regulations do not tell how the department will confirm that an applicant is truly homeless.

In Illinois, only one application is needed when requesting cash assistance, medical assistance, and/or food stamps and that application simply asks “Are you homeless? Yes / No”.[xii] The Illinois Administrative Code explains that homeless people applying for assistance through the Department of Human Services can use a friend or relative’s address or the address of a social service agency or the closest DHS office.[xiii]

To find a state’s food stamp address requirement, look in the state health and human services department’s regulations.  Here is a link to a site that lists administrative codes http://www.llsdc.org/state-leg/. Look in the administrative code’s index under “food stamps” or else look to see if there is an entire section or volume of health and human services regulations. Another way to find these regulations is navigating through the state health and human services department’s Web site. http://www.acf.hhs.gov/

Since an address is not merely used for benefit applications, but is also necessary for ongoing correspondence between clients and government agencies, the agencies might recommend that homeless clients identify a caseworker or social service agency as their contact person or “authorized representative.”[xiv] That way, there will be a consistent place where mail can be sent and where the homeless client knows to check-in. Someone who does not want to deal with an agency can use an address service instead. Here is a post about address services.

Serving as the authorized representative is often a basic job duty of someone who works in a shelter.[xv] Another possibility is that applicants can designate someone to serve as a “representative payee” to receive and deposit checks and generally manage their funds. That relationship clearly involves more than simply providing an address, but that is because it is available to claimants, not on the basis of homelessness, but because they cannot or don’t want to manage money.

A Pennsylvania case cautions about deciding which street address to list when applying for government services. The plaintiff in this case, who later became homeless, had applied for unemployment benefits at an address far away from where he now spent most of his time. He was not allowed to pick-up his benefits check at the office closest to his real location and was instead required to make the long, expensive, time consuming trek to the office near the original address.[xvi] There may be more efficient ways to change an address with a government agency now, and more understanding of the difficulties that homeless people have in documenting their actual whereabouts, but the caution is still worth noting.


[i] Social Security Administration, Program Operations Manual System (POMS)- Section SI 00601.062. The POMS is available online at http://www.ssa.gov/regulations/. See also the Fact Sheet on Supplemental Security Income available from the National Law Center on Homelessness and Poverty http://www.nlchp.org/content/pubs/Fact%20Sheet%20on%20SSI%2020011.pdf

[ii] See the background note at the beginning of the Social Security Administration POMS- Section RM 00203-001. “Over time, the SSN has increasingly been used as a multi-purpose identifier by government, business, and other organizations.”

[iii] Social Security Administration, POMS – Section SI 00835.060

[iv] 20 CFR §416.201. Note that this regulation is part of a broader rule stating that people in the care of institutions are not eligible for the benefits. Since homeless shelters do not provide care, they are exempted from that rule.

[v] U.S. Dep’t. of Agriculture, eligibility for the Supplemental Nutritional Assistance Program.  http://www.fns.usda.gov/snap/eligibility  How to apply in each state: http://www.fns.usda.gov/snap/apply

[vi] U.S.Dep’t of Health and Human Services, http://www.acf.hhs.gov/programs/ofa/programs/tanf/about  Here is the link to the States’ programs: http://www.acf.hhs.gov/programs/ofa/help

[vii] 42 USC §1320b-7(1)

[viii] U.S. Dept. of Health and Human Services, What Do I Need to Know to About Medicare Prescription Drug Coverage to Help My Homeless Clients?, http://www.cms.hhs.gov/HomelessnessInitiative/Downloads/HomelessFactSheet.pdf

[ix] 7 CFR Ch.II §273.2

[x] California Dep’t of Social Services Food Stamp Regulations 63-401.5

[xi] California Dep’t of Social Services Information Notice # 1-04-04. Available at http://www.dss.cahwnet.gov/getinfo/acin04/pdf/I-04_04.pdf

[xii] Application available at http://www.dhs.state.il.us/page.aspx?item=33698

[xiii] Ill. Adm. Code tit. 89 §10.210 (2006).

[xiv]U.S. Dep’t of Agriculture, An Introduction to the Food Stamp Program, http://www.cms.hhs.gov/apps/firststep/content/foodtips.html ; Wash. Admin. Code 388-408-0050 and 388-460-0005 available at http://apps.leg.wa.gov/wac/

[xv] See, New Hampshire’s homeless resources list http://www.nhhealthykids.com/homeless-resources and the Massachusetts Legal Help list of SNAP facts about ways for homeless people to access food stamps. http://www.masslegalhelp.org/income-benefits/fshomelessness

[xvi] Regoli v. Commw Unemployment Bd. Rev. Unemployment Comp. Bd. Rev., 427 A.2d 1275 (Pa. Commw. Ct., 1981).