Thursday, May 18th, 2017

Federal Appellate Court Upholds Donation Bin Ordinance

Last week, the Federal Ninth Circuit Appellate Court decided a case concerning the constitutionality of an ordinance regulating Unattended Donation Collection Boxes (UDCB). Specifically, a non-profit operator of UDCBs sought an injunction against the City of Oakland, California, alleging that the City’s UDCB licensing ordinance violated the First Amendment.

The ordinance at issue defined UDCBs as “unstaffed drop-off boxes, containers, receptacles, or similar facility that accept textiles, shoes, books and/or other salvageable personal property items to be used by the operator for distribution, resale, or recycling.” With some exceptions, the Ordinance made it “unlawful to place, operate, maintain, or allow a UDCB on any real property unless the parcel owner/agent and/or operator first obtain[s] an annually renewable UDCB permit from the City.” In obtaining a permit, the operator must pay a $535 application fee (annual renewal fee is $246), propose a site plan, and obtain at least $1 million in liability insurance. Additionally, the Ordinance places further restrictions on “box placement location and size, requires specific periodic maintenance, and prohibits placing a UDCB within one thousand feet of another UDCB.”

In determining whether the ordinance violated the First Amendment, the Court was ultimately tasked with determining if the Ordinance was content based or content neutral. The Court reviews all content based restrictions under strict scrutiny. However, if “such a law does not suppress expression out of concern for its likely communicative impact, [courts] ordinarily apply intermediate scrutiny.” Courts, in deciding if a regulation is content based, first “consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.” The Ordinance will also be subject to strict scrutiny if the regulation “is facially neutral but cannot be justified without reference to the content of the regulated speech or was adopted by the government because of disagreement with the message the speech conveys.” The court ultimately decided that Oakland’s “Ordinance is content neutral because it does not, on its face, discriminate on the basis of content; can be justified without reference to the content of the regulated speech; and there is no evidence that Oakland adopted the Ordinance because it disagreed with the message conveyed by UDCBs.”

In coming to this conclusion, the court rebuffed an argument that the Ordinance was content based because an “enforcing officer would have to examine a container’s message and determine whether the container solicits charitable donations to determine whether the container was subject to the Ordinance’s requirements.” This argument failed for two reasons. First, the Ordinance is not limited to UDCBs soliciting charitable donations, as the Ordinance applies to any unattended structure that accepts items “for distribution, resale, or recycling.” The Ordinance applies regardless of whether the UDCB operator is collecting for charitable reasons or for-profit activities (in fact, Oakland’s largest UDCB operator was a for-profit company). Secondly, courts have “never held, or suggested, that it is improper to look at the content of an oral or written statement in order to determine whether a rule of law applies to a course of conduct.” The Court went on to state that “[i]f applied without common sense, this principle would mean that every sign, except a blank sign, would be content based.”

Interestingly, the Court distinguished this case from a 2015 Federal Sixth Circuit opinion which found a UDCB ordinance to be unconstitutional. Specifically, the Sixth Circuit held that a municipality’s “ordinance banning UDCBs collecting charitable donations was content based not because it required enforcing officers to look just at the message a UDCB itself was expressing, but because it required officers to look for a specific message soliciting charitable donations.” This Court therefore differentiated Oakland’s ordinance from the ordinance at issue in the Sixth Circuit case which “targeted only those bins engaging in a specific kind of protected expression.”

After finding that the Ordinance was content neutral, the Court also determined that the Ordinance survived intermediate scrutiny. The City argued that their regulation promoted a substantial government interest because the Ordinance was implemented to combat blight, illegal dumping, graffiti, and traffic impediments that endanger drivers and pedestrians.

To conclude, this opinion provides much needed guidance to municipalities who wish to enact an ordinance to combat the proliferation of Unattended Donation Collection Boxes.


Jacob-D.-Caudill

Author: Jacob D. Caudill