Donation boxes in Oakland, California. Source: East Bay Express.

Yesterday, in a case that we have been following for the past year, the Ninth Circuit Court of Appeals affirmed a California federal district court’s denial of a motion for preliminary injunction in a case pertaining to unattended donation and collection boxes in Oakland.

The plaintiff, a nonprofit group called Recycle for Change, places donation and collection boxes around Oakland in order to obtain donated materials for the dual purpose of conserving environmental resources and raising funds for charity.  The city enacted an ordinance in 2015 to regulate unattended donation and collection boxes, which included a requirement that the property owner or operator of the boxes obtain a permit, produce a site plan, and carry at least $1 million in liability insurance.  The license fee established under the permitting scheme is $246 per year, and the initial application fee for the permit is $535.  The city’s regulations require maintenance of the boxes, place restrictions on the size and location of the boxes, and prohibit the placement of boxes within 1,000 feet of one another.

Recycle for Change sued Oakland on First Amendment and Equal Protection Clause grounds.  The district court denied the plaintiff’s motion for preliminary injunction.

On appeal, the Ninth Circuit assumed that donation and collection boxes were First Amendment-protected speech.  The Ninth Circuit further found that the ordinance in question was content neutral, because the ordinance applied to “any unattended structure that accepts personal items ‘for distribution, resale, or recycling.’”  The Ninth Circuit distinguished an earlier Sixth Circuit case finding a regulation of donation boxes content based, because that regulation was limited to donation boxes that solicited charitable donations.

In analyzing the ordinance under intermediate scrutiny, the Ninth Circuit found that Oakland had substantial governmental interests in combating blight, illegal dumping, graffiti, and traffic impediments.  The court additionally found that the regulation was narrowly tailored because it included a dispersal requirement, the permitting and license fees were sufficient to defray administrative costs, and the record was indicative of the fact that there are reasonable opportunities for donation boxes to be located throughout the city.  The court found that Recycle for Change had not met the requirements for a preliminary injunction.

This case demonstrates that a municipality that adopts a carefully-worded donation and collection box ordinance is likely to withstand constitutional scrutiny.  Unlike cases where the regulation is targeted specifically at boxes soliciting charitable donations, Oakland’s regulation was found to be neutral because it did not specifically target donations.

Recycle for Change v. City of Oakland, ___ F.3d ___, 2017 WL 1843747 (9th Cir. May 9, 2017).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.