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REGULATION OF UNATTENDED DONATION/COLLECTION BINS
recommended action
RECOMMENDATION
It is recommended that the Council Legislation/Environmental Committee:
1. Receive information related to the regulation of Unattended Donation/Collection Bins; and
2. Provide staff direction pertaining to the regulation therein.
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Summary
In 2015, the San Joaquin County Civil Grand Jury released their report on Case No. 1410 (Attachment A). This report included findings and a County-wide recommendation related to the regulation of unattended for-profit donation bins. Per the California Penal Code, the City of Stockton City Council adopted (via motion 2015-09-01-1502) a response to the Presiding Judge of San Joaquin County Superior Court on September 1, 2015.
Direction from the Grand Jury included the development of an ordinance by December 1, 2015, with specific inclusions, to regulate unattended donation/collection bins. That did not occur by the stated deadline. If the City desires to adopt an ordinance at this time, such ordinance must be consistent with applicable case law that has developed since the Grand Jury’s initial direction.
Staff requests direction regarding the development of an ordinance regulating Unattended Donation / Collection Bins.
DISCUSSION
Background
On June 10, 2015, the San Joaquin Grand Jury issued a report entitled Charity Begins at Home - Unattended For-Profit Donation Bins Proliferate Across County (Attachment A). The report analyzed the impacts and challenges created by unattended for-profit donation bins and called for additional regulations for the placement, maintenance and monitoring of unattended bins, including the adoption of an ordinance by each city in the San Joaquin County by December 1, 2015. At the time of the report, one city had an ordinance in place. Since that time, three additional cities have adopted an ordinance and three remain without.
While the Grand Jury cannot compel compliance with its recommendations, per California Penal Code Sections 888 through 939.1, agencies cited in the reports are required to respond to the findings and recommendations of the report.
The City of Stockton’s position in 2015 was in part as follows:
“The City…recognizes that there are community impacts related to unattended donation bins. The City has received and addressed numerous code enforcement complaints related to donation bins.”
“…there are a number of competing rights and interests to be considered in regulating the placement and removal of donation bins on private property . . . .increased regulation alone may not resolve all issues with unattended donation bins…”
“[A] review of current regulations is merited . . . . However, the recommendation is very prescriptive and includes detailed code requirements that may not be best suited of tailored to the specific circumstances in Stockton.”
“City staff will conduct this review . . ., including a review of similar regulations from benchmark cities . . . .”
“The City will take into account and review each of the specific recommendations [of the Grand Jury] but reserves the right to design and adopt those specific regulations that are most appropriate for our community.
(Attachment B Response Letter - Grand Jury Case No. 1410)
Present Situation
It is unclear if a review of regulations occurred in 2015 as current staff was not involved with the project during that time. However, current staff has researched the issue and consulted a number of sources, including League of California Cities case studies (Attachments C and D), case law, and best practices (i.e. existing ordinances - Attachments E, F, and G). Based on the study of these materials, it was found that the regulation of donation bins has evolved as a result of a number of legal challenges across multiple Federal appellate districts and the Supreme Court:
• National Federation of the Blind of Texas Inc. v. Abbott (5th Circuit - 2011)
o Utilized as basis for Planet Aid v. City of St. Johns (addressed below).
o “[a] charitable donation bin can - and does - ‘speak.”
• Linc-Drop v. City of Lincoln (8th Circuit - 2014)
o Regulations requiring permit for only specific boxes, limiting issuance of permits to certain non-profit organizations, and requiring that at least 80 percent of proceeds from boxes be used for charitable purposes was unconstitutional.
• Planet Aid v. City of St. Johns (6th Circuit - 2014)
o Donation bins are entitled to First Amendment protection.
• Reed v. Town of Gilbert (Supreme Court - 2015)
o “Government regulation of speech is content based if a law applies to a particular speech because of the topic discussed or the idea or message expressed.”
• Recycle for Change v. City of Oakland (9th Circuit - 2016)
o Court of Appeals affirmed the city’s ordinance as it was content neutral and survived intermediate scrutiny, plainly served important governmental interests unrelated to the suppression of protected speech, was sufficiently narrowly tailored, and left alternative avenues of communication for the operator to express its message.
The Grand Jury Report did not reference any applicable case law of the time, and it is unknown if it had been utilized when developing recommendations to San Joaquin County cities. The following chart lists all Grand Jury recommendation and consistency with current case law:
|
GJ Recommendations |
Meets Case Law Precedents? |
Notes |
|
Shall require written consent from property owners before placement of any donation bin on private property |
Yes |
Pertains to location, not message |
|
Shall obligate the bin owner to maintain it |
Yes |
Does not limit speech |
|
Shall obligate the bin owner to hold property owners and their agents harmless from liability who remove unwanted bins from their property |
Unclear |
|
|
Shall require donation bins meet or exceed the requirements found in the California Welfare and Institutions Code, §150 to 153 |
Neutral |
Regulation should focus on the nature of the container, not the message on it. |
|
Shall adopt sanctions for any violations of the ordinance provisions |
Yes |
Common enforcement method |
|
Shall require owners of donation bins that do not have IRS Code 501(c)(3) status to pay a permit fee to generate income to help off-set ordinance enforcement efforts |
No |
Avoid distinctions based on Operator type |
The Ninth Circuit Court of Appeals upheld the City of Oakland’s Ordinance in 2017, their ordinance was modeled as follows:
• Document the Problem: Identify a legitimate government interest, such as Public Safety
• Avoid a Complete Ban: Ensure content neutrality
• Avoid Distinctions Based on Operator: Do not favor non-profits over private
• Limit Discretion: Use narrow and objective standards
• Document Alternative Channels of Communication: Don’t infringe on First Amendment rights
Content Neutrality and objective standards are key themes when developing an Ordinance to regulate donation bins as they are considered free speech. Regulations that focus on a legitimate government interest to address a public concern, only regulate place and manner (as opposed to message), do not favor specific operators, limit discretion to factors outside of the message being communicated, and leaves open alternate avenues of communication are more likely to survive a legal challenge. Current ordinances from the Cities of Oakland and Campbell meet these considerations and are good templates. Also, as refenced in the Regulation of Donation Bins & Trailers case study, the Secondary Materials and Recycled Textiles Association (SMART) developed an ordinance template that is shared with local government jurisdictions and may serve as an ordinance option. These are attached and regulate Donation Bins as follows:
• Identifies a clear purpose
o Promote the health, safety, and/or welfare of the public by providing minimum blight-related performance standards for the operation of unattended donation/collection boxes
• Provides enforcement authority
o Administrative penalties, citations, civil action and/or other legal remedies
o Compliance process
• Identifies responsibility of the property owner and bin operator
• Provides clear definitions
• Requires a permit to place, operate, maintain, or allow a donation bin on any real property
• Outlines application requirements
o Property owner permission, proof of insurance, required labels, maintenance plan, etc.
• Outlines permit administration (approval process, appeals, renewals, expiration, process for removal/revocation)
• Identifies standards
o Location, setbacks, prohibitions, limit on number of bins per site
o Physical attributes of bins (size, materials, etc.)
o Maintenance
• Clarifies liability and protections
• Reporting
o Total number of tons of goods diverted from the municipal waste stream
In summation, staff recommends that if regulations are desired, utilizing these best practices that have withstood legal challenge is best.
Attachment A - 2014-2015 Grand Jury Report - Case No. 1410
Attachment B - Response Letter - Grand Jury Case No. 1410
Attachment C - League of CA Cities Regulation of Donation Bins & Trailers
Attachment D - League of CA Cities Reed’s Impact on Solicitation Ordinances: Regulating Content, Conduct or Communication?
Attachment E - City of Oakland, CA Chapter 5.19
Attachment F - City of Campbell, CA Section 21.36.245
Attachment G - Secondary Materials and Recycled Textiles Association Ordinance Template