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Recycle for Change v. City of Oakland

United States Court of Appeals, Ninth Circuit

May 9, 2017

Recycle for Change, Plaintiff-Appellant,
v.
City of Oakland, a California Municipal Corporation, Defendant-Appellee.

          Argued and Submitted September 13, 2016 San Francisco, California

         Appeal from the United States District Court for the Northern District of California William Horsley Orrick III, District Judge, Presiding Argued and D.C. No. 3:15-cv-05093-WHO.

          Daniel P. Dalton (argued) and Lawrence J. Opalewski, Jr., Dalton & Tomich PLC, Detroit, Michigan, for Plaintiff-Appellant.

          Selia M. Warren (argued), Deputy City Attorney; Otis McGee, Jr., Chief Assistant City Attorney; Barbara J. Parker, City Attorney; Office of the City Attorney, Oakland, California; for Defendant-Appellee.

          Geoffrey M. Pipoly, Williams Montgomery & John Ltd., Chicago, Illinois; Stephen J. van Stempvoort, Miller Johnson, Grand Rapids, Michigan; for Amicus Curiae Planet Aid, Inc.

          Derek P. Cole, Cota Cole LLP, Roseville, California, for Amicus Curiae League of California Cities.

          Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and John R. Tunheim, [*] Chief District Judge.

          SUMMARY[**]

         Civil Rights

         The panel affirmed the denial of preliminary injunctive relief in an action brought by Recycle for Change, a California non-profit corporation, alleging that the City of Oakland's ordinance regulating unattended donation collection boxes was inconsistent with the First Amendment.

         The panel held that assuming that unattended donation collection boxes constituted protected speech or expressive conduct-an issue the panel did not decide-the plaintiff was unlikely to succeed on the merits of its First Amendment claim. The panel held that because the Ordinance does not, by its terms, discriminate on the basis of content, and there was no evidence that Oakland enacted the Ordinance with an intent to burden plaintiff's message of charitable solicitation or out of any disagreement with that message, the Ordinance was content neutral. Applying intermediate scrutiny, the panel held that the Ordinance plainly served important governmental interests unrelated to the suppression of protected speech. Additionally, the Ordinance was sufficiently narrowly tailored and left alternative avenues of communication for plaintiff to express its message.

          OPINION

          GOULD, Circuit Judge.

         Recycle for Change ("RFC"), a California non-profit corporation, challenges the City of Oakland's ("Oakland") ordinance regulating unattended donation collection boxes ("UDCBs") as inconsistent with the First Amendment. RFC sought a preliminary injunction from the district court, which the court denied. RFC appeals that order. Assuming UDCBs constitute protected speech or expressive conduct-an issue we do not decide-we hold that RFC is unlikely to succeed on the merits of its First Amendment claim because the ordinance is content neutral and survives intermediate scrutiny. We affirm the denial of preliminary injunctive relief.

         I

         RFC recycles and reuses donated materials for dual purposes: to conserve environmental resources and to raise funds to be donated to various charities. RFC operates UDCBs in Oakland as a method of collecting donated materials from the public. RFC places UDCBs on private property with the property possessor's permission. The revenue RFC generates from its UDCB operations is a significant part of its overall income.

         On October 20, 2015, Oakland enacted Ordinance No. 13335 C.M.S. (the "Ordinance"). Adding Chapter 5.19 to the Oakland Municipal Code, the Ordinance created a comprehensive licensing scheme governing the operation of UDCBs within city limits. By its terms, the Ordinance applies only to UDCBs, which it defines as "unstaffed dropoff 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." Oakland Mun. Code § 5.19.050. With exceptions irrelevant to this case, the Ordinance makes 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." Id. § 5.19.060(A). To obtain a permit, an operator must, inter alia, pay an application fee that costs about $535, propose a site plan, and obtain at least one million dollars in liability insurance. Id. § 5.19.070. The annual license renewal fee is about $246. The Ordinance sets restrictions on box placement location and size, requires specific periodic maintenance, and prohibits placing a UDCB within one thousand feet of another UDCB. Id. §§ 5.19.120, 5.19.130.

         RFC sued Oakland, asserting that the Ordinance violates the Free Speech and Equal Protection Clauses of the United States Constitution and Article 1, Sections 2 and 7 of the California Constitution. RFC filed a motion for a preliminary injunction against enforcement of the Ordinance based on the federal constitutional claims only. The district court denied RFC's motion after finding that RFC (1) is unlikely to succeed on the merits on its First Amendment claim because the Ordinance is content neutral and survives intermediate scrutiny, (2) is unlikely to succeed on the merits on its Fourteenth Amendment claim because the Ordinance survives ...


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