and Submitted September 13, 2016 San Francisco, California
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.
P. Dalton (argued) and Lawrence J. Opalewski, Jr., Dalton
& Tomich PLC, Detroit, Michigan, for Plaintiff-Appellant.
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;
Geoffrey M. Pipoly, Williams Montgomery & John Ltd.,
Chicago, Illinois; Stephen J. van Stempvoort, Miller Johnson,
Grand Rapids, Michigan; for Amicus Curiae Planet Aid, Inc.
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.
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.
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.
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
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
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.
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