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Michigan City Fails to Nix Yellow Donation Bins

GRAND RAPIDS, Mich. (CN) - Striking down its ban on charity bins, the 6th Circuit found that St. Johns, Mich., could employ less-restrictive means of preventing blight.

The St. Johns City Council adopted Ordinance 618 at its Jan. 27, 2014, meeting in an effort to ban all outdoor, unattended charitable donation bins.

With the stated aim of "avoiding the creation and maintenance of nuisances," among other things, St. Johns claimed that it needed the ban because people had been leaving boxes and other refuse outside of the bins.

Massachusetts-based Planet Aid had maintained two bins in St. Johns since 2012 - one outside a grocery store and the other at a gas station.

City officials had complained to Planet Aid about its bins in the year before it adopted the ban, and they included a grandfather clause in the proposed ordinance to exempt the already-operational Lions Club Recycling Center from the regulation.

The director of Public Works noted at the meeting that trash drop offs at Planet Aid's two bins had "very seldom" occurred.

Planet Aid, represented by Daniel Dalton of Dalton & Tomich, filed suit under the First Amendment, and a federal judge awarded the nonprofit a restraining order and injunction.

Affirming on Monday, the Cincinnati-based 6th Circuit held that "the ordinance is a content-based regulation of protected speech, and that Planet Aid has demonstrated a strong likelihood of success on the merits of its constitutional claim."

The 17-page opinion cites the city's failure to show that it narrowly tailored Ordinance 618 to promote its supposed interests in preventing blight and preserving aesthetics.

By preventing charities from operating outdoor, unattended bins on that basis, St. Johns "implies, without any evidence, that charities would be negligent in failing to conduct timely pickups of donated goods, in maintaining the appearance of the bins, etc.," Judge Richard Griffin wrote for a three-person panel.

"Further, it assumes that lesser, content-neutral restrictions such as requiring weekly or bi-weekly pickups or inspections of all outdoor receptacles would be ineffective," Griffin added.

St. Johns had to show a compelling government interest and that it narrowly tailored the law in question because the court found that the ordinance regulates the content of speech and is thus subjected to strict scrutiny.

In reaching that conclusion, the court looked to the case Village of Schaumburg v. Citizens for a Better Environment, a 1980 decision in which the Supreme Court said that the First Amendment "clearly" protected "charitable solicitations," noting that its "cases long have protected speech even though it is in the form of ... a solicitation."

Planet Aid's bins are analogous to in-person communication because they communicate information, views and ideas that advocate for their cause, the court found.

"A passer-by who sees a donation bin may be motivated by it to research the charity to decide if he wants to donate - in so doing, the passer-by will gain new information about the social problem the charity seeks to remedy," Griffin wrote.

Dalton & Tomich, the firm that represented Planet Aid, issued a statement on the case from Lawrence Opalewski.

"With companies such as Planet Aid growing quickly around the country, this opinion has the potential to impact hundreds of municipalities," Opalewski said. "Many municipalities have passed laws similar to Ordinance 618 that attempt to ban or severely restrict clothing donation bins. Now, these ordinances must be re-evaluated or face the prospect of being struck down by the federal courts."

Mary Massaron of Plunkett Cooney had represented St. Johns in the case.

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