Nat'l Fed'n of the Blind of Tex. v. City of Arlington
| Decision Date | 09 September 2022 |
| Docket Number | Civil Action 3:21-CV-2028-B |
| Parties | NATIONAL FEDERATION OF THE BLIND OF TEXAS INC., and ARMS OF HOPE, Plaintiffs, v. CITY OF ARLINGTON, TEXAS, Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Before the Court are Plaintiffs National Federation of the Blind of Texas Inc. (NFBTX) and Arms of Hope (AOH) (collectively Plaintiffs)' Motion for Partial Summary Judgment (Doc 50) and Defendant City of Arlington, Texas (Arlington or the City)'s Motion for Summary Judgment (Doc. 47). For the reasons given below, the Court GRANTS IN PART and DENIES IN PART both motions.
This is a First Amendment freedom of speech case about unattended donation collection bins (donation bins). Plaintiffs “are charitable, nonprofit organizations operating in the State of Texas.” Doc. 35, Am. Compl., ¶ 11. NFBTX is “[d]edicated to the complete integration of the blind into society . . . [and] works toward the removal of legal, economic, and societal barriers to full participation by blind people in employment, education recreation, and all other aspects of community life.” Id. “AOH focuses on providing a safe home and Christian environment for children and single-mother families in need . . . [so they can] avoid homelessness, poverty, abuse, and neglect.” Id.
Both Plaintiffs partner with third-party companies to place donation bins bearing signage about Plaintiffs and their missions at various Texas locations. Id. ¶¶ 23, 27. The bins placed by Plaintiffs through their third-party partners “receive and collect unwanted, used clothing and household items from donors for reuse while spreading the charitable organization's mission.” Id. ¶ 23. Plaintiffs, through the third-party partners, also collect donated goods by scheduled truck pick ups at donors' residences. Doc. 49, Def.'s App., 314, 427.[1] The third-party partners pay Plaintiffs perpound for the donated items and then resell the items to thrift shops. Id. at 326-27, 346, 353, 425. The donation bins are a source of revenue for Plaintiffs, who emphasize that the bins also perform two communicative functions: “First, they deliver a message that builds awareness about the organization's cause and, second, they communicate an appeal for support of that cause.” Doc. 35, Am. Compl., ¶ 14.
While such donation bins benefit Plaintiffs, they have burdened Arlington. The bins which are generally “unattended, stand-alone boxes, approximately six feet tall, five feet wide and four feet deep” and “typically placed in parking lots” were “[u]ntil recently . . . unregulated in Arlington, and [their] number . . . had begun to proliferate.” Doc. 48, Def.'s Br., 3-4 (citing Doc. 49, Def.'s App., 301). “By 2015, there were at least 90 unattended donation boxes[2] dispersed throughout Arlington many in the city center.” Doc. 49, Def.'s App., 301. The City's “code enforcement officers were constantly fielding complaints from business owners, property owners, and residents concerning littered, unmaintained, and hazardous donation boxes on their street corners, parking lots, and properties.” Id. Common issues with the bins included overflow of items, illegal dumping, broken glass and litter near the bins, and scavenging. Id. Arlington found it difficult to track down donation bin owners and enforce bin-related code violations with a limited code-compliance staff. Id. at 302.
Arlington adopted an ordinance regulating donation bins to address these issues. After engaging with stakeholders and the public, id. at 110-11, 120-51, and completing “a three-month study of donation boxes and their adverse secondary effects in the City” (the Visual Survey), Doc. 48, Def.'s Br., 8; Doc. 49, Def.'s App., at 5-109, as well as a two-month supplemental survey (the Supplemental Survey), Doc. 49, Def.'s App., 217-99, Arlington enacted Ordinance 18-044, codified as the ‘Donation Boxes Chapter' of the Code of the City of Arlington, Texas (the Ordinance). Doc. 49, Def.'s App., 142-51.
The Ordinance makes it “unlawful for any person to place or maintain, or allow to be placed or maintained, a donation box at any location within the City of Arlington, without a valid permit issued in accordance with this Article.” Arlington, Tex., Ordinance 18-044, § 3.01(A) (Aug. 21, 2018). “‘Person' includes an individual, sole proprietorship, corporation, association, nonprofit corporation, partnership, joint venture, a limited liability company, estate, trust, public or private organization, or any other legal entity.” Id. § 2.01. “‘Donation Box' means any drop-off box, container, trailer or other receptacle that is intended for use as a collection point for accepting donated textiles, clothing, shoes, books, toys, dishes, household items, or other salvageable items of personal property.” Id.
Section 3.03 sets out eleven requirements to obtain a permit. Id. § 3.03. One of the eleven, Section 3.03(I) (the Setback Requirement) provides that: Id. § 3.03(I).
Sections 3.04 and 3.09 describe the permit application and appeals process (the Permitting Requirements). Id. §§ 3.04, 3.09. Applicants must “file a written, sworn application with the Administrator,” with “[a] separate permit and application . . . required for each donation box regardless of the ownership thereof,” and pay an “annual permit fee.” Id. § 3.04 (A)-(C). “Any person denied a permit shall have the right to appeal such action in accordance with the provisions of Section 3.09.” Id. § 3.04(D). Section 3.09 provides an administrative appeals process to be conducted by the Administrator, whose decision is appealable to the City Appeal Officer. Id. § 3.09. The process for the City Appeal Officer's review and decision is set forth in Section 3.10. Id. § 3.10. If a permit is granted, the donation bin must be maintained pursuant to the requirements of Section 3.06, which include servicing the bin, keeping it free of debris, removing any donation left outside the bin, and maintaining its structural and visual integrity. Id. § 3.06. The bin must also display its owner's contact information and a disclosure warning donors that donated items must fit inside. Id. § 3.03(J)-(K). Among other restrictions, a bin may not be placed where it will impede traffic or impair driver sightlines; block access to easements, fire hydrants, or required parking spaces; or sit within 200 feet of any residential dwelling use district or in a drainage easement or floodplain. Id. § 3.06.
Repeat violations of these requirements may result in permit revocation and impoundment of the offending donation bin. Id. § 3.07(A), (D). If a permit holder's permit is revoked, they cannot be issued another permit until after a one-year waiting period. Id. § 3.07(E). A violation of the Ordinance is a misdemeanor offense punishable by fine, and the Ordinance is cumulative with other city laws. Id. at 9. If any part of the Ordinance is found to be unconstitutional, that part is severable. See id.
After the Ordinance's enactment, NFBTX filed suit on August 26, 2021, alleging that the Ordinance violates its First Amendment right to engage in charitable speech. Doc. 1, Compl. In January 2022, the Court permitted AOH's joinder and Plaintiffs filed the operative Amended Complaint. Nat'l Fed'n of the Blind of Tex. Inc. v. City of Arlington, 2022 WL 93941, at *4 (N.D. Tex. Jan. 10, 2022); Doc. 35, Am. Compl.
Plaintiffs challenge the Ordinance as facially unconstitutional for four reasons: (1) as a zoning ban; (2) for imposing an unduly burdensome setback restriction; (3) as overbroad; and (4) as a prior restraint on speech. Doc. 35, Am. Compl., ¶¶ 76-112. They seek declaratory and injunctive relief under 42 U.S.C. § 1983, asking the Court to declare the Ordinance unconstitutional on these bases and to enjoin Arlington from enforcing the Ordinance. Id. at 1, 22. NFBTX also challenges the setback restriction as applied to NFBTX's permit applications. Id. ¶ 102.
After conclusion of an expedited discovery period, Plaintiffs moved for partial summary judgment “on the facial claims raised in Counts I, III, and IV of their First Amended Complaint.” Doc. 50, Pls.' Mot., 1. Arlington moved for summary judgment on all four of Plaintiffs' claims. Doc. 47, Def.'s Mot., 1. The motions are fully briefed and ripe for review. The Court addresses them below.
Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P 56(a). “[T]he substantive law . . . identif[ies] which facts are material,” and only a “dispute[] over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the facts and the inferences drawn from the facts “in the light most favorable to the...
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