Minnesota Cities Magazine
More from Mar-Apr 2016 issue

From the Bench: District Court Finds Solicitors Ordinance Unconstitutional

Solicitor at someone's front doorCONSTITUTIONAL LAW
Solicitors ordinance
Working America, an advocacy organization focusing on labor issues, sued, challenging the constitutionality of the City of Bloomington’s ordinance that requires door-to-door solicitors to obtain a license before soliciting, and establishes an 8 p.m. to 9 a.m. solicitation curfew. Working America claimed that the ordinance violates its First Amendment rights. The federal district court held that the ordinance was unconstitutional on its face, reasoning that it could not survive the strict scrutiny test that applies because the ordinance is a content-based restriction on speech. Under the strict scrutiny test, an ordinance must be narrowly tailored to further a compelling government interest.

The district court concluded that the government interests in reducing fraud and criminal activity, and in protecting the privacy of homeowners are legitimate government interests, but not compelling ones. The district court also concluded that the ordinance was not narrowly tailored because the city could use less restrictive means to meet its stated interests. Finally, the district court concluded that the ordinance was unconstitutional because it vested subjective discretion with the city’s licensing authority to deny someone a solicitor’s license on the grounds that the applicant was not of good moral character or repute. Working America, Inc. v. City of Bloomington, F.Supp.3d (D. Minn. 2015).

Rulemaking procedure

A group of petitioners, including the League of Minnesota Cities, brought a declaratory judgment action under the Minnesota Administrative Procedure Act challenging the validity of administrative rules that establish numeric water quality standards. The Minnesota Pollution Control Agency (MPCA) promulgated these rules under its authority to administer the federal Clean Water Act in order to protect rivers and streams from impairment. The petitioners argued that the MPCA failed to comply with statutory rulemaking procedures because it failed to adequately respond to petitioners’ comments during the rulemaking process. In particular, petitioners argued that the MPCA did not respond in a meaningful way because it relied on outdated studies or failed to make the studies it relied on part of the public record.

The Minnesota Court of Appeals declared the rules valid, noting that a reviewing court will not substitute its judgment if an agency can demonstrate that it has complied with rulemaking procedures and has made a considered and rational decision. The Court of Appeals reasoned that the MPCA responded to all of the written comments it received after each public hearing, and noted that the record is extensive and includes scientific evidence to support the rules the MPCA adopted. Minnesota Envtl. Sci. and Econ. Review Bd. v. Minnesota Pollution Control Agency, 870 N.W.2d 97 (Minn. Ct. App. 2015).

No Section 1983 claim
Spectra Communications Group provides telecommunications services in the City of Cameron, Missouri, and maintains its facilities in the city’s right-of-way (ROW). The city has a ROW and communications ordinance (ROW code) that requires ROW users to pay user fees, obtain use permits to place or use facilities in the ROW, and to enter into agreements with the city in order to attach facilities to the city’s poles. In 2012, the City of Cameron sued Spectra in state court for failing to pay the user fees and failing to obtain the necessary permits. Spectra subsequently sought a construction permit, but the city refused to grant it based on Spectra’s failure to comply with the ROW code.

Spectra sued in federal district court, claiming the city had violated Section 253 of the Telecommunications Act by requiring Spectra to comply with the ROW code before it would issue the construction permit. Spectra sought damages for the claimed deprivation of its rights under Section 1983 of the Civil Rights Act. The city moved to dismiss the lawsuit, claiming it was not authorized under the Telecommunications Act. The 8th U.S. Circuit Court of Appeals ruled in the city’s favor and held that Section 253 of the Telecommunications Act does not authorize a private right of action for damages under Section 1983 of the Civil Rights Act. Spectra Communications Group, LLC v. City of Cameron, MO, F.3d (8th Cir. 2015).

Statutory immunity
On June 21, 2013, severe storms passed through the CityCartoon of a tree that has fallen on a house of Minneapolis, damaging a large boulevard tree in front of Kuntz’s home. The partially uprooted tree leaned over Kuntz’s house. The tree was one of more than 3,000 damaged in the storms. The city’s Park and Recreation Board is responsible for maintaining boulevard trees. It did not have a written policy for responding to storm emergencies, but in response to these storms, it adopted an informal emergency-response policy under which it removed in the following order of priority: (1) trees blocking emergency routes and other public rights-of-way; (2) trees that fell on houses; (3) structurally defective trees; and (4) tipped and leaning trees not on top of a structure. Park board staff prepared a “Tree Work Request” form for each reported tree and forwarded it to the Forestry Department foreman for the district in which the tree was located.

Kuntz and her neighbors reported her leaning tree multiple times to the park board beginning on June 22. In response, the park board completed a Tree Work Request form for Kuntz’s tree on June 25. Foreman Kevin O’Connor received the form and inspected the tree on June 26. After inspecting Kuntz’s tree, O’Connor contacted Jeff Bean and asked him to remove Kuntz’s tree “as quickly as possible” once he finished the project he was working on. By the time Bean arrived at Kuntz’s property, an approaching thunderstorm made it unsafe to work, so Bean decided to return the next morning. The tree fell on Kuntz’s house later that afternoon. Kuntz sued the park board for negligence.

The district court denied the park board’s summary judgment motion claiming it was entitled to statutory immunity. The Minnesota Court of Appeals reversed and ruled in the park board’s favor. The Court of Appeals concluded that the challenged conduct—the process the park board followed in removing storm-damaged trees—involved planning-level conduct for which the park board is entitled to statutory immunity. Kuntz v. Minneapolis Park and Recreation Bd., No A14-2012 (Minn. Ct. App. July 20, 2015) (unpublished opinion).

Recreational camping areas
The City of Elk River sought a permanent injunction from the district court that would prohibit Wapiti Park Campgrounds from allowing permanent residents and structures at its campground. Under Minnesota Statutes, section 327.14, subdivision 8, a recreational camping area may be used on a “daily, nightly, weekly, or longer basis” for tents or recreational camping vehicles. A recreational camping vehicle is defined under Minnesota Statutes, section 327.14, subdivision 7 as a vehicle “for use as a temporary dwelling for travel, recreational, and vacation uses.” The district court refused to issue an injunction, and the Minnesota Court of Appeals affirmed the district court’s decision. The Court of Appeals noted that “there is no factual dispute that Wapiti Park has allowed permanent residents for years.” However, the Court of Appeals concluded that the city has not identified any conduct by Wapiti Park that could constitute a violation of the state laws regulating recreational camping areas. White v. City of Elk River, No. A15- 0341 (Minn. Ct. App. Oct. 26, 2015) (unpublished opinion). Note: The League filed an amicus curiae brief in the city’s support.

Rulemaking procedure
The Department of Labor and Industry (DLI) promulgated two administrative rules amending the Minnesota Residential Code (MRC) and the Minnesota Residential Energy Code, which are part of the State Building Code. One of the changes to the MRC required sprinkler systems to be built into all newly built townhouses and one- and two-family homes, with an exception for one-family houses under 4,500 square feet. The sprinkler requirement took effect on Jan. 1, 2015. The Builders Association of the Twin Cities brought a pre-enforcement, declaratory judgment action under the Minnesota Administrative Procedure Act to have the rules declared invalid. The Minnesota Court of Appeals held that the rule that adopted the Energy Code was valid, but that the “sprinkler rule” was invalid. The Court of Appeals reasoned that the sprinkler rule was arbitrary because it was not adequately supported by scientific principles, approved tests, or professional judgment. The Court of Appeals also concluded that the DLI had violated statutory rulemaking procedures by failing to adequately address the costs of com¬plying with the sprinkler rule for small businesses and cities. Builders Ass’n of the Twin Cities v. Minnesota Dept. of Labor and Industry, N.W.2d. (Minn. Ct. App. 2015).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.

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