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Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government

United States District Court, E.D. Kentucky, Central Division, Lexington

July 19, 2018

LEXINGTON H-L SERVICES, INC., d/b/a/ LEXINGTON HERALD-LEADER Plaintiff,
v.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, Defendant.

          OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on cross-motions for summary judgment filed by Defendant Lexington-Fayette Urban County Government[1] (DE 55) and Plaintiff Lexington H-L Services, Inc. d/b/a Lexington Herald-Leader (DE 56). The Herald-Leader seeks to permanently enjoin Lexington from enforcing a recently enacted Ordinance which restricts permissible methods of delivering unsolicited written materials within the City. For the reasons set forth below, the Court finds that the Ordinance is a valid time, place, manner regulation of speech and grants summary judgment in favor of Defendant.

         I. Background

         Since October 2014, the Herald-Leader has distributed a free, weekly, non-subscription publication, The Community News, to approximately 130, 000 households in Fayette and Jessamine counties. The Community News, which is typically four to six pages in length, contains both local news and advertisements. The Herald-Leader contracts with a distribution partner who distributes The Community News by various means, but primarily via driveway delivery.

         Recognizing that some recipients may not want to receive its unsolicited publication, the Herald-Leader maintains a “Do Not Deliver” database. There are a number of ways that residents may be added to the database. The front page of each issue contains a phone number and email for residents to contact and opt-out of delivery. As of April 2017, the database contained 2, 899 residents who had opted-out of delivery. Households are also removed if they are listed as “For Sale.” And Herald-Leader's distribution partner is instructed not to deliver a new issue of The Community News if there is already one in the driveway from a previous delivery.

         Lexington Councilmembers began receiving written complaints from residents in 2015 regarding delivery of unsolicited materials from the Herald-Leader and other organizations and urging the City to take action to stop these deliveries. Residents described the materials as litter and reported that their attempts to opt-out of delivery were unsuccessful. (DE 55-2.) Residents also complained that materials were left to accumulate at unoccupied homes, were blown around into the street, and remained on the ground for months unless picked up by residents, creating aesthetic and public safety concerns. (DE 55-2, 55-3, 55-4, 55-5.) These problems were attributed to the practice of tossing these materials on sidewalks, driveways, and yards from moving vehicles. (DE 55-4, 55-5, 55-6.)

         As a result of these complaints, the Lexington Planning and Public Safety Committee held a public hearing on August 11, 2015. At the hearing, the Herald-Leader assured the City that it was addressing these complaints and that it had a system in place to ensure copies of The Community News did not accumulate in front of residences and that residents could easily opt-out of delivery. The problem was not solved, however, and the City continued receiving complaints. (DE 55-8, 55-9, 55-10.) One Councilmember who had opted out of delivery even received a copy and complained directly to Rufus Friday, publisher of the Herald-Leader. This prompted him to send an email to the distributor of The Community News describing the problem as “unacceptable” and worsened by the fact that it was “thrown in the street at the edge of her driveway.” (DE 55-7.)

         Three more public hearings were held on the issue on October 11, 2016, January 17, 2017, and March 2, 2017, when the Council ultimately approved the Ordinance at issue. Prior to passing the Ordinance, the Committee also considered memorandums submitted by Charles Martin, Director of the Division of Water Quality, and Mark Barnard, the Chief of Police. Director Martin expressed concerns that unsolicited materials tossed on driveways could wash into the public storm sewer system and pollute creeks and streams.[2] He also noted that Lexington was required by an Environmental Protection Agency Consent Decree to educate the public about ways to minimize pollution to the City's waterways. (DE 55-11.) Chief Barnard's memorandum noted that unsolicited materials can leave a neighborhood appearing neglected and there accumulation outside households can indicate that a residence is not surveilled or abandoned, leading to an increased risk of burglary. (DE 55-13.)

         The Ordinance passed by Lexington restricts the delivery of “[u]nsolicited written materials”[3] to six enumerated locations: (1) “[o]n a porch . . . nearest the front door;” (2) “securely attached to the front door;” (3) “[t]hrough a mail slot;” (4) “[b]etween the exterior front door, if one exists and is unlocked, and the interior front door;” (5) “in a distribution box;” or (6) “[p]ersonally with the owner, occupant, and/or lessee of the premises.” Ordinance No. 25-2017 § 14-106(b)(1)-(6). The stated purposes of the Ordinance were reducing “unwanted litter and visual blight caused by unsolicited written materials” and preventing damage to and interference with private property. Id. The Ordinance imposes a civil penalty of up to $200 per violation. Id. § 14-106(h).

         After the Ordinance was passed, the Herald-Leader commenced this action seeking to enjoin its enforcement on the basis that it abridges the Herald-Leader's First Amendment rights by prohibiting its preferred distribution method-driveway delivery-of The Community News. The Court previously issued a preliminary injunction against enforcement of the Ordinance which was reversed by the Court of Appeals for the Sixth Circuit. See Lexington H-L Servs., Inc. v. Lexington-Fayette Urban Cty. Gov't, 259 F.Supp.3d 659 (E.D. Ky. 2017), rev'd, 879 F.3d 224 (6th Cir. 2018). This matter was set for a bench trial but, during the pretrial conference, the parties agreed that there were no genuine issues of material fact and therefore summary judgment was the appropriate means for resolving this matter. (DE 61.) Accordingly, this matter is now ripe for consideration.

         II. Standard of Review

         A moving party is entitled to summary judgment pursuant to Federal Rule of Civil Procedure 56 “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). In order to defeat a summary judgment motion, “[t]he nonmoving party must provide more than a scintilla of evidence, ” or, in other words, “sufficient evidence to permit a reasonable jury to find in that party's favor.” Van Gorder v. Grand Trunk W. R.R., Inc., 509 F.3d 265, 268 (6th Cir. 2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Summary judgment must be entered if, “after adequate opportunity for discovery, ” a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Tolton v. American Biodyne, Inc., 48 F.3d 937, 940 (6th Cir. 1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation marks omitted)).

         III. Analysis

         The parties present two distinct frameworks for how the Court should decide this case. Lexington contends that the Ordinance is a valid time, place, and manner regulation of speech. Both this Court's previous Opinion and Order and the opinion of the Sixth Circuit, focused on this issue when resolving the Herald-Leader's motion for preliminary injunction. In contrast, the Herald-Leader relies on the Supreme Court's decision in Martin v. City of Struthers, 319 U.S. 141 (1943) to claim that the First Amendment provides special porteciton to driveway delivery of news and other literature, even if unsolicited. These arguments are considered in turn.

         A. The Ordinance is a valid time, place, manner regulation of speech

         In order for the Ordinance to qualify as a reasonable time, place, and manner regulation of speech, “the law must (1) be content-neutral, (2) serve a significant government interest, (3) be narrowly tailored to serve that government interest and (4) leave open ample alternative channels of communication.” Jobe v. City of Catlettsburg, 409 F.3d 261, 267 (6th Cir. 2005) ...


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