No More Driveway Bags! Ferndale Sets Limits on Unsolicited Materials Placement
(Crystal A. Proxmire, Dec. 17, 2019)
Ferndale, MI – For the residents fed up with the waste and litter of pink plastic bags stuffed with advertising strewn on lawns and driveways, some relief is coming – at least with the littering part.
Ferndale City Council voted Monday to change the ordinance regarding the distribution of unsolicited materials, setting new regulations about their placement.
Cities cannot ban unsolicited materials. They also cannot create ordinances that regulate the content of materials.
But they can make rules about where they go.
The ordinance begins in 90 days. After that, there is a $100 fine for each violation. “So if you have five houses in a row, that’s five violations,” said Councilperson Dennis Whittie who introduced the ordinance changes after learning of a recent Sixth Circuit Court ruling that allowed municipalities to regulate placement without restricting speech. The City had looked into possibilities for a ban or restriction in previous years, but the law had not yet been clarified by the courts.
Whittie said that as an attorney free speech is important to him, and he’s glad the courts allowed a way for cities to control litter without infringing on that right.
The pink plastic bags, which are distributed weekly by a large corporate publisher, as well as other printed advertising magazines, telephone directories, and other unrequested fliers have ended up accumulating in yards, or collecting at curbs and sometimes even clogging drains.
Under the new ordinance, unsolicited materials shall be placed:
1)On a porch, if one exists, nearest the front door; or
(2)So that such materials are securely attached to the front door; or
(3)Through a door slot on the front door of the principal building or structure as permitted by the United States Postal Service, domestic mail manual, Sec. 508Recipient Services, subsection 3.1.2;or
(4)Between the exterior front door, if one exists and is unlocked, and the interior front door; or
(5)Where permitted, in a distribution box located on or adjacent to the premises;or
(6)Adjacent to postal box near the front door; or
(7)Personally with the owner, occupant, and/or lessee of the premises.
The ordinance is written in a way that holds the publisher responsible, even if they hire someone to act on their behalf by delivering the materials.
Residents who want to report a violation, after the ordinance takes effect March 17, can contact City Hall. A city inspector must come to the property to witness and document the violation.
Whittie said he is unaware of other cities in Oakland County, but that Dearborn and Dearborn Heights have similar ordinances. Whittie helped pen the ordinance, which was also taken on by staff and the city attorney. The ordinance is based off the ordinance in Kentucky that prompted the Circuit Court case.
There Lexington, KY officials restricted the placement of materials after a local publication’s driveway-dropped circulars prompted resident complaints. The publication got an injunction that was ultimately removed by the Circuit Court in 2018.
Whittie said that two of his sisters would be disappointed by the vote, stating that they do extreme couponing and love collecting the un-retrieved bags for the deals inside. But, Whittie said “I have to do what’s best for the city.”
The vote was unanimous to update the ordinance. For more info visit the City of Ferndale website.
UPDATE (Jan. 11, 2020): Following the Sixth Circuit decision, there was a similar case in which Lexington H-L Services sued Lexington-Fayette Urban County Government in 2019. The Sixth Circuit affirmed the decision of the district court, agreeing that the ordinance regulating delivery was “a valid time, place, and manner regulation of speech.” This decision affirms the right of municipalities to regulate placement of unsolicited materials.