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Home My WebLink About8A - Mail Tube Installations MEETING DATE: AGENDA #: PREPARED BY: AGENDA ITEM: DISCUSSION: 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 CITY COUNCil AGENDA REPORT September 6,2005 _^ct\ :~nk Boyles, City Mana;e~ REPORT REGARDING MAil TUBE INSTAllATION Historv ECM Publishers distribute newspapers weekly to some 300,000 addresses in the metropolitan area. They have recently installed mail tubes on mail box posts. Since the City received telephone calls of concern about this, the City Attorney requested a legal opinion from the attorney representing ECM Publishers regarding their authority to install mail tubes without first obtaining permission. Current Circumstances Attached is the legal opinion from Mark Anfinson, the ECM attorney. City Attorney Suesan Lea Pace will provide a brief presentation to the Council regarding this question and the attached legal opinion. www.cityofpriorlake.com I\COUNCiUJ\CNRFTS\2005\090605 PW8rt~t9'5ftt~7 .4230 / Fax 952.447.4245 AUG-31-2005 15:33 Halleland 08/31/05 14:29 FAX 612 827 3564 6123387858 P.01/02 141 001/002 LAKE CALHOUN PROF.-BLDG- .----..- .-- ---.-- ----------- -- MARK R ANFINSON ATrORNEY AT I.J\W LAKE GAUiOUN PROFESSIONAL BU1LDING 3109 HENNEPIN AVENUE SOUTH MINNEAPOUS. MINNES01.^ 5540B (612) 827-561 1 FAX; (612) 827-3564. mranDnsOn@lawyeraofmitm.eBQta.cOm August 31, 2005 VIA FACSIMILE TO 338~7858 Suesan Lea Pace, Esq. Halleland, Lewis 220 South Sixth Street, Suite 600 Minneapolis, MN 55402 Re: ECM Publishers Placement of Deliverv Tubes and Posts Dear Sue: I represent ECM publishers, which has asked me to provide a legal opinion addressing placement of delivery tubes and posts in the city of Prior Lake. My understanding is that questions have recently been raised about the propriety of the placement of such tubes and posts. At the outset, I would note that I have acquired considerable expertise in newspaper law, having acted as~ among other things, general counsel for the Minnesota Newspaper Association (the trade association of all the state's newspapers) for more than 20 years. I have encountered the specific issue addressed in this opinion on many previous occasions. Speaking generally, newspaper posts and tubes may be placed on either public or private property. If a post is located. OD private property, the permission of the owner of the property is of course required. However, my client typically does not place tubes and posts on purely private property; instead, it uses mainly public property, specifically the rights-of-way for public streets and roads. As you know, portions of the right-of-way on the edges of streets and roads are often treated by owners of the adjoining private property as part of their own. However, for legal pmposes these portions are not ultimately controlled by the property-owners, and thus it is the owner of the right-of-way, not the owner of the adjoining private property, that has the authority to determine whether a post or tube is properly emplaced. In the present case, virtually all of ECM's posts and tubes are on public TOad rights-of-way. These are presumably held by the city of Prior Lake~ the state of Minnesota, or possibly Scott County. Because of this, regulation of the posts and tubes must comply with constitutional AUG-31-2005 15:33 Halleland 08/31/05 14:29 FAX 612 827 3564 6123387858 P.02/02 141 002/002 LAKE CALHOUN PROF.-BLDG- ------------------------ Suesan Lea Pace, Esq. August 31, 2005 Page 2 guarantees, in particular those arising under the First Amendment to the United States constitu- tion. The First Amendment has been interpreted in many court decisions as protecting the right to distribute newspapers. See, e.g.. Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993). While these decisions do not give newspapers free rein to distribute in any fashion they may want to. a regulatory scheme adopted by a government agency that restricts distribution must be premised on clear and factually demonstrated necessity related to a significant governmental interest. Certainly government agencies have the right-and indeed the obligation-to insure that no item placed in the public right-of-way materially interferes with the principal purposes for which the roadway is used, or with collateral considerations, such as public safety. Again, however. lIlY client strives to locate its tubes and posts well away from the road itself. and aligned with similar items, such as mailbox. posts. It has generally been held that where newspaper posts and tubes are set back from the roadway in this fashion, a govemmental agency cannot demonstrate a sufficient basis for preventing them entirely. If you, the city staff. or members of the city council should have further questions about this jssue, I would be happy to address them, at your convenience. Yours truly. Nl~\L\K ~hw O'V) 1m., Mark R. Anfinson copy to ECM Publishers TOTAL P.02