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Home My WebLink About8C - Mail Tube Installation 16200 Eagle Creek Avenue S.E. Prior Lake, MN 55372-1714 CITY COUNCIL AGENDA REPORT MEETING DATE: AGENDA #: PREPARED BY: October 3, 2005 80 Frank Boyles, City Manager AGENDA ITEM: FOLLOW UP REPORT ON MAIL TUBE INSTALLATION PRESENTATION: At the September 6,2005, meeting, the City Council received a report from the City Attorney regarding mail tube installation on mail box posts by ECM Publishers, who publish the Thisweek Newspapers. A copy of the agenda item and letter from Mark Anfinson, attorney from ECM, is attached. The Council briefly discussed the report at the meeting. A question arose regarding the placement of mail tubes on private property. The City Attorney asked Mr. Anfinson for a clarification on that issue. His e-mail response is attached. The sum and substance of the letter is that tubes are not placed on private property unless by mistake or only after receiving the private property owner's permission. www.cityofpriorlake.com --I :\CC)UNcii~A(;NRP:YS\26oij\T6()-3i\~PW8Wi~~~~~-:i~!i~-~S~IT~~~~Si-47:4245----b- -------.-- Frank Boyles From: Sent: To: Subject: Suesan L. Pace [space@halleland.com] Wednesday, September 21,20059:17 PM mranfinson@lawyersofminnesota.com; Frank Boyles Re: ECM mail tube issue Thanks mark. Your response addresses the city concerns. Suesan Sent from my BlackBerry Wireless Handheld -----Original Message----- From: Mark Anfinson <mranfinson@lawyersofminnesota.com> To: Sues an L. Pace <space@halleland.com> CC: Duane Lien <duane.lien@ecm-inc.com> Sent: Wed Sep 21 16:42:32 2005 Subject: ECM mail tube issue Suesan: I apologize for not getting back to you more promptly on your recent query. I had some difficulty connecting with the director of circulation. I did speak to him a short time ago, however, and he told me that (except by mistake) ECM would never place posts and tubes on private property at all. Thus, the issue of . obtaining the property-owner's permission simply wouldn't arise. He did assure me, however, that if there was some need or desire to places tubes and posts on private property in the future, the owner's permission would certainly be solicited. I trust this answers the question. If you have any follow-up whatsoever, just let me know. Thanks again for your cooperation. Mark Anfinson 1 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 ~ ~~ank Boyles, City Manag~ 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\COUNCil.V,,(;NRFTS\2005\09GGC5 Pl'iBr\~~5i~;4~7 .4230 / Fax 952.447.4245 RUG-31-2005 15:33 Halleland 08/31/05 14:29 FAX 612 827 3564 LAKE CALHOLm PROF.-BLDG- 6123387858 P.01/02 ~ 0011002 .----..- .-----.-----------.-.-- MARK R ANFINSON ATl'ORNE'l AT L!\W l..AJ.(E GAUiOUN PROFESSIONAL BUILDING 3109 HENNEPIN AVENUE SOUTH MINNEAPOUS. MINNESOTA 55408 (612) 827-56] 1 FAX: (612) 827-3564. mr~On@1awyetllofminneElota.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 bas 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 on private property, the pennission ofllie 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 purposes 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 detennine whether a post or tube is properly emplaced. In the present case, virtually all ofECM's posts EIIld tubes are on public road 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 LAKE CALHOtm PROF.-BLDG- 6123387858 P.02/02 ~ 002/002 ------------------------ 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 PUIposes for which the roadway is used, or with collateral considerations, such as public safety. Again, however, my 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 governmental 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 issue, I would be happy to address them, at your convenience. Yours truly, N1~\L\K~~ VV) 1m. Mark R. Anfinsonl copy to ECM Publishers TOTAL P. 02 ~-- --"'- - --~----_._. ~. ~.~