Many communities are experiencing a proliferation of unattended donation receptacles. Most frequently these receptacles are placed in the name of or by a charitable organization. Unattended donation receptacles offer a number of positives for both the charitable organization, which is the beneficiary, and the local community.
From a practical perspective, these programs provide an enhanced opportunity for individuals who may not otherwise be able to financially donate to their favorite charity to still participate in the philanthropic movement. Outdated or unused clothing can be turned into cash for worthy charitable organizations. Likewise, small household goods can be recycled rather than filling the local landfill.
A number of municipalities, counties, and states have already, or are contemplating, new licensing or regulation of the industry as these programs continue to evolve. The issues seen by the local communities and the states include the placement of bins without permission, and the failure to empty or maintain the receptacles in a proper manner. In addition, legislative efforts continue to be made to address situations that arise when a for-profit company places unattended donation bins that imply the donations are going to help a charitable cause, when in fact they are being solicited for private gain.
In our practice, we have seen local communities attempt to prohibit the placement of such receptacles, as well as state laws that impose a series of requirements, including disclosure and formal permission, and in some cases, licensing. We have worked with the industry to try to steer the direction of the regulations so that they are both effective and responsible for all parties concerned.
There have already been lawsuits (including our successful challenge to a Texas law in Nat’l Fed’n of the Blind of Tex., Inc. v. Abbott, 647 F.3d 202 (5th Cir. 2011)), to establish the parameters of what constitutes proper regulation. In April 2015, the United States Court of Appeals for the Sixth Circuit invalidated an outright prohibition by a city in Michigan. Adopting the logic of Abbott, the Court found that the bin ban was a form of content regulation of a free speech activity.
While this is not intended as a legal article, it is instructive to see how the Sixth Circuit Court expanded on our Texas case when it said:
A charitable donation bin can-and does- “speak.” and not only in the ways described by the Fifth Circuit court in Abbott. A passer-by who sees a donation bin may be motivated by it to research the charity to decide if he wants to donate - in so doing, the passer-by will gain new information about the social problem the charity seeks to remedy. Indeed, the donation bin may ultimately motivate citizens to donate clothing or shoes even if they had not previously considered doing so. The speech may not be unidirectional, either - a citizen faced with a choice among several bins from different charities may be inspired to learn more about each charity’s mission in deciding which charity is consistent with his values, thus influencing his donation decision. In this way, donation bins in many respects mirror the passive speaker on the side of the road, holding a sign drawing attention to his cause.
Planet Aid v. City of St. Johns, 782 F.3d 318, 325 (6th Cir. 2015).
The bottom line is that these programs are subject to reasonable forms of regulation. When these programs are properly conducted, everyone wins. The relationship between the parties involved in the program can be structured in such a way as to create an opportunity for a qualified charitable organization (which must be registered in the state in which the activity takes place) to engage in a low cost fundraising initiative.
If you wish to know more about this area of charitable fundraising, please contact me.