Opposition Brief — Haggerty v. City of Pompano Beach

| Supreme Court, U.S.

FILED

2) FEB 3 1989

\ JOSEPH F. SPANIOL, JR.

No. 88-1205 ; CLERK :

In The

Supreme Court of the United States

October Term, 1988

e

TIMOTHY HAGGERTY,

Petitioner,

versus

CITY OF POMPANO BEACH,

Respondent.

Sd

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT COURT OF APPEAL OF FLORIDA,

FOURTH DISTRICT

+

DonaLbD C. ROBERGE SHARON V. DELEGAL

City Attorney Assistant City Attorney

P.O. Box 2083 P.O. Box 2083

Pompano Beach, Florida 33061 Pompano Beach, Florida 33061

Counsel of Record Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

II.

i

QUESTIONS PRESENTED (RESTATED)

IS A MUNICIPALITY PROHIBITED BY THE

SUPREMACY CLAUSE OF THE UNITED STATES

CONSTITUTION FROM REGULATING THE

HEIGHT AND SIZE OF THE SUPPORTING POSTS

FOR A U.S. MAIL RECEPTACLE WHICH IS

LOCATED IN THE PUBLIC RIGHT OF WAY.

DOES ENFORCEMENT OF A MUNICIPAL ORDI-

NANCE WHICH REGULATES THE HEIGHT AND

SIZE OF THE SUPPORTING POSTS FOR A USS.

MAIL RECEPTACLE LOCATED IN PUBLIC RIGHT

OF WAY VIOLATE THE FIRST AMENDMENT.

ii

RULE 28.1 LIST

Respondent, City of Pompano Beach is a municipal cor-

poration established under the laws of the State of Flor-

ida. Respondent was the Appellant/Defendant in the

court below.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED (Restated)............... i

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CONSTITUTIONAL AND STATUTORY PROVI-

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REASONS FOR DENYING THE WRIT............. 7

I. THE SUPREMACY CLAUSE OF THE UNITED

STATES CONSTITUTION DOES NOT PRO-

HIBIT A MUNICIPALITY FROM REGULAT-

ING THE HEIGHT AND SIZE OF THE

SUPPORTING POSTS FOR A U.S. MAIL

RECEPTACLE LOCATED IN THE PUBLIC

EE ho av cen ise sek sbekninkeiesss 7

II. A MUNICIPAL ORDINANCE WHICH REGU-

LATES THE HEIGHT AND SIZE OF THE SUP-

PORTING POSTS FOR A U.S. MAIL

RECEPTACLE LOCATED IN PUBLIC RIGHT

OF WAY DOES NOT VIOLATE THE FIRST

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iv

TABLE OF AUTHORITIES

Page

Cases

Brickell v. Town of Fort Lauderdale, 78 So. 681 (Fla.

SPE tbnhecticstinsenetetsdebccsahe tbbeseste saws 13

City of Pompano Beach v. Haggerty, 530 So. 2d 1023

(Pie. Gtk DOA TOG) oc ccc cscs cccssesiccececccscees 9

Grover City v. United States Post Office, 391 F.Supp.

GR GTA GE. FRG ce denccccessvcsrcdaceececes 10, 11

Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399 (1941) ..... 7

Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct.

TD GE ao cabins ce ncndeewncccadeweessdadanetenss 7

Members of City Council v. Taxpayers for Vincent,

466 U.S. 789, 104 S.Ct. 2118 (1984)................ 13

Metromedia, Inc. v. San Diego, 453 U.S. 490, 101

DGB CED cok bb occa cn axesisueksdaseesssans 15

Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct.

Fe NT ay ink nck seksi es egenevesrndaeeseeassesones 7

U.S. v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673 (1968) ...12, 15

CONSTITUTIONAL PROVISIONS, STATUTES, REGULATIONS AND

ORDINANCES

United States Constitution

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V

TABLE OF AUTHORITIES-Continued

Page

Statutes

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a Wade EE hn kab obaee aaah ee 1, 8

SP MM dk hs Kena ecdeet dado ee 2, 10

Domestic Mail Manual

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IN NE bdo a dace es ee ee eee 3, 8

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City of Pompano Beach Code of Ordinances

| Ee rg miss an nN > € i3

No. 88-1205

sa.

-

In The

Supreme Court of the United States

October Term, 1988

,%

er

TIMOTHY HAGGERTY,

Petitioner,

versus

CITY OF POMPANO BEACH,

Respondent.

,™

. 4

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO

THE DISTRICT COURT OF APPEAL OF FLORIDA,

FOURTH DISTRICT

,%

-

CONSTITUTIONAL AND STATUTORY PROVISIONS

(NOT INLCUDED IN PETITIONER’S BRIEF)

39 U.S.C. Sec. 201. United States Postal Service.

There is established, as an independent establish-

ment of the government of the United States, the

United States Postal Service.

39 U.S.C. Sec. 401. General powers of the Postal

Service.

The Postal Service shall have the following general

powers:

(2)

(a)

(b)

(c)

2

to adopt, amend, and repeal such rules and regula-

tions as it deems necessary to accomplish the objec-

tives of this title;

39 U.S.C. Sec. 403. General duties.

The Postal Service shall plan, develop, promote,

and provide adequate and efficient postal services

at fair and reasonable rates and fees. The Postal

Service shall receive, transmit, and deliver

throughout the United States, its territories and

possessions, and, pursuant to arrangements

entered into under sections 406 and 411 of this title,

throughout the world, written and printed matter,

parcels, and like materials and provide such other

services incidental thereto as it finds appropriate to

its functions and in the public interest. The Postal

Service shall serve as nearly as practicable the

entire population of the United States.

It shall be the responsibility of the Postal Service -

(1) to maintain an efficient system of collection,

sorting, and delivery of the mail nationwide;

(2) to provide types of mail service to meet the

needs of different categories of mail and mail

users; and

(3) to establish and maintain postal facilities of

such character and in such locations that

postal patrons throughout the Nation will,

consistent with reasonable economies of

postal operations, have ready access to essen-

tial postal services.

In providing services and in establishing classifica-

tions, rates, and fees under this title, the Postal

Service shall not, except as specifically authorized

in this title, make any undue or unreasonable dis-

crimination among users of the mails, nor shall it

grant any undue or unreasonable preferences to

any such users.

3

DOMESTIC MAIL MANUAL, SECTION 111.1

111.1 General

This manual contains the regulations of the

United States Postal Service governing its domestic

mail services. These regulations include the rates

for postage and restrictions on its use, descriptions

of the classes of mail and special services and

conditions governing their use, requirements for

wrapping and mailing, explanations of collection

and delivery services, and general provisions con-

cerning the use of postal services and facilities.

DOMESTIC MAIL MANUAL, SECTION 151.1

151.1 Designation As Authorized Depository.

Every letterbox or other receptacle intended or

used for the receipt or delivery of mail on any city

delivery route, rural delivery route, highway con-

tract route, or other mail route is designated an

authorized depository for mail within the meaning

of 18 U.S.C. sections 1701, 1705, 1708, and 1725,

except that door slots, and nonlockable bins or

troughs used in connection with apartment house

mailboxes are not letter boxes within the meaning

of 18 U.S.C. 1725 and not private mail receptacles

within the meaning of 146.2. The post is not part of

the receptacle.

DOMESTIC MAIL MANUAL, SECTION 155.232

155.232 Curbside Delivery.

Delivery may be provided to boxes located at the

curb so they can be safely and conveniently served

by the carrier from his vehicle.

4

DOMESTIC MAIL MANUAL, SECTION 155.27-155.272

155.27 Local Ordinances.

If a customer chooses not to erect a curbside box

because of a local, city, county, or state ordinance

prohibiting the installation of mailboxes at the

curb, the delivery options in establishments and

extensions are:

155.271 Central delivery services may be provided

at one or more central points in a residential hous-

ing development, community or area, if:

a. The local postal managers approve the

mailbox sites and equipment;

b. There is a minimum of two mailboxes

erected at each mailbox site (there is no

maximum limit); and

c. The customers are not required to travel

an unreasonable distance to obtain their

mail; or,

155.272 Post office box or general delivery service

may be provided at the nearest postal facility

where carrier delivery emanates.

DOMESTIC MAIL MANUAL, SECTION 156.531

156.531 Construction

Posts or other supports for rural boxes must be

neat and of adequate strength and size. They may

not be designed to represent effigies or caricatures

that would tend to disparge or ridicule any person.

The box may be attached to a fixed or movable

arm.

>?

STATEMENT OF THE CASE

The Petitioner, Timothy Haggerty, has placed on the

Public right of way in front of his residence two different

structures which he refers to as “mailboxes”. The second

structure which prompted this litigation consists of two

truck engine blocks which serve as anchors for two and

one-half inch water pipes that rise about fifteen feet in

the air. Two horizontal bars are connected to the vertical

pipes. The receptacle for mail is attached to the first

horizontal pipe which is located about three feet from the

ground, the second horizontal pipe is located several feet

above the mailbox from which a two inch gas pipe rises

into the air and functions as a flagpole. The first structure

erected by the Plaintiff was similar in size and structure.

The City of Pompano Beach had in effect at the outset

of the proceedings involving Mr. Haggerty an ordinance

which prohibited structures in the right of way (Pompano

Beach Code of Ordinances Section 100.35). The ordinance

as originally drafted did not specifically address mail-

boxes but was interpreted and enforced by the City to

allow a receptacle for the curbside delivery of mail in the

right of way (The ordinance was amended by the City

prior to the District Court of Appeal of the State of

Florida Fourth District’s review and the amended ordi-

nance was before that Court. The amended ordinance

specifically addresses mailboxes and permits them in the

public right of way provided they do not exceed certain

height and size limitations).

The City took the position that the structure was in

violation of Sec. 100.35 of the Code of Ordinances based

on the way the structure was fastened to the ground and

the size of the structure. Mr. Haggerty was cited and a

non-jury trial was held before County Court Judge

Mowry in June of 1983 at which time Mr. Haggerty’s

Motion to Dismiss on selective enforcement grounds was

granted without prejudice. An appeal followed and the

decision was reversed. Upon remand, a trial was held

before County Court Judge June Johnson and Mr. Hag-

gerty was found in violation of the ordinance. The City

removed the Petitioner’s structure.

Mr. Haggerty filed an appeal from the County Court

decision, however, prior to the Appellate Court decision

which reversed the lower court on double jeopardy

grounds, Mr. Haggerty erected the second structure.

The City sent notices of violation for the second

structure and the structure was removed and Mr. Hag-

gerty then filed a complaint seeking a Declaratory Judg-

ment and Injunctive relief. A non-jury trial was held and

Circuit Court Judge Abel entered an Order permanently

enjoining the City from enforcing its Ordinance against

the Plaintiff and declaring the Ordinance invalid insofar

as it purports to authorize the removal of the mailbox, its

appurtenances and attachments.

Subsequent to the trial court decision and while the

appeal was pending, the City Commission of the City of

Pompano Beach amended Section 100.35 to exempt from

the prohibition of structures in the public right of way,

receptacles for the actual curbside delivery of mail as

long as such receptacle does not exceed 5 feet in height

and is securely mounted on posts no larger than 4 inch x

4 inch or 4 1/2 inch diameter standard steel or aluminum

pipe buried no more than 24 inches in the ground and is

located in a manner which does not obstruct vehicular or

pedestrian traffic or pose a public safety hazard.

The District Court of Appeal of the State of Florida

Fourth District applied the revised ordinance and

reversed the trial court.

,%

7

REASONS FOR DENYING THE WRIT

I.

THE SUPREMACY CLAUSE OF THE UNITED

STATES CONSTITUTION DOES NOT PRO-

HIBIT A MUNICIPALITY FROM REGULAT-

ING THE HEIGHT AND SIZE OF THE

SUPPORTING POSTS FOR A U.S. MAIL

RECEPTACLE LOCATED IN THE PUBLIC

RIGHT OF WAY.

In determining whether a state statute is preempted

by federal law a two prong test has been developed - the

first inquiry is whether Congress has prohibited state

regulation, Jones v. Rath Packing Co., 430 U.S. 519, 525, 97

S.Ct. 1305, 1309 (1977) and second, if Congress has not

completely foreclosed state legislation, a state statute is

void to the extent it actually conflicts with the federal

statute, Ray v. Atlantic Richfield Co., 435 U.S. 151, 158, 98

S.Ct. 988, 994 (1978) and in determining whether there is

a conflict the Court’s primary function is to determine

whether under the circumstances of the particular case,

the state law stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Con-

gress. Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399,

404 (1941). The issue sub judice is whether a municipal

ordinance which prohibits structures in the public right

of way but allows an exception for receptacles for the

curbside delivery of mail provided the post does not

exceed certain size limitations violates the Supremacy

Clause, Art. VI, Cl. 2.

Congress has been vested with the authority to estab-

lish post offices and post roads, U.S. Constitution, Art. I,

Sec. 8, and pursuant to this authority Congress has estab-

lished the United States Postal Service to conduct the

postal services of the United States, 39 U.S.C. 201, and

has given that body the power to adopt rules and regula-

tions to accomplish its objective, 39 U.S.C. 401(2). The

Postal Service pursuant to this grant of power, has

enacted the Domestic Mail Manual which contains the

regulations of the United States Postal Service governing

its domestic mail service (Domestic Mail Manual 111.1).

Chapter 155 of the Domestic Mail Manual provides the

regulation for the City delivery of mail, Section 155.232

provides for curbside delivery as follows:

Delivery may be provided to boxes located at the

curb so that they can safely and conveniently be

served by the carrier from a vehicle.

Section 155.27 of the domestic Mail Manual provides

If a customer chooses not to erect a curbside box

because of local, county of state ordinance prohibiting the

installation of mail boxes at curb, the delivery options

in establishments and extensions are: . . . (emphasis

added).

Chapter 151 “Mail Receptacles” Subsection 151.1

provides:

The post is not part of the receptacle (emphasis

added).

Section 156.531

... posts or other supports for rural mail boxes must

be neat and of adequate strength and size. It may not

be designed to represent effigies of caricatures that

would tend to disparage or ridicule any person.

It is clear from the above cited regulations that not

only has the postal service not intended to completely

prohibit local regulation in the area of the placement of

mail receptacles at the curbside but rather has also specif-

ically recognized a municipality’s authority to completely

prohibit curbside mailboxes and provides for alternative

delivery methods in this event. The postal service has

also determined that the post is not part of the mail

receptacle and that a mail box is a mail receptacle

attached to a post of adequate strength and size to sup-

port the structure and therefore city regulations address-

ing the size of such posts and the depth of anchoring the

same, do not conflict with the federal regulatory scheme.

The Fourth District Court of Appeals’ opinion con-

tains the following description of the Petitioner’s

structure: .. .

Haggerty apparently dug a large hole between the

sidewalk and street and placed therein two truck

engine blocks. The engine blocks serve as anchors for

two one and one-half inch water pipes that rise about

15 feet into the air. Two horizontal bars are connected

to the vertical pipes. The receptacle to receive the

mail is attached to the first horizontal bar approx-

imately three feet from the ground. The second hori-

zontal bar is located several feet above the mailbox.

From the second bar, a two inch gas pipe functions as

a flagpole, extending approximately another nine feet

into the air. At its widest part the structure support-

ing the mailbox is five or six feet wide City of Pom-

pano Beach v. Haggerty, 530 So. 2d 1023, 1023-1024

(Fla. 4th DCA 1988).

10

It is evident from the above description that the Peti-

tioner’s structure is much more than a mailbox but rather

is a large contraption which incidentally contains a recep-

tacle for the delivery of mail on it. To follow the Peti-

tioner’s preemption argument to its logical conclusion is

to conclude that an individual is free to construct any

structure he desires in disregard of all zoning, building,

fire, health and safety codes upon any property he

desires and by placing a receptacle for mail on the struc-

ture all governing jurisdictions except the United States

Postal Service are preempted from enforcing any of the

appropriate health and safety codes which would be

applicable but for the placement of the mailbox. How-

ever, the general purpose of the Postal Authority is not to

become involved in building, zoning and other public

safety matters but rather is to plan, develop, promote and

provide adequate and efficient postal services at fair and

reasonable rates, 39 U.S.C. 403(a) and therefore the state

regulation in this area does not stand as an obstacle to the

accomplishment of the purposes and objectives of

Congress.

The case of Grover City v. United States Post Office, 391

F.Supp. 982 (C.D. Cal. 1975) supports the city’s view of

lack of preemption in the case sub judice. The facts of the

case involve an attempt by Grover City to prohibit all

curbside mailboxes within the City. However, Grover

City did not stop there but also attempted to require the

postal authority to provide a certain type of mail deliv-

ery. The court held that since the United States Postal

Service had regulations regarding the criteria for the

types of delivery service it would provide to customers,

the City was not free to dictate the type of delivery to be

nr re

11

provided by the Postal Service. The Court’s rationale is

premised on the doctrine of preemption as there was a

clear conflict between the City’s attempt to dictate the

type of delivery and the postal regulations. However, the

Court also stated:

The Postal Service is taking no action to interfere

with the enforcement of the enactment in question

(prohibition of curbside mail boxes). All the postal

service has done is to honor the choices made by its

postal customers, continuing to offer curbside ser-

vices to all eligible, but providing it only to those

who comply with the conditions set forth in the

postal regulations. In these circumstances, it is clear

that the postal service has not foreclosed the City from

promulgating or enforcing its ordinance, but rather has

offered its customers the remaining delivery alterna-

tive without allowing the City to dictate or vary

national delivery policy by means of a local enact-

ment. Grover at 986. (Clarification, emphasis added).

The Court in Grover City held that a City may enact

and enforce ordinances relating to mail boxes so long as

such ordinances do not dictate or vary national delivery

policy and the same principal is applicable to the situa-

tion at issue. The City of Pompano Beach has determined,

in the exercise of its police power, that public right of

way should remain open and available for its public

purpose and has therefore prohibited the placement of

private structures in the right of way. However, the City

has also determined that the curbside delivery of mail

serves a valid public purpose and has therefore autho-

rized placement of receptacles for the delivery of mail in

the right of way provided the mail receptacles do not

exceed certain size restrictions nor obstruct vehicular or

pedestrian traffic or pose a safety hazard. Such action on

12

the part of the City does not conflict with federal law as

the United States Postal Service has specifically recog-

nized the City’s authority to completely prohibit curbside

mailboxes in its jurisdiction and the City’s restrictions on

the size of the posts do not conflict with the requirement

of the Postal Authority as the City’s restrictions insure

that the posts are of adequate strength and size to sup-

port the mailbox which is all the Postal Service requires.

Il.

A MUNICIPAL ORDINANCE WHICH REGU-

LATES THE HEIGHT AND SIZE OF THE SUP-

PORTING POSTS FOR A U.S. MAIL

RECEPTACLE LOCATED IN THE PUBLIC

RIGHT OF WAY DOES NOT VIOLATE THE

FIRST AMENDMENT.

In U.S. v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 1678

(1968) this Court set forth the following test to determine

whether a governmental regulation which affects sym-

bolic speech was justified:

i

Is the regulation within the constitutional power

of government.

Does the regulation further an important govern-

mental interest.

Is the governmental interest unrelated to free

speech, and

Is the regulation no greater than essential to the

furtherance of that interest.

The Florida Supreme Court held many years ago

“where the dedication to the public use is made of the

street or roadway and the same is used by the public, it is

the duty of the City as a trustee of the public rights in and

13

to the streets within whose corporate limits they are, to

maintain the public uses against encroachment.” Brickell

v. Town of Fort Lauderdale, 78 So. 681, 685 (Fla. 1918).

Therefore it is within the constitutional authority of the

municipality to regulate its public right of way.

The City of Pompano Beach has stated in the pre-

amble to the latest revision of the ordinances (City of

Pompano Beach Code of Ordinances Sec. 100.35) the fol-

lowing purpose for public right of way:

It is to provide a way of passage for the public, and

to provide an area for drainage, to provide an open.

area between the paved portion of the roadway and

the placement of structures, to provide an area for

the installation and maintenance of the public util-

ities and therefore to allow private structures to be

located in the public right of way would defeat the

purpose of public right of way.

The City Commission however in recognition of the

valid public purpose and convenience of curbside mail

delivery determined to exempt mail receptacles provided

they did not exceed certain size limitations thereby

defeating the purpose of public right of way. In Members

of City Council v. Taxpayers for Vincent, 466 U.S. 789, 104

S.Ct. 2118 (1984) a municipal ordinance prohibiting the

posting of signs on public property was upheld and a

determination was made that the city’s interest in elim-

inating visual blight and promoting esthetics were suffi-

ciently substantial governmental interests to justify the

restrictions on the free exercise of expression. The

Respondent city’s interests in the matter at hand are

likewise substantial and justify the incidental restriction

on expression which results from the ban of private struc-

tures in public right of way.

14

The governmental interest is also unrelated to the

suppression of free expression as the ordinance prohibits

all private structures unless the structure is a receptacle

for the curbside delivery of mail. The Petitioner takes

issue with this part of the test based on the fact that the

City’s ordinance prior to the Appellate proceedings did

not address mailboxes but rather prohibited all private

structures but was interpreted and enforced by the City

to allow mailboxes. However, the City’s ordinance now in

effect and applied to the Petitioner’s structure by the

Appellate Court specifically allows mailboxes provided

they do not exceed 5 feet in height and are securely

mounted on posts no larger than 4” x 4” or 4 1/2”

diameter wood post or 2” diameter standard steel or

aluminum pipe buried no more than 24” in the ground.

Thus the ordinance applies equally to all private struc-

tures located in the public right of way and is content

neutral.

The ordinance merely prohibits private structures on

public right of way. The effect of the ordinance is no

greater than necessary to accomplish the City’s purpose

which is to keep public right of way available for its

public purpose. The Petitioner is free to get his message

across to whomever he desires by placing his structure on

his private property in compliance with all applicable

zoning and building codes and therefore the Petitioner

and all others similarly situated are not foreclosed from

exercising their freedom of expression provided they do

so outside of the public right of way or within the size

limitations for mail receptacles which are placed on the

public right of way.

15

The City’s ordinance meets the test set forth in

O’Brien and while the ordinance may incidentally

infringe on the Petitioner’s desire to place a symbol in

public right of way the fact that the ordinance presents a

First Amendment issue is not necessarily to say it consti-

tutes a First Amendment violation, Metromedia, Inc. v. San

Diego, 453 U.S. 490, 561, 101 S.Ct. 2882, 2920 (1981).

s.

_

CONCLUSION

For the reasons stated, this Court should deny to

issue a Writ of Certiorari to review the judgment of the

Court below.

Respectfully submitted,

Dona_p C. ROBERGE SHARON V. DELEGAL

City Attorney Assistant City Attorney

P.O. Box 2083 P.O. Box 2083

Pompano Beach, Florida 33061 Pompano Beach, Florida 33061

Counsel of Record Counsel for Respondent