A semi-monthly feature, exclusive to NCRA News, from NCRA general counsel and board member John Moore, concerning recent legal decisions relating in some manner to Zero Waste.
REGULATING CLOTHES COLLECTION BOXES
Another regulatory action designed to block recycling
By John D. Moore, NCRA Vice President and Legal Counsel, Henn, Etzel & Moore, Inc.
Oakland has now joined an ever-growing list of cities requiring a clothing bin collection company to obtain the written consent of the property owner, not the occupant, to place the box. I would bet not one staff member or elected of any jurisdiction imposing this law has ever tried to obtain consent of a property owner. These regulators don’t understand how difficult this process is. The result of this kind of ordinance is that there will be fewer clothes collection bins and less textile recycling, all directly in conflict with Zero Waste ordinances, County Measure D, and AB 939.
In my law practice I have negotiated well more than 50 commercial leases, usually representing the tenant/business owner. For a company desiring to place a clothes collection bin on a commercial premises, this is what they would need to overcome to obtain the property owner’s written consent. Please put yourself in the shoes of the clothes bin business and consider:
1. First you have to know who the owner is. The tenant may not know (especially if there is a property manager between the landlord and the tenant) or may not want to tell the box provider, leaving a search of the County assessor’s records as the only option left;
2. Even when you know the name and address of the owner, you don’t necessarily know who the contact person and/or decision maker is in that organization. It can take a lot of phone time to find the right person when you are cold-calling a business. The assessor’s records won’t tell you who to contact. The tenant in possession of where the box is to be placed may or may not know this information and may or may not be willing to provide it. Most commercial tenants want as little to do with their landlord as possible. Once a landlord knows that a tenant wants something (signed consent), it changes the landlord/tenant dynamic, and not for the good of the tenant.
3. Even if the clothes bin company ascertains the contact person for the owner, getting a signed consent is a formidable task. Landlords do not sign consents at will or whimsy. Landlords first wonder about possible liability, whether the tenant has insurance, whether this tenant is following the lease, and a host of other concerns, which often result in consent conditions being negotiated with the tenant, who has no vested interest in the outcome.
4. Even if the bin company finds a contact person willing to have the consent signed, many organizations have decision-making hierarchies that must be followed. Publicly traded REITs (real estate investment trust) own lots of commercial realty. As a publicly traded entity it has internal governance and regulatory rules it must follow before executing a consent.
Let me give one example: On my way to work each morning I pass a Chevron station on Grand Avenue in Oakland that has a box owned by US Again. Let’s say I need to get the owner consent to place that bin. In trying to get the property owner address, I can fairly assume three things right away: 1) the occupant is a franchisee of Chevron; 2) the occupant likely has no relationship with the property owner- leases are typically negotiated directly by the franchisor; and 3) the person on duty operating the Chevron during the day is unlikely to be the franchisee. So, I have to find out the contact information for the franchise holder and ask them to ask their franchisor for the property owner contact information. Why would the franchisee want to help? There is no real benefit to the franchisee in asking for something from the franchisor. Even if I got the franchisor contact information, why would the franchisor want to give me the contact information for the property owner? They wouldn’t. They have no stake in placing a collection box.
It used to be that one could find out the name of the property owner online via the Alameda County Tax Assessor. No longer. You must go to the office in person to do so. I spent 30 or so minutes trying to find ownership information through a private service, giving out my contact information in the process so I could get spammed later, but was unsuccessful and gave up. I could pay a service to find the information or I could go in person to the Tax Collector office to search for ownership but in either case I would not be much closer to satisfying the regulator.
Even if I were to get the owner’s name and billing address for the tax collection (what a private service is likely to find), I would have a long struggle from there to find the business office for the owner and talk my way to a person who could tell me who needs to sign a consent for the placement of the bin. Now the hardest part yet is to convince that person to give a signed consent.
Needless to say, this process of collecting a property owner signature requires a huge time commitment and amount of diligence for a bin company just to place one box. The result will be the placement of fewer boxes. That result means less textiles are recycled and more textiles are landfilled, an outcome that conflicts with established state policy.
I have no quarrel with wanting these collection boxes and commercial premises to be kept clean and clear of blight. I also have no quarrel with regulation of financial responsibility of both the bin company and the tenant in possession. Regulation of these aspects of clothes collection does not require onerous and recycling-diminishing laws that require a paper signature from a property owner as a condition of placement of the bin. Requiring a signed consent from the occupant of the property and permit conditions about blight and insurance should be satisfactory protection for the city.
All the owner-signature requirement does is create a huge barrier to entry of the market, reduces recycling, and grants economic protectionism to the advocates of this law, Goodwill and Salvation Army. This should be off limits to regulators.