From the Legal Hotline (1-877-NEWS-LAW)

From the Legal Hotline (1-877-NEWS-LAW)

Q.We’ve had a couple of people (out of thousands) who really do not like our paper being thrown in their neighborhoods. We’ve stopped the specific houses that complained, but they’re suggesting calling police, code enforcement, etc. if we do not stop delivering ALL newspapers, unless someone subscribes.

I know free home delivery is common practice and legally protected, but I wondered if you could point me to the rules of thumb on this? It would probably make sense for me to draft a standard response (with links) for such people in the future. We are avoiding gated communities, so the only areas involving an HOA are on public roads, etc.

A resident emailed me today about this, which is what prompted this message, but it’s not an urgent issue.

A.The U.S. Supreme Court has repeatedly ruled that government action (laws/ordinances, etc.) that restrict newspaper delivery is unconstitutional. Private landowners, however, can ask for non-delivery, and may be able to sue (unlikely) for damages if landowner can show there is a litter or other ordinance violation.

Your question relating to the right of homeowners or neighborhood associations to ban delivery to all homes is more complicated. If the property is actually “private,” there will be no state action to trigger First Amendment protections (keep in mind some states like NJ interpret their own constitution to provide broader constitutional rights). On the other hand, if there are government-owned public facilities/roads etc. in the neighborhood (as you indicate), there could be some form of government action trigger to argue there are federal First Amendment protections available. So, I think it will be a case-by-case determination.

When you are dealing with these HOA situations, you will find that many more homeowners will want to keep delivery as opposed to stopping it, and, therefore, they will have a say regarding what the HOA/CA does. That seems to be the case here where a few owners are trying to shut down access to information that others may consider valuable.

I think in these situations, negotiation and communication with those on the HOA will help a lot. You would want to let them know about courts’ position on value of delivery, your stop-delivery policies for those who don’t want it, perhaps that your carrier has commercial liability insurance in case of an accident, etc.

Q. Quick question. I think this comes under “fair use” but boy, I hope it doesn’t. We have a campaign flyer using our logo with a few supposed sentences of copy from our paper. We’re miffed because of the use of our logo on a campaign flyer. (We’re looking into how much of the sentences have been distorted, but that’s politics). Aside from being grouchy, anything I can say to the folks who sent this out?

A. Without permission, the ad uses your newspaper logo three times. Use of the logo is not necessary to convey the information the advertiser wants to convey. And, it appears to give the impression that the paper supports the position in the ad. This is more troubling if the “quotes” from the paper are inaccurate or misleading. I think it might be worth a quick demand letter to the advertiser. The advertiser might not stop, but it is worth a shot.

Q. I was wondering if you could help shed some light on this for me. The client wants to place an ad providing notice of intent to apply to the Florida legislature for passage of a relief act on behalf of an individual. The client is insisting that the legislature requires he have a pasted, wet-signed affidavit for his legal notice that he presents to legislative staff. I asked him what statute he is referencing as we have switched to electronic affidavits several years ago after Florida law allowed electronic affidavits. I don’t see anything in what he sent that says cut/pasted/hard copy with wet signatures – but he is saying when he turns it in to the legislature they require it.

Also, if it helps, I have copied/pasted the ad text he wants below also. I am not a legal expert – but this isn’t a legal ad I have seen before (he says he has another one coming in October).

To not slow down the process as he needed it published – I went ahead and told him we would do it for him this time. It is a pretty big pain as all my affidavit people are in another office – so even getting a copy of the paper to cut/paste requires a lot of coordination even if we weren’t all working remotely. Plus, the extra work of cutting/pasting/mailing.

Oh -one more question – we have a regular affidavit fee in our rates. Is it legal to charge him a higher affidavit fee for his ads as he is requiring a cut/paste/wet sign?

A. I have not seen this question before. It appears that the House rule the lobbyist sent you is based on a state constitutional provision (section 10) that requires special laws to be “published in the manner provided by general law.” This may be a case where the legislative rules have not caught up with the changes in general law (here, Chapter 50) which allows electronic affidavits, which is unfortunate for the reasons you point out. I doubt you/we will have much luck trying to change their process in any timely way.

Could you have your office “flag” the special bill notices and set the clipping aside because you know you will be asked for them at some point? If that becomes a big hassle, our lobbyist can inquire of the House Clerk about changing the process, although I am not sure if we would have any luck with any quick changes.

Also, alas, s. 50.041 limits affidavit prep./execution charges to $2 so not much help there. I’m not surprised that the charge is higher because this is a very old law dating back to the 60s or 70s Your lowest commercial rate, which is the overall cap, is more subjective.

Q. I hope this email finds you well. We have a client that sends us legals that are in pdf format and once our production places them in 2 column format on the legal pages, it comes out very small (like a 4.2 pt). It really is not legible in print. The other legals are 6 pt size and leading is 6.2. We also have legal displays in the ROP section of the paper that we size accordingly based upon what they send us. One client from the county is asking if they can reduce their font size to make their ads smaller. They have copy and a lot of maps.

I need some kind of guidance on what the minimum sizes in points and fonts that are legal to print. If you could help me that would be greatly appreciated. I believe I’m going to have to have a difficult conversation with the client that is running ads that are illegible. Even the online versions on our site and Florida Press site are hard to read even if you zoom in.
And, finally, what about display legal advertisements–what does the statute say on those?

A.S. 50.061, F.S., says “public notices and legal advertisements shall be charged and paid for on the basis of 6-point type on 6-point body, unless otherwise specified by statute.” I read this as allowing you to use a smaller (or larger) font so long as you charge on the basis of 6-point. I would note, however, that we have recommended best practices in the past that newspapers make reasonable efforts to direct public attention to the notices, and make them easy to access and read. In particular, we have recommended at least 8-point, if possible.

For display type ads regarding county zoning changes, s. 125.66(4)(b)2. says–

“If published in the print edition of a newspaper, the required advertisements shall be no less than 2 columns wide by 10 inches long in a standard size or a tabloid size newspaper, and the headline in the advertisement shall be in a type no smaller than 18 point. The advertisement shall not be placed in that portion of the newspaper where legal notices and classified advertisements appear….”

Q. I received a call this morning from someone in the Panhandle who wants to know if union negotiations between county government and firefighters are open under Chapter 286, and if it is, can anyone tape it. I wasn’t sure about the meeting being open.

A. The Sunshine Manual summarizes the rules. It says that a limited exemption from s. 286.011, F.S., exists for discussions between the CEO of the public employer, or his or her representative, and the legislative body of the public employer relative to collective bargaining. Section 447.605(1), F.S.

The exemption extends to meetings of the negotiating committee itself which are held to discuss labor negotiation strategies, including when the committee adjourns during negotiations to hold a caucus among its members to determine the strategy to be employed in ongoing negotiations. Id.

The exemption afforded by s. 447.605(1), F.S., applies only in the context of actual and impending collective bargaining negotiations. AGO 85-99. It does not allow private discussions of a proposed “mini-PERC ordinance” or the stance a public body intends to adopt in regard to unionization and/or collective bargaining. AGO 75-48.

The Legislature has, therefore, divided Sunshine Law policy on collective bargaining for public employees into two parts: when the public employer is meeting with its own side, it is exempt from the Sunshine Law; when the public employer is meeting with the other side, it is required to comply with the Sunshine Law. City of Fort Myers v. News-Press Publishing Company, Inc., 514 So. 2d at 412.