Can a New York village set up a 'do not deliver' registry and pass a local law fining anyone who drops unwanted phone books or other unsolicited print materials on registered residents' property?

Plain-English summary

The Village of Cornwall-on-Hudson wanted to do something about the phone books and other unsolicited print materials piling up on driveways and at commercial offices. Its attorney drafted a proposal: residents would register their addresses on a "do not deliver" list, anyone wanting to drop unsolicited print would have to consult the list first, and a delivery to a registered address would draw a $250 fine. He asked the AG whether a village has the authority to enact this.

Home rule analysis. Yes, on the local-law authority question. Municipal Home Rule Law § 10(1)(ii)(a)(11) and (12) give villages express power to legislate for "the protection and enhancement of its physical and visual environment" and for "the protection, order, safety, health, and well-being of persons or property within the village," provided the local law is not inconsistent with general state law or the constitution. The AG read regulation of unsolicited print as fitting comfortably within both categories: litter on private property is a physical-environment concern, and unwanted stacks of paper at vacant homes can signal an empty residence to burglars, which is a safety concern.

No preemption. The Legislature has itself recently legislated in this space. General Business Law § 397-a, enacted in 2007, lets New York City property owners post a sign refusing unsolicited advertising material, and makes a knowing delivery in violation of the sign a violation subject to civil penalty. The legislative history to § 397-a expressly cites physical-environment protection and resident safety as the policy basis. The AG read § 397-a as both confirming the kind of state-law goals a local law can address and as not preempting a different (registry-based) approach by a village.

The First Amendment issue. The AG flagged but did not decide the constitutional question. The opinion noted that direct-mail and door-drop distribution typically involves commercial speech and identified three cases from the prior decade involving challenges to similar restrictions:

• Distrib. Sys. of Am., Inc. v. Village of Old Westbury, 862 F. Supp. 950 (E.D.N.Y. 1994).
• Tillman v. Distrib. Sys. of Am., Inc., 224 A.D.2d 79 (2d Dep't 1996).
• Miller v. Distrib. Sys. of Am., Inc., 175 Misc. 2d 513 (2d Dep't App. Term 1997).

The AG also noted that New York's Article I free-expression clause can give broader protection than the First Amendment, citing Arcara v. Cloud Books, 68 N.Y.2d 553 (1986). The opinion concluded with the observation that "you may wish to consult these cases in formulating proposed legislation," without resolving the constitutional question.

What the AG decided and what it did not. The opinion concluded that the village had authority under the Municipal Home Rule Law to legislate in this area. It did not decide whether any specific draft would withstand a First Amendment challenge or what enforcement mechanism would be valid.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can a village ban only commercial unsolicited print but not, say, political flyers?
The opinion does not answer this. Distinctions between commercial and non-commercial speech are common in this area but introduce content-based concerns that affect the level of scrutiny. Tillman and Distrib. Sys. are the cases to read for that line.

What about phone books specifically, where the residents complained?
Phone books typically count as commercial speech and have been the subject of regulation elsewhere. The Village's proposal targets all "unsolicited print materials," which is broader than phone books and may sweep in materials with stronger constitutional protection.

Could the village just rely on existing litter laws?
That is one alternative. The AG's analysis is about the village's authority to go further with an opt-out registry and a delivery prohibition; it does not foreclose using anti-littering tools.

Is the $250 fine cap from somewhere in particular?
The opinion does not address the source of the proposed $250 figure. Local civil penalty caps are governed by Village Law and the Municipal Home Rule Law; the AG did not opine on the validity of the specific amount.

How is this different from the NYC § 397-a regime?
NYC's law is signage-based: a property owner posts a sign refusing unsolicited material. Cornwall-on-Hudson's proposal is registry-based: residents put themselves on a list that distributors must check. The opinion treats both as valid approaches. Distributors might find the registry harder to comply with than property-by-property signage, depending on volume.

Background and statutory framework

Village home rule. Municipal Home Rule Law § 10 grants villages the power to adopt local laws on enumerated subjects, including the physical and visual environment of the village (10(1)(ii)(a)(11)) and the safety, health, and well-being of persons and property in the village (10(1)(ii)(a)(12)). Local laws cannot be inconsistent with the state or federal constitutions or with general state law.

General Business Law § 397-a. Enacted by L. 2007, ch. 585, applicable to New York City. Property owners can post a no-advertising sign; knowing distributions in violation are penalized. Legislative history cites litter and safety as the dual purposes.

Commercial speech doctrine. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980), supplies the federal intermediate-scrutiny standard. New York's Article I, § 8 sometimes (per Arcara) provides broader speech protection. The three cited cases handled village-level restrictions on unsolicited commercial publication delivery and are the practical starting point for drafting.

Citations

• Municipal Home Rule Law § 10(1)(ii) (general home-rule authority subject to constitution/general law); § 10(1)(ii)(a)(11) (physical and visual environment); § 10(1)(ii)(a)(12) (protection, order, safety, health, well-being).
• General Business Law § 397-a (NYC unsolicited advertising materials, signage-based opt-out, civil penalty).
• N.Y. Const. Article I (free expression).
• Distrib. Sys. of Am., Inc. v. Village of Old Westbury, 862 F. Supp. 950 (E.D.N.Y. 1994).
• Tillman v. Distrib. Sys. of Am., Inc., 224 A.D.2d 79 (2d Dep't 1996).
• Miller v. Distrib. Sys. of Am., Inc., 175 Misc. 2d 513 (2d Dep't App. Term 1997).
• Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557-58 (1986) (NY Constitution can give broader expression protection than federal).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2008-4_pw.pdf

Original opinion text

Municipal Home Rule Law §§ 10(1)(ii), 10(1)(ii)(a)(11),
10(1)(ii)(a)(12); General Business Law §397-a; New York State
Constitution Article I

Discussion of authority of village to adopt a local law prohibiting the delivery of unsolicited print materials to village residents.

June 6, 2008

Howard Protter
Village Attorney
Village of Cornwall-on-Hudson
Jacobowitz & Gubits, LLP
158 Orange Avenue
P.O. Box 367
Walden, New York 12586-0367

Informal Opinion
No. 2008-4

Dear Mr. Protter:

You have requested an opinion regarding whether the Village is authorized to adopt a local law prohibiting the delivery of unsolicited print materials to residents of the Village who indicate that they do not want to receive such materials. You have explained that residents of the Village have complained about the delivery of unsolicited telephone books to private property and commercial offices. You have proposed adoption of a registry by which residents can list their properties, indicating that they do not wish to receive unsolicited print materials. People or businesses who wish to deliver unsolicited print materials would receive a list of residents who have registered before being permitted to deliver materials in the Village. Violators would be subject to a fine of up to $250.

We are of the opinion that the subject matter of the proposal falls within the Village's home rule authority. A village is authorized to adopt a local law relating to the protection and enhancement of its physical and visual environment and to the protection, order, safety, health, and well-being of persons or property within the village, if that law is not inconsistent with any general law or restriction validly enacted by the State Legislature, or with the Constitution of New York or of the United States. Municipal Home Rule Law § 10(1)(ii)(a)(11) and (12). We believe that a local law restricting the delivery of unwanted paper could come within the authority granted by these provisions, because it concerns an authorized subject matter and does not appear to be inconsistent with any state statutes.

Indeed, it appears as though the state Legislature views local legislation of this kind as serving these purposes. The Legislature recently enacted a somewhat similar law applicable to New York City, namely General Business Law § 397-a, which prohibits the delivery of certain types of advertising papers in New York City when the owner of the property has posted a sign stating that such delivery shall be prohibited. The legislative history to section 397-a reflects an understanding that it was intended to serve the goals of protecting both the physical environment of the community and the safety of its residents. See Assembly Memorandum in Support of Legislation, reprinted in Bill Jacket for ch. 585 (2007); Assembly Debate, June 20, 2007, at 109, 114-15, 116-17. Further, no state law appears to prohibit the village from enacting such legislation.

Additionally, the local law must be consistent with the state and federal constitutions. Municipal Home Rule Law § 10(1)(ii). We are unable to provide a definitive answer to the question of the Village's authority to adopt the proposed local law in light of constitutional issues potentially raised by the local law that are outside the scope of the opinions function. Without commenting on these issues, we call your attention to the following three cases considering claims that laws restricting unsolicited deliveries of commercial publications violated the First Amendment to the United States Constitution: Distrib. Sys. of Am., Inc. v. Village of Old Westbury, 862 F. Supp. 950 (E.D.N.Y. 1994); Tillman v. Distrib. Sys. of Am., Inc., 224 A.D.2d 79 (2d Dep't 1996); and Miller v. Distrib. Sys. of Am., Inc., 175 Misc. 2d 513 (2d Dep't App. Term 1997). We also note that in some circumstances Article I of the New York Constitution has been found to grant broader protection to freedom of expression than does the First Amendment to the United States Constitution. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557-58 (1986).

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions