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HomeMy WebLinkAboutOrd 283-2006 Solicitation Regulations.pdfClTY OF ANNA, TEXAS ORDINANCE NO. 283-2006- AN ORDINANCE OF THE ClTY OF ANNA, TEXAS DEFINING CERTAIN TERMS PERTAINING TO SOLICITATION; MAKING IT UNLAWFUL TO SOLICIT WITHOUT FIRST OBTAINING A PERMIT OR CERTIFICATION; PROVIDING FOR A MEANS OF APPEALING THE DENIAL OF A PERMIT; RESTRICTING OR PROHIBITING SOLICITATION AT CERTAIN TIMES AND PLACES; REQUIRING CANCELLATION OF CERTAIN CONSUMER TRANSACTIONS; PROVIDING FOR AFFIRMATIVE DEFENSES; PROVIDING FOR SEVERABILITY; PROVIDING FOR A PENALTY OF $500; PROVIDING FOR A SAVINGS CLAUSE; PROVIDING FOR A REPEALING CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council finds that unregulated door-to-door Solicitation is a nuisance and endangers not only the right of quiet use and enjoyment of the citizens of the City in their homes but also the health, safety and welfare of the community; and WHEREAS, the City Council has determined that this Ordinance is necessary to protect Consumers and protect against criminal activity, including fraud and burglary, minimize the unwelcome disturbance of citizens and the disruption of privacy and to otherwise preserve the public health, safety and welfare by regulating, controlling and permitting door-to-door Solicitors; and WHEREAS, the City Council believes that our citizens should be protected from disturbance by uninvited individuals who solicit door-to-door or who deliver flyers, pamphlets, handouts, handbills, or advertisements to homes, and so desires to regulate such activity to the extent permitted by the First Amendment and the protection it affords to individuals engaged in such activity. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE ClTY OF ANNA, TEXAS: Section 1. Recitals Incorporated The foregoing recitals are incorporated herein as if set forth in full and constitute findings of the City Council. Section 2. Definitions (a) The following words and phrases, when used in this Ordinance, shall have the meaning ascribed to them by this Section: City. The City of Anna, Texas. ClTY OF ANNA, TEXAS ORDINANCE NO. Page I of 13 Charitable Entities means entities furthering philanthropic, religious or other nonprofit objectives, including for the benefrt of poor, needy, sick, refugee or disabled persons; the benefit of any church or religious society, sect, group or order; the benefit of a patriotic or veterans' association or organization; and, the benefit of any fraternal, social or civil organization, or the benefit of any educational institution. "Charitable Entities" shall not be construed to include entities or individuals furthering the direct benefit of the individual engaging in the Solicitation. "Charitable Entities" shall not be construed to include the entities furthering any political group or political organization which is subject to financial disclosure under state or federal law. Consumer. An individual who acquires real or personal property, services, money, or credit for personal, family or household purposes. Parkway. Area between the edge of the designated Street and the adjacent owner's property line and including any public easement. Religious Organization. An organization that is dedicated to the support of a church, religious society, or any other religious sect, group, or order. Sidewalk. Any surface provided for the exclusive use of pedestrians. Solicitation. Conduct within the City's corporate limits whereby a Solicitor attempts to engage in or engages in the following activities: (1) either orally or in writing, asks for a ride, employment, property, financial aid, money, or any article representing monetary value, for any purpose; (2) whether orally or in writing, peddles, sells or offers to sell goods, services, publications, or subscriptions; (3) whether orally or in writing, takes orders for any goods or services for future delivery; (3) distributes without remuneration goods, services, publications, or subscriptions; or (4) requests signatures on a petition or canvasses for opinions for a survey. "Solicitation" shall also include delivery of handbills or circulars door-to-door for the Solicitation of money, products, services or other items of pecuniary value. An offer of membership in any organization is expressly excluded from the meaning of "Solicitation." Solicitor. Any individual, firm, company, partnership, corporation, association, trust, society, Religious Organization, league, or other legal entity (including any trustee, CITY OF ANNA, TEXAS ORDINANCE NO. Page 2 of 13 receiver, assignee, agent, or similar representative) attempting to engage in or engaging in any act of Solicitation as that term is defined in this Ordinance. Street. The right-of-way for a Street and the portion of the Street that is paved, designated, or used for vehicular traffic, and all areas dedicated to public use for public Street purposes, which includes Parkways, alleys, Sidewalks, drainage ditches and utility easements. Traffic island. A barrier within a Street or roadway to exclude vehicles, designated for the purpose of separating or directing streams of vehicular traffic. (b) All terminology used in this Ordinance and not specifically defined above, shall retain its meaning in conformance with applicable publications of the American National Standards Institute (ANSI) or its successor body or if not defined therein the latest volume of Merriam-Webster's Collegiate Dictionary. Section 3. Permits (a) Permit required. (1) Within the corporate limits of the City, it shall be unlawful for any person to engage in Solicitation under this Ordinance without having first obtained a permit therefore from the City. (2) Each person engaged in Solicitation must have a permit issued under the terms of this Ordinance, and such permit shall be personal to the applicant and shall not be reproduced nor assigned nor transferred to any other person. Any such attempted transfer or reproduction is a violation of this Ordinance and shall render the permit void. (3) Each permit shall expire as of the date noted thereon, which date shall be in accordance with the provisions of this Ordinance, and such permit shall indicate the hours when Solicitation within the City is permitted in accordance with the provisions of this Ordinance. (4) It shall be unlawful for any Solicitor to represent in connection with any Solicitation that the issuance of a permit, certificate of registration or identification card by the City constitutes an endorsement thereof. (5) It shall be unlawful for a Solicitor to engage in Solicitation for a purpose other than that set out in the application upon which a permit was issued. (6) A permit shall not be issued to any person under 13 years of age. (7) Solicitation shall be deemed to have occurred when attempted or completed, regardless of whether the Solicitor receives any contribution or makes any sale. CITY OF ANNA, TEXAS ORDINANCE NO. Page 3 of 13 (b) Permit application. Every applicant for a permit shall unless otherwise excepted apply for a permit from the City Permit Officer. Each application required by this Ordinance shall be in writing, under oath, notarized and shall set out the following: (1) the full legal name of the applicant; (2) the full address of the applicant's permanent residence and any current temporary address; (3) the applicant's home and business telephone numbers; (4) whether the person represents a partnership, corporation or association, and: a. the business address and telephone number of the applicant; b. if a partnership, the names of all partners and the principal business address and telephone number of each partner; c. if a corporation, the person applying shall state whether it is organized under the laws of Texas or is a foreign corporation, and must show the mailing address, business location, telephone number, name of the individual in charge of the principle office of such corporation, and the names and addresses of all officers and directors or trustees of said corporation, and, if a foreign corporation, the place of incorporation; and d. If an association, the application shall show the association's principal business address and telephone number, if any, and shall show names and principal business or residence addresses and telephone numbers of all members of the association unless they exceed ten in number, in which case the application shall so state and the person applying may alternatively list the names and principal business or residence addresses and telephone numbers of the officers and directors or trustees of the association. If the association is part of a multistate organization or association, the mailing address and business locations of its local office, or if it has none, its principle place of business. (5) name and address of each person intended to engage in Solicitation under the permit; (6) the full legal names, mailing address and telephone numbers of all individuals who will be in supervision, charge or control of any Solicitation; (7) the kind, type and character of goods or services proposed to be offered for sale, including the name brand, manufacturer and distributor of goods and commodities CITY OF ANNA, TEXAS ORDINANCE NO. Page4 of 13 and the name, publisher and distributor of all books, magazines or periodicals to be offered for sale; (8) names, mailing addresses and telephone numbers of five persons as references, excluding relatives and persons living with the applicant; (9) how often the applicant intends to solicit during the term of the permit; (10) the time period within which the Solicitation is to be made, giving the date of the beginning of Solicitation and its projected conclusion; (1 1) a description of the methods and means by which the Solicitation is to be attempted or accomplished; (12) the names of any cities and counties where the applicant has worked or been employed within the previous six months; (13) whether the applicant, or any Solicitor listed in the application, has ever been convicted of a felony or a misdemeanor involving moral turpitude or violence against another person; (14) the applicant's state driver's license number or a state-approved identification card number of applicant and each Solicitor; and (1 5) the social security number of applicant and each Solicitor. (c) Permit affachments. In addition, there shall be attached to each application for a permit, the following: (1) two recent photographic likenesses of the applicant's face, and any Solicitor soliciting under said permit, which photographs shall not exceed one inch square in size; (2) a certificate or letter from the president, vice-president, general manager, sales manager, assistant sales manager or district or area manager of the company for which the applicant works, sells or solicits stating that the applicant is an employee andfor agent of such company; (3) a reference to a recognized financial rating publication, which reference shall show the page on which the company's or firm's financial standing can be found; or a letter or a certificate from an association or organization which has as its purpose the protection of citizens of the United States against illegal or unsavory business practices stating that the firm or company is a member in good standing of such association or organization; CITY OF ANNA, TEXAS ORDINANCE NO. (4) in the event that the applicant is an individual who does not intend to engage in Solicitation for any firm or company, letters of recommendation from two citizens of the applicant's permanent city or county of residence; and (5) a photocopy of an applicant's unexpired driver's license, state-approved identification card, military identification card or passport. (d) Issuance of permit. A permit applied for under this Ordinance shall be issued by the City Permit Officer within ten days after the application is completed and filed, unless it is determined that the applicant has provided false or incomplete information on its application, failed to pay the application fee, or is in violation of any requirement or prohibition of this Ordinance. A permit requested under this Ordinance shall be issued for the length of time requested, not to exceed six months. An expired permit may be renewed under the same terms and conditions as the original application and subject to the same fees and application-submission requirements. (e) Form of permit. Each permit shall be printed in black except that the following shall be printed prominently thereon in red: "The issuance of the permit is not an endorsement by the City of Anna or any of its officers or employees." Each permit shall bear a permit number, which is the same as the file containing the application filed by the applicant. (9 Permit to be displayed. It shall be unlawful for any person to engage in Solicitation without carrying the identification card and displaying the permit required, by this Ordinance on his or her person, in plain view, while engaged in Solicitation. (g) Exhibiting permit. Every Solicitor shall identi himself or herself as a salesperson upon approaching a citizen in a public place or at a private dwelling and explain the purpose of the Solicitation. (h) Solicitor's identification cards. The City Police Department shall issue identification cards for each Solicitor approved for a permit. Each identification card issued by the Police Department shall bear the name of the applicant, the application number, the name of the Solicitor, or agent, and the expiration date of the permit, and it shall have printed prominently thereon in red: "This identification card is not an endorsement of the Solicitation by the City of Anna or any of its officers or employees. It is the duty of every person to verify all information given to you by this Solicitor." The applicant shall provide, by a separate list, the names and addresses of all agents or employees for whom identification cards are to be issued. Section 4. Application Fee CITY OF ANNA, TEXAS ORDINANCE NO. Page 6 of 13 (a) Application fee. The application shall be accompanied by a $35.00 fee for the original Solicitor or applicant, plus a $35.00 fee for each additional Solicitor, for the investigation and administration of the provisions of this Ordinance. This fee shall be paid to the City Permit Officer. In addition, the applicant shall pay a $15.00 fee for each identification card issued. Section 5. Investigation (a) Investigation of applicant. It shall be the duty of the City's Chief of Police, or hislher authorized designee, to secure a background check through any lawful means on each applicant, and all other persons listed on the application before issuance of a permit, which investigation may include but is not necessarily limited to personal interviews with named individuals, warrant and criminal background checks, verification of references and information contained within the application. Section 6. Responsibility for Acts of Solicitors The recipient of a permit or named applicant shall be responsible for the acts of hislher authorized representatives or Solicitors listed in permit application in connection with Solicitation activities. In this regard, the recipient of the permit shall actively supervise all persons listed in the permit application, which supervision shall include but not be limited to remaining within the corporate City limits during all Solicitation activity and responding promptly (within ten minutes) to calls by City representatives relative to the Solicitation activity which may include responding to an on-site complaint from a citizen. Section 7. Revocation of Permit (a) If, after the permit required by this Ordinance has been issued, the City Police Chief, or hislher authorized designee, finds that the permit was obtained by false representation in the application, or the permit has been reproduced or transferred or assigned to another person or the applicant has led someone to believe the permit is an endorsement of the applicant's product or service by the Cfty, or in the event of fraud or misrepresentation by the permit holder, or in the event of conviction of the permit holder of a felony or a misdemeanor involving moral turpitude, or in the event the permit holder has failed to furnish the items required by this Ordinance, such permit may be revoked by the Police Department or its authorized designee. (b) If a police officer, code enforcement officer or building official has probable cause to believe that a Solicitor has engaged in prohibited conduct as set forth in this Ordinance, the officer may revoke the permit of the permit holder. CITY OF ANNA, TEXAS ORDINANCE NO. Page 7 of 13 (c) If more than one complaint of misconduct by a Solicitor or group of Solicitors working for the same company is received, the permit may be immediately revoked by the City without any refund of permitting fees paid. Section 8. Appeal from Denial or Revocation of Permit Should a permit be denied or revoked, the applicant or permit holder may appeal that action to the City Council of the City by submitting a letter to the City Secretary within ten days to complain of that action. A hearing of the denial or revocation will then be scheduled for the next regular meeting of the City Council, or a special meeting of the City Council, to be held within 15 days of the appeal. The City Council shall render a decision on the appeal within one day of the date of the hearing. The hearing shall be an administrative hearing. Adherence to formal rules of evidence shall not be required. The decision of the City Council shall be final and binding. No new application for a permit will be considered for six months after denial or revocation, unless said denial or revocation is without prejudice or is conditional and the conditions have been satisfied as determined by the City Police Chief. Section 9. Exemptions (a) The following persons engaged in the activities set out in paragraphs (1) and (2) below shall first register with the City Permit Officer by filling out a form to be promulgated by the City in accordance with the provisions of this Ordinance and by furnishing proof of actual engagement in such activrty in the City, and the City Permit Officer shall issue to such person a registration certificate exempting him or her from the terms and conditions of this Ordinance and from paying fees therefore, namely: (1) public utility companies or others operating under a franchise granted by the Crty; and (2) insurance salespeople, real estate salespeople and others professionals licensed by the state and acting in their professional capacities. (b) The following individuals and entities need not apply for a permit, register with the City Permit Officer or the Police Department, nor pay permitting fees: (1) persons under the age of 13 participating in Solicitation related to children's activities, including but not limited to Girl Scouts, Boy Scouts, and Big Brothers and Sisters, to the extent that they are actively supervised by a parent, guardian or other adult person, at least 18 years of age, who is responsible for the well-being and appropriate behavior of the child; (2) Religious Organizations, Charitable Entities and political organizations and their representatives distributing information, handbills or pamphlets only for the CITY OF ANNA, TEXAS ORDINANCE NO. Page 8 of 13 purpose of communicating issues of general interest to the public (a donation received as a result of the distribution of information, handbills or pamphlets does not affect this exemption); (3) ordinary commercial travelers who sell or exhibit for sale goods, wares or merchandise to persons selling and dealing in the same types of sale goods, wares or merchandise; (4) persons making regular delivery of newspapers or magazines or other items which have been subscribed to by the persons receiving them or by occupants of the premises to which they are delivered; and (5) any federal, state or local governmental unit, official or authority performing governmental functions or those functions that such unit is legally required to perform. Section 10. Bond Each person engaging in Solicitation activities requiring cash deposits or taking orders on delivery purchases (COD) or who requires a contract of agreement to finance the sale of any goods, services or merchandise for future delivery, or for services to be performed in the future, shall furnish to the City a cash bond in the amount of $5,000.00, naming the applicant for the permit as principal. The bond shall be in full force and effect for one year from the date of issuance of the permit, unless otherwise extended by demand of the City due to the revocation of the permit, or an anticipated delivery date beyond 12 months, in order to protect the citizens of the City from potential losses associated with such Solicitations. Section 11. Affirmative defense It shall be an affirmative defense to prosecution under this Ordinance if the person is occupying the public right-of-way for the purpose of selling newspapers or publications or other printed material which deal with the dissemination of information or opinion; however, this defense is not available if said act occurred upon the paved surface or shoulder of any public Street, highway or road. Section 12. Private Displays Prohibiting Solicitation and Handbills of any Type (a) Every person upon going onto any premises shall first examine the premises to determine if there exists upon or near the main entrance to the premises. any written notice prohibiting Solicitation or distribution of pamphlets, handbills, political handbills or religious handbills distribution. If such notice exists, the person shall immediately depart from the premises without distributing, placing, or depositing any type of unwelcome handbill or pamphlet or disturbing the occupant, unless the visit is the result of a request made by the occupant. CITY OF ANNA, TEXAS ORDINANCE NO. Page 9 of 13 (b) No person shall go upon any premises and ring the doorbell, or rap or knock upon the door or create any sound in a manner calculated to attract the attention of the occupant of the premises, for the purpose of securing an audience with the occupant and engaging in or attempting to engage in Solicitation, if a "No Solicitationn card, as described in this Ordinance, is exhibited in a conspicuous place upon or near the main entrance to the premises, unless the visit is the result of a request made by the occupant. (c) No person, other than the owner or occupant of the premises, shall remove, deface, or render illegible, a "No Solicitation" card placed upon the property of the occupant. (d) Any person who has gained entrance to a premises, or audience with the occupant, whether invited or not, shall immediately depart from the premises without disturbing the occupant further when requested to leave by the occupant. Section 13. Prohibited Location, Activities and Conduct (a) It shall be unlawful for any person to engage in Solicitation in the following places within the corporate limits of the City: (1) on any public Street, Parkway or alley or Traffic island; (2) within 25 feet of the following facilities: ATM machines; entrances and exits of banks, credit unions, or other financial institutions; exterior public pay telephones; self-service car washes; self-service fuel pumps; or public transportation stops; (3) any residence, business or other premises which shall exhibit in a conspicuous place upon or near the main entrance to the premises a legible sign or placard containing the words "NO SOLICITORS or "NO SOLICITATION"; or (4) any place that results in blockage, obstruction or hindrance of the free flow of traffic in the lawful use of the Street or free passage of pedestrians in the lawful use of the Sidewalk. (b) No Solicitation shall be directed to occupants of motor vehicles moving or stopped in traffic on a public Street, Parkway or alley. (c) It shall be unlawful for a person engaged in Solicitation that: (1) misrepresents the purpose of the Solicitation; (2) misrepresents the affiliation of those engaged in the Solicitation; (3) continues efforts to solicit from an individual once that individual informs the Solicitor that he does not wish to give anything to or buy anything from that Solicitor; CITY OF ANNA, TEXAS ORDINANCE NO. Page 10 of 13 (4) represents the issuance of any permit or registration under this Ordinance as an endorsement or recommendation by the City of the Solicitation; or (5) results in the Solicitor remaining on property after the property owner, or the property owner's designee, representative or agent, has instructed the Solicitor to leave. (d) No Solicitor, or person working on his or her behalf, shall shout, make an outcry, blow a horn or whistle, or use any sound device, including any sound amplifying system, upon any of the Streets, avenues, alleys, parks or other public places of the City, or otherwise be in violation of the City's noise ordinance. (e) No person shall engage in Solicitation through the delivery of handbills or circulars by placing said handbills or circulars on motor vehicles, public utility posts, or other locations such that the same constitutes littering under chapter 365 of the Texas Health and Safety Code. It is presumed that the person or business whose address or telephone number is listed in the notice, poster, paper, or device, or who is otherwise named, described, or identified in the notice, poster, paper, or device, is the person or business who committed the violation, either personally or through an agent or employee. (f) Notwithstanding any other provision in this Ordinance, it shall be unlawful for any person to allow children 13 years of age or younger to engage in Solicitation, unless such children are actively supervised by a parent, guardian or other adult person at least 18 years of age. For purposes of this Ordinance, "actively supervised" means that the adult person shall be within 100 feet of all children 13 years of age or younger for whom the adult person is responsible at all times when the children are engaged in Solicitation. Section 14. Prohibited Times No person shall engage in Solicitation at a private residence in the City after sunset on any day until 9:00 a.m., Monday through Saturday, unless the transaction is the result of a request made to such person by the occupant of such private residence. "Sunset" means the time of day identified by the National Weather Service as the time for sunset for that day for the City. There shall be no Solicitations on Sunday, New Years Day, Fourth of July, Memorial Day (observed), Labor Day (observed), Thanksgiving, or Christmas Day. Section 15. Consumer's Right to Cancel (a) A Solicitor shall provide to the Consumer in writing the right to cancel a Solicitation transaction made in person or by telephone in which the consideration exceeds $25.00, until midnight of the third business day after the day on which the Consumer signs an agreement or offer to purchase in a Solicitation transaction. For purposes of a CITY OF ANNA, TEXAS ORDINANCE NO. Page 11 of 13 telephone Solicitation, date of transaction means the day that the Consumer receives the goods, services, or realty purchased in a Solicitation transaction. (b) If the Consumer chooses to cancel the Solicitation transaction, notification by mail shall be considered given at the time mailed as evidenced by the postmark; notification by telegram shall be considered given at the time filed for transmission; and notification by any other writing shall be considered given at the time delivered to the merchant's designated place of business. (c) It shall be unlawful for a Solicitor to refuse to allow the customer to cancel the Solicitation transaction. (d) Cancellations authorized, and the procedure and notice requirements set forth in chapter 39 of the Texas Business and Commerce Code, as it may be amended, are applicable to this Section, for transactions applicable thereunder. Section 16. Penalty Any person violating any of the provisions or terms of this Ordinance shall be deemed guilty of a Class C misdemeanor and, upon conviction, be punished by a fine not to exceed the sum of $500.00 for each offense, and each and every day such violation shall continue be deemed to constitute a separate offense. Allegation and evidence of a culpable mental state is not required for proof of any offense defined by this Ordinance. Section 17. Public Disclosure All applications, whether or not a permit has bee issued, shall be a public record and shall be available for inspection by members of the public during regular business hours, and copies may be obtained at cost. Section 18. Repeal Provision All parts of any other ordinance in conflict with the provisions of this Ordinance are to the extent of such conflict hereby repealed. Section 19. Severance If any part of this Ordinance is for any reason found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, all other parts nevertheless shall remain valid, legal, and enforceable. CITY OF ANNA, TEXAS ORDINANCE NO. Page 12 of 13 Section 20. Effective Date This Ordinance shall be effective upon the posting andlor publication of its caption as required by law and the City Secretary is hereby directed to implement such posting andlor publication. PASSED by the City Council of the City of Anna, Texas, by the following votes on this the-22ND - day of August, 2006. AYE -6- NAY -0- ABSTAIN 0- ATTEST: APPROVED: , Natha Wilkison ~a~o{vro Tem, David Crim CITY OF ANNA, TEXAS ORDINANCE NO. Page 13 of 13