HomeMy WebLinkAboutVII (F) Discussion Re: Regulation of Solicitors and Peddlers
Agenda 01/06/2004
Item VII F
FOLEVILARDNER
ATTORNEYS AT LAW
MEMORANDUM
CLlENT.MATTER NUMBER
020377.0107
FROM:
The Honorable Mayor and City Commissioners of the City ofOcoee
Paul E. Rosenthal, Esq., City Attorney f~
December 19, 2003
TO:
DATE:
RE:
Regulation of Solicitors and Peddlers
Commissioner Parker has requested that the City Commission discuss whether the
City should adopt an ordinance regulating the activities of solicitors and peddlers in the City. As
you may recall, the City previously had a regulatory program in place which was repealed in
1996 in response to a federal lawsuit.
In connection with the proposed discussions, the following is provided for your
information:
(1) Memorandum from Ed Storey to Paul Rosenthal regarding the current status of
the law with respect to door-to-door solicitation restrictions. There are clearly lawful regulations
which may be adopted by the City.
(2) Memorandum from the City Attorney to the City Commission dated April 15,
1999. This provides a background review regarding this subject and was previously discussed
by the City Commission at that time.
(3) Memorandum from the City Attorney to the City Commission dated September
26, 1996. This includes a proposed ordinance which we believed to be lawful at that time. We
have not attempted to review the proposed ordinance for compliance with current law.
(4) IMLA Model Ordinance Regulating Solicitors and Peddlers. Please note that it
does not appear that this ordinance has been recently updated and would need to be reviewed for
compliance with current law.
(5) Missouri League of Cities Model Ordinance Regulating Peddlers, Solicitors and
Canvassers.
In summary, there are a wide variety of regulations which are available to the City
should it desire to reinstitute an ordinance regulating solicitors and peddlers doing business
within the corporate limits of the City. Whatever regulation is desired must be carefully
researched and drafted to assure compliance with constitutional law and the ability to withstand a
006.319837.1
FOLEY & LARDNER
FOLEY; LARDNER
ATTORNEYS AT LAW
legal challenge. If a new ordinance is adopted, it then becomes critical that our police officers
and code enforcement officers are accurately briefed on the law in order to avoid violation of any
First Amendment rights in connection with the enforcement of the ordinance.
If the City Commission is interested in adopting an ordinance regulating solicitors
and peddlers, it is our recommendation that direction be provided to the City Attorney. I would
like to have some input as to the specific types of regulations which are desired and the activities
which are intended to be regulated. We would then draft an ordinance designed to address the
areas identified by the Commission. Should legal impediments exist with respect to the
implementation of any regulations identified by the Commission, we would report back and
advise you.
PERljlh
enclosure
2
006.319837.1
FOLEVILARDNER
ATTORNEYS AT LAW
MEMORANDUM
CLIENT-MATTER NUMBER
ROSENTH020377 .0 101
TO:
Paul E. Rosenthal
FROM:
Edward A. Storey III
DATE:
March 20, 2003
RE:
Door to Door Solicitation Restrictions
QUESTION PRESENTED
1) Whether the City of Ocoee may promulgate an ordinance prohibiting one from soliciting
door-to-door without first obtaining a permit from the City?
2) Whether the City of Ocoee may place time-of-day restrictions upon door-to-door
solicitation activities?
3) Whether the City ofOcoee may restrict a minor's ability to engage in door-to-door
solicitation?
BRIEF ANSWER
Yes, a local government may promulgate an ordinance requiring one to obtain a permit
prior to engaging in solicitation activities. However, the ordinance must be narrowly tailored as
to apply only to those engaging in commercial activities or the solicitation of funds. If the
ordinance is construed as being applicable to noncommercial activities, such as religious
proselytism, anonymous political speech, or the distribution of handbills, a court will rule the
ordinance invalid in violation of the First Amendment's right to freedom of speech.
Further, while the Supreme Court has never directly ruled on the issue, any ordinance
incorporating a time-of-day restriction on solicitation activities will be upheld only ifthe
restriction is reasonable. A provision prohibiting solicitation between the hours of9:00 p.m. and
9:00 a.m. should be sufficiently reasonable to withstand a constitutional attack.
Finally, a local government may constitutionally promulgate content-neutral regulations
directed toward improving the working conditions of minors. Such regulations advance a
substantial governmental interest and does not violate the First or Fourteenth Amendment.
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FOLEY & LARDNER
FOLEY: LARDNER
ATTORNEY-S AT LAW
DISCUSSION
I. Permit Requirement
The Supreme Court of the United States has clearly established that solicitation activities
are to be afforded First Amendment free speech protections. However, it is equally well
established that door-to-door activities pursuing constitutionally protected rights of expression
which involve uninvited contacts imposed on members of the public may be subject to
restrictions. Therefore, any ordinance proposing to restrict door-to-door solicitation activities
must balance the interests of the government and the First Amendment.
In general, a properly drafted solicitation ordinance is one that contains reasonable time,
place and manner restrictions on First Amendment activities. Further, the restriction must be
content-neutral, serve a legitimate governmental interest, leave open ample alternative channels
of communication, and be narrowly tailored to serve the governmental interest. The Supreme
Court has held the prevention of fraudulent solicitation, crime and the protection of resident
privacy as legitimate interests that a local government may seek to safeguard against through
some form of regulation of solicitation activity.
In its most recent opinion concerning the subject, the Supreme Court held an ordinance
requiring one to register with the city and obtain a permit prior to engaging in solicitation
activities, regardless of the activity, as unconstitutional in violation of the First Amendment.1
The ordinance was determined to be overly broad because it applied to both commercial and
noncommercial solicitation alike. In particular, the Court ruled the permit requirement violated
the First amendment because the ordinance applied to "religious proselytizing, anonymous
political speech, and the distribution of handbills." In its opinion, however, the Supreme Court
stated that such an ordinance would "arguably" be constitutional if the ordinance were narrowly
tailored as to "apply only to commercial activities and the solicitation offunds."z Therefore, an
ordinance requiring solicitors to obtain a permit would arguably be held constitutional ifthe
ordinance explicitly limited the permit requirement to only those engaged in commercial
activities or to the solicitation of funds.
II. Time Restriction
As stated above, to be valid, a regulation restricting solicitation activities must be
reasonable as to any time limitation it may impose. However, what constitutes a "reasonable"
time-of-day restriction on evening solicitation has never been fully determined. The Supreme
Court has never directly ruled on the subject. Further, lower court decisions in other
jurisdictions are divided. In some instances, courts have been willing to uphold ordinances that
incorporate some form of time restriction. These have included a prohibition of solicitation
1 Watchtower Bible & Tract SOC'y ofN.Y.. Inc. v. Village of Stratton. 536 U.S. 150 (2002).
2 Id.
2
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FOLEY: LARDNER
ATTORNEYS AT LAW
between the hours of 8:00 p.m. and 8:00 a.m.3 and a provision restricting solicitation to the hours
4
between 10:00 a.m. and 6:00 p.m.
Conversely, courts have invalidated similar provisions as "unreasonable" restraints on the
freedom of speech. For example, in City ofWatseka v. Ill. Public Action Council. 796 F.2d
1547 (ih Cir. 1986), aff'd 479 U.S. 1048 (1987), the Supreme Court affirmed, without opinion, a
Seventh Circuit ruling which invalidated a city ordinance limiting door-to-door solicitation to the
hours between 9:00 a.m. and 5:00 p.m., Monday through Saturday. The Seventh circuit court
also invalidated an ordinance prohibiting solicitation between the hours of 8:00 p.m. and 8:00
a.m.5 Further, in People v. Nassau/Suffolk Neighborhood Network. Inc., 151 Misc. 2d 773, 781
(1991), a New York court invalidated an ordinance limiting solicitation to the hours between
9:00 a.m. and 5:00 p.m. In its opinion, however, the court stated that it might have upheld the
ordinance if it had "barr[ ed] solicitation after some fixed occurrence such as sunset.,,6
"The holdings of the preceding cases should serve as a caveat to municipal officials
interested in restricting solicitation activities during evening hours. Such regulations should be
supported by compelling evidence maintaining that the time restrictions are needed to further the
[governmental objective]."? The NIMLO Model Ordinance Regulating Solicitors and Peddlers
(enclosed) prohibits solicitation between the hours of9:00 p.m. and 9:00 a.m.8 NIMLO notes
that "[t]o date, no federal court has declared the 9:00 p.m. limitation unreasonable.,,9 Therefore,
to minimize the risk of litigation, any proposed solicitation ordinance incorporating a time
restriction should set the time limit no earlier than 9:00 p.m.
III. Regulation of Minors
Finally, an ordinance reasonably restricting the ability of minors to engage in door-to-
door solicitation will likely be upheld if construed as improving the working conditions of
minors. In a case similar to our facts, the Oregon Court of Appeals upheld an ordinance which
prohibited the employment of minors under 16 years of age as door-to-door salespersons and
required employers to register any employees aged 16 to 18 engaged in such activities.1o
Further, the ordinance prohibited employment after 9:00 p.m. and required employers to provide
minors with transportation home by 9:00 p.m.11 The regulations were enacted in response to a
growing number of complaints that "children were working very late at night, that they were
3 Maine Peoples' Alliance v. City ofWaterville, 1985 Me. Super Lexis 18 (1985).
4 Munsell v. Town of Cicero, 1979 U.S. Dist. Lexis 13191 (1979).
5 Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248 (7th Cir. 1985).
6Id.
7 NIMLO Model Ordinance Regulating Solicitors and Peddlers, NIMLO Model Ordinance Service, Article
13-2, 13-2.8.
8 Id. at 13-2.4.
9 Id. at 13-2.8.
10 Northwest Advancement. Inc. v. State of Oregon, 96 Ore. App 133, 136 (1989).
11 Id.
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FOLEY: LARDNER
ATTORNEYS AT LAW
sometimes abandoned far from their homes and that they were also transported [out of state]
without their parents' permission.,,12
In upholding the ordinance, the court noted that "the challenged regulations are
permissibly directed at the employment of certain minors in certain occupations, not the content
of their speech.,,13 Therefore, the regulation furthers a substantial governmental interest, i.e.
improving the working conditions of minors, and does not violate the First amendment. In
addition, the court noted that such regulation does not violate one's equal protection rights under
the Fourteenth amendment because "a minor's right to be employed as a door-to-door salesman
during certain hours or at a certain age in not a fundamental right.,,14 Therefore, regulations
restricting the ability of minors to engage in solicitation activities may be constitutionally valid.
IV. Conclusion
Upon review of the issues, it is my opinion that the City of Ocoee may regulate door-to-
door solicitation in each of the manners described below, either separately or in conjunction with
one another. First, the City may require one to register and obtain a permit prior to engaging in
any door-to-door commercial transactions or in the solicitation of funds. As noted above,
however, the regulation must be narrowly tailored as to not infringe on the First Amendment
rights ofthose engaged in noncommercial activities. Secondly, the City may place a reasonable
time restriction on solicitation activities. Because "reasonable time restriction" has never been
fully defined, it would be prudent not to place an overly restrictive time frame within the
ordinance. The prohibition of solicitation between the hours of 9:00 p.m. and 9:00 a.m. should
be sufficient. Finally, a non-discriminate restriction on a minor's ability to engage in solicitation
activities is likely to be upheld as advancing a legitimate governmental interest. However, one
should note that this restriction may produce unintended consequences, such as prohibiting
solicitation from organizations such as The Girls Scout or the local high school basketball team.
As is often done, the City may exempt certain types of solicitors from these restrictions. Giving
such exemptions, however, may subject the City to Equal Protection, First amendment and other
types of constitutional challenges.
12 Id. at 143.
13 Id. at 144.
14 Id.
4
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~
FOLEY & LARDNER
MEMORANDUM
CLIENT-MATTER NUMBER
020377-0107
TO:
The Honorable Mayor and City Commissioners of the City of Ocoee
FROM:
Paul E. Rosenthal, Esq., City Attorney
DATE:
April 15, 1999
RE:
Door-to-Door Solicitors
This memorandum is in response to an inquiry from Commissioner Parker to Mr.
Shapiro regarding complaints from residents of the Sawmill Subdivision over extremely
aggressive door-to-door sales people. Commissioner Parker has inquired as to the current status
of the law and what actions may be taken by the Ocoee Police Department.
The City of Ocoee does not have an ordinance which regulates or restricts the
activities of solicitors and other persons who may go door-to-door within the City. We
previously had in place an ordinance addressing these activities, but it was repealed in 1996 in
response to a federal lawsuit challenging the ordinance. As a result, the State trespass laws are
the only protections available to property owner with respect to door-to-door solicitors.
Unless a "trespass" is being committed or some other law is being violated, the
Ocoee Police Department has no authority to restrict the activities of a door-to-door solicitor.
The trespass laws are set forth in Chapter 810, Florida Statutes. In order to prevent someone
from entering onto real property, the premises must be "posted" with signs placed not more than
500 feet apart along and at the comer of the boundaries of the property. There must appear on
the signs, in letters of not less than two inches in height, the words "No Trespassing" and in
addition thereto, the name of the owner, lessee or occupant. If a residential structure on less than
five acres is "enclosed" (presumably by a fence) then it is not necessary to have a sign posted in
order to obtain the benefits of the laws pertaining to "trespass on enclosed lands". Entry onto
posted land or enclosed land with a residential structure is a first degree misdemeanor. It would
be necessary for the resident to call the Police Department in the event of a trespass and for the
police officer to personally observe the violation. Alternatively, if the property is not posted or
enclosed, it would then be necessary for the landowner to request that the person leave the
premises and if they fail to leave to then call the Ocoee Police Department who would then
instruct the solicitor to leave the premises. If the solicitor fails to comply with the officer's
request, such failure is a first degree misdemeanor. While the trespass laws may provide a legal
solution, I am not sure that the typical resident wants to post their property in this manner and
deal with the procedural aspects of the trespass law.
006.135983.1
, .;
Gated communities with private roads may have other mechanisms available to
prevent soliciting within their subdivisions. However, the enforcement by the Police Department
within such subdivisions would still be governed by the above discussion regarding trespass
laws.
In 1996 we proposed an ordinance which would regulate solicitors and peddlers
and require that they obtain a permit from the City. We also proposed an alternative ordinance
which would restrict the activities of individual solicitors and peddlers and allow private
residences to post "No Solicitors" signs which could be enforced by the Police Department.
Attached hereto is a copy of the proposed language submitted to the City Commission in October
1996. At that time, the City Commission elected to repeal the then existing ordinances without
adopting any substitute ordinance since it appeared that there was no ordinance which could have
been adopted in order to satisfy the objections of the plaintiffs in the litigation. While we have
not updated our research, it was our opinion at the time that the proposed alternative amendment
attached hereto (which would not require any permit or registration) was clear, unambiguous and
lawful. I do not believe the law has subsequently changed.
PERljh
Attachment
006.135983.1
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.OLEY & LARDNER-
AGENDA 10-02...95
Item VI A 1
.
ATTORNEYS AT LAW
LOS ANGELES
POST OFFICE BOX 2193
ORLANDO, FLORIDA 32802.2193
111 NORTH ORANGE AVENUE. SUITE 1800
ORLANDO, FLORIDA 32801.2386
TELEPHONE (407) 423-7656
FACSIMILE (407) 648-1743
SAN DIEGO
SAN FRANCISCO
TALLAH~SSEE
TAMP:"-
WASHINGTON D.C.
WEST PALM BEACH
CHICAGO
.IACKSON'JII.LE.
MAOI~ON
MILWAUKEE
SACRAMENTO
WRITER'S DIRECT LINE
MEMORANDUM
FROM:
The Honorable Mayor and City commissioners
of the City of Ocoee
Paul E. Rosenthal, Esq., City Attorney ~~~~
september 27, 1996
TO:
DATE:
RE:
ordinance No. 96-21: ordinance Relating to Solicitorsz
Peddlers and ODen Air vendors
Attached hereto is proposed Ordinance No. 96-21 relating
'Co solici tors, peddlers and open air vendors. The proposed
Ordinance revises the current provisions of section 119-27 of the
City Code with respect to this subject and the definitions related
thereto. For your convenience, I am also attaching a copy of the
current City Code provisions with respect to this subject..
Our review of section 119-27 began as a result of
correspondence received from Mathew staver of Liberty Counsel. On
september 19th, we provided Mr. staver with a draft of the proposed
substantive text of the Ordinance. On September 25th, we were
advised that they intended to comment on the proposed revisions,
but that the review time provided to meet the agenda deadline was
unreasonable. Rather than delay city commission consideration of
this matter, we will forward to Mr. Staver a copy of this
memorandum and provide him with the opportunity to submit proposed
amendments at the public hearing. If we are provided with advance
information regarding any proposed amendments, we will also provide
you with our recommendations with respect thereto.
In preparing the proposed Ordinance we have reviewed the
International Municipal Lawyers Association Model Ordinance on this
subj ect. While various provisions of the Model Ordinance have been
incorporated, we have only utilized those provisions consistent
with the intent and scope of the current ordinance.
The following is a highlight of the differences between
the proposed Ordinance and the existing provisions of Chapter 119
relating to solicitors, peddlers and open air vendors:
ESTABclSHED 1B42
~
It e
The Honorable Mayor and city commissioners
of the city of Ocoee
September 27, 1996
Page 2
(1) The definitions of peddler and solicitor have been
revised and substantially follow the Model Ordinance, except
that they do not include persons soliciting donations for
political, charitable, religious and other non-commercial
purposes. The reference to "agent" has been eliminated and
incorporated into the definitions of solicitor and peddler.
(2) All references to the phrase "canvass" or "house-to-
house canvass" have been deleted.
(3) Permitting responsibility has been shifted from the
Chief of Police to the Building Official. In practice, the
Building Official has been issuing the permits under the
current Code.
(4) specific standards are established for denial of a
permit. All references to "good moral character" have been
deleted. However, specific authority is granted to deny the
issuance of a permit to a person who has been convicted of a
sex offense, trafficking in controlled substances or any
violent acts against persons or property within five years
from the date of application. Authority is also granted to
deny a permit to a person who has been convicted of fraud,
deceit or misrepresentation within the past five years.
(5) specific standards are established for revocation of
a permit. These standards are similar to the standards for
issuance of a permit.
In addition to the changes set forth above, the proposed
Ordinance addresses other subjects related to peddling and
soliciting within the city. The following is a highlight of these
additional changes:
(1) Peddling and
9:00 p.m. and 9:00 a.m.
soliciting between
is prohibited.
the
hours
of
(2) A permit is only required to be obtained by persons
18 years of age or older. This is consistent with the current
practice which does not require that a permit for groups such
as the Girl Scouts who sell cookies door to door. However,
the prohibitions on certain activities of solicitors and
peddlers set forth in section 119-27.A would be applicable
without regard to the age of the solicitor or peddler (i.e.,
they cannot enter premises during prohibited hours) .
e e
The Honorable Mayor and city commissioners
of the city of Ocoee
September 27, 1996
Page 3
(3) The information requested in the application form
has been expanded to identify those persons who may be denied
a permit.
(4) An application fee of $5.00 is established.
Peddlers and solicitors will also have to obtain an
occupational license and pay the applicable occupational
license fee unless exempt under other Code provisions.
currently, occupational licenses are not required of
charitable, religious, fraternal, youth, civic or service
organizations making occasional sales when the projects are
performed exclusively by the members and the proceeds are used
exclusively for non-profit activities of the organization.
However, under the proposed Ordinance, a permi t would be
required for members over the age of 18 involved in such
selling activities if they are going, without invitation, to
private residences.
(5) The duration of the permits will track the duration
of annual occupational licenses.
(6) Appeals will be to the Board of Adjustment in the
event of denial or revocation of a permit. Also, persons may
present information to the Building Official regarding the
basis for any claimed exemption.
(7) No permit is required for (i) conducting charitable,
religious, political or other non-commercial activities which
do not involve the sale of goods, wares, merchandise, personal
property or services, and (ii) persons requesting
contributions of funds for charitable, religious, political or
other non-commercial purposes. While these activities are not
included within the definition of peddler and solicitor, we
have added -an express exemption to avoid any possibility that
the proposed Ordinance could be misinterpreted to apply to
such activities. This is consistent with the current Code
which does not require a permit for such activities. It
should be noted that the Model Ordinance requires a permit for
persons going on private property to request contributions of
funds for political, chari table, religious or other non-
commercial activities.
(8) Specific penalties are now provided for violations
of the Ordinance.
e e
The Honorable Mayor and city commissioners
of the City of Ocoee
September 27, 1996
Page 4
The proposed Ordinance does require a permit for
charitable, religious, political and other non-commercial
activities undertaken by persons over the age of 18 who are engaged
in the sale of goods, wares, merchandise, personal property or
services. For example, a person going upon a private residence to
sell religious materials (or offer religious materials which are
only provided on the condition that a "donation" is made) would be
required to obtain a permit even if that person was also conducting
non-commercial religious activities in connection therewith. While
it is our opinion that a permit may lawfully be required under such
circumstances, Liberty Counsel may continue to challenge the
proposed Ordinance based upon this requirement. If the ci ty
continues to require a permit for such activities, it is possible
that a court may ultimately be called upon to decide whether a
permit can be required. We believe that the proposed Ordinance
will withstand judicial scrutiny since a permi t would not be
required if religious materials were unconditionallY being
distributed and donations were being solicited in connection with
such distribution. Also, the Model Ordinance requires a permit for
religious groups soliciting donations and the proposed Ordinance is
more narrowly drafted.
Finally, as a result of recent events involving the
litigation brought by Liberty Counsel, the city Manager has
requested that we review the legal authority of the City to require
an identification badge and impose reasonable restrictions (i.e.,
prohibiting activities between 9:00 p.m. and 9:00 a.m.) for all
persons who propose to enter upon a private residence, without
invitation, for any purpose, including the conducting of
charitable, religious, political or other non-commercial activities
which do not require an occupational license or a peddlers or
solicitors permit under section 119-27 of the City Code. Concerns
have been expressed regarding the need to provide a higher level of
security and protection for private residences being approached by
uninvited visitors. Any such ordinance would be unrelated to the
issuance of occupational licenses and the conducting of business
acti vi ties wi thin the city. We are currently researching the legal
authority of the city with the goal of placing this subject on the
agenda for separate discussion at the City commission meeting of
October 15th. We will not prepare an ordinance on this additional
subject unless first directed to do so by the city commission.
The City Manager, Building Off icial and the Chief of
police have reviewed the proposed Ordinance and, along with the
City Attorney, recommend its approval by the City commission.
e e
The Honorable Mayor and City Commissioners
of the City of Ocoee
September 27, 1996
Page 5
RECOMMENDATION:
It respectfully is recommended that the City commission
adopt Ordinance No. 96-21 and authorize execution thereof by the
Mayor and city Clerk.
PER: dh
encl.
C:\~IIOOCSIOCOE\MEMOS\OROINA.MEM I 9m/96I DEBBIEH I PER:dh
e
e
ORDINANCE NO. 96-21
AN ORDINANCE OF THE CITY OF OCOEE, FLORIDA
RELATING TO SOLICITORS, PEDDLERS AND OPEN-AIR
VENDORS; AMENDING SECTION 119-3 OF THE OCOEE
CITY CODE BY ADOPTING NEW DEFINITIONS OP
PEDDLER AND SOLICITOR AND BY REPEALING THE
DEFINITION OF AGENT; REPEALING SECTION 119-27
OF THE OCOEE CITY CODE IN ITS ENTIRETY AND
ADOPTING A NEW SECTION 119-27 OP THE OCOEE
CITY CODE REGARDING SOLICITORS, PEDDLERS AND
OPEN-AIR VENDORS, SAID SECTION PROVIDING FOR
THE PROHIBITION OF CERTAIN ACTIVITIES, A
PERMIT APPLICATION, THE ISSUANCE, EXPIRATION
AND EXHIBITION OF PERMITS, DURATION AND
VALIDITY OF PERMITS, DENIAL AND REVOCATION OF
PERMITS, APPEALS, EXEMPTIONS FROK PERMIT FEES,
CLAIMS OF EXEMPTION AND EXEMPTIONS FROK
PERMITTING REQUIREMENTS AND PENALTIES;
PROVIDING FOR SEVERABILITY; PROVIDING FOR
CODIFICATION; PROVIDING AN EFFECTIVE DATE.
BE IT ENACTED BY THE CITY COKKISSION OF THE CITY OF
OCOEE, FLORIDA, AS FOLLOWS:
SECTION 1. The city commission of the City of Ocoee has
the authority to adopt this Ordinance pursuant to Article VIII of
the Constitution of the state of Florida and Chapter 166, Florida
statutes.
SECTION 2. The definitions of "agent", "peddler" and
"solicitor" set forth in section 119-3 of Chapter 119 of the Code
of Ordinances of the city of Ocoee, Florida are hereby repealed.
SECTION 3. Section 119-3 of Chapter 119 of the Code of
Ordinances of the City of Ocoee, Florida is hereby amended by the
addi tion of new def ini tions of "peddler" and " solicitor" as
follows:
1 . peddl er means any person who goes upon the
premises of any private residence in the city,
not having been invited by the occupant
thereof, carrying or transporting goods,
e
e
wares, merchandise or personal property of any
nature and offering the same for sale. This
definition also includes any person who
solicits orders and as a separate transaction
makes deliveries to purchasers as part of the
scheme to evade the provisions of this
Chapter.
2. Solicitor means any person who goes upon the
premises of any private residence in the city,
not having been invited by the occupant
thereof, for the purpose of taking or
attempting to take orders for the sale of
goods, wares, merchandise, or other personal
property of any nature for future delivery, or
for services to be performed in the future.
This definition also includes any person who,
without invitation, goes upon private
property, to sell goods, wares, merchandise,
personal property or services for political,
charitable, religious, or other non-commercial
purposes.
SECTION 4. section 119-27 of Chapter 119 of the Code of
Ordinances of the City of Ocoee, Florida is hereby repealed in its
entirety.
SECTION 5. A new section 119-27 of Chapter 119 of the
Code of Ordinances of the City of Ocoee, Florida is hereby adopted
as follows:
~ 119-27. solicitors, peddlers and open-air vendors.
A. Prohibitions. subject to the provisions of section 119-
27.K hereof, it is unlawful for any individual solicitor
or peddler to:
(1) Enter the premises of a private residence when a
"No Solicitors" sign, or a sign with words of
similar import, is posted.
(2) Remain upon the premises of a private residence
after the owner or occupant requests the solicitor
or peddler to depart.
2
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e
(3) Approach the back or rear doors or the sides or
rear of any private residence.
(4) Conduct the activities of a peddler or solicitor,
whether licensed or unlicensed, between the hours
of 9:00 p.m. and 9:00 a.m.
(5) Peddle or solicit in the city unless and until any
person so desiring to peddle or solicit shall have
complied with each and every of the applicable
terms and conditions of this section.
B. Permit required.
(1) Subject to the provisions of section 119-27.K
hereof, solicitors, peddlers and open-air vendors
who are eighteen (18) years of age or older shall
obtain from the Building Official a written permit
to conduct business within the city prior to
engaging in peddling, soliciting or open-air
vending activities within the city. This permit is
in addition to any occupational license which may
be required under the provisions of this Chapter.
(2) A peddler or solicitor who has a city occupational
license for another occupation category listed in
section 119-5 shall be required to obtain a permit
under section 119-27.B(1) hereof, but shall not be
required to obtain an occupational license as a
peddler or solicitor so long as the peddling or
soliciting activities relate to the occupation
category for which the occupational license has
been issued.
(3) In addition to all other information required for
an occupational license, open-air vendors must also
provide the Building Official with specific
information regarding the location the open-air
vendor will have his goods, wares or merchandise
for sale and proof of the owner's permission to use
the property, a description of the goods, wares or
merchandise, the number of days and the daily hours
the open-air vendor will be on the property selling
and other appropriate information as requested by
the Building Official on the application form.
c. Permit application; contents.
(1) Any person desiring to secure a permit required by
section 119-27. B hereof shall first make written
application to the Building Official on forms
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provided by the Building Official, and such
application shall state at least the following:
(a) The name, local address, permanent address
if different from the local address, and age
of the applicant.
(b) If employed, the name and address of the
person by whom such applicant is employed or
who such applicant represents; or if acting
as an agent, the name and address of the
principal who is being represented, with
credentials in written form establishing the
relationship and the authority of the
employee or agent to act for the employer or
principal, as the case may be.
(c) If employed, the length of time such
applicant has been so employed.
( d) The place of residence and nature of
employment of the applicant during the
preceding year.
(e) The nature and character of the goods,
wares, merchandise, persona I property or
services to be offered by the applicant and
the hours during which the applicant intends
to peddle or solicit.
(f) The personal description of the applicant.
(g) The federal employer identification number
or social Security number of the applicant.
(h) A statement as to whether or not the
applicant has been convicted of a felony,
misdemeanor or ordinance violation involving
a sex offense, trafficking in controlled
substances, or any violent acts against
persons or property, such conviction being
entered within the five (5) years preceding
the date of application.
(i) A statement as to whether or not a judgment
based upon, or conviction for, fraud, deceit
or misrepresentation has been entered
against the applicant or the applicants
employer within the five (5) years
immediately preceding the date of
application.
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(j ). If applicable, the number of the valid city
of Ocoee occupational license and the name
issued to.
(k) Description and license number of vehicle to
be used in connection with the soliciting or
peddling activities within the city.
(2) Each application shall be also accompanied by a
photograph of the applicant and, except as provided
in Section 119-27.I, a non-refundable application
permit fee in the amount of $5.00.
(3) The applicant shall also be required to show proof
of the applicant's age, address and identification
through the applicant's driver's license or other
legally recognized form of identification.
D. Issuance; expiration; exhibition of permit.
(1) Upon receipt of an application, the Building
Official, or his authorized representative, shall
review the application and shall endorse his
approval on the application and shall deliver the
required permit to the applicant unless there is a
basis to deny the permit under the provisions of
section 119-27.F hereof.
(2) The permit shall show the name, address and
photograph of the permittee, the kind of goods,
wares, merchandise, personal property or services
to be sold or delivered, the date of issuance, and
the length of time that the permit shall be in
effect. The permit shall also show the permit
number and identifying description of any vehicle
to be used in carrying on the business for which
the permit is issued.
(3) The permit shall be worn by the permittee in such a
way as to be conspicuous at all times while the
permittee is soliciting or peddling in the city.
E. Duration and validity.
(1) All permits issued pursuant to this section shall
be valid for the twelve-month period beginning on
October 1 of each year and ending on September 30
of the following year.
(2) A permit issued pursuant to this section is not
transferable. When a permittee changes employers
his permit is automatically voided.
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F. Denial of Permit.
(l) Upon review of the application, the Building
Official may deny a permit to the applicant under
this section for any of the following reasons:
(a) An investigation reveals that the applicant
falsified information on the application;
(b) The applicant has been convicted of a
felony, misdemeanor or ordinance violation
involving a sex offense, trafficking in
controlled substances, or any violent acts
against persons or property, such conviction
being entered within the five (5) years
preceding the date of application;
(c) The applicant or the applicants employer is
a person against whom a judgment based upon,
or conviction for, fraud, deceit or
misrepresentation has been entered wi thin
the five (5) years immediately preceding the
date of application;
(d) There is no proof as to the authority of the
applicant to serve as an agent to the
principal; or
(e) The applicant has been denied a permit under
this section within the immediate past year,
unless the applicant can and does show to
the satisfaction of the Building Official
that the reasons for such earlier denial no
longer exist.
(2) The Building Official's denial and the reasons for
denial shall be noted on the application, and the
applicant shall be notified that the application is
denied and that no permit will be issued. Notice
shall be mailed to the applicant at the address
shown on the application form, or at the
applicant's last known address.
G. Revocation of permit.
(1) Permits issued as provided in this section may be
revoked by the Building Official, after notice and
hearing, for any of the following offenses:
( a)
Fraud, misrepresentation or
statement in the application.
a
false
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(b) Fraud, misrepresentation or a false
statement in the conduct of business.
(c) violation of any condition, provl.sl.on or
qualification provided in the application.
(d) conviction, nolo contendere plea or
forfeiture resulting from or involving a sex
offense, trafficking in controlled
substances, or any violent acts against
persons or property or a judgment based upon
fraud, deceit or misrepresentation.
(e) Any violation of this section.
(f) conducting business in an unlawful manner or
in such manner as to threaten a breach of
the peace or menace, public health, safety
or welfare.
(2) written notice of revocation, and the grounds
therefor, shall be mailed to a permittee at least
five (5) days before the date set for a hearing.
Such notice shall be mailed to the applicant at the
address shown on the application form, or at the
applicant's last known address.
H. Appeals. An applicant denied a permit or a holder of a
revoked permit aggrieved by the action of the Building
Official may appeal to the Board of Adjustment by filing
a written statement with the City Clerk within fourteen
(14) days after notice of denial or revocation has been
mailed to the applicant. The Board of Adjustment shall
set a time and place for hearing and its decision shall
be final.
I. Exemptions from permit fee. A solicitor or peddler shall
not be required to pay the application fee set forth in
section 119-27.C if the solicitor or peddler (i) intends
to peddle or solicit on behalf of a religious
institution, educational institution or charitable
institution, as defined in section 119-3, or (ii) is
exempt from the requirement to obtain an occupational
license pursuant to the provisions of section 119-6.Ci
provided, however, that the foregoing shall not create an
exemption from the permitting requirements set forth in
section 119-27.B.
J. Claims of Exemptions. Any persons claiming to be legally
exempt from the permitting requirements of this section
shall cite to the Building Official the statute or other
legal authority under which the exemption is claimed and
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shall present to the Building Official proof of
qualification for such exemption.
K. Exemptions. This section is not intended to and shall
not be construed to require a permit for or prohibit a
person from going to any private residence in the city
for the purpose of (i) conducting charitable, religious,
political or other non-commercial activities so long as
such activities do not involve the sale or the taking of
orders for the sale of any goods, wares, merchandise,
personal property or services, or (ii) requesting
contributions of funds or anything of value for
charitable, religious, political or other non-commercial
purposes.
L . Penalty. Any person violating any provision of this
section shall, upon conviction, be punishable as provided
in section 1-12 of Article II of Chapter 1, General
Provisions, of the Code of the City of Ocoee. Each day
such violation is committed or permitted to continue
shall constitute a separate offense.
SECTION 6. Severability.
If any section; subsection,
sentence, clause, phrase or portion of this Ordinance is for any
reason held invalid or unconstitutional by any court of competent
jurisdiction, such portion shall be deemed a separate, distinct and
independent provision and such holding shall not affect the
validity of the remaining portion hereto.
SECTION 7. Codification.
It is the intention of the
City commission of the city that the provisions of this Ordinance
shall become and be made a part of the Code of Ordinances of the
ci ty ; and that sections of this Ordinance may be renumbered or
relettered and the word "ordinance" may be changed to "chapter",
"section", "article", or such other appropriate word or phrase in
order to accomplish such intentions; and regardless. of whether such
inclusion in the code is accomplished, sections of this Ordinance
may be renumbered or relettered and the correction of typographical
8
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errors which do not affect the intent may be authorized by the City
Manager, without need of public hearing, by filing a corrected or
recodified copy of same with the City Clerk.
SECTION 8. Effective Date. This Ordinance shall become
effective immediately upon passage and adoption.
PASSED AND ADOPTED this
day of
APPROVED:
, 1996.
ATTEST:
CITY OP OCOEE, FLORIDA
s. Scott Vandergrift, Mayor
Jean Grafton, City Clerk
(SEAL)
ADVERTISED
READ FIRST TIME
1996
, 1996
,
READ SECOND TIME AND ADOPTED
, 1996
UNDER AGENDA ITEM NO.
FOR USE AND RELIANCE ONLY BY
THE CITY OF OCOEE, FLORIDA
APPROVED AS TO FORM AND LEGALITY
this ___ day of , 1996.
FOLEY & LARDNER
By:
City Attorney
C:\WPSI IDOCS\OCOEIPEDDLERS.ORD 19m1%I DEBBIEH I PER:cili
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.9119-1
OCOEE CODE
9 119-3
9 119-28. Home occupational licenses.
[HISTORY: Adopted by the City Commission of the City of Ocoee
8-15-1995 by Ord. No. 95-20.' Amendments noted where applicable.]
GENERAL REFERENCES
Land development regulations - See Ch. 180.
9 119-1. Levy of tax.
The City of Ocoee hereby levies an occupational license tax upon every
person exercising the privilege of engaging in or carrying on any business,
profession or occupation within the city and authorizes the issuance of
occupational licenses as authorized by Chapter 205 of the Florida Statutes or
any successor provision thereto.
9 119-2. Engaging in business without license.
It shall be unlawful for any person to engage in any business, oc=upation or
profession within the city without a license issued hereunder or upon a license
issued upon false statements made by any person or on behalf of such person.
I n any prosecution under this section, the fact that such person is conducting
such business shall be prima facia evidence of a violation hereof.
9 119-3. Definitions.
For the purpose of this chapter, the following words shall have the meanings
ascribed to them in this section unless the context requires otherwise:
AGENT - A person engaged in a house-to-house canvass,
demonstrating or taking orders for any goods, wares or merchandise
or taking orders from samples where goods are to be delivered later in
the same manner, not in interstate commerce. Goods, wares and
merchandise, as used in this chapter, shall be held to include a
1 Editor's Note: This ordinance also repealed former Ch. 119. Occupational Licenses. adopted 6-20-1995 by Ord. No.
95-18.
11 902
5 - 1 - 96
~ 119-3
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OCCUPATIONAL LICENSES
~ 119-3
photograph and coupons or tickets good in whole or in part for a
photograph or other merchandise.
BUILDING OFFICIAL - The Building Official of the City of Ocoee or
his designee.
CHARITABLE INSTITUTIONS - Nonprofit corporations operating
physical facilities in Florida at which are provided charitable services, a
reasonable percentage of which shall be without cost to those unable
to pay.
EDUCATIONAL INSTITUTIONS - State tax-supported or parochial,
church and nonprofit private schools, colleges or universities
conducting regular classes and courses of study required for
accreditation by or membership in the Southern Association of
Colleges and Schools, Department of Education or the Florida Council
of Independent Schools. Nonprofit libraries, art galleries and museums
open to the public are defined as "educational institutions" and eligible
for exemptions.
EMPLOYEE - All full-time or part-time personnel, including
nonprofessionals, principals and partners, contract workers,
subcontractors and consultants who worked for the business.
occupation or profession during the prior twelve-month period
beginning on May 1 of the previous calendar year and ending on Aprii
30 of the current calendar year. Issuance of a paycheck shall be
conclusive evidence that an individual is an employee.
INVENTORY - Only those chattels consisting of items commonly
referred to as "goods, "wares" and "merchandise" which are held for
sale or lease to customers in the ordinary course of business,
including supplies and raw materials to the extent that they are
acquired for sale or lease to customers in the ordinary course of
business or will physically become a part of merchandise intended for
sale or lease to customers in the ordinary course of business. All
livestock shall be considered "inventory." Items of inventory held for
lease to customers in the ordinary course of business, rather than for
sale, shall be deemed "inventory" only prior to the initial lease of such
items.
LICENSE TAX CERTIFICATE and LICENSE CERTIFICATE - The
certificate or document to be issued by the Building Official evidencing
11 903
5-1-96
S 119-3
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OCOEE CODE
9 11 9-3
payment of the license tax initially imposed and required for the
issuance thereof.
LICENSE YEAR or YEAR - The twelve-month period beginning on
October 1 of each year and ending on September 30 of the following
year.
MERCHANDISE - Any goods, wares, commodities or items more
specifically enumerated hereinbelow bought, sold or rented in the
usual course of business or trade.
MERCHANT - Any person engaged in the business of selling
merchandise at retail or wholesale. For the purpose of this chapter, the
term "merchant" shall not include the operators of bulk plants or
service stations engaging principally in the sale of gasoline and other
petroleum products; those conducting distress sales; installation
contractors; operators of manufacturing or processing plants selling
only the products manufactured or processed therein; milk and dairy
product distributors; sellers of motor vehicles; peddlers of fuel oil,
gasoline, LP gas or produce; and operators of restaurants, cafes,
cafeterias, caterers or hotels.
NUMBER OF EMPLOYEES - Determined by adding the total number
of paychecks issued for all full-time and part-time personnel, inclusive
of nonprofessionals, principals and partners, contract workers,
subcontractors and consultants who worked for the business,
occupation or profession during the prior twelve-month period
beginning May 1 of the previous calendar year and ending on April 30
of current calendar year. A new business shall be taxed based on the
number of employees as of opening day who are entitled to receive
paychecks.
OPEN-AIR VENDOR - Any person who has goods, wares or
merchandise for sale in a commercial zone in a location which is not
completely enclosed.
PEDDLER - A person who sells goods, wares or merchandise and
the goods, wares or merchandise are not sold in original packages in
interstate commerce but at retail, in small quantities, by means of
house-to-house or place-to-place canvass.
PERSON - Any individual, firm, partnership, joint venture, syndicate
or other group or combination acting as a unit, association,
corporation, estate, trust, business trust, trustee, executor,
11 904
5-1-96
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S 11 9-3
OCCUPATIONAL LICENSES S 119-4
administrator, receiver or other fiduciary, and includes the plural as
well as the singular.
REGISTERED VEHICLE - Any motor vehicle as defined in Chapter
320, Florida Statutes, used in connection with or in furtherance of any
business, profession or occupation.
RELIGIOUS INSTITUTION - Churches and ecclesiastical or
denominational organizations or established physical places for
worship at which nonprofit religious services and activities are
regularly conducted and carried on, and shall also mean church
cemeteries.
RETAIL MERCHANT - Any merchant who sells to the consumer for
any purpose other than resale, provided that sales to manufacturers
and sales to the United States government or the State of Florida or
any of their political subdivisions shall be considered wholesale sales.
SALE - The transfer of ownership or title or possession, transfer,
exchange or barter, whether conditional or otherwise, for
consideration.
SOLICITOR - Any agent or peddler who is otherwise permitted to do
business in the city whether or not such agent or peddler is engaged
in interstate commerce, and shall include all servicemen or repairmen
who engage in any activity as an agent or peddler, as defined in this
section.
WHOLESALE MERCHANT - Any merchant who sells to another for
the purpose of resale.
S 119-4. Conditions of payment of tax.
A. License taxes required under the provIsions of this chapter shall
become due and payable on September 30 of each year unless
otherwise provided in this chapter.
B. Unless otherwise provided in this chapter, a business, occupation or
profession first commencing operation after April 1 and before
October 1 may obtain a license upon payment of one-half (1/2) of the
annual license fee imposed upon such business, occupation or
profession under S 119-5 hereof. Businesses, occupations and
professions commencing operations before April 1 and after
11 905
5 - , - 96
9 119-27
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OCOEE CODE
9 119-27
9 119-27. Peddlers, solicitors and itinerant vendors.
A. Prohibitions. It is unlawful for any individual solicitor, agent or peddler
to:
(1) Enter the premises of a private residence or business
establishment for the purpose of selling or soliciting orders for
goods, wares or merchandise, personal services or information
when a "No Solicitors" sign is posted.
(2) Remain upon any premises after the owner or occupant requests
the solicitor to depart.
(3) Approach back or rear doors or the sides or rear of residential
premises.
B. Permit required.
(1) In addition to the occupational license required by 9 119-5,
agents, peddlers, canvassers, solicitors and open-air vendors shall
obtain from the Chief of Police a written permit to conduct
business within the city. - -
-
(2) In addition to all other information required for an occupational
license, open-air vendors must provide the Building Official with
specific information regarding the location the vendor will have
his wares for sale and proof of the owner's permission to use the
property, a description of the goods, wares or merchandise, the
number of days and the daily hours the vendor will be on the
property selling and other appropriate information as requested
by the Building Official.
C. Permit application; contents.
(1) Any person desiring to secure a permit required by Subsection B
hereof shall first make written application to the Chief of Police
on forms provided by the city, and such applications shall state at
least the following:
(a) The name and address of the applicant.
(b) The name and address of the person by whom such applicant
is employed or who such applicant represents.
(c) The length of time such applicant has been so employed.
11930
5-1-96
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9 119-27
OCCUPATIONAL LICENSES
9 119-27
(d) The place of residence and nature of employment of the
applicant during the preceding year.
(e) The nature and character of the goods, wares, merchandise
or services to be offered by the applicant.
(f) The personal description of the applicant.
(g) Permit fee as required by 9 119-5.
(h) The federal employer identification number or Social Security
number of the applicant.
(2) Such application shall be also accompanied by credentials and
other personal references and identification as may be reasonably
required by the City Commission, including fingerprinting and
photographing.
D. Issuance; expiration; exhibition of permit. If, upon investigation
reasonably made, the Chief of Police ascertains and determines that
the applicant for a permit required by Subsection B is a person of good
moral character and proposes to engage in a lawful, commercial or
professional enterprise, the Chief of Police shall then issue the permit.
Such permit shall be worn at all times by the applicant to whom issued
when soliciting or canvassing in the city and shall be exhibited by any
such applicant whenever requested so to do by any police officer, city
official or any person solicited.
E. Revocation of permit. All permits issued shall be conditioned upon
compliance by the permittee with the Charter and Code of the city. For
violation thereof the permit shall be suspended or revoked in the
manner prescribed.
F. Door-to-door peddlers and solicitors; compliance required. It shall be
unlawful for any person to peddle, solicit and/or canvass from door to
door and/or to any homes, residences or business establishments in
the city unless and until any person so desiring to peddle, solicit or
canvass shall have complied with each and every of the terms and
conditions of Subsections C through E.
G. Exemptions from permit fee. All religious institutions, educational
institutions and charitable institutions defined in 9 119-3 are not
required to pay a permit fee but are required to obtain a permit as
required in Subsections A through F.
11 931
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,.
Section
13-201
13-202
13-203
13-204
13-205
13-206
13-207
13-208
13-209
13-210
13-211
13-212
13-213
13-214
13-215
13-216
13-217
13-218
13-219
13-220
~ f "'~A-
ARTICLE 13-2: ~O~DEL ORDINANCE REGULATING
SOLICITORS AND PEDDLERS
Definitions
Permit Requirements and Exemptions
Permit for Sponsoring Juvenile
Peddlers
Permit Application
Fees
Bond
Application Review and Permit
Issuance
Denial of Permit
Permit Expiration
Identification Badges
Permit Exhibition
Transfer Prohibited
Entry Upon Signed Premises
Unlawful
Hours of Solicitation
Permit Revocation
Notice and Hearing
Appeals
Claims of Exemption
Violations and Penalty
Severability
An ordinance to 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 licensing door-to-door solicitors and peddlers.
BE IT ORDAINED BY THE CITY COUNCIL OF
THE CITY OF
SECTION 13-201. Defmitions.
The following words, terms, and phrases, and
their derivations, when used in this Ordinance, shall
have the meanings ascribed to them in this Section,
except where the context clearly indicates a different
meaning:
(a) Charitable means and includes the words
patriotic, philanthropic, social service, health,
welfare, benevolent, educational, civic, cultural or
fraternal, either actual or purported.
(b) Contributions mean and include the words
alms, money, subscription, property or any donations
under the guise of a loan or money or property.
(c) Depanmentmeans the Department of Public
Safety.
(d) Director means the Director of Public
Safety.
(e) Peddler means any person who goes upon
the premises of any private residence in the City, not
having been invited by the occupant thereof, carrying
or transporting goods, wares, merchandise or
personal property of any nature and offering the same
for sale. This definition also includes any person
who solicits orders and as a separate transaction
makes deliveries to purchasers as part of the scheme
to evade the provisions of this Ordinance.
(t) Peddling includes all activities ordinarily
performed by a peddler as indicated under paragraph
(e) of this Section.
(g) Person means a natural person or any finn,
corporation, association, club, society or other
organization.
(h) Solicitor means any person who goes upon
the premises of any private residence in the City. not
having been invited by the occupant thereof, for the
purpose taking or attempting to take orders for the
sale of goods, merchandise, wares, or other personal
13-2.1
NIMLO Model Ordinance Service
property of any nature for future delivery, or for
services to be perfonned in the future. This
definition also includes any person who, without
invitation, goes upon private property, to request
contribution of funds or anything of value, or sell
goods or services for political, charitable, religious,
or other non-commercial purposes.
(i) Solicitation includes all activities ordinarily
perfonned by a solicitor as indicated under paragraph
(h) of this Section.
SECTION 13-202. Pennit Requirements and
Exemptions.
It shall be unlawful for any person eighteen (18)
years of age or older to engage in peddling or
solicitation activities within the City of
without first obtaining a permit
issued by the Department of Public Safety; provided,
however, that the following are exempted from the
provisions of this Section:
(a) Any solicitation made upon premises owned
or occupied by an organization upon whose behalf the
solicitation is made;
(b) Any communication by an organization
soliciting contributions solely from persons who are
members of the organization at the time of such
solicitation;
(c) Any solicitation in the form of a collection
at a regular meeting, assembly or service of a
charitable person; or
(d) Any solicitation for the relief of any
individual specified by name at the time of the
solicitation where the solicitor represents in each case
that the entire amount collected shall be turned over
to the named beneficiary.
SECTION 13-203. Pennit for Sponsoring Juvenile
Peddlers.
(a) No person under the age of eighteen (18)
shall be pennitted to engage in peddling except as
provided in this Section.
(b) A pennit shall be obtained by a sponsoring
person, company or organization for the conduct of
any peddling or solicitation activities involving, in
whole or in part, a sales force of one (1) or more
persons under eighteen (18) years of age.
(c) The sponsor shall be responsible for
supervising and controlling the conduct of all persons,
including juveniles, peddling under the sponsor's
pennit.
(d) The sponsor shall provide to each individual
in its sales force a badge or other easily readable
form of identification which identifies the name of the
sponsor and the name of the individual. The sponsor
shall require all individuals in its sales force to wear
such identification so that it is clearly visible at all
times when the individuals are peddling or soliciting.
(e) The sponsor shall comply with the
requirements of the State of Youth
Employment Act, Sections
SECTION 13-204. Pennit Application.
Every person subject to the provisions of this
Ordinance shall file with the Director of Public Safety
an application in writing on a form to be furnished by
the Department, which shall provide the following
infonnation:
(a) Proof of age, address and identification of
the applicant, to be provided through the applicant's
driver's license, articles of incorporation (for
sponsors), or other legally recognized fonn of
identification;
(b) A brief description of the business or
activity to be conducted;
13-2.2
Solicitors and Peddlers
(c) The hours and location for which the right
to peddle or solicit is desired;
(d) If employed, the name, address and
telephone number of the employer; or if acting as an
agent, the name, address and telephone number of the
principal who is being represented, with credentials
in written form establishing the relationship and the
authority of the employee or agent to act for the
employer or principal, as the case may be;
(e) A statement as to whether or not the
applicant has been convicted of a felony,
misdemeanor or ordinance violation (other than
traffic violations), the nature of the offense or
violation, the penalty or punishment imposed, the
date when and place where such offense occurred,
and other pertinent details thereof;
(f) Proof of possession of any license or
permit which, under federal, state or local laws or
regulations, the applicant is required to have in order
to conduct the proposed business, or which, under
any such law or regulation, would exempt the
applicant from the licensing requirements of this
Ordinance; and.
(g) Two (2) photographs of the applicant which
shall have been taken within sixty (60) days
immediately prior to the date of filing of the
application. The photographs shall measure
inch(es) by inch(es) and show the head and
shoulders of the applicant in a clear and
distinguishing manner.
SECTION 13-205. Fees.
At the time the application is filed with the
Department, the applicant shall pay a fee to cover the
cost to the City of processing the application and
investigating the facts stated therein. The permit fee
shall be dollars for each solicitor or
peddler.
SECTION 13-206. Bond.
All solicitors requiring cash deposits or taking
orders for cash on delivery purchases (C.O.D.) or
who require 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 Department a bond in the
amount of dollars.
SECTION 13-207. Application Review and Pennit
Issuance.
(a) Upon receipt of an application, the Director
of Public Safety, or authorized representative, shall
review the application as deemed necessary to ensure
the protection of the public health, safety and general
welfare.
(b) If the Director finds the application to be
satisfactory, the Director shall endorse his approval
on the application and shall, upon payment of the
prescribed fee, deliver the required permit to the
applicant.
(c) The permit shall show the name, address
and photograph of the permittee, the class of permit
issued, the kind of goods or services to be sold or
delivered, the date of issuance, and the length of time
that the permit shall be in effect. The permit shall
also show the permit number and identifying
description of any vehicle to be used in carrying on
the business for which the permit is issued.
(d) A record of all permits issued shall be
maintained by the Department for a period of two (2)
years.
SECTION 13-208. Denial of Pennit.
(a) Upon the Director of Public Safety's review
of the application, the Director may refuse to issue a
permit to the applicant under this Ordinance for any
of the following reasons:
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(1) The location and time of solicitation or
peddling would endanger the safety and welfare of
the solicitors, peddlers or their customers;
(2) An investigation reveals that the
applicant falsified infonnation on the application;
(3) The applicant has been convicted of a
felony, misdemeanor or ordinance violation involving
a sex offense, trafficking in controlled substances, or
any violent acts against persons or property, such
conviction being entered within the five (5) years
preceding the date of application;
(4) The applicant is a person against whom
a judgment based upon, or conviction for, fraud,
deceit or misrepresentation has been entered within
the five (5) years immediately preceding the date of
application;
(5) There is no proof as to the authority of
the applicant to serve as an agent to the principal; or
(6) The applicant has been denied a pennit
under this Ordinance within the immediate past year,
unless the applicant can and does show to the
satisfaction of the Director that the reasons for such
earlier denial no longer exist.
(b) The Director's disapproval and the reasons
for disapproval shall be noted on the application, and
the applicant shall be notified that his application is
disapproved and that no pennit will be issued.
Notice shall be mailed to the applicant at the address
shown on the application fonn, or at the applicant's
last known address.
SECTION 13-209. Permit Expiration.
All pennits issued under the provisions of this
Ordinance shall expire one (1) year from the date of
issuance, unless an earlier expiration date is noted on
the pennit.
SECTION 13-210. Identification Badges.
At the same time the pennit is issued, the
Director shall issue to each pennittee a badge, which
shall be worn by the pennittee in such a way as to be
conspicuous at all times while the pennittee is
soliciting or peddling in the City.
SECTION 13-211. Permit Exhibition.
Every person required to obtain a pennit under
the provisions of this Ordinance shall exhibit the
pennit when requested to do so by any prospective
customer or Department employee.
SECTION 13-212. Transfer Prohibited.
It shall be unlawful for any person other than the
pennittee to use or wear any pennit or badge issued
under the provisions of this Ordinance.
SECTION 13-213. Entry Upon Signed Premises
Unlawful.
It shall be unlawful for any person, whether
licensed or unlicensed, while conducting the business
of a peddler or solicitor, to enter upon any residential
premises in the City where the owner, occupant or
person legally in charge of the premises has posted.
at the entry to the premises, or at the entry to the
principal building on the premises, a sign bearing the
words "No Peddlers," "No Solicitors," or words of
similar import.
SECTION 13-214. Hours of Solicitation.
No person, while conducting the activities of a
peddler or solicitor, whether licensed or unl icensed,
shall enter upon any private property, knock on doors
or otherwise disturb persons in their residences
between the hours of 9:00 p.m. and 9:00 a.m.
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Solicitors and Peddlers
SECTION 13-215. Permit Revocation.
Any permit issued under this Ordinance may be
revoked or suspended by the Director of Public
Safety, after notice and hearing, for any of the
following reasons:
(a) Fraud, misrepresentation or false statement
contained in the application for a permit;
(b) Fraud, misrepresentation or false statement
made by the permittee in the course of conducting
solicitation or peddling activities;
(c) Conducting peddling or solicitation activities
contrary to the provisions contained in the permit;
(d) Conviction for any crime involving moral
turpitude; or
(e) Conducting peddl ing or solicitation activities
in such a manner as to create a public nuisance,
constitute a breach of the peace or endanger the
health, safety or general welfare of the public.
SECTION 13-216. Notice and Hearing.
Notice of a hearing for revocation of a permit
issued under this Ordinance shall be provided in
writing and shall set forth specifically the grounds for
the proposed revocation and the time and place of the
hearing. Notice shall bemailed.postageprepaid.to
the permittee at the address shown on the permit
application or at the last known address of the
permittee.
SECTION 13-217. Appeals.
(a) Any person aggrieved by the action or
decision of the Director of Public Safety to deny,
suspend or revoke a permit applied for under the
provisions of this Ordinance shall have the right to
appeal such action or decision to the City Manager
within fifteen (15) days after the notice of the action
or decision has been mailed to the person's address as
shown on the permit application form, or to his last
known address.
(b) An appeal shall be taken by filing with the
Director a written statement setting forth the grounds
for the appeal.
(c) The Director shall transmit the written
statement to the City Manager within ten (10) days of
its receipt and the City Manager shall set a time and
place for a hearing on the appeal.
(d) A hearing shall be set not later than twenty
(20) days from the date of receipt of the appellant's
written statement.
(e) Notice of the time and place of the hearing
shall be given to the appellant in the same manner as
provided for the mailing of notice of action or
decision.
(1) The decision of the City Manager on the
appeal shall be final and binding on all parties
concerned.
SECTION 13-218. Claims of Exemption.
Any person claiming to be legally exempt from
the regulations set forth in this Ordinance, or from
the payment of a permit fee, shall cite to the Director
of Public Safety the statute or other legal authority
under which exemption is claimed and shall present
to the Director proof of qualification for such
exemption.
SECTION 13-219. Violations and Penalty.
(a) Violation of any of the provisions of this
Ordinance shall be treated as an infraction, and shall,
upon conviction, be punishable as set forth in Chapter
of the City Code.
(b) In addition to any criminal enforcement, the
City or any individual may pursue any available civil
remedies deemed appropriate and necessary.
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SECTION 13-220. Severability.
The provisions of this Ordinance are declared to
be severable. If any section, sentence, clause, or
phrase of the Ordinance shall for any reason be held
to be invalid or unconstitutional by a court of
competent jurisdiction, such decisions shall not affect
the validity of the remaining sections, sentences,
clauses, and phrases of this Ordinance, but they shall
remain in effect; it being the legislative intent that
this Ordinance shall remain in effect notwithstanding
the validity of any part.
13-2.6
SOLICITORS AND PEDDLERS: EDITOR'S COMMENTARY
I. Introduction
In preparing this NIMLO Model Ordinance, we
have gathered information from a wide variety of
sources. In addition to reviewing the relevant case
law, we also have examined ordinances sent to us
from many municipalities throughout the United
States, including Albion, Michigan; Columbia, South
Carolina; Fort Worth, Texas; Hurst, Texas; Leacock,
Pennsylvania; New York, New York; Peoria,
Illinois; Phoenix, Arizona; Sioux City, Iowa;
Stockton, California; and Washington, D.C. Portions
of this Model Ordinance are based on municipal code
provisions furnished by Denver, Colorado; Nashville-
Davidson County, Tennessee; Steamboat Springs,
Colorado; Sunnyvale, California; and Walnut Creek,
California.
II. Solicitation Ordinances and the First
Amendment
All types of solicitation, whether commercial,
religious or political, are subject to reasonable
regulation by municipalities. Larsen v. Valente, 456
U . S. 228 (1982). The practical effect of any
solicitation or peddling ordinance is to restrict, or at
least impose conditions on, the free flow of
infonnation, an activity protected by the First
Amendment. The United States Supreme Court,
however, has consistently upheld state and local
government regulations affecting First Amendment
freedoms if the incidental restriction they impose is
no greater than that which is essential to further the
government's legitimate interest. See, e.g., Members
of City Council v. Taxpayers for Vincent, 466 U.S.
789,805 (1984); United States v. O'Brien, 391 U.S.
367, 377 (1968). In that vein, although the Court
has recognized substantial First Amendment
protection for door-to-door solicitors, Manin v.
Struthers, 319. U.S. 1412 (1943), the Court has
upheld the right of a local jurisdiction to regulate
solicitation so long as the regulation is in furtherance
of a legitimate muniCipal objective. See, e.g.,
Heffron v. International Society for Krishna
Consciousness, Inc. 452 U.S. 640, 647-48 (1981).
One objective often cited in support of such
ordinances, which the courts have consistently found
to be legitimate, is protecting the privacy of citizens,
including the quiet enjoyment of their homes. Carey
v. Brown, 447 U.S. 455,471 (1980). Another is the
prevention of crime. Wisconsin Action Coalition v.
City of Kenosha, 767 F.2d 1248, 1252 n. 2 (7th Cir.
1985). While other legitimate municipal objectives,
such as protecting citizens from fraud and other
deceptive practices, may well exist, the two
mentioned here are perhaps most frequently relied
upon by municipal officials seeking to justify a
properly drafted solicitation ordinance.
On numerous occasions, the federal courts also
have ruled that ordinances requiring solicitors to
register with the city, as well as those that allow
citizens to forbid solicitation at their residences by
posting a sign, are sufficiently narrow to serve the
legitimate governmental objective of protecting the
privacy of citizens who do not wish to be bothered by
solicitors or peddlers. At the same time, the courts
have found that such ordinances leave open ample
alternative channels of communication for solicitors
by allowing them to. have contact with those residents
who welcome their message. However, when a city
goes beyond this narrow scope by outlawing
noncommercial solicitation altogether or by being
overly restrictive in terms of the hours during which
solicitation is allowed (e.g., 9 a.m. to 5 p.m.) the
courts have invalidated the ordinance. Part of the
rationale for overturning such an ordinance is that the
city has unnecessarily substituted its judgment for that
of its citizens. See Citizens for a Better Environment
v. Village of Olympia Fields, 511 F. Supp. 104 (N.D.
Ill. 1980).
III. Regulating the Time, Place and Manner of
Solicitation
A properly drafted solicitation ordinance is one
that contains reasonable time, place and manner
restrictions on First Amendment activities. When
those restrictions are challenged in court the
government can only prevail if it can establish that
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any impugned restriction is content-neutral, serves a
legitimate governmental objective, leaves open ample
alternative channels of communication, and is
narrowly tailored to serve the governmental
objective. City of Watseka v. Illinois Public Action
Council, 796 F.2d 1547, 1552 (7th Cir. 1986),
aff'd., 479 U.S. 1048 (1987).
A. Time Restrictions
As numerous court rulings indicate. ordinances
must be reasonable as to the time limitations they
place on solicitation activities. However, the issue of
what is reasonable has never been fully resolved.
The U.S. Supreme Court has never clearly articulated
the proper legal standard for reviewing an ordinance
placing time restrictions on solicitation. The federal
circuits that have dealt specifically with the issue
remain divided. For example, the Third Circuit has
reviewed solicitation time restrictions based on an
"ample alternative channels of communication"
standard. See Pennsylvania Alliance for Jobs &
Energy v. Council of Munhall. 743 F.2d 182. 185
(3rd Cir. 1984). By contrast, the Eighth Circuit has
adopted a "less restrictive means" standard. See
Association of Community Organizations for Reform
Now v. City of Frontenac. 714 F.2d 813. 818-19 (8th
Cir. 1983). There is also the "least restrictive
means" standard, which has been used in the Second
Circuit. See New York City Unemployed & Welfare
Council v. Brezenoff. 677 F.2d 232. 237-39 (2d Cir.
1982).
In Kenosha, 767 F.2d at 1257-58. the Seventh
Circuit invalidated a city ordinance prohibiting
charitable. religious, and political solicitation between
8 p.m. and 8 a.m. While the court acknowledged the
conflict among the circuits and expressed some
preference for the "less restrictive means" standard,
it decided that the impugned ordinance failed all of
the review standards mentioned and, therefore, it was
not necessary to choose among them. [d. at 1254.
In Watseka, 796 F.2d at 1552, the Supreme
Court affirmed without opinion a Seventh Circuit
ruling which held that a' city ordinance limiting
door-to-door soliciting to the hours between 9 a.m.
and 5 p.m., Monday through Saturday. violated the
First Amendment. According to the Seventh Circuit,
the city failed to demonstrate a significant relationship
between the ban on soliciting after 5 p.m. and the
quiet enjoyment and privacy of city residents. [d. at
1556. Also, the court ruled that the ban on
solicitation during the hours from 5 p.m. and 9 p.m..
which was the time period requested by the solicitors,
was not sufficiently connected to the city's interest in
preventing crime. [d. at 1555-56.
The court found that by being more restrictive
than the legitimate privacy and quiet enjoyment
concerns of its citizens demanded. the municipality
had suppressed the protected speech of the solicitors.
Further, the court concluded that the city had
subordinated the First Amendment rights of those
residents who would be willing recipients of the
solicitors' message during evening hours to the
nuisance concerns of residents who did not wish to be
disturbed during those same hours. In voiding the
ordinance, the court noted that "[e]ven Girl Scouts
will have a difficult time selling their cookies by 5
p.m." [d. at 1556. The court also reasoned that the
city failed to offer evidence that its other legitimate
objective, crime prevention, could not have been
satisfactorily served by enforcing laws against
trespass, fraud. burglary. etc., or by merely enforcing
the registration requirements for solicitors that the
city had already adopted. [d. at 1557.
The holdings of the preceding cases should serve
as a caveat to municipal officials interested in
restricting solicitation activities during evening hours.
Such regulations should be supported by compelling
evidence maintaining that the time restrictions are
needed to prevent criminal activity by persons
claiming to be solicitors. The NIMLO Model permits
door-to-door peddling and solicitation to be conducted
well into the evening hours, but imposes a 9 p.m.
cut-off. Several of the solicitation ordinances that
were provided as samples for the purpose of
developing the Model have adopted the same evening
time restriction. To date, no federal court has
declared the 9 p.m. limitation unreasonable or
unconstitutional.
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Solicitors and Peddlers - Editor's Commentary
B. Place Restrictions
In addition to time restrictions, cities may also
use their police power to decide where solicitors and
peddlers can carry out their activities. Such
regulations receive a higher degree of judicial
scrutiny if they seek to restrict solicitation or
peddling in a public forum than if they attempt to do
so in a private forum. For example, a post office
sidewalk, although set back from the street and
parallel to a municipal sidewalk, is not a traditional
public forum. Therefore, a United States Postal
Service regulation prohibiting all solicitation on postal
premises does not violate the First Amendment as
applied to non-disruptive political solicitation on a
post office sidewalk. United States v. Kokinda, 497
U.S. 720 (1990).
Thus, a question arises as to which areas are
generally considered public forums and which ones
are not. Some courts that have ruled in cases
involving canvassers and solicitors have found
nonpublic forums to include the doorways of private
homes, Pennsylvania Alliance for Jobs & Energy v.
Council of Munhall, 743 F.2d 182 (3rd Cir. 1984),
residential areas of university campuses, Chapman v.
Thomas, 743 F.2d 1056 (4th Cir. 1984), cert.
denied. 471 U.S. 1004 (1985), and even state-owned
sports complexes, International Soc. for Krishna
Consciousness, Inc. v. New Jersey Sports &
Exposition Authority, 691 F.2d 155 (3rd Cir. 1982).
Public forums, on the other hand, have been found in
such places as airports, Fernandes v. Limmer, 663
F.2d 619 (5th Cir. 1981), rehearing denied, 669 F.2d
729 (5th Cir. 1982), and cert. denied, 458 U.S. 1124'
(1982), and the sidewalks or parking lots of hospitals,
Dallas Association of Community Organizations for
Reform Now v. Dallas County Hospital Dist., 670
F.2d 629 (5th Cir. 1982), rehearing denied, 680 F.2d
1391 (5th Cir. 1982), and cert. denied, 459 U.S.
1052 (1983).
Ordinances regulating soliciting on streets,
public thoroughfares and certain areas of town will be
upheld if they are reasonable. See, e.g., Good
Humor Cord. v. Mundelein, 211 N.E.2d 269 (Ill.
1965). Government at various levels can also
regulate solicitation on sidewalks, in front of
businesses, in railroad stations, in airports, and in
other public places, so long as such regulations do not
unreasonably infringe on First Amendment rights. See
Heffron v. International Society for Krishna
Consciousness, 452 U.S. 640 (1981); International
Society for Krishna Consciousness v. Griffin, 437
F.Supp. 666 (W.O. Pa. 1977); Slater v. El Paso, 244
S.W.2d 927 (Tex. Civ. App. 1951); Wade v. San
Francisco, 186 P.2d 181 (Cal. App. 1947).
Solicitation may be restricted on the premises of
schools and colleges, because there is no absolute
right to use all parts of the school building or its
immediate environs for an unlimited expressive
purpose. Grayned v. City of Rockford, 408 U.S. 104
(1972); Healy v. James, 408 U.S. 169 (1972). Also,
in a case upholding a ban imposed by a state
university on commercial solicitation in donnitory
rooms, the Supreme Court found that governmental
restrictions upon commercial speech need not be the
absolute least restrictive means available to achieve
the desired end. Board of Trustees of State University
of New York v. Fox, 492 U.S. 469 (1989). Rather,
the restrictions require only a reasonable "fit"
between the government's ends and the means chosen
to accomplish those ends. Id. at 480.
C. Manner Restrictions and Licensing
Municipalities may also place some restrictions
on the manner in which soliciting activities are
conducted. This is frequently done through licensing
requirements. A city's authority to require persons to
register with the local police and obtain a pennit or
license before engaging in business activities within
local jurisdiction can be applied to solicitors and
peddlers. However, as with other licensing
regulations, any ordinance adopted pursuant to that
authority must be reasonable. Collingswood v.
Ringgold, 331 A.2d 262 (N.J. 1975), cert. denied,
426 U.S. 901 (1976).
A solicitation ordinance that has been drafted so
as to allow a city to use its licensing power to
selectively exclude certain solicitors based upon the
content of their message would violate the First
Amendment. Carey v. Brown, 447 U.S. 455 (1980).
However, a city may require persons representing
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organizations seeking charitable contributions to
register with the city and provide certain membership
and financial infonnation if the city issues the
licenses in a nondiscretionary fashion. International
Society for Krishna Consciousness of Houston, Inc.
v. City of Houston, 689 F.2d 541 (5th Cir. 1982).
The Supreme Court has declared an ordinance
unconstitutional that vests overly broad discretion in
a licensing official to issue or deny a solicitation
permit. Schneider v. State, 308 U.S. 147 (1939).
An administrative official may not be empowered
with unbridled discretion to detennine, for example,
whether a solicitor's cause is worthy of patronage,
and in turn use that detennination as a basis for
exercising prior restraint on the solicitation by
arbitrarily denying a pennit. See generally Largent
v. Texas, 318 U.S. 418; Cantwell v. Connecticut, 310
U.S. 296 (1940). It is equally important to note,
however, that an ordinance requiring the filing of a
registration statement containing objective
infonnation of an identifying nature and making the
issuance of a pennit mandatory where such
infonnation if furnished is not facially invalid as a
restraint on First Amendment freedoms. Secretary of
State of Maryland v. Munson, 467 U.S. 947 (1984).
The issue of unguided direction is not the only
relevant consideration for the drafter in putting
together the licensing provisions of a solicitation
ordinance. Other significant items to consider are:
(1) License Fees. Local governments have
been given broad discretion in imposing license fees
on solicitors and peddlers. The courts require,
however, that such fees not be excessive. This
means that they cannot be imposed on an occupation
in such amounts as to be prohibitive or confiscatory.
The fees must not be demanded for the purpose of
raising revenue or place an undue burden on
interstate commerce. See Moyant v. Borough of
Paramus, 154 A.2d 9 (N.J. 1959); Shapiro v. City of
Newark, 130 A.2d 907 (N.J.Super. 1957).
(2) Use of Funds. The courts generally have
disfavored ordinances that specify the manner in
which solicited funds may be used as a condition for
granting a pennit. In Village of Schaumburg v.
Citizens for a Better Environment, 444 U.S. 620
(1980), the Supreme Court struck down an ordinance
requiring that at least 75 percent of the receipts from
charitable solicitations be used for charitable purposes
only. The Court held that less restrictive alternatives
could be used to achieve the government's legitimate
interest in preventing fraud and other deceptive
practices. Id. at 637-39.
(3) Bond Requirements. Some cities require
commercial solicitors and peddlers to provide a bond
to the city. Like any other provision in a solicitation
ordinance, bonding requirements must be reasonable
and in compliance with state law. See Citizens For a
Better Environment v. City of Chicago Heights, 480
F. Supp. 188 (N.D. Ill. 1979); Holy Spirit Assn. for
the Unification of World Christianity v. Hodge, 582
F. Supp. 592 (N.D. Tex. 1984). In a New Jersey
case, for example, an ordinance requiring a surety
bond in the amount of $1,000 was found to bear no
reasonable relation to the amount of business done.
Paramus, 154 A.2d at 20. The court decided that the
requirement was unduly oppressive and deemed it an
unreasonable exercise of police power. [d.
(4) Exemptions. Finally, many ordinances
contain provisions exempting certain types of
solicitors from licensing requirements altogether. In
some earlier rulings these exemptions survived
constitutional scrutiny. For instance, in Cancilla v.
Gehlhar, 27 P.2d 179 (Or. 1933). the Oregon
Supreme Court upheld an exemption that applied to
fanners who sold products from their own farms.
However, in later decisions various sorts of
exemption clauses were found unconstitutional. The
Washington State Supreme Court, in Larson v. City
of Shelton, 224 P. 2d 1067 (Wash. 1950), struck down
a licensing exemption for honorably discharged war
veterans as a violation of the Equal Protection Clause
of the Fourteenth Amendment. That court also
viewed the exemption as a grant of special privileges
and immunities to a certain class. The lesson seems
to be that every solicitation ordinance drafter should
consider the possibility that selecting particular types
of solicitors for exemption, while perhaps allowable
in an extremely limited number of instances, may
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Solicitors and Peddlers - Editor's Commentary
subject the municipality to Equal Protection, First
Amendment, and other types of constitutional
challenges.
IV. Regulating Commercial Solicitation
It was once thought that commercial advertising
was wholly unprotected by the First Amendment.
See e.g., Valentine v. Chrestensen, 316 U.S. 52
(1942). The Supreme Court, therefore, had little
difficulty siding with a municipality in 1951 when a
city's ordinance banning door-to-door solicitation
faced a First Amendment challenge. In Beard v.
Alexandria, 341 U.S. 622 (1951), the Court
remarked that such an ordinance was not "open to
[challenge by] the solicitors for gadgets and brushes."
Id. at 641.
The Court's attitude has changed considerably
since those earlier cases as it has corne to recognize
the value and importance of commercial speech. The
Court now acknowledges that commercial speech
enjoys First Amendment protection, although to a
lesser extent than does noncommercial speech. In
practical terms this means that commercial speech is
subject to modes of regulation that might be
impermissible in the noncommercial realm. Ohralik
v. Ohio State Bar Assn., 436 U.S. 447, 448 (1978).
In Central Hudson Gas & Electric Corp. v.
Public Service Comm'n, 447 U.S. 557 (1980), the
Supreme Court set out a four-part test for lower
courts to use in determining whether a government
restriction on conunercial speech can be sustained.
First, the expression being regulated or restricted
must be of a type that is protected by the First
Amendment. For commercial speech to corne withm
that provision, it must concern lawful activity, and
not be misleading. Additionally, the governmental
interest cited as the basis for the restriction must be
substantial and the regulation must directly advance
the governmental interest asserted. Finally, the
regulation must not be more extensive than is
necessary to serve that interest.
Making door-to-door sales through in-person
solicitation, assuming the absence of unlawful activity
or misleading information, has been found to include
a sufficient element of commercial speech to qualify
for First Amendment protection under the first prong
of the Central Hudson standard. See Project 80's,
Inc. v. City of Pocatello, 876 F.2d 711 (9th Cir.
1988). Also, where local governments have asserted.
an interest in protecting the privacy and repose of
citizens in their homes, or crime prevention as the
reasons for enacting restrictions, the federal courts
have had little difficulty in accepting these as
substantial state interests. See Frisby v. Schultz. 487
U.S. 474 (1988); Carey v. Brown, 447 U.S. 455
(1980). As a result, most municipal ordinances that
regulate commercial solicitors could satisfy this
second prong, regardless of the specific wording of
the ordinance.
The difficulties that commercial solicitation
ordinances have encountered, particularly when they
are too broadly worded, have occurred when the
courts have applied the third prong of the Central
Hudson test. Ordinances that attempt to ban all
uninvited peddling or solicitation in the name of
privacy protection and crime prevention become
particularly vulnerable when the court begins to
assess the extent to which these permissible
governmental interests are directly advanced by such
restrictions. A good example is the case of Project
80's, Inc. v. City of Pocatello, 876 F.2d 711 (9th
Cir. 1988), in which the Ninth Circuit noted that
"privacy is an inherently individual matter" and,
therefore, it is difficult to violate a person's privacy
unless the person wishes to be left alone. The court
then went on to criticize the ordinances of Pocatello
and Idaho Falls, Idaho for seeking to make the choice
for the resident regarding whether to receive
uninvited solicitors by imposing a complete ban on
uninvited peddling. The court opined that the
ordinances did not protect privacy when applied to
residences whose occupants welcome uninvited
commercial solicitors. Id. at 714. The count did,
however, acknowledge at least a marginal relationship
between the cities' interest in reducing crime and the
act of prohibiting strangers from summoning residents
to their doors. Id.
Some solicitation ordinances that have cleared
this third hurdle by convincing the court that privacy
and crime prevention were directly served by the
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ordinance's restnctions, have nonetheless been
declared invalid because the restrictions went further
than necessary to accomplish those ends. The so-
called "least restrictive alternative" requirement, the
final prong of the Central Hudson test, also has been
used to strike down ordinances that prohibit all
uninvited solicitation. In Project 80's, the court
noted that residents who want privacy can post a
notice to that effect and that crime can be prevented
by requiring solicitors to register with the city. Id.
at 715. The court concluded that less restrictive
means were clearly available to the cities and that
both cities' ordinances had swept too broadly in
attempting to protect privacy for either one to satisfy
the fourth requirement under Central Hudson. Id. at
716.
V. Green River Ordinances
Ordinances totally proscribing commercial
peddling or soliciting upon the premises of private
residences without invitation from the occupants are
commonly referred to as Green River ordinances.
Such ordinances take their name from the Wyoming
town of Green River, whose solicitation ordinance
was the first of its kind to be challenged on
constitutional grounds. See Green River v. Fuller
Brush Company, 65 F.2d 112 (10th Cir. 1933).
Green River ordinances typically declare uninvited
house-to-house canvassing to be a nuisance
punishable by fine or imprisonment. The Supreme
Court upheld this type of ordinance in Beard v.
Alexandria, 341 U.S. 622 (1951), finding that a
municipality's police power permits reasonable
regulation of door-to-door solicitation for purposes of
public safety.
Despite the Beard ruling, state courts may
invalidate Green River ordinances on state
constitutional grounds. The Oregon Supreme Court,
for example, struck down an ordinance banning
uninvited residential door-to-door solicitation by
merchandise peddlers, stating that the ordinance was
overbroad and violated the free speech guarantees of
the Oregon Constitution. . City of Hillsboro v.
Purcell, 761 P.2d 510 (1988). Also, the Ninth
Circuit struck down the two Idaho ordinances
mentioned above which banned uninvited solicitation
at residences by merchandise peddlers because the
ordinances were neither the least restrictive alternative
available to further governmental interests in
protecting residential privacy and preventing crime.
nor were they valid time, place, and manner
restrictions. Project 80's, 876 F.2d at 716. It is
worth noting, however, that this judgment was
vacated and remanded without opinion by the
Supreme Court. City of Idaho Falls v. Project 80's,
Inc., 493 U.S. 1013 (1990).
The NIMLO Model does not contain a Green
River provision, although one could be added to any
ordinance drafted from the Model. However, any
drafter is well advised to exercise a certain degree of
caution when including such a provision in a
solicitation ordinance. It is important to remember
that commercial door-to-door solicitation. or peddling
for that matter, is a lawful business, rather than an
inherent nuisance. Like any other business not
considered a nuisance in fact under state law,
solicitation does not become a public nuisance merely
because the municipality declares it to be so and acts
to restrict it accordingly. McQuillin Mon. Corp..vol. 7, ~ 24.378 (3rd Ed. 1988).
13-2.12
ABOUTIMLA
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of Municipal Law Officers, "NIMLO") is a non-profit, professional organization based in
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For more information, please contact IMLA via telephone, (202) 466-5424, facsimile, (202)
785-0152, or e-mail.imladc@aol.com. You also may visit IMLA's Internet Web site at
http://www.im1a.org.
~
AN ORDINANCE REGULATING PEDDLERS, SOLICITORS AND CANVASSERS,
ESTABLISHING REGISTRATION REQUIREMENTS FOR THE FORMER TWO,
ESTABLISHING PROTECTIONS FOR HOMEOWNERS
DESIRING TO AVOID PEDDLERS, SOLICITORS AND CANVASSERS,
REGULATING HANDBILLS
AND PROVIDING PENALTIES FOR VIOLATIONS
WHEREAS, many citizens of this community expect their local government to assist
them in preserving their privacy and avoiding petty annoyances that disrupt their quiet
enjoyment of their homes, and
WHEREAS, other persons often desire to interrupt the quiet enjoyment of one's home
to solicit donations for causes believed to be worthy of support, or to canvas for support
for particular religious, ideological, or political causes or for reasons of prompting
commerce, and
WHEREAS, an important part of the freedom enjoyed by all citizens and residents of
the United States is the right to speak freely, to express ideas that may be unpopular,
and to engage others in debate without government interference, and
WHEREAS, the Supreme Court of the United States has consistently recognized the
right and obligation of local governments to protect their citizens from fraud and
harassment, particularly when solicitation of money is involved, and
WHEREAS, it is the responsibility of all units of government to balance these competing
interests in a manner consistent with the Constitution of the United States and of
Missouri, which attempting to minimize fraud, prevent crime, and protect the privacy of
our citizens.
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL (BOARD OF
ALDERMEN)(BOARD OF TRUSTEES) OF THE CITY (VILLAGE) OF
MISSOURI, AS FOLLOWS:
Section One. Definitions. As used in this ordinance the following words have the
meaning indicated:
A. "Peddler" is a person who attempts to make personal contact with a
resident at his/her residence without prior specific invitation or
appointment from the resident, for the primary purpose of attempting to
sell a good or service. A "peddler" does NOT include a person who
distributes handbills or flyers for a commercial purpose, advertising an
event, activity, good or service that is offered to the resident for purchase
at a location away from the residence or at a time different from the time of
visit. Such a person is a "solicitor." (Comment: a person who passes out
menus for a restaurant would not be a peddler, because the resident
ordinarily orders off the menu at a time when the visitor has left. Similarly,
a person passing out flyers advertising a sale at a nearby venue would not
be a peddler, because the resident ordinarily would need to go to the other
venue to make a purchase. An individual passing out flyers saying
"tomorrow we will come to your house and for $5 will paint your house
number along the curb" would not be a peddler, because the sale would
occur after the visit. However, the people who show up tomorrow would
need a peddler's card.)
B. "Solicitor" is a person who attempts to make personal contact with a
resident at his/her residence without prior specific invitation or
appointment from the resident, for the primary purpose of (1) attempting to
obtain a donation to a particular patriotic, philanthropic, social service,
welfare, benevolent, educational, civic, fraternal, charitable, political or
religious purpose, even if incidental to such purpose there is the sale of
some good or service, or (2) distributing a handbill or flyer advertising a
commercial event or service.
C. "Canvasser" is a person who attempts to make personal contact with a
resident at his/her residence without prior specific invitation or
appointment from the resident, for the primary purpose of (1) attempting to
enlist support for or against a particular religion, philosophy, ideology,
political party, issue or candidate, even if incidental to such purpose the
canvasser accepts the donation of money for or against such cause, or (2)
distributing a handbill or flyer advertising a non-commercial event or
service.
Section Two. Exception. This ordinance shall not apply to a federal, state or local
government employee or a public utility employee in the performance of his/her duty for
his/her employer.
Section Three. Identification Card Reauired for Peddlers and Solicitors. available
for Canvassers. No person shall act as a peddler or as a solicitor within the city
(village) without first obtaining an Identification Card in accordance with this ordinance.
A canvasser is not required to have an Identification Card but any canvasser wanting an
Identification Card for the purpose of reassuring city (village) residents of the
canvasser's good faith shall be issued one upon request. (Comment: Some cities
exempt people having a county peddlers or solicitors license from getting a local
identification card. Because the regulation of this activity involves serious risk of going
"too far" in regulating activities protected by the First Amendment to the constitution, it
seems advisable not to have the city regulation entangled with regulations from any
other local government. Ask your lawyer what he/she thinks and follow her/his advice.)
Section Four. Fee. The fee for the issuance of each Identification Card shall be:
A. For a peddler acting on behalf of a merchant otherwise licensed to do
business within the city......no fee.
B. For a peddler acting on behalf of a merchant not otherwise licensed to do
business within the city......a fee of $____ per day. (Comment: The
daily fee for a peddler acting for an out-of-town business should not be
proportionally higher than the annual fee for an in-town business license,
for fear of creating an unreasonable restraint on trade. A fee of $5 per day
might be acceptable in many cities.)
C. For a solicitor (including a commercial solicitor advertising an event,
activity, good or service for purchase at a location away from the
residence)......no fee.
D. For a canvasser requesting an Identification Card......no fee.
Section Five. Application for Identification Card. Any person or organization
(formal or informal) may apply for one or more identification cards by completing an
application form at the office of the issuing officer, during regular office hours.
Section Six. Contents of Application. The applicant (person or organization) shall
provide the following information:
A. Name of applicant.
B. Number of identification cards required.
C. The name, physical description and photograph of each person for which
a card is requested. In lieu of this information, a driver's license, state
identification card, passport, or other government-issued identification
card (issued by a government within the United States) containing this
information may be provided, and a photocopy taken. If a photograph is
not supplied, the city will take an instant photograph of each person for
which a card is requested at the application site. The actual cost of the
instant photograph will be paid by the applicant.
D. The permanent and (if any) local address of the applicant.
E. The permanent and (if any) local address of each person for whom a card
is requested.
F. A brief description of the proposed activity related to this identification
card. (Copies of literature to be distributed may be substituted for this
description at the option of the applicant).
G. Date and place of birth for each person for whom a card is requested and
(if available) the social security number of such person.
H. A list of all infraction, offense, misdemeanor and felony convictions of
each person for whom a card is requested for the seven years
immediately prior to the application.
I. The motor vehicle make, model, year, color, and state license plate
number of any vehicle which will be used by each person for whom a card
is requested.
J. If a card is requested for a peddler:
1. The name and permanent address of the business offering
the event, activity, good or service (Le., the peddler's
principal).
2. A copy of the principal's sales tax license as issued by the
state of Missouri, provided that no copy of a license shall be
required of any business which appears on the city's annual
report of Sales Tax payees as provided by the Missouri
Department of Revenue.
3. The location where books and records are kept of sales
which occur within the city (village) and which
are available for city (village) inspection to
determine that all city sales taxes have been
paid.
K. If a card is requested for a solicitor:
1. The name and permanent address of the organization,
person, or group for whom donations (or proceeds) are
accepted.
2. The web address for this organization, person, or group (or
other address) where residents having subsequent
questions can go for more information.
L. Any other information the applicant wishes to provide, perhaps including
copies of literature to be distributed, references to other municipalities
where similar activities have occurred, etc.
Section Seven. Issuance of Identification Card. The identification card(s) shall be
issued promptly after application but in all cases within sixteen business hours of
completion of an application, unless it is determined within that time that:
A. the applicant has been convicted of a felony or a misdemeanor involving
moral turpitude within the past seven years,
B. with respect to a particular card, the individual for whom a card is
requested has been convicted of any felony or a misdemeanor involving
moral turpitude within the past seven years, or
c. any statement upon the application is false, unless the applicant can
demonstrate that the falsehood was the result of excusable neglect.
(Comment: Our earlier solicitors\ model ordinance permitted seven days for
investigation. That ordinance was written before the internet had become so ubiquitous,
and before police had access to special computers to check criminal history. Sixteen
business hours ought to be enough time for an investigation. Frankly, many lawyers
would feel more comfortable with an 8 hour maximum delay.)
Section Eight. Investiaation. During the period of time following the application for
one or more identification cards and its issuance, the city (village) shall investigate as to
the truth and accuracy of the information contained in the application. If the city has not
completed this investigation within the 16 business hours provided in section seven, the
identification card will nonetheless be issued, subject, however, to administrative
revocation upon completion of the investigation. [If a canvasser requests an
identification card, the investigation will proceed as described above, but if the city
refuses to issue the identification card (or revokes it after issuance), the canvassers will
be advised that the failure to procure an identification card does not prevent himlher
from canvassing the residents of the city.]
Section Nine. Identification Cards of Other City. Instead of the application
procedure above, if an applicant produces identification cards issued by another city
having an ordinance substantially the same as this one, the issuing officer may in his
discretion immediately issue identification cards without the necessity of a formal
application or investigation.
(NOTE: The section above is optional, and could be deleted if you prefer. I think its
inclusion shows you are trying to keep the administrative burden on the applicant to a
minimum.)
Section Ten. Denial; Administrative Revocation. If the issuing officer denies (or
upon completion of an investigation revokes) the identification card to one or more
persons he shall immediately convey the decision to the applicant orally and shall within
16 working hours after the denial prepare a written report of the reason for the denial
which shall be immediately made available to the applicant. Upon receipt of the oral
notification, and even before the preparation of the written report, the applicant shall
have at his option an appeal of the denial of his application before the following tribunal:
(Note: the city or village should select one or more of the foJ/owing. Consult with your
lawyer before deciding.)
A. The city council, at its next regular meeting, or if the next regular meeting
is more than 10 days from the denial of the application, at a special
meeting to be held within that ten day period, due notice of which is to be
given to the public and the applicant.
B. Before the municipal court of the city, provided that such a hearing will be
scheduled within ten days of the request, due notice of which is to be
given to the public and the applicant.
C. Before an administrative tribunal or hearing board, as established by
___________ of the city code, provided that such a hearing will be
scheduled within ten days of the request, due notice of which is to be
given to the public and the applicant.
Section Eleven. Hearina on Appeal. If the applicant requests a hearing under
Section 10, the hearing shall be held in accordance with the Administrative Procedure
Act of the State of Missouri, and review from the decision (on the record of the hearing)
shall be had to the circuit court of the county in which the city (village) is located. The
hearing shall also be subject to the Missouri Open Meetings and Records law.
(Comment: the Missouri APA establishes venue differently than what is provided here.
It is debatable if the city can change the law of venue as established by statute, but prior
versions of this ordinance have attempted to do so and I haven't deviated from that
practice.)
(Another comment: Earlier versions of this ordinance used the phrase "a felony or a
misdemeanor involving moral turpitude." It wasn't clear if what was intended was to
apply to "any felony" or to a "felony involving moral turpitude." I have changed the
wording, to say "any felony", If you intend the alternative meaning, you should change
the wording.)
Section Twelve. Displav of Identification Card. Each identification card shall be
(when the individual for whom it was issued is acting as a peddler or solicitor) worn on
the outer clothing of the individual, as so to be reasonably visible to any person who
might be approached by said person.
Section Thirteen. Validitv of Identification Card. An identification card shall be valid
within the meaning of this ordinance for a period of six months from its date of issuance
or the term requested, whichever is less. (Note to municipality: the six month validity
period is not written in stone. You could select a longer or shorter time, as long as a
judge thinks you are "reasonable".)
Section Fourteen. Revocation of Card. In addition to the administrative revocation of
an identification card, a card may be revoked for any of the following reasons:
A. Any violation of this Ordinance by the applicant or by the person for whom
the particular card was issued.
B. Fraud, misrepresentation or incorrect statement made in the course of
carrying on the activity.
C. Conviction of any felony or a misdemeanor involving moral turpitude within
the last seven years.
D. Conducting the activity in such a manner as to constitute a breach of the
peace or a menace to the health, safety or general welfare of the public.
The revocation procedure shall be initiated by the filing of a complaint by the city
attorney or the issuing officer pursuant to the state Administrative Procedure Act, and a
hearing before the tribunal identified in Section 10 above.
(Comment: the reason I didn't have the administrative revocation handled through the
tribunal, is that the state APA has some delays built into it, and the revocation won't
take place until after the hearing. Prior versions of this ordinance included the
administrative revocations under the state APA procedure. I think that was a mistake,
and have allowed for a summary revocation procedure in that one instance. Obviously
other lawyers think differently. Follow the advice of the lawyer you are paying.)
Section Fifteen. "No Visit" List. The issuing officer shall maintain a list of persons
within the city (village) who restrict visits to their residential property (including their
leasehold, in the case of a tenant) by peddlers, solicitors, and canvassers. The issuing
officer may provide a form to assist residents, and this form may allow the resident to
select certain types of visits that the resident finds acceptable while refusing permission
to others. This "no visit" list shall be a public document, reproduced on the city's web
site, (delete "reproduced on the city's web site" if you don't have a web site) and
available for public inspection and copying. A copy of the "no visit" list shall be provided
to each applicant for and each recipient of an identification card. If a canvasser
chooses not to apply for an identification card, it will be the responsibility of that
canvasser to obtain in some other way a copy of the current "no visit" list.
(Comment: Missouri's "no call" list aimed at telemarketers and maintained by the state
Attorney General has 42% of the state's population on it. It is my assumption that if the
city properly promotes its "no visit" list a similar proportion will sign up. The last
sentence of this section, requiring the canvasser to obtain a copy of the list, might be
subject to challenge. It depends upon how far out on the thin ice you are prepared to
skate. Ask your lawyer, and follow her/his advice.)
(Another comment: Earlier versions of the Municipal League's state-wide model
ordinance regulating solicitors included a "no visit" list. However, the model ordinance
prepared by the St. Louis County municipal league deleted that option, presumably
because of the administrative burden of maintaining such a list. Section 15 is an
"optional" section that can be left out if you wish.)
Section Sixteen. Distribution of Handbills and Commercial Fivers. In addition to
the other regulations contained herein, a solicitor or canvasser leaving handbills or
commercial flyers about the community shall observe the following regulations:
1. No handbill or flyer shall be left at, or attached to any sign, utility pole,
transit shelter or other structure within the public right-of-way. The police
are authorized to remove any handbill or flyer found within the right-of-
way.
2. No handbill or flyer shall be left at, or attached to any privately owned
property in a manner that causes damage to such privately owned
property.
3. No handbill or flyer shall be left at, or attached to any of the property (a)
listed on the city "no visit" list, or (b) having a "no solicitor" sign of the type
described in paragraph 17 A or B.
4. Any person observed distributing handbills or flyers shall be required to
identify himself/herself to the police (either by producing an identification
card or other form of identification). This is for the purpose of knowing the
likely identity of the perpetrator if the city (village) receives a complaint of
damage caused to private property during the distribution of handbills or
flyers.
Section Seventeen. General Prohibitions. No peddler, solicitor or canvasser shall:
A. Enter upon any private property where the property has clearly posted in
the front yard a sign visible from the right of way (public or private)
indicating a prohibition against peddling, soliciting and/or canvassing.
Such sign need not exceed one square foot in size and may contain words
such as "no soliciting" or "no solicitors" in letters of at least two inches in
height. (The phrase "no soliciting" or "no solicitors" shall also prohibit
peddlers and canvassers)
B. Remain upon any private property where a notice in the form of a sign or
sticker is placed upon any door or entrance way leading into the residence
or dwelling at which guests would normally enter, which sign contains the
words "no soliciting" or "no solicitors" and which is clearly visible to the
peddler, solicitor or canvasser.
C. Enter upon any private property where the current occupant has posted
the property on the city's "no visit" list (except where the posting form
indicates the occupant has given permission for this type of visit),
regardless of whether a front yard sign is posted.
D. Use or attempt to use any entrance other than the front or main entrance
to the dwelling, or step from the sidewalk or indicated walkway (where one
exists) leading from the right-of-way to the front or main entrance, except
by express invitation of the resident or occupant of the property.
E. Remove any yard sign, door or entrance sign that gives notice to such
person that the resident or occupant does not invite visitors.
F. Enter upon the property of another except between the hours of 9:00 a.m.
and 8:00 p.m. in the hours of Central Standard Time, and 9:00 a.m. and
9:30 p.m. in the hours of Central Daylight Time. (Comment: these hours
are from the earlier St. Louis county model ordinance. I think they are too
restrictive. I would like 7 a.m. to 10 p.m. better. However, as a practical
matter few peddlers, solicitors, or canvassers work these longer hours
because grumpy homeowners are difficult to persuade to do what you
want. Talk to your lawyer about what hours he/she is prepared to defend
in court, and do what that lawyer advises.)
Except that the above prohibitions shall not apply when the peddler, solicitor, or
canvassers has an express invitation from the resident or occupant of a dwelling
allowing him/her to enter upon any posted property.
Section Eighteen. Violation to be Prosecuted as Trespass. Any person violating
any part of this ordinance shall have committed a trespass on such property, and shall
be prosecuted under the general trespass ordinance of the city. The penalty for such
violation shall be the same as for any other trespass. (Comment: earlier versions of
this ordinance had a specific penalty for violations contained in it. I prefer to emphasize
that the city is not imposing additional obligations on peddlers, solicitors and
canvassers....merely providing guidance about what will not be prosecuted as trespass.
00 what your lawyer says!)
Section Nineteen. Severability. It is hereby declared to be the intention of the City
Council (Board of Aldermen)(Board of Trustees) that the sections, paragraphs,
sentences, clauses, phrases and words of this ordinance are severable, and if any
section, paragraph, sentence, clause, phrase or word(s) of this ordinance shall be
declared unconstitutional or otherwise invalid, such unconstitutionality or invalidity shall
not affect any of the remaining sections, paragraphs, sentences, clauses, phrases and
words or this ordinance since the same would have been enacted by the City Council
(Board of Aldermen)(Board of Trustees) without the incorporation in this ordinance of
any such unconstitutional or invalid portion of the ordinance.
Section Twenty. Effective Date. This ordinance shall be in full force and effect from
andafter_________________
[Here insert the customary appropriate closing for your type of city....i.e.,
signature line for the mayor where the mayor is required to sign; separate
approval for the mayor where the mayor is required to approve. Add signature
line for city attorney in cities where the city attorney must approve as to form.
Add signature line for treasurer or financial officer in cities where there must be
certification that money to carry out the ordinance is available. Also you may
want to recite "read two times and passed this ___ day of ___, 20__" in those
cities where two readings is required. A village may want to recite where the
ordinance has been posted. You may also want to record how each council
member voted on the face of this ordinance. Follow your usual practice.]