Ordinance 032113B

AN ORDINANCE TO REGULATE DOOR TO DOOR SALES OR SOLICITATION AT PRIVATE RESIDENCES IN THE CITY OF ELKINS AND FOR OTHER PURPOSES.

WHEREAS, the City Council finds that residents of the City have an inalienable interest in their personal safety, well-being, and privacy in their residences, as well as their ability to provide or receive information regarding matters of personal belief, political or charitable activities, and goods and services lawfully in c_ommerce;

WHEREAS, the City has a substantial interest in protecting the wellbeing, tranquility, personal safety, and privacy of its citizens, which includes the ability to protect citizens from fraud or from unwanted intrusions upon residential property;

WHEREAS, the City finds that there must be a balance between the substantial interest of the City and its citizens and the effect of the regulations in this Ordinance on the rights of those who are regulated, as well as judicial decisions outlining the boundaries of constitutional protection afforded and denied persons seeking to engage in door to door solicitation and sales;

WHEREAS, in order to carry out the above-stated purposes, the City Council enacts this Ordinance for the regulation of door to door solicitation and sales;

NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELKINS, ARKANSAS, that:

Section 1: Definitions for door to door solicitation/sales.

The following words, terms and phrases and their derivations, when used in this section, shall have the meanings ascribed to them in the section, except where the context clearly indicates a different meaning:

a) Charitable activity means any activity represented to be carried on for unselfish, civic or humanitarian motives or for the benefit of others and not for private gain and means, and includes patriotic, philanthropic, social, service, health, welfare, benevolent, educational, civic, cultural or fraternal. b) Charitable organization means a non-profit organization holding a tax exemption certificate from the Internal Revenue Service pursuant to §501 et. Seq., and any amendments thereto. c) City means City of Elkins, Arkansas. d) 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 or services and offering the same for sale. e) Peddling includes all activities ordinarily performed by a peddler as indicated in the previous paragraph. f) Political purpose shall mean any form of communication related to a political issue, a particular candidate, to a position or non-partisan office, a political committee, or to a political party. g) Religious purpose shall mean the use of money or property for the support of a church, religious society or other religious sect, group, or order. 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 of taking or intending 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. i) Solicitation or soliciting includes all activities ordinarily performed by a Solicitor as indicated in the previous paragraph. j) Principal means the person or other legal entity whose goods, merchandise, personal property or services are being peddled or solicited.

Section 2: Obtaining "No Soliciting/No Peddling" decal. The City Office Manager or his/her designee, shall provide any resident of the City a decal which reads, "No Soliciting/No Peddling." This decal may be posted at the front of the private residence in the City, and by posting said notification, any solicitor or peddler has notice that soliciting or peddling at this address is prohibited by City Ordinance.

Section 3: Principal Permit. No peddling or solicitation shall be conducted within the City without a Principal Permit being issued. The cost for the Principal to obtain a Principal's Permit is $40.00, and shall be paid to the City Recorder-Treasurer or his/her designee, before any peddling or soliciting is conducted within the City. The Permit shall expire on December 31, in the year the Permit is issued. In addition to the Principal's Permit, the Principal must also comply with the City's business license requirements. To obtain a Permit, a representative of the Principal shall provide a written, signed application stating:

a) the name, address, telephone number, type of organization, and contact person for the Principal; b) the nature of the products or services involved;

c) the proposed method of operation in the City; d) a list of persons who will peddle or solicit in the City on behalf of the Principal

Section 4: Permit for peddlers/solicitors. In addition to the Principal Permit, each peddler or solicitor acting for the Principal shall also obtain a Permit from the City Office Manager or his/her designee, before peddling or soliciting within the City. The cost to obtain a peddler/solicitor Permit is $5.00. In applying for the Permit, each applicant shall provide the following to the City Office Manager or his/her designee:

a) the name of the Principal for whom they are going to act as a peddler or solicitor; b) the name, address, and telephone number of the person who is going to act as a peddler or solicitor, and in addition, they must also provide a government issued photo identification; c) a statement signed under oath that the person applying to be a peddler/solicitor has not been convicted of any felonies or any misdemeanors involving theft, sexual offenses, or drug offenses; and, d) a criminal background check shall be performed by the Elkins Police Department which shows that the peddler or solicitor has not been convicted of any felonies, or any misdemeanors involving theft, sexual offenses, or drug offenses prior to issuance of the Permit. No person shall be issued a Permit as a peddler or solicitor that has been convicted of any of the offenses set out herein.

 

Section 5: Prohibition. It is unlawful for any solicitor or peddler to:

a) peddle or solicit within the City without having a copy of this ordinance on their person, as well as a copy of their current Permit issued by the City Office Manager or his/her designee, as well as photo identification visible, which is provided by the Principal, identifYing the person peddling or soliciting; b) enter upon any private residence, knock on a door, ring the doorbell, or otherwise attempt to gain admittance at the residence when the premises has posted at the entry of the residence a decal bearing the words, "No Soliciting/No Peddling", "No Peddlers", "No Solicitors", "No Trespassing", or other words of similar import; c) conduct the activities of peddler or solicitor and knock on a door, ring the doorbell, or otherwise attempt to gain admittance at a residence between the hours of7:00 PM and 10:00 AM during standard time, or between the hours of 8:00P.M. and 10:00 AM during daylight savings time; d) remain at the private residence when requested to leave, or to otherwise conduct business in a manner which a reasonable person would find obscene, threatening, intimidating or abusive;

e) make any false or misleading statements about the product or service being sold, including untrue statements of endorsement; f) claim to have the endorsement of the City solely based on the City having issued a Permit to that person; g) fail to disclose his or her name and the name of the Principal whom he/she represents at the outset of the initial conversation; h) fail to leave the premises or residence after having been asked by the owner or occupant thereof to do so.

Section 6: Penalty.

a) Violation of this ordinance includes: I. Doing an act that is prohibited or made or declared unlawful, an offense or a misdemeanor as prescribed by ordinance or state law. 2. Failure to perform an act that is required to be performed by ordinance. 3. Failure to perform an act if the failure is declared a misdemeanor or an offense or unlawful by ordinance or by rule or regulation authorized by ordinance. b) Violations of this ordinance do not include the failure of a city officer or city employee to perform an official duty, unless it is provided that failure to perform the duty is to be punished as provided in this section. c) Except at otherwise provided, a person convicted of a violation of this ordinance shall be punished by a fine not exceeding $1,000, or double such sum for each repetition thereof. If the violation is, in its nature, continuous in respect to time, the penalty for allowing the continuance thereof is a fine not to exceed $500 for each day that the violation is unlawfully continued. d) If a violation of this ordinance is also a misdemeanor under state law, the penalty for the violation shall be prescribed by state law for the state offense. e) The imposition of a penalty does not prevent revocation or suspension of a license, Permit or franchise. f) Violations of this ordinance that are continuous with respect to time, are a public nuisance and may be abated by injunctive or other equitable relief. The imposition of a penalty does not prevent equitable relief.

Section 7: Exemptions. The following shall be exempt to all provisions of this ordinance, except as specifically stated herein:

a) Officers or employees of the City, county, state, or federal government, or any subdivision thereof when on official business; b) Charitable activities on behalf of a charitable organization, or activities related to a religious purpose or political purpose. Notwithstanding the exemption from the remaining provisions of this ordinance, no charitable activities on behalf of a charitable organization, or activities related to a religious purpose or political purpose shall be conducted between the hours of8:00 PM and 10:00 AM.

Section 8: Suspension/Revocation of Permit. Any Permit issued pursuant to the provisions of this Ordinance may be suspended or revoked for good cause by the Elkins City Council as provided herein. Good cause for such suspension or revocation shall include, but it is not limited to:

a) The existence of unsanitary conditions, noise, disturbances, or other conditions at, near or in the premises which causes or tends to create a public nuisance, which may injuriously affect the public health, safety or welfare, or which unnecessarily affects the adequate allocation of public safety resources; b) The commission of, or Permitting or causing the commission of, any act in the operation of the business which is prohibited by any ordinance, rule or law of the city, state or federal government;

c) Fraudulent practices and misrepresentation in the operation of the business;

d) Concealment or misrepresentation in procuring the business license; Principal Permit

or a peddler/solicitor's Permit;

e) The business for which the license has been issued is unlawful or is prohibited by any

ordinance, code, rule or law of the city, state or federal government;

f) The license was issued by mistake or is in violation of any of the provisions of this

ordinance;

g) The peddler/solicitor is convicted of a felony or misdemeanor involving theft, sexual

offenses or drug offenses during the effective period of the permit; or

h) The premises used to conduct said business has been condemned, declared a fire

hazard or declared unsafe for business occupancy pursuant to applicable building, property maintenance, or fire codes.

Section 9: Suspension/Revocation procedure.

a) The City Council, on its own motion or initiative, or upon the written complaint of any person or city staff, may, by resolution, set a hearing date to determine whether good cause exists to suspend or revoke a license or permit issued pursuant to this article.

b) A notice of the hearing, along with a copy of the resolution setting the hearing date, shall be served by certified mail with return receipt requested, to the person holding the business license at the address shown on the business license application. Such notice and resolution shall also be hand-delivered to licensee/Permittee at the address shown on the business license application, if the person is present at a location within the City. If the person is not present at a location within the City, the notice and resolution may be delivered to the person in actual charge of the premises at the time of delivery. If the business is closed, a copy of the notice and resolution shall be posted in a conspicuous location on the property at a location within the City.

c) The notice and resolution shall inform the licensee/Permittee of the allegations which constitute the basis for the hearing, and shall provide that the licensee/Permittee will be given the opportunity to appear and be heard at the hearing.

d) At the hearing, the City Council will make a determination as to whether good cause exists to suspend or revoke the license/Permit. This determination shall be made only after the licensee/Permittee has been afforded a reasonable opportunity to be heard on the issue.

e) In the event the City Council finds good cause to suspend the license/Permit, it shall have the authority to place reasonable conditions and restrictions on the licensee/Permittee during the suspension period. Any violation of these conditions and restrictions shall result in the revocation of the license/Permit.

f) In the event the City Council finds that good cause exists to revoke the license/Permit, the City Council shall, by ordnance, revoke the license/Permit and shall direct the Recorder/treasurer to notify the licensee/Permittee of the revocation of the license/Permit, and to direct the licensee/Permittee to immediately cease all business activity within the City allowed by that license/permit.

g) Any person conducting business activity in violation of a revocation ordinance shall be punishable by those penalties prescribed Section 6 of this Ordinance, and each sales transaction or solicitation shall constitute a separate and punishable offense.

h) Any business or person who has had a license/Permit revoked pursuant to the provisions of this article shall not be eligible for another license/Permit until the business or person has complied with the requirements of Sections 3 and 4 of this Ordinance and has obtained City Council approval before a new license/Permit may be considered.

 

Section 10: Severability Clause. In the event any part of the Ordinance is declared inoperative or invalid as a result of a statute or judicial decision, then only that portion expressly so declared to be inoperative or invalid shall be affected thereby and all other provisions hereof shall remain in full force and effect.

PASSED AND APPROVED THIS 21st day of March,  2013.

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