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6.4 SR 05-13-2013 Elk REQUEST FOR ACTION River TO ITEM NUMBER Mayor and City Council 6.4 AGENDA SECTION MEETING DATE PREPARED BY Work Session May 13, 2013 Tina Allard, City Clerk ITEM DESCRIPTION REVIEWED By Review of Solicitor Ordinance Cal Portner, City Administrator REVIEWED BY ACTION REQUESTED 1. Review and discuss the peddler, solicitor, and transient merchant ordinance (referred to as solicitor ordinance throughout this report). 2. Provide direction on the changes Council would like staff to review. BACKGROUND/DISCUSSION At the April 1, 2013, meeting, the City Council requested a review of the solicitor ordinance. Councilmembers can feel caught in the middle of a struggle with balancing the concerns some homeowners may have regarding their privacy,property rights, and scams and the need to be careful to not violate solicitor's rights (such as freedom of speech/religion or the Commerce Clause),which are protected by the state and federal constitutions. The solicitor ordinance tries to balance consumer protection but the city's authority is limited by the US Constitution and state statutes. The goal of the city ordinance is to create reasonable restrictions which do not conflict with rights of freedom of speech, religion, and interstate commerce. Cities can regulate peddlers, solicitors,and transient merchants each to varying degrees. Regulations are typically restricted to time,place, and manner and must be reasonable and neutral. Reasonable Can't narrowly tailor restrictions to make it difficult or prohibitive. Neutral Can't target or treat individuals or types of businesses differently because of who they are or due to their particular message. Time Restrictions can be placed on times when soliciting activities can occur,but they have to be reasonable. It may not be advisable to set solicitor hours to timeframes for when the average worker would not be home. P O W E R E D BY N:\Public Bodies\Agenda Packets\05-13-2013\Final\6.4 sr SolicitorKdocx Na U R E Place Cities can determine locations where an activity can occur such as when a specific location may have concerns with safety.A city may not want to allow an activity to occur at Main Street and Highway 10 as it could be distracting to drivers. Manner Cities can put restrictions on the use of certain techniques or devices a solicitor may use to attract attention if it creates a negative impact on health, safety, and welfare. A city may want to prohibit or restrict the use of devices that make loud noises or have flashing lights. History In 2007, the Council discussed concerns regarding solicitors and made changes to the ordinance. Section 38-414 outlines current restrictions in place for solicitors. Ordinances Changes Recommended by Staff Current city ordinance should be changed for the following two items: 1. Ordinance requires canvassers to register with the city but this violates canvasser's constitutional rights. 2. Ordinance requires "for profit" solicitors to get a license but this may create equal protection and interstate commerce issues. These are the recommended amendments in summary: Peddlersl Transient Merchants Peddlers and transient merchants would continue to be licensed.A background check would be conducted for these individuals. Solicitors Solicitors wouldn't be required to obtain a license or pay a fee. A background check would not be conducted but the solicitor would still have to register with the city and obtain an ID. Canvassers The city wouldn't require canvassers to register or obtain an ID badge. ATTACHMENTS • League of Minnesota Cities cheat sheet regarding local authority—licensing and registration • Article used in past editions of The Current and put on the city website during the summer. • Ordinance amendment for Chapter 38 regarding peddlers, solicitors, and transient merchants N:\Public Bodies\Agenda Packets\05-13-2013\Final\6.4 sr SolicitorKdocx Appendix i Authority - Licensing or Registration This chart provides a summary of the general authority cities have in regulating door-to-door or transient activities. As it is often difficult to classify actual conduct into only one of these classifications, a city should consult its city attorney when such specific assistance is needed. Classification Can Ci equire Can City Require License9 Recristration9 Peddlers ✓ ✓ *While most peddlers are subject to a city's licensing or registration requirements,there are trades or activities that are exempt from local licensing. See Part III—E-Licensing— exemptions. Solicitors No ✓ (For-Profit Operations) *Licensing of for-profit solicitors brings up equal protection and interstate commerce concerns. See Part II—B—Solicitors and canvassers. Transient Merchants ✓ ✓ *Most transient merchants are subject to city licensing or registrations. However, there are activities (i.e.produce stands)that may be exempt from local licensing. See Part III—E- Licensing—exemptions. Canvassers No No (Not-for-Profit Solicitations *The licensing and/or registering of religious,political,or other non-profit canvassers impacts constitutional rights (freedom of speech, freedom of religion, etc.). See Part IV - Constitutional implications. Professional Fundraisers ✓x ✓* (Individuals Paid for Canvassing Activities) *A paid"for-profit"professional fundraiser, compensated for working on behalf of an otherwise exempt group or person, may not be exempt from city licensing or registration requirements since the city is regulating commercial speech, which has less protection from local regulations. However, in practice it is difficult to distinguish professional fundraisers from not-for-profit canvassers. League of Minnesota Cities Information Memo: 12/1/2009 Regulating Peddlers,Solicitors and Transient Merchants Page 26 It's Solicitor Season! Are you Ready? (With some exceptions), solicitors must be licensed in Elk River It's the time of season where many solicitors start to knock on doors looking for your business. The city has found that,in some cases,unscrupulous individuals have posed as legitimate solicitors for the purpose of harassment,nuisance, theft, or other unlawful acts committed against residents. In order to combat these issues and to protect the community and legitimate solicitors,the city imposes reasonable restrictions on solicitation activities. City ordinance requires peddlers, solicitors, and transient merchants to be licensed prior to engaging in solicitation activities. This registration,though, does not mean that those with licenses have undergone background checks or that they are endorsed by the city. It is in your best interest to use common sense and sound judgment when dealing with solicitors.While most solicitors are required to be licensed with the city,there are exceptions. Examples include: social,political, religious, and non-profit organizations. The hours for solicitation are limited to Monday through Saturday,Noon to 6:00 p.m. and no solicitation is allowed on Sundays. Those engaged in solicitation activities during the prohibited hours are in violation of the ordinance. In addition to being required to carry their license and their ID while going door-to-door, solicitors are required to display these documents upon request. Failure to do so could result in criminal charges. The ordinance also identifies behaviors and actions which are considered nuisances affecting the right of privacy. The complete list of nuisance behaviors and the complete ordinance can be found on the City's website (www.elkrivermn.gov). Tips for Residents: • If you choose not to have solicitors come to your door,you can post a sign that states "Peddlers and Solicitors Prohibited" at the main entrance of your residence. Solicitation at a residence displaying this sign is in violation of the ordinance and may result in criminal charges. • Ask to see the solicitor's license. If the solicitor fails to provide the requested paperwork,do not do business with this person and contact law enforcement. • If you call the police,provide a detailed physical description and direction of travel. Provide any identifying information about the solicitor; such as the solicitor's name,business name,and license number.A license plate and/or make and model of the vehicle are also helpful. • Whether or not you do business with the solicitor, document the solicitor's name,business name, and license number. This information might be useful in the future. • Call the police if you observe someone looking in windows or walking in back yards. Solicitors may only conduct business at the main entrance to the residence.Walking around the exterior of the house,going into the back yard or to side doors,and looking into windows are behaviors which fall under nuisance behavior. • You do not have to answer the door just because someone rings the door bell. If the person fails to leave,looks in your windows, or goes to a door other than the main entrance, call the police. • Do your homework on the company before you do business with them. It is your responsibility to make the determination on whether they are a legitimate company and you are comfortable working with them. Never sign anything on a first visit and make sure to completely read all contracts and documents. N:\Public Bodies\Agenda Packets\05-13-2013\Final\6.4at2.doc CHAPTER 38, ARTICLE Vil . PEDDLERS, SOLICITORS, AND TRANSIENT DIVISION I. GENERALLY Sec. 38-381. Definitions. The following words, terms and phrases,when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Non-profit An organization that currently has tax-exempt status from either the state or federal government and provides written evidence of that status. Peddler Any person with no fixed place of business dealing in the city who travels around from place to place, or street to street, carrying or transporting goods, or soliciting for all manner of wares, set-vices and merchandise, offering such wares, service or merchandise for sale or making sales and delivering articles to purchasers. Solicitor Any person who goes from place to place and/or house to house soliciting or taking or attempting to take orders for the purchase of any food,wares or merchandise,including magazines, books, periodicals or personal property of any nature whatsoever for delivery in the future, or orders for the performance of a service in or about the home or place of business, such as furnace cleaning, roof repair or blacktopping. Transient Merchant Any person,whether as principal, employee or agent,who engages in, does, or transacts any temporary or transient business in the city, either in one locality or traveling from place to place in the city, selling goods, wares, and merchandise, and who, for the purposes of carrying on such business, hires, leases, occupies or uses a building, structure,vehicle, property, or other place for the exhibition and sale of such goods,wares, and merchandise. Occupant A person owning,living, staying, or workitig at a residence,including a guest. Sec. 38-382. Purpose of article. The purpose of this article is to protect citizens by imposing reasonable regulations on peddlers, solicitors, and transient merchants so as to prevent individuals who may be engaged in unlawful activities from posing as legitimate peddlers, solicitors, and transient merchants. Sec. 38-383. Exemptions. All persons engaged in the business activities described in this section shall comply with the provisions of Section 38-414 (c). The following business activities shall be exempt from the requirements of this article. The City Clerk shall determine if a business activity falls within these exemptions, subject to appeal to the city council. (a) Doing business by appointment. A bona fide appointment is one that is not merely obtained by going door-to-door in conjunction with the taking of orders, offering for sale or selling. (b) Solicitation of orders for future door-to-door delivery of newspapers. (c) Nonprofit groups that register with the city clerk. No fee is required to so register. This exemption does not include individuals who are paid to engage in peddling, soliciting, or transient merchant business. (d) Selling goods to retail or wholesale stores or to professional or industrial establishments for retail re- sale only. (e) Selling or peddling the products of the farm or garden grown and cultivated by such person, but such activities must comply with applicable health regulations. (f) All vendors involved in the following community events: Fourth of July celebration, Community Festival, Sherburne County Fair, Business Expo, and any other community event the city council deems exempt. (g) Garage sales, rummage sales, and craft sales. (h) Establishing a regular customer delivery route for the delivery of perishable food and dairy products such as baked goods, milli, and groceries._ (i) Selling goods or admissions to events by K-12 students where the proceeds of such sales benefit a program or activity in which the student is involved. Sec. 38-384. Duties of police. It shall be the duty of any police officer of the city to require any person seen soliciting, peddling, or engaging in like activities, and who is not known to such officer to be duly licensed, to produce his city issued license and a driver's license or state identification card. It shall be the duty of any police officer to enforce the provisions of this article or any other law. Sec. 38-385. Exclusion by placard (a) Any resident of the city who wishes to exclude peddlers or solicitors from premises occupied by the resident may place upon or near the usual entrance to such premises a printed placard or sign bearing the following notice: "Peddlers and Solicitors Prohibited." Such placard shall be at least 3 1/2 inches long and 3 1/2 inches wide and the printing thereon shall not be.smaller than 49-point type. No peddler or solicitor, including those exempt from license requirements as provided in Section 38-383 of this Code, shall enter in or upon any premises, or attempt to enter in or upon any premises,where such a placard or sign is placed and maintained. (b) Violation of this section shall result in the revocation of a duly issued license. Secs. 38-386--38-410. Reserved. DIVISION 2. LICENSE Sec. 38-411. Required. It shall be unlawful for any person to engage in the activity of peddling, soliciting, or transient selling without first having obtained a license in compliance with the provisions of this division. A separate license shall be secured for each individual person engaged as a peddler, solicitor, or transient merchant. Sec. 38-412. Application. The application for the license provided for in this division shall be made to the city clerk by filing the annual license fee and by completing an application form as provided by the city clerk. In addition to such information as the city clerk may require, the application shall include: (a) The name of the applicant and all persons associated in business in the city. (b) The permanent home address and full local address of the applicant, and the permanent and local telephone numbers of the applicant. (c) A brief written description of the nature of the business, the goods to be sold, and the applicant's method of operation. (d) Credentials from the person for which the applicant proposes to do business, authorizing the applicant to act as such representative. (e) Dates the applicant intends to do business in the city. (� The location where the goods or property proposed to be sold, or orders taken for the sale thereof, is manufactured or produced,where such goods or products are located at the time the application is filed, and the proposed method of delivery. (g) Permission for the city to take a photo of applicant in order to create a city issued license. (h) A statement as to whether or not the applicant and the person managing the business has been convicted of any crime,misdemeanor or violation of any city, state, or federal law,involving activities licensed under this article,the nature of the offense and the punishment or penalty assessed therefor. (i) If a vehicle is to be used, a description of the vehicle, together with the license number or other means of identification. (j) A copy of all documents to be used by the applicant, such as pamphlets and brochures. (k) For transient merchants, the addresses of all places where the business is to be located, along with written consent of the owners or occupants. (1) The last three cities or other localities where the applicant conducted the proposed activity immediately preceding the date of the application. Sec. 38-413. Investigation; granting, denial, or revocation. (a) All license applications under this division shall be made to the city clerk and referred to the chief of police and such other municipal departments or offices as the city clerk deems necessary for verification and investigation of the facts set forth in the application. The chief of police and other department heads or officers consulted shall submit their reports and recommendations to the city clerk. (b) The existence of any particular ground for denial or revocation does not mean that the city must deny or revoke the license, If a license is mistakenly issued or renewed to a person,it shall be revoked upon the discovery that the person was ineligible for the license under this section. (c) The council shall have the discretion to consider,in granting, denying, or revoking a license,any reasonable facts or circumstances relating to public health, safety, and welfare,including but not limited to the following: (1) The proximity of the proposed activities to churches, schools, playgrounds, parks, or other community facilities which might be adversely affected. (2) The proximity of the proposed activities in relation to traffic congestion and parking which causes a threat to public safety,interference with normal traffic flow, congestion, or inconvenience to the public. (3) Past fraud, misrepresentation, or misstatement in the course of carrying on business. (4) Any conviction of a crime that adversely affects a person's ability to honestly, safely,or lawfully conduct regulated activities, unless the individual can show sufficient evidence of rehabilitation as defined in M.S. 364.03, Subd, 3. Crimes that are considered directly related to the business of peddling, soliciting, and transient merchants include but are not limited to crimes involving assault, criminal sexual misconduct, burglary,robbery, fraud, theft, harassment, or moral turpitude. (5) Revocation of a past permit issued or past violations of any provisions of this Article. (6) Failure to provide any information required on the application, or providing false or misleading information. (7) Denial or revocation of a license for peddling, soliciting, or transient sales by a city or other governmental entity within three years before the application date. (d) Where a reasonable basis is found by the council to impose reasonable restrictions on the license, taking into consideration one or more of the facts or circumstances, the council may upon issuance of a license impose such reasonable conditions and restrictions on the manner and circumstances under which the licensed activity shall be conducted to preserve the public peace and protect and promote good order and security. (e) Failure of any person to comply with any of the ordinances of the city or the laws of the state shall be grounds for denying or revoking a license. If a license is proposed to be denied or revoked by the City Council, the city must notify the applicant with the reason(s). The applicant shall be allowed an opportunity for a hearing pursuant to Chapter 38,Article II of this Code. Sec. 38-414. Restrictions (a) Transient Merchants (1) Off-street parking required. No license for a transient merchant shall be issued for sales from any location which does not have sufficient parking for customers or for areas where customer parking would interfere with normal traffic flow. The planning manager must determine that there is adequate off-street parking to serve both the principal use of the property and the transient merchant use of the property. (2) Location near intersection. No transient merchant license shall be issued, and no sales shall take place, if the proposed location for transient merchant sales is within 150 feet of any intersection. (3) Duration of sales. No transient merchant license shall be issued for more than 365 days, during which sales shall be limited to 30 days, unless a longer period of time is approved by City Council. At the time of the application for the transient merchant license, the applicant shall state the times within the license period to be used by the applicant. (4) Operation on public property. It shall be unlawful for any transient merchant to sell or offer for sale any goods,wares, or merchandise on any public lands or public right-of-way within the city. (5) Operation on private property. No transient merchant shall sell or offer for sale any goods, wares, or merchandise within the city from a stationary location on private property at any location where such sales would not be permitted by Chapter 30,Article VI, and without first obtaining the written consent of the property owner or occupant. (6) The merchandise displayed shall not occupy more than 100 square feet unless approved by Council. (7) Overnight storage. No overnight storage of transient merchant equipment or merchandise shall be permitted unless approved by Council. (8) Signs. No signage shall violate the provisions of this Code relating to size and number of business signs. (b) Peddlers and Solicitors (1) Except for those people specified in Section 38-383, no peddler or solicitor shall engage in peddling or soliciting without wearing and clearly displaying a city issued license. A peddler or solicitor must also carry a driver's license or state identification card. (2) Hours for unsolicited calls are limited to Monday through Saturday, noon to 6:00 p.m. (3) Only one peddler or solicitor shall approach each residence and no peddler or solicitor from the same company can approach the same residence again unless invited back by the resident. (4) The license is not transferable to another person. (c) For Transient Merchants, Peddlers, Solicitors, and Non-profits. (1) Must not conduct business in a manner that creates a health or safety hazard. (2) Must conduct business in a reasonably courteous manner at all times, must not engage in offensive, obscene, or abusive language, must not push open a door not opened by an occupant, must not place any portion of a person's body through an opened doorway without the invitation of an occupant, and must not physically attempt to stop an occupant from closing a door. (3) Must immediately leave private property when requested to do so by an occupant and must leave immediately upon completion of a transaction or an unsuccessful attempt to contact the occupant. (4) When entering onto a residential property go directly to the most visible door of the house, unless there is an adult present outside of the house or in an open garage. (5) A person conducting business shall not make untrue statements to the people contacted regarding the purpose of the contact, orders placed by the neighbors, or the goods or services offered. (6) Must not make statements to the people contacted indicating or implying city endorsement of their activities or products by the city. (7) No shouting, blowing a horn, ringing a bell, or use any sound devices upon any of the streets, alleys, parks, or other public places of the city or upon any private premises in the city. Sec. 38-415. Fee; term. The annual license fee for engaging in a transient business, peddling, or soliciting shall be established by ordinance by the city council and shall be paid at the time of application for a license. A license, unless revoked, is for the calendar year or part thereof for which it has been issued. License fees may not be prorated. Upon denial of any application for a license, the city shall refund the annual fee paid. Sec. 38-416. Penalties, Enforcement Violation of any provision of this chapter shall be a misdemeanor and subject to all penalties provided for under state law.