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HomeMy WebLinkAbout9D Peddler Ordinance Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com 4646 Dakota Street SE Prior Lake, MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: March 14, 2016 AGENDA #: 9D PREPARED BY: SARAH SCHWARZHOFF, GRJN PRESENTED BY: MARK ELLIOTT, CHIEF OF POLICE AGENDA ITEM: CONSIDER APPROVAL OF AN ORDINANCE AMENDING SECTION 3 OF THE PRIOR LAKE CITY CODE RELATING TO PEDDLERS DISCUSSION: Introduction The purpose of this agenda item is to amend the city peddler ordinance 302 in its entirety. History The peddler ordinance has not been updated in several years. There is a need to update the ordinance to bring it in line with current case law and state statute. The city council is aware of the need for these revisions as commented by the council during the last peddler appeal hearing. Current Circumstances The current city ordinance concerning peddlers is outdated and does not address citizens’ concerns or peddlers concerns for a fair process by which to permit peddler, solicitor, and transient merchant activities within the city. As was pointed out to the city council recently the police department had a significant increase in complaints about peddler activities last year. In 2014 the police department received 13 complaints and in 2015 we received 62; a 377% increase. The city also saw a 164% increase in Burglary calls in that same time period. The revisions are not intended to interfere with the legitimate business activities of peddlers, solicitors, and transient merchants. These provisions are intended only to, as nearly as possible, ferret out all illegitimate operators and to regulate and control all those who, in person, would use their unique presence on property within the City of Prior Lake, or their unique proximity to its residents, for purposes of fraud, harassment, nuisance, theft, or other unlawful activities. The revisions also incorporate an appeal step to the city manager, as a way to review minor denials and issues. The ordinance still includes an appeal to the council as a final step. 2 Conclusion These changes will revise the peddler’s ordinance to be reflective of citizens concerns, peer cities ordinances, state statute, and current case law. It is recommended that the city council amend the city code, section 302, as recommended by staff. ISSUES: Other cities have had recent court challenges to their ordinances that were too restrictive on constitutionally protected activities. This ordinance was drafted on the heels of those decisions to ensure it complies with the most recent case law. FINANCIAL IMPACT: Staff time to create a new application and create a new permit for identification as a city permitted peddler. ALTERNATIVES: 1. Adopt the Ordinance amendments to Section 302 as recommended by staff. 2. Adopt another amendment to Section 302. 3. Leave The Ordinance as it currently is. 4. Deny this agenda item for a specific reason and provide staff with direction. RECOMMENDED MOTION: Alternative #1 4646 Dakota Street SE Prior Lake, MN 55372 CITY OF PRIOR LAKE ORDINANCE NO. __________ AN ORDINANCE AMENDING PART 3 OF THE PRIOR LAKE CITY CODE BY REPLACING SECTION 302 RELATING TO PEDDLERS AND ADOPTING BY REFERENCE CITY CODE SECTION 104 WHICH, AMONG OTHER THINGS, CONTAINS PENALTY PROVISIONS. THE CITY COUNCIL OF THE CITY OF PRIOR LAKE, MINNESOTA, ORDAINS: 1. City Code Section 302 is deleted in its entirety and replaced with the following: 302.100 PURPOSE: This section is not intended to interfere with the legitimate business activities of peddlers, solicitors, and transient merchants, as the same are defined herein, whether same be local or interstate. These provisions are intended only to, as nearly as possible, ferret out all illegitimate or confidence operators and to regulate and control all those who, in person, would use their unique presence on property within the City of Prior Lake, or their unique proximity to its residents, for purposes of fraud, harassment, nuisance, theft, or other unlawful activities. 302.200 DEFINITIONS: When used in this Section, the following terms have the following meanings unless the context clearly indicates otherwise: Applicant: A person who files an application with the City Clerk for a permit pursuant to this subchapter. Chief of Police: The Chief of Police of the City of Prior Lake and/or the Chief of Police’s designee. City Clerk: The City Clerk appointed by the City Council pursuant to City Code Section 107.200 and/or the City Clerk’s designee. City Manager: The City Manager appointed by the City Council pursuant to City Code Section 106 and/or the City Manager’s designee. Non-Commercial Door-to-Door Advocate: A person who goes door-to- door for the primary purpose of disseminating religious, political, social, or other ideological beliefs. For purposes of this Section, the term door-to-door advocate shall include door-to-door canvassing, pamphleteering intended for non-commercial purposes, and seeking donations for which no product or service is given in return. 2 Peddler: A person, whether a resident of the City of Prior Lake or not, who goes from house to house, from place to place, or from street to street, conveying or transporting goods, wares or merchandise or offering or exposing the same for sale, or making sales where payment is received immediately for future delivery to purchasers. Permit Activities: All activities included in the definitions of peddler, solicitor and transient merchant. Person: Any natural individual, group, organization, corporation, partnership, or similar association. Solicitor: A person who goes from house-to-house, door-to-door, business- to-business, street-to-street, or any other type of place-to-place movement, for the purpose of obtaining or attempting to obtain orders for goods, wares, products, merchandise, other personal property, or services of which he or she may be carrying or transporting samples, or that may be described in a catalog or by other means, and for which delivery or performance shall occur at a later time. The absence of samples or catalogs shall not remove a person from the scope of this provision if the actual purpose of the person’s activity is to obtain or attempt to obtain orders as discussed above. Transient Merchant: A person who engages in, does, or transacts any temporary and transient business in this state, either in one locality, or in traveling from place to place in this state, selling goods, wares, and merchandise; and who, for the purpose of carrying on such business, hire, lease, occupy, or use a building, structure, vacant lot, or railroad car for the exhibition and sale of such goods, wares, and merchandise. The term "transient merchant" does not include a seller or exhibitor in a firearms collector show involving two or more sellers or exhibitors. 302.300 PERMIT REQUIRED: It is unlawful for any peddler, solicitor, or transient merchant to engage in permit activities within the City of Prior Lake without first obtaining a permit therefor in compliance with the provisions of this Section. Each peddler, solicitor, or transient merchant engaged in permit activities, whether independently or on behalf of another, must have a separate permit. 302.400 EXEMPTIONS 302.401 The permit requirement in Subsection 302.300 and the General Permit Requirements in Subsection 302.700 of this Section do not apply to the following: (i) the acts of persons selling personal property at wholesale to dealers in such articles, nor the delivery of newspapers, nor to the acts of merchants or of their employees in delivering goods in the regular course of 3 business, nor to the sale of farm or garden products by the person producing the same at the location where such products are produced, which production shall be proven by the vendor; or (ii) persons employed at a bakery, dairy, or grocery making an uninvited initiatory visit in an effort to establish regular route service for future delivery of perishables. 302.402 The permit requirement in Subsection 302.300 and the General Permit Requirements in Subsection 302.700 of this Section do not apply to non- commercial door-to-door advocates. This exemption will not apply if the person’s exercise of constitutional rights is merely incidental to a commercial activity. 302.403 The permit requirement in Subsection 302.300 and the General Permit Requirements in Subsection 302.700 of this Section do not apply to peddlers or solicitors who are 17 years of age or younger, who are engaged in permit activities on behalf of a public school or a private school, philanthropic organization, or community organization, which private school, philanthropic organization or community organization or its parent organization is on file with the Minnesota Secretary of State as a Minnesota domestic or a foreign business organization or has filed an assumed name, whe re the proceeds of the sales are mainly devoted to the benefit of the children engaged in permit activities. 302.404 Nothing contained in this Section prohibits any sale required by statute or by order of any court, or prevents any person conducting a bona fide auction sale pursuant to law. 302.500 APPLICATION AND FEE 302.501 Applicants for a peddler, solicitor, or transient merchant permit under this Section shall file with the City Clerk a sworn application in writing on a form to be furnished by the City Clerk. 302.502 At the time of filing an application for a peddler, solicitor, or transient merchant permit, a fee shall be paid to the City Clerk to cover the cost of administering the permit and investigation of the facts stated therein. The fee shall be as set forth in the City fee schedule and may be amended from time to time. No fees are required of individuals taking orders for the shipment of goods through interstate commerce. 302.600 INVESTIGATION AND ISSUANCE 302.601 Upon receipt of each peddler, solicitor or transient merchant application, it shall be referred to the Chief of Police who shall institute such investigation of the applicant as s/he deems necessary including, but not limited to, a 4 driver’s license check and a criminal history and wanted persons check with the Bureau of Criminal Apprehension, for the protection of the public good, and shall approve or deny the application in the manner prescribed in this Section within a reasonable period of time. 302.602 If grounds exist under subsection 302.603 for denying the permit the Chief of Police shall deny the permit, otherwise the Chief of Police shall immediately issue the permit to the applicant. In the case of a denial the Chief of Police shall notify the applicant in writing that his/her application is denied, the reason for denial, and that the applicant has the right to appeal the denial as set forth below. Notice shall be delivered in person or by mail to the permanent residential address listed on the permit application, or if no residential address is listed, to the business address provided on the permit application. 302.603 The following shall be grounds for denying a permit: (1) Fraud, misrepresentation or incorrect statement contained in the permit application. (2) The failure of an applicant to fully complete or to sign the permit application. (3) The failure of an applicant to pay the required fee at the time of application. (4) A conviction or adjudication within five (5) years of the date of application for any violation of any federal or state statute or regulation, or of any local ordinance, which adversely reflects upon the person’s ability to conduct the business for which the permit is being sought in a legal manner and where the applicant has not shown competent evidence of sufficient rehabilitation and present fitness to perform the duties and responsibilities as provided in M.S. § 364.03, Subd. 3, as it may be amended from time to time. Such violations shall include, but are not limited to, burglary, theft, larceny, swindling, fraud, unlawful business practices, and any form of actual or threatened physical harm against another person. (5) The revocation, within the past five (5) years, of any license or permit issued to an applicant for the purpose of conducting business as a peddler, solicitor, or transient merchant. (6) The denial, within the last year, of any license or permit application for the purpose of conducting business as a peddler, solicitor, or transient merchant. (7) The applicant has a bad business reputation, evidence of which shall include, but is not limited to, the existence of more than three (3) 5 substantiated complaints against an applicant with the Better Business Bureau, the Office of the Minnesota Attorney General or another state’s regulatory office or department (such as another state’s attorney general’s office), or other business or consumer rights office or agency, within the preceding twelve (12) months, or three (3) substantiated complaints filed with the City of Prior Lake or another city, town, or other political subdivision against an applicant within the preceding five (5) years. (8) Failure to follow all Federal, State and Local regulations, including failure to be registered, licensed or permitted if such registration, license or permit is required by any Federal, State or Local regulation. 302.604 Any permit applicant aggrieved by the denial of a permit may appeal by filing with the City Clerk within ten (10) days of the date of mailing of the notice of denial, a written statement requesting a hearing before the City Council and setting forth fully the grounds for the appeal. A hearing shall be held within thirty (30) days of receipt of the request. Notice of the hearing shall be given by the City Clerk in writing, setting forth the time and place of hearing. Such notice shall be mailed, postage prepaid, to the permit applicant at his/her last known address at least five (5) days prior to the date set for hearing, or shall be delivered by a police officer in the same manner a s a summons at least three (3) days prior to the date set for hearing. 302.700 GENERAL PERMIT PROVISIONS 302.701 Each person engaged in permit activities must be permitted as provided herein and may not be accompanied by a person who is not permitted while engaging in such activities. No permit may be transferred between persons or businesses. 302.702 Each person engaged in permit activities must carry the City-issued permit on his or her person and must display the permit between the waist and the neck on the front of his or her outer garment while engaged in permit activities. 302.703 All permits shall expire on December 31 in the year the permit is issued. 302.704 The permit issued by the City is the property of the City and must be returned to the City within seven (7) days of its expiration or surrendered immediately upon suspension or revocation, whichever occurs sooner. 302.705 Each person engaged in permit activities must provide a sales slip, receipt, or other documentation to any person to whom they make a sale, or from whom they take an order or receive funds. The sales slip, receipt, or documentation must include the name of the person engaged in permit 6 activities, his or her affiliated organization, the organization’s address and phone number, and a description of the transaction. 302.800 RESTRICTIONS 302.801 No peddler, solicitor, transient merchant, non-commercial door-to-door advocate, any person acting on his or her behalf, or other person engaged in similar activities shall, while engaged in such activities: (1) Shout, cry out, blow a horn, ring a bell, or use any sound -amplifying device upon any of the streets, alleys, parks, or other public places of the City or upon private property where sound of sufficient volume is emitted or produced therefrom to be capable of being plainly heard upon the streets, avenues, alleys, parks, or other public places. (2) Enter in or upon the property of another or attempt to enter in or upon the property of another if a placard or sign has been posted excluding peddlers and solicitors. The printed placard or sign must state “Peddlers and Solicitors Prohibited” or other comparable statement. Such placard shall be at least 4 inches long and 4 inches wide and the printing thereon shall not be smaller than 48-point type. No person other than the person occupying such property shall remove, injure, or deface such placard or sign. (3) Enter in or upon the property of another or attempt to enter in or upon the property of another before 9:00 a.m. or after 9:00 p.m. local time year-round. (4) Obstruct the free flow of traffic, either vehicular or pedestrian in any public right of way. (5) Make false or misleading statements about the activities or products or services being sold. (6) State or imply that the City, by issuance of a permit, has endorsed his/her activities or products. (7) Operate in a manner a reasonable person would find harassing, intimidating, abusive, or threatening. (8) Operate in a manner a reasonable person would find offensive, obscene, or abusive, push open a door not opened by an occupant, place any portion of the person’s body through an opened doorway without the invitation of an occupant, or physically attempt to stop an occupant from closing a door. 7 (9) Enter onto the property of another through any side or rear yard or attempt to make contact with a person at any point other than the main point of entrance of the building or property being approached. (10) Remain on the property of another after instructed to leave. (11) Act in a manner that threatens the health, safety, or welfare of any person or the general public. (12) Conduct permit activities in any city park without prior written authorization from the City Manager. 302.900 REVOCATION OF PERMIT 302.901 Permits issued under the provisions of this Section may be revoked after notice and a hearing conducted by the City Manager, for any of the following causes: violation of this Section; violation of federal, state, or local law, rule, or regulation relating to peddlers, solicitors, or transient merchants; or any action identified in Subsection 302.603. 302.902 The Chief of Police may recommend revocation of a permit to the City Manager. Notice of the hearing for revocation of a permit shall be given by the City Clerk in writing, setting forth specifically the grounds of complaint and the time and place of hearing. Such notice shall be mailed, postage prepaid, to the permit holder at his/her last known address at least five (5) days prior to the date set for hearing, or shall be delivered by a police officer in the same manner as a summons at least three (3) days prior to the date set for hearing. 302.1000 APPEAL: The decision of the City Manager following a hearing as provided for in this Section can be appealed by petitioning the Prior Lake City Council. The appeal must be delivered to the City Clerk in writing within ten (10) days of the date of mailing of the City Manger’s decision. 302.1100 EMERGENCY: If, in the discretion of the City Manager, imminent harm to the health or safety of the public may occur because of the actions of any person permitted under this Section, the City Manager may immediately suspend the person’s permit and in such event shall provide notice to the person of the right to a post-suspension hearing pursuant to the procedures in Subsection 309.902. 302.1200 SEVERABILITY: If any provision of this Section is found to be invalid for any reason by a court of competent jurisdiction, the validity of the remaining provisions shall not be affected. 8 302.1300 PENALTY: A person who violates any provision of this Section shall be deemed guilty of a misdemeanor and shall be punished in accordance with the penalties established by Minnesota Statutes. 2. City Code Section 104 entitled “General Penalty” is hereby adopted in its entirety, by reference, as though repeated verbatim herein. 3. This ordinance shall become effective from and after its passage and publication. Passed by the City Council of the City of Prior Lake this 14th day of March 2016. ATTEST: _________________________ __________________________ Frank Boyles, City Manager Kenneth L. Hedberg, Mayor Published in the Prior Lake American on the 19th day of March 2016. 4646 Dakota Street SE Prior Lake, MN 55372 RESOLUTION 16-____ A RESOLUTION APPROVING THE SUMMARY OF ORDINANCE NO. _____ AND ORDERING THE PUBLICATION OF SAID SUMMARY Motion By: Second By: WHEREAS, On March 14, 2016 the City Council adopted Ordinance No. ____ amending Part 3 of the Prior Lake City Code by amending Subsection 302 relating to peddlers; and WHEREAS, Minnesota Statutes requires publication of an Ordinance in the official newspaper before it becomes effective; and WHEREAS, Minnesota Statutes also allows the publication of a summary of an ordinance if the Council finds that the summary is an accurate representation of the Ordinance; and WHEREAS, The City Council desires to publish a summary of the amendments to Part 3 of the Prior Lake City Code and has determined the publication of a summary of this ordinance will meet the intent of the statute. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. Ordinance No. _____________ is lengthy. 3. The text of summary of Ordinance No. __________________, attached hereto as Exhibit A, conforms to M.S. § 331A.01, Subd. 10, and is approved, and publication of the title and summary of the Ordinance will clearly inform the public of the intent and effect of the Ordinance. 4. The title and summary shall be published once in the Prior Lake American in a body type no smaller than brevier or eight-point type. 5. A complete text of the newly amended City Code will be available for inspection at City Hall or in the Document Center on the City of Prior Lake Website after March 19, 2016. PASSED AND ADOPTED THIS 14th DAY OF MARCH 2016. VOTE Hedberg Keeney McGuire Morton Thompson Aye ☐ ☐ ☐ ☐ ☐ Nay ☐ ☐ ☐ ☐ ☐ Absent ☐ ☐ ☐ ☐ ☐ Abstain ☐ ☐ ☐ ☐ ☐ _____________________________ Frank Boyles, City Manager 2 Exhibit A SUMMARY ORDINANCE NO. __________ CITY OF PRIOR LAKE ORDINANCE NO. _________ AN ORDINANCE AMENDING PART 3 OF THE PRIOR LAKE CITY CODE BY REPLACING SECTION 302 RELATING TO PEDDLERS AND ADOPTING BY REFERENCE CITY CODE SECTION 104 WHICH, AMONG OTHER THINGS, CONTAINS PENALTY PROVISIONS. The following is only a summary of Ordinance No. ____________. The full text will be available for public inspection after March 19, 2016 by any person during regular office hours at City Hall or in the Document Center on the City of Prior Lake Website. SUMMARY: The Ordinance amends Subsection 302 relating to peddlers by amending the permitting requirements, the process for issuance, the process for revocation and suspension and other related matters. This ordinance shall become effective from and after its passage and publication. Passed by the City Council of the City of Prior Lake this 14th Day of March 2016. ATTEST: _________________________ __________________________ Frank Boyles, City Manager Kenneth L. Hedberg, Mayor Summary published in the Prior Lake American on the 19th day of March 2016.