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07/11/1995 - City Council Special SPECIAL CITY COUNCIL MEETING JULY 11, 1995 5:00 P.M. I. ROLL CALL AND ADOPTION OF AGENDA II. IMPROVEMENTS TO FIRE STATION #1 III. REVISION OF THE SOLICITATION ORDINANCE IV. OTHER BUSINESS V. ADJOURNMENT M':tiNliA rithik cIL MEMO _city of eagan TO: HONORABLE MAYOR AND CITY COUNCILMEMBERS FROM: CITY ADMINISTRATOR HEDGES DATE: JULY 5, 1995 SUBJECT: SPECIAL CITY COUNCIL MEETING/JULY 11, 1995 A special City Council meeting is scheduled for Tuesday, July 11 at 5:00 p.m., to discuss the following items: 1. Proposed improvements to Fire Station #1 2. Discussion regarding authorization for the City Attorney to revise the solicitation ordinance. Since the Opus proposal is scheduled for the regular City Council meeting, there are no additional items considered at the special meeting and, therefore, the special workshop should be adjourned by 6:30 p.m. FIRE STATION #1 Please review a memo from Dale Nelson, attached on pages 4=2 through q , regarding proposed improvements to Fire Station #1. SOLICITATION ORDINANCE Attached on pages S througt*), is information regarding authorization for the City Attorney to revise the solicitation ordinance. OTHER BUSINESS If time permits, staff will provide an update on pertinent issues. Ler/4A City Administrator TLH/jeh 1 • �.S4r. MEMO _city of eagan DATE: June 29, 1995 TO: Tom Hedges, City Administrator FROM: Dale Nelson, Fire Chief SUBJECT: Fire Station 1 Remodeling Since 1988, no major improvements have been made to any of the Eagan Fire Department buildings. As you recall, approximately 12 months ago the Eagan Fire Department requested $125,000 to begin the renovation process of Station 1 located at 3940 Rahn Road. Station 1 is now approximately 30 years old and is in need of some serious repairs as well as bringing the building up to ADA and Minnesota State Handicap Facility Standards. Also at this time we feel that the building is in need of exterior improvements to aid in our building blending with the improvements that have already been made with neighboring homes and apartment complexes. Other issues that are driving this project are firefighter safety issues, work efficiency and energy conservation. The building committee has been planning this project for many months and approximately 6 months ago decided to seek assistance from the architectural firm of Arthur Dickey & Associates to assist us putting our plan in to a working plan. As the committee progressed, we found that remodeling this building in phases would not be practical and/or cost efficient as improving one area of the building seemed to overlap in to the next both building and expense wise as the safety and building integrity were addressed and needed repairs were discovered. For example: a deflection in the existing roof. As you recall, in our initial 5 year CIP we were seeking approximately $250,000 to complete this project. Now, after compiling information for real 1995 construction dollars, we have determined that the total cost of this project will be an approximate $310,702, requiring an additional $185,702 to complete this project. It should be noted that to date the Fire Department has saved the City approximately $13,000 by 2-• • ' , Tom Hedges, City Administrator June 29, 1995 Page 2 doing some work in-house by Fire Department personnel and acquiring bids for work thereby spending only $11,220 of the initial $125,000 to complete some bay area work extending the wall behind one of the apparatus bays and some storage room. Also firefighters donated their time by performing many hours of labor tasks. I'm sure there will be questions from the City Council members as to some of the remodeling projects. We will be happy to address those issues and answer those questions at the July 11th workshop. We have taken the liberty of inviting our architectural firm of Arthur Dickey & Associates to be present and also be able to show some artist concepts of what the completed project should look like. • DN/kmk cc: Mark Sportelli, Station Manager Mark Adam, Station 1 Remodeling Committee Chairperson Arthur Dickey & Associates 3 ORIGINAL WORK PLAN 1. Restrooms ADA & handicap 2. Redesign interior bay wall, construct new storage/compressor room 3. Install new roof & insulate 4. Exterior brick/footings/demolition/remove old concrete and misc. block work 5. Electrical work 6. Exterior concrete walk-way work 7. Minimal landscape work Subtotal $230,561 CHANGE ORDER WORK 1. Relocate C.D. roof siren 2,000 2. Truck bay drain work A. Concrete demolition & improvements 5,830 B. Drain plumbing 2,800 3. Resurface truck bay floors 11,000 4. Paint walls & ceiling bay areas 7,000 5. Meeting room remodeling 11 ,500 6. S.C.B.A. room improvements 5,000 7. Replace truck bay doors (glass) 20,000 15% general conditions on change order 9,769 7% contractor profit on change order 5,242 Sub-Total 80,141 PROJECT TOTAL $310,702 4 MEMO _city of eagan TO: CITY ADMINISTRATOR HEDGES FROM: FINANCE DIRECTOR/CITY CLERK VANOVERBEKE DATE: JULY 7, 1995 SUBJECT: SOLICITATION ORDINANCE For the City Council meeting on June 6, 1995, staff placed an item on the consent agenda suggesting that the City Attorney's office be directed to draft a new solicitation ordinance. The item was pulled from the consent agenda and staff was directed to bring it back for consideration as old business at the July 11, 1995 meeting. It was also suggested that certain proposed ordinances and changes to certain ordinances should be first discussed at special meetings. The staff suggestion that a new/revised solicitation ordinance be prepared does not result from citizen complaints and is not an effort to regulate something that is currently not regulated. The suggestion results from an awareness on behalf of staff that certain elements of the existing ordinance are in conflict with current legal standards and court interpretations. The current ordinance is also confusing in that it refers only to solicitation for profit and non-profit solicitation primarily of a door to door type. The issuance of transient merchants and peddlers are not clearly addressed and finally, the current ordinance is not clearly coordinated with land use or zoning requirements. Staff is uncomfortable in requiring solicitation licenses when applicants are presenting legal opinions which clearly say the city does not have the authority to enforce the requirement. Also, from a professional standpoint, we cannot ignore the ordinance; consequently, the suggestion for a rewrite has been made. Please let me know if you would like any additional information or if you would like to discuss this request in more detail. 94) Finance Director/City Clerk cc: Administrative Assistant Witt 5.-- Agenda Information Memo June 6, 1995 Eagan City Council Meeting O. AUTHORIZE STAFF/CITY ATTORNEY'S OFFICE TO DRAFT NEW SOLICITATION ORDINANCE ACTION TO BE CONSIDERED: Authorize staff/City Attorney's office to draft a new solicitation ordinance. FACTS: For a number of years the City has had a solicitation ordinance. The ordinance has been used generally to try to protect the community from illegitimate solicitation practices of harassment, nuisance, theft, deceit of menacing, troublesome or unlawful activities. • The City has been challenged with increasing frequency about the legality of the ordinance especially as it is applied to solicitors engaged in interstate commerce. Courts have started to determine that formal licensing procedures and fees for solicitors involved in interstate commerce amount to an undue burden on interstate commerce and, therefore, violate the U.S. Constitution. A new ordinance would define and differentiate between solicitors, peddlers and transient merchants. There is more flexibility to license peddlers and transient merchants than solicitors. Solicitors can probably only be registered, not licensed. ISSUES: What is the best method to balance the City's desire to protect its residents with current legal standards? There are a fair number of complaints received by the Police Department resulting from door to door solicitation. Unfortunately, that is the group with the greatest legal protection at this time. Would the model ordinance, as presented or with modifications, be acceptable for the City of Eagan? ATTACHMENTS: ! / • Current City Code, pages ( through't • LMC Article, page through (f'7. • ModeI Ordinance, pages _2 through S 6.35 C. An applicant non-profit organization sha provide •equate proof that it has at least 15 active men rs and that - least 15 of its members are either empl• -d or live within he City or that it is a nationa known charitable org - • ization as determined by the Cit . Subd. 4. :egulations and Restri ons. A. In a• tion to regu - ions imposed by the State of Minnesota, all in 'nation • reports required to be submitted to the State shal als- •e submitted to the City, both with the application and an annual basis . B. Pull- -s may - sold only in on-sale liquor licensed establi - ents in the ity, which are either owned or leased by t eligible organiz - ion. Eligible organizations , , however , be granted a tem- - ary license for the operation o •ull-tabs in premises o - - r than on-sale liquor licensed estab -hments for no more an four consecutive days. Source : Ordinance No. 50, 2nd Seri Effective Date: 6-26-87 SEC. 6.36. SOLICITORS. Subd. 1. Purpose. This Section is not intended to in any way hinder , delay or interfere with legitimate business or organizational activities. The Council finds, however , that solicitors have used public f,treets and their direct contact with residents of the City for the illegitimate solicitation practices of harassment, nuisance, theft, deceit, or menacing , troublesome or unlawful activities. This Section is intended to ferret out and control: (1) businesses and organizations using solicitation as a means of concealing unlawful activities; and , (2) businesses and organizations which, though its activities be lawful or even commendable , use such illegitimate practices in solicitation; and (3) individual natural persons who, though they represent lawful businesses and organizations, use such illegitimate solicitation practices. The Council further finds that a large number of the residents of the City are employed as their livelihood and means of support by manufacturing plants and other businesses on shifts rotating between night and day, and to disturb them during their sleeping hours for the purpose of solicitation is a source of nuisance or even harassment and should be subject to control. Subd. 2. Definitions. The following terms , as used in this Section, shall have the meanings stated: (5-31-92) A. "Solicitor" means any person making the solicitation, including such common terms as "peddler", "transient merchant" and "canvasser". B. "Solicitee" means the person solicited. C. "Goods" means any tangible thing of value, but not including money, things in action or intan- gible personal property other than merchandise certificates or coupons as herein described. The term includes such chattels as are furnished or used at the time of sale or subsequently in the modernization, rehabilitation, repair, alteration, improvement or construction of real property so as to become a part thereof whether or not severable there- from. The term also includes merchandise certificates or coupons, issued by a retail seller, not redeemable in cash and to be used in their face amount in lieu of cash, in exchange for goods or services sold by such seller. D. "Services" means work, labor, or services of any kind. E. "Established place" means real estate in the City owned, leased on a month-to-month or term-certain longer than thirty (30) days. The term includes a booth, compartment, or area leased or assigned during and for the length of an event or occasion. F. "Business solicitation" means an attempt by a solicitor, engaging in transactions of the same kind, to sell or distribute for a consideration any goods or services primarily for personal, family, or household pur- poses, when either the solicitor or person acting for him contacts the solicitee by telephone or in person, other than at the established place of business of solicitor, except: (1) an attempted solicitation in which the solicitee person- ally knows the identity of the solicitor, the name of the business firm or organization he represents, and the iden- tity or kinds of goods, services or things of value offered; or, (2) an attempted solicitation in which the solicitee has first initiated the contact with the solicitor; or, (3) an attempted solicitation of a newspaper subscription in which the solicitor is a minor child engaged in both the delivery and sale of the newspaper; or, (4) an attempted solicitation for the sale of products of a farm or garden occupied or cultivated by the solicitor, when facts of such occupancy or cultivation are proven by the solicitor. G. "Contribution solicitation" means an attempt by a solicitor to obtain money from a solicitee for any cause or purpose, when either the solicitor or person acting for him contacts the solicitee by telephone or in person other than at the established place of meeting, (1-1-83) S 6.36 business , service , or activity of the organization represented by the solicitor. , except: (1) an attempted solicitation in which the solicitee personally knows the identity of the solicitor, the name of the organization he represents, and the identity of the services performed or offered by the organization, ••r, (2) an attempted solicita- tion in which the solicitee has first initiated the contact with the solicitor or the otywlixation represented by him. Subd. 3. Prohibited Solicitation Practices. A. It is unlawful for any solicitor to engage in solicitation for any unlawful business or organi- zational purpose or activity. B. It is unlawful for any solicitor to practice harassment, nuisance, theft, deceit, or menacing, troublesome or otherwise unlawful activities during the course of solicitation. C. It is unlawful for any solicitor to enter, or attempt to gain entrance, to residential premises displaying at such entrance a sign at least 3-3/4 inches long and 3-3/4 inches high with the words "Peddlers and Solicitors Prohibited" or "Solicitors Prohibited" in type not smaller than 48 point. D. It is unlawful fnr any solicitor to refuse to leave business premises when requested by the owner, lessee, or person in charge thereof. E. It is unlawful for any person to engage in contribution solicitation without completion of 1i^ensing or registration as herein provided. F. It is unlawful toy ,n ; . enaaap in business solicitation without ' - herein provided. Source: City Cov1" Effective Date: 1 -1-83 Subd. 4. Application. Application': for l.ieennin i or registration shall contain the name and address of the solicitor , the name and address of the hntlinnin nr organization for which 1i-stations ,re cenghr on'1 ^u.uc+ other information as mny reaconAhly ►„ teq'+ ire1 by the Council as a condition to regi ;tr -+tio,‘ or Licensing or to permit investigation into the appiieant's backgr'onnc1 and past solicitation practices. hli% application shall be complete unless it is accomr„nied by a valid and current 1c (R-31-85) S 6.36 license issued by the County in which the solicitor proposes to engage in solicitation. Source: Ordinance No. 23, 2nd Series Effective Date: 8-23-85 Subd. 5. Investigation, Approval or Disapproval. A. All applications for licensing or registration shall be immediately referred to the Chief of Police, and by him or other person acting in his stead, investigated as to the truth thereof. The Chief of Police shall have five (5 ) business days within which to investigate and make a recommendation thereon. B. I f he finds no past history of the applicant indicating violations similar to those declared unlawful in this Section he shell recommend issuing a • • license or approving registration, as the case may be, and the City Clerk-Treasurer shall forthwith advise the applicant. The City Clerk-Treasurer shall issue a license, upon payment of the fee therefor, to the approved applicant for business solicitation, and shall approve the completion of registration by the applicant for a contribution solicitor . C. If the Chief of Police finds a past history of the applicant indicating violations similar to those declared unlawful in this Section, he shall recommend denial of the license or registration. In all matters of recommended denial the applicant shall be forthwith advised thereof, and the application shall be referred to the Council and considered by it at its next regular or special meeting occurring more than ten (10) days thereafter. The applicant shall he afforded an opportunity to be heard at such meeting. Subd. 6. Duration of Contribution Solicitation Registration. Registration of contribution solicitation shall expire sixty (60) days after registration is approved. Source: City Code Effective Date: 1-1-83 Subd. 7. Exclusions. The Council may, by resolution, exclude certain classes of solicitor events from compliance with licensing or registration provisions of this Section. Provided, however, that such exclusion shall not extend to the prohitited solicitation practices set forth in Subdivision 3, Subparagraphs A through D, inclusive, of this Section. Source: Ordinance No. 23 , 2nd Series Effective Date: 8-21-85 / 0 - -- DID You ,... 4 -- a., IL _;::.. ._ ..-__. ..--,_,_ . 7...... . _ _ .::. -.-'- R merchants above and beyond the Because this is a highly litigated statutory requirement for them to matter,and because cities risk being obtain county licenses. M.S.412.221, held liable for federal penalties if they �e�! subd.19,echoes the provisions of adopt and try to enforce an unconstitu• solicitors and chapter 329 for statutory cities. Most tional regulation,cities should involve ! charters provide home rule charter their city attorney before adopting any transient cities with the same type of explicit regulation. Further,before a city authority. M.S.437.02 restates the decides it must do something,it should merchants authority to regulate and license balance the extent of its current or transient merchants in all cities. In potential problems against the risk of addition,the courts have held that litigation over any attempted enforce- KENT SUiSM reasonable regulations of peddlers, ment of a regulation. Cities that solicitors,and transient merchants are decide they have to do something • valid exercises of a city's police powers should carefully consider the following ��,� ides have both statutory and In protecting the health,safety,and suggestions and develop regulations common law authority to welfare of the public against an activity similar to those that have either been regulate peddler,solicitors, that can become a nuisance. While it is upheld in court or that are defendable and transient merchants. clear that dries can not totally ban if challenged. Minnesota Statutes,sections peddlers,solicitors,and transient Define all terms. Peddlers,solicitors, Y 329.06 and 329.15, grant merchants,it is not clear how far cities and transient merchants are not cities the right to regulate and license can go.in exercising their regulatory recognized by the courts as being the peddlers,solicitors,and transient authority. same. Peddlers,also known as hawkers, II First We Listen To What GOLOFLO ; You Need. Then We Respond DUAL•WALL PIPE — With Proven Solutions. Corrugated PE Pips with a • Roadways,Bridges&Traffic Engineering Smooth Interior - ___. _•Transportation—.-Planning M _ __ • Wastewater Collection&Treatment 'STRONG • • Water Supply,Storage&Distribution ��� •COST-EFFECTIVE .._...... _._.... __...... ....w......___......._._......... 'DURABLE Storm Drain or • Water Treatment . 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Anderiik& PRI NSCO INC Engineers teas Pnnsbu g,Minnesota ( - 1-800-992-1725 II St.Paul Office:612-636.4600 Call fora free catalog. f t ( ) 3z CJ - I MINNESOTA CITIES / APRIL INS go from place to place to sell goods interstate commerce amount to an , that are delivered at the time of sale. undue burden on interstate commerce Solicitors,also known as canvassers,go and therefore violate the US.Constitu• iron place to place to obtain orders for Lion. Solicitors of purely Minnesota What do pods or services that are to be deliv made products would appear eligible eyed or performed at a later time,or to for licensing as they would not be these collect donations. Transient merchants involved in interstate commerce. are generally persons who sell their Other cases,however,indicate that to g • aliti merchandise from a vehicle or other require different requirements for fflUfliC11) tI]t1eS portable shelter,or from an empty different people conducting essentially es storefront,and who do not intend to the same business for the purpose of in remain in business at any one loation controlling a nuisance amounts to e for more than a temporary period of arbitrary,and thus unenforceable, time,usually no more than a few weeks. regulations. lzs pt specific groups from the Provide Due Process. Licenses must common? definitions. The courts have held that be issued as quickly as possible. those who make initial contacts with Anyone denied a license should be property owners or occupants for the informed of the reason for denial and _e; purpose of establishing a regular of any right to appeal the decision r... . • delivery route,as well as people making through the city or ultimately in iie deliveries to customers on a regular district court. These provisions should route,we not the type of nuisances be dearly spelled out in the city's intended to be defined and regulated ordinance. - • by peddler,solicitor,and transient Exempt certain peddlers and merchant regulations. Likewise, transient merchants from licensing wholesalers making direct sales to The Minnesota State Constitution • • retailers,have also been exempted prohibits the licensing of farmers • from the definitions of peddlers, selling the products of their own farms. \ • •; • solicitors,and transient merchants. The caselaw discussed above about • • Differentiate between licensing and imposing different requirements on registering. Licensing is a formal different people conducting essentially • • • process involving an application,a fee, the same business,has made it clear • ••• and the right of the council to grant or that a city also can not license anyone IIIIIIIIIIIIIIIIIk refuse the license. A background who re-sells any product purchased check is common before a license is from an exempt farmer. In addition, granted. Registration is the simple anyone going place-to-place for the process of recording a person's name primary purpose of exercising their Software Solutions and and any other pertinent information general state or federal constitutional the council believes necessary to ensure rights should not be licensed because, support services from the good faith of the registering party. as with the commerce clause,licensing �`°,j j Comp No fees are involved with registrations imposes undue burdens on these PlAD and the whole process should only take constitutional rights. Stems' a few minutes instead of several days. Most of the existing caselaw involves Only require licenses of peddlers people who were exercising First PCS prmides sofmvare solutions for tend transient merchants. Even though Amendment rights by distributing municipalities throughout Minnesota the statutes authorize the licensing of religious or political information and g solicitors,caselaw dictates that they not pamphlets. The fact that a small fee or and the Midaeg,including • be licensed. The courts'concern is the contribution may be requested for the budgetary,accounting,payroll, impact of local regulations on inter- pamphlets has not been enough to inventory,utility billing and others. state commerce. Because peddlers and remove the constitutional protection. Call for more information. • transient merchants have their goods in The courts have indicated that these Discover why municipalities across the state before they are sold,the chain groups could lose their exemption for Minnesota rely on PCS every day of interstate commerce has ended and the sale of books or other goods sold Ii you haven't looked at PCS lately, keening has no impact on it. Solid- only for revenue raising purposes,or if Maybe k's time you did. tors,however,make their sales before professional fund raisers were used. obtaining their goods. if the goods are It has been a common practice for subsequently shipped from another sties to also exempt all non-profit mate,the chain of interstate commerce organizations,and some cities have N•• remains unbroken. The courts have inquired about exempting minors from J- held that formal licensing procedures their regulations. Such practices,while and fees for solicitors involved in of good intention,could put a city at PIS CONTINUED ON PAGE 34 Precision Computer Systems • 45'OS t+.tee nno�op DP Saw 31u.SD 57306 I a�M MMUdLSOTR CITIES APRIL 1tS 1 ` 1D CONTINUED FROM PAGE 33 rights. In addition,there are questions risk. Such a provision amid be a s to the applicability of such an Save Trees, P ordinance to non-residential settings, challenged on the grounds that it once although it probably is acceptable. again treats people differently for Further,the nuisance created under a Save Money doing essentially the same thing. While Green River ordinance has been held homeowners may not be as upset by a to be a private nuisance meaning member of a nonprofit organization enforcement is basically up to the Send for selling candy ringing their doorbells as affected land owner or tenant. they are by vacuum cleaner sales- A modified Green River ordinance • people,the court have generally makes it a trespass to enter onto any Protecting Trees looked at the as of going place-to- property,whether residential or not, place itself as the nuisance,not the for the purpose of soliciting or ped- from Construction product being sold. If the sale itself is ding,where the land owner has posted secondary to expressing the belief of a sign stating to the effect'No Peddlers Damn a the group,then the constitutional or Solicitor:.' Beaune the landowner g ; rights exception would apply and no or tenant and not a government makes •• . .Y- special exception would apply. If the the prohibition,this provision applies c.. which the sale of candy etc.could easily enforceable against all peddlers and be found to be,then upholding an solicitors,including those involved in 4. a. it. exemption would depend on the city interstate commerce and those at- e ' being able to convince the courts that tempting to exercise Constitutional place-to-place sales by minors or non- rights. In fact,the provision should be �` �r�' , profit groups is somehow different enforced equally to avoid legal chal- '` ,, than similar sales by adults and regular lenges of favoring otherwise protected ` businesses,and therefore is not a groups or people. This approach also 1774- 1 nuisance. Given the tone of existing allows for criminal prosecution of =,lag! caselaw,it could be difficult to con- vince the courts of this distinction. Of Other Considerations. In addition, 1 t - ..-' course,rather than license each cities may also regulate the time,place, � `.e person,one license could be granted to and manner of peddling,soliciting, � % the group. and other transient selling. For g -- ' Require solicitors and license example,a city can require that all exempt peddlers and transient peddlers,solicitors,and transient - _ . - • merchants to register. Because merchants conduct their business only This 14-pigs registration is a simple process and no between the hours of 8:00 a.m and 9:00 publication's text, numerous fee is charged,the courts have said that p.m.. A city,however,must be careful drawings and tables explain requiring solicitors and otherwise not to be so restrictive with hours that th!growing conditions exempt peddlers and transient met- the average working person would not �� g chants to register does not have an be home when called upon. In needed for healthy trees and undue burden on interstate commerce addition,a city can prohibit anyone the construction techniques or other constitutional rights. Registra• from calling attention to themselves by used to maintain those tion does help a city track those the use of whistles,horns,loud noise involved in such business practices and devices,amplifiers,and flashing lights. conditions. Based on years reduces the risk of scam artists as the A city can also prohibit peddlers, of university research,the city will know who each person is and solicitors,and transient merchants information is presented in bow to contact them should a citizen from conducting business in such a have a complaint. manner or in such a place as to create an understandable and Green River ordinances. A Green traffic hazards or as to interfere with practical style. River ordinance,named for the city the free flow of others on streets or where it was first used and upheld, sidewalks. declares it to be a nuisance for any Please contact the League if you Request Meth#FO-6135-AD person to go onto the property of have any questions about this topic or Send 54.00 another for the purpose of peddling would like a fist of case citations and or soliciting,without first being invited other more detailed information. check or money order payable to do so by the land owner or tenant. to University of Minnesota Such an ordinance is not applicable to gent Sulem is the codification and mail to: regular route deliveries,and probably attorney with the League of Minnesota MB DisabaaBon Center could not be enforced against other- Odes. Wonky of Minnesota wise valid exercises of constitutional 1420(dries Avenue St.Paid,MN 551084069 MN guidon end k nineites odd Mb Wet ten. (3 34 1 I MINNESOTA CITIES / APRIL 1995 Model Ordinance Paddlers, Solicitors, Transient Merchants 4/95 The following model ordinance is an attempt to provide cities with a current, valid, and comprehensive means of regulating peddlers, solicitors and transient merchants. Regulation of these business practices has led to much litigation over the years and it remains a ooamily changing area of law. The effect of certain Minnesota cases has made it even harder to regulate peddlers, solicitors, and transient merchants he than in other jurisdictions. Because of the volatile legal nature of the topic, cities are encouraged to carefully consider the baLnce between any existing problem with peddlers, solicitors and transient merchants and the likelihood of an increased nuisance should the city decline to regulate such per, against the risk of •litigation over enforcement of any regulation adcyted by the city. Cities should also consult with their city attorneys before adopting an ordinance similar to this one. This model ordinance is based on conservative interpretations of the major court decisions in • this area. Because new opinions are frequently being banded down at the District, State and Federal levels, and because of apparent conflicts within existing caselaw, the League cannot and does not guarantee the validity of the provisions of this ordinance. To the best of our knowledge, however, these provisions have either withstood legal challenges or, based on existing caselaw, should be defendable as reasonable exercises of both a city's police powers and the express authority granted by Minnesota Statutes Sections 329.06, 329.15, 412.221 (subd.19), and 437.02, as well as the charters of home rule charter cities. This model ordinance does not address what is commonly referred to as a "Green River" ordinance. Such an ordinance basically declares it to be a nuisance to enter onto the property of another for the purpose of peddling, soliciting, or selling as a transient merchant, without first being invited onto the property by the owner or tenant. While the V.S. Supreme Court has historically upheld these types of ordinances, they remain subject to challenge because they have the practical effect of acting as a complete ban on peddling, soliciting, or selling as - a transient merchant. Green River ordinances also have problematic limitations in their application and enforcement. For some cities, however, they have worked. If your city would like more information about Green River ordinances, please contact the League's Research and Information Services Department, or the League's Codification Attorney. Any city that would lire to review the material used to compile this ordinance should contact the League's Research and Information Services Department or the League's Codification Attorney. • Ordinance / An o[thnance relating to peddlers, solicitors, and transient merchants and exercising the city's authority to regulate the nuisance created by such business practices under the city's general Police Powers and as specifically authorized by Minnesota Statutes Sections 329.06, 329.15, 412.221(subd.19) (Now: 412 cite is for statutory cities; charter cite could be substituted), and 437.02. The City Council of the City of Ordains: B l00• o s ud me n.r r atl Except as may otherwise be provided or clearly implied by context, all terms shall be given their commonly accepted definitions. The singular shall include the plural and the plural shall include the singular. The masculine shall include the feminine and the neuter, and vice-versa The term 'shall' means mandatory and the term *may* is permissive. The following terms shall have the definitions given to them: Subdivision 1 Person. The term 'person" shall mean any natural individual, group, esgaaiation, corporation, partnership, or association. As applied to groups, organizations, ooeporations, partnerships, and associations, the term shall include each member, cdricer, partner, associate, agent, or employee. Subdivision 2 Peddler. The term 'peddler" shall mean a person who goes from house-to- !souse, door-to-door, business-to-business, street-to-street, or any other type of place-to-place, for the purpose of offering for sale, displaying or exposing for sale, selling or attempting to sell, and delivering immediately upon sale, the goods, wares, products, merchandise, or other personnel property, that the person is carrying or otherwise transporting. The term peddler shall mean the same as the term hawker. : The inclusion of the phrase 'without a fixed place of business" in the definition of the term peddler has been interpreted by Minnesota courts as implying a preference for local businesses and should therefore be avoided even though the U.S. Supreme Court originally used the phrase.) Subdivision 3 Solicitor. The term 'solicitor' shall man 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, 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. The berm solicitor shall mean the same as the term canvasser. won jatinninnalninlant. The term 'transient merchant' shall mean a person who temporarily sets up business out of a vehicle, trailer, boxcar, runt, other portable shelter, or empty store front for the purpose of exposing or displaying for sale, selling or attempting to sell, and delivering, goods, wares, products, merchandise, or other personal property, and who does not remain or intend to remain in any one location for more than consecutive days. Subdivision S Regular Business Hay. Any day during which the City Hal is normally open for the purpose of conducting public business. Holidays defined by State law shall not be counted as regular business days. Section 110. Exceptions to Definitions. : The courts have held that the following persons do not create the type of nuisances intended to be regulated by this type of ordinance and are therefore exempt from the above definitions.) For the purpose of the requirements of this ordnance, the terms "peddler,' 'solicitor,' and 'transient merchant* shall not apply to any parson selling or tempting to sell at wholesale any goods, wares, products, merchandise, or other personal property, to a retailer of the item(s) being sold by the whollesaler. The terms also shall not apply to any person who makes initial contacts with other people for the purpose of establishing or trying to establish a regular customer delivery route for the delivery of perishable food and dairy products such as baked goods and milk, nor than they apply to any person making deliveries of perishable food and dairy products to the customers on his or her established regular delivery route. + The following exemptions are added for clarification purposes) In addition, persons conducting the type of sales commonly bown as garage sales, rummage sales, or estate sales, as well as those persons participating in an organized multi-person bazaar or flea market, shall be exempt from the definitions of peddlers, solicitors, and transient merchants, as shall be anyone conducting an auction as a properly licensed auctioneer, or any officer of the court conducting a court ordered sale. Exemption from the definitions for the scope of this ordinance shall not excuse any person from complying with any other applicable statutory provision or local ordinance. Section 200. licensing. Subdivision 1 County License Rewired. No person shall conduct business as a peddler, solicitor, or transient merchant within the city limits without first having obtained the appropriate license from the County as required by Minnesota Statutes Chapter 329 as amended. (Sow This subdivision is included primarily for notice purposes. Violations of this . provision would usually be handled under State law.) Subdivision 2 Cm► ' ansaequi.g. Except as otherwise provided for by this ordinance, no person shall conduct business as either a peddler or a transient merchant without first having obtained a license from the city. Qjotc: Due to caselaw, solicitors should not be licensed; see the registration requirement under section 300 of this ordinance.) Subdivision 3 Application. Application for a city Scenic to conduct business as a peddler or transient merchant shall be made at least fourteen (14) regular business days before the applicant desires to begin conducting business. Application for a license shall be made on a form approved by the city council and available from the office of the city clerk. All applications shall be signed by the applicant. All applications shall include the following information: a. Applicant's full legal name. ((IQ b. All other names coder which the applicant conducts business or to which applicant officially answers. c. A physical description of the applicant (hair color, eye color, height, weight, distinguishing marks and features, etc.) d. Pull address of applicant's permanent residence. e. Telephone number of applicant's permanent residence. f. Pull legal name of any and an business operation(:) owned, managed, or operated by applicant, or for which the applicant is an employee or agent. g. Pull address of applicant's regular place of business (if any). L Any and all business related telephone number(s) of the applicant. �. The type of business for which the applicant is applying for a license. j. Whether the applicant is applying for an annual or daily license. k. The dates during which the applicant intends to conduct business, and if the applicant is applying for a daily license, the number of days he or she will be conducting business in the city. (Maximum_consecutive days) 1. Any and all address(es) and telephone number(s) where the applicant can be reached while conducting business within the city, including the location where a transient merchant intends to set up business. m. A statement as to whether or not the applicant has been convicted within the last five years of any felony, gross misdemeanor, or misdemeanor for violation of any state or federal statute or any local ordinance, other than traffic offenses. (Egg: Going back beyond five years may be a violation of due process. There is no case specifically on point for this situation so it may be ok to check back beyond five years, but in other areas of law, five years is the maximum amount of time a city can inquire about convictions.) a. A list of the most recent locations where the applicant has conducted business as a peddler or transient merchant. : 3-5 are the most common requirements.) o. Proof of any required county license. p. Written permission of the property owner or the property owner's agent for any property to be used by a transient merchant. q. A general description of the items to be sold or services to be : Unless the selling of an item or providing of a service a city cannot base its decision on under some other law, r. All additional information deemed a license on what is to be sold car provided.) tie es auy by the city council. Ma: Some cities require a list of all individuals to be covered by a group license. Other common requirements include: sours of items sold and an item's location at the time of lieensfitg and at time of sale, applicant's driver's license number or other acceptable form of identification, license plate and registration information for any vehicle to be used in cogjtmction with the licensed business and a description of the vehicle, recent passport style photograph of applicant, applicant's date of birth (Asking about age is risky unless the item to • be sold or service to be provided cannot be legally sold or provided by a minor in which case proof of age is required), references (Genera/ character references are no longer of much legal value due to their arbitrary nature), and applicant's social security number.) won 4 P. All applications for a license under this ordinance shall be accompanied by the fee established in the city's fee schedule as adopted from time to time by an ordinance passed by the council. . Upon receipt of the completed application and payment of the license fee, the city clerk shall forward the application to the council within two (2) regular business days of receipt. An application shall be determined to be complete only if all :squired information is provided. The City Clerk, within two regular business days of receipt, shall determine if the application is complete. If the cleric determines that the application is incomplete, the clerk shall inform the applicant of the required necessary information which is missing. The council shall review the application and order any invediPdons including background checks, necessary to verify the information provided with the application. Within ten (10) regular business days of receiving the application from the city clerk, the council shall vote whether or not to issue the license. If the council approves the application, the clerk shall be instructed to issue a license to the applicant. If the council rejects the application, the applicant shall be notified in writing of the council's decision, the reason for the denial, and of his or her right to appeal the denial by requesting, within twenty (20) days of receiving the council's notice of rejection, a public hearing to be heard by within twenty (20) days of the date of the request. The final decision of the council following the public hearing shall be appealable by petitioning the Minnesota Court of Appeals for a Writ of Certiorari. Wow In order to protect the applicant's due process rights, the council must act as quickly as possible. A ten to fourteen day turnaround should be reasonable. Longer delays would need justification. In addition, the proper city appeals procedure (to whom must the appeal be made, deadlines and timeframes, etc.) should be set out in the Via.) $bdivision 6 Duration. An annual license granted under this ordinance shall be valid for one calendar year from the date of issue. All other licenses granted under this ordinance shall be valid only during the time period indicated on the license. : A city could elect to have all annual licenses expire on a set day.) Seelbn 210 Lkense Exemptions. No license shall be required for any person to sell or attempt to sell, or to take or attempt to take orders for, any product grown, produced, cultivated, or raised on any farm. QJ : 'The Minnesota State Constitution prohibits the lieansbg of farmers selling their own products. Caselaa prohibits distinguishing between the farmer and any other seller of the farmer's products. A number of cities still attempt to Scams the non-farmers but they do so at great risk of being challenged in court.) No license shall be required of any person going from house-too-house, door-to-door, business-to- business, erect-to-meet, or other type of place-to-place when such activity is for the purpose of auetdang that person's State or Federal C.onstkutional rights (i.e., freedom of speech, Press, religion etc.) except that this exemption may be lost if the person's exercise of Constitutional rights is merely incidental to a commercial activity. (Nose: The courts have held that a person charging or requesting a small fee for a brochure expressing religious, political, ideological ideas, etc. is exempt but that the same person selling candy or flowers on behalf of an otherwise exempt classification could be subjected to licensing requirements.) Professional fund raisers working on behalf of an otherwise exempt person or group shall not be sump from the licensing requirements of this ordinance. (No: It has been a common practice for cities to simply exempt all non-profit organizations from all licensing requirements for peddlers, solicitors and transient merchants. Some cities would also Like to exempt minors. While such exemptions are generated out of good Mentions, they could present serious legal trouble for a clay. Under =rent caselaw, any attempt to treat one clusification differently from another classification when both classifications are essentially doing the same thing, makes the regulation highly susceptible to being overturned for being arbitrary and capricious. When the nni:ance sought to be regulated is door-to-door type sales, the courts have not cared who is making the sale. It appears that a city would have a hard time convincing the courts that, from a legal pave, a non-profit poop going door-to-door to sell their goods is any less annoying than a business doing the same thing. Perhaps an argument could be made based on the Aire+ nce in the public's perception of non-profit door to door sales verws those of retail merchants, but given the fact that the courts have stated that those exempt for constitutional reasons could lose their exemptions if their activities took on a commercial appearance, even when the group in question was a non-profit church, such an argument does not seem likely to prevail.) Section 220. Ineligibility for License. The following shall be grounds for denying a license under this ordinance: A. The failure of the applicant to obtain and show proof of having obtained any required County license. B. The failure of the applicant to truthfully provide any of the information requested by the City as a part of the application, or the failure to sign the application, or the failure to pay the required fee at the time of application. C. The conviction of the applicant within the past five years from the date of application, for any violation of any Federal or State statute or regulation, or of any local ordinance, which adversely reflects on the person's ability to conduct the business for which the license is being sought in an honest and legal manner or that will not adversely affect the health,safety, and welfare of the residents of the City. Such violations shall include but not be limited to: burglary, theft, larceny, swindling, Baud, unlawful business practices, and any form of actual or threatened physical harm against another person. D. The revocation within the past five years of any license issued to the applicant for the purpose of conducting business as a peddler, solicitor, or transient merchant. B. The applicant is determined to have a bad business reputation. Evidence of a bad business reputation shall include, but not be limited to, the existence of more than _ complaint(s) against the applicant with the Better Business Bureau, the Attorney General's Office, or other similar business or consumer rights office or agency, within the preceding twelve (12) moots, or_such complaints filed against the applicant /7 within the preceding live (5) years. Qim: A city has a fair amount of discretion in along this determination, bit it will need to document some sort of standards used to make its decision. The city is encouraged not to rely on a single complaint.) Section 230 Suspension and Revocation. Any license issued under this section may be suspended or revoked at the won of the City Council for violation of any of the !Wowing: A. Fraud, misrepresentation, or incorrect statements on the application form. a. baud, misrepresentation, or false statements made during the course of the licensed activity. C. Conviction of any cam for which granting of a license could have been denied ender Section 220 of this ordinance. D. Violation of any provision of this ordinance. • The suspension or revocation of any license issued for the purpose of authorizing multiple persons to conduct business as peddlers or transient merchants on behalf of the licensee, shall serve as a suspension or revocation of each such authorized person's authority to conduct busiae:s as a peddler or transient merchant on behalf of the licensee whose license is suspended or revoked. 'Dbdivlsion 1 Notice. Prior to revoking or suspending any license issued under this ordinance, the city shall provide the license bolder with written notice of the alleged violations) and inform the licensee of his or her right to a hearing on the alleged violation. Notice shall be delivered in person or by mail to the permanent residential address listed on the lionise application, or if no residential address is lined, to the business address provided on the license application. $ubdivision 2 Public Hag. Upon receiving the notice provided in Subdivision 1, the licensee shall have the right to request a public hearing. If no request for a hearing is received by the city clerk within ten (10) regular business days following the service of the notice, the city may proceed with the suspension or revocation. For the purpose of mailed notices, service shall be considered complete as of the date the notice is placed in the mall. If a public hearing is requested within the stated timeframe, a hearing shall be scheduled within twenty (20) days from the date of the request. Within three (3) regular business days of the hearing, the city council shall notify the licensee of its decision. itakdbtkaixamcgtoex. If in the discretion of the city council, imminent harm to the health or safety of the public may occur because of the actions of a peddler or transient merchant licensed under this ordinance, the council may immediately suspend the person's license and provide notice of the right to bold a subsequent public hearing as prescribed in Subdivision 2 of this section. ao rbdivi:tan 4 Awls. Any person whose license is suspended or revoked under this section shall have the right to appeal that decision in court. Section 240 Transferability. No license issued under this ordinance shall be transferred to any person other than the person to whom the license was issued. Section 300 Registration. AD solicitors, and any person exempt from the licensing requirements of this ordinance under Section 210 , shall be required to register with the city. ration shall be made on the same form required for a license application, but no fee shall be required. Immediately upon completion of the registration form, the City Clerk shall issue to the registrant a Certificate of Registration as proof of the registration. Certificates of won shall be non-transferable. (blizte: The courts have made it clear that a city cannot require formal licensing of solicitors involved in iatetstate commerce, no of anyone exercising Constitutional rights. They have, however, indicated a willingness to allow registration so long as the procedure is simple, no fee is involved, and the time involved is minimal.. Cities may want to consider this option because it provides them with a means of knowing who is conducting business within the city and bow to contact the person should residents have complaints about the person's conduct or product. The licensing of solicitors not involved in interstate commerce would otherwise be allowable, but the Minnesota caselaw finding it to be arbitrary and capricious to enforce different requirements for different people conducting the mine activity, makes it doubtful that such a requirement could be enforced here.) Section 400 Prohibited Adis. No peddler, solicitor, or transient merchant shall conduct business in any of the following manners: A. Calling attention to his or her business or items to be sold by means of blowing . any born or whistle, ringing any bell, crying out, or by any other noise, so as to be =reasonably audible within an enclosed structure. B. Obstructing the free flow of either vehicular or pedestrian traffic on any street, alley, sidewalk, or other public right-of-way. C. Conducting business in such a way as to create a threat to the health,safety, and welfare of any individual or the general public. D. Conducting business before seven o'clock in the morning (7:00 a.m.), or after nine o'clock at night (9:00 p.m.). Wit: A city may set reasonable hours for sales. Any time restriction, however, must allow reasonable access to persons during non- traditional workday hours. Courts have struck down restriction limiting sales to the hours of 8:00 a.m. and 6:00 p.m. because such a restriction precludes reasonable access to the general woddng population.) B. Failing to provide proof of license or registration, and identification, when =quested; or using the license or registration of another person. a(• F. Making any Mae or misleading statements about the product or service being sold, tmtrue statements of endorsement. No peddler, solicitor, or transient merchant shall claim to have the endorsement of the City solely based on the City having issued a License or certificate of registration to that person. G. Remaining on the property of another when requested to leave, or to otherwise conduct business in a manner a reasonable person would find obscene, threatening, intimidating, or abusive. Section S00 tension by Placard. No peddler, solicitor, or transient merchant, unless invited to do so by the property owner or tenant, shall notes the property of another for the Impose of conducting business as a peddler, solicitor, or transient merchant when the property is marked with a sign or placard at least three and three-quarter ( 3-3/4) inches long and three and three-quarter (3-3/4) inches wide with print of at lit 48 point in size stating - 'No Peddlers, Solicitors, or Transient Merchants,* or 'Peddlers, Solicitors, and Transient Merchants Prohibited,' or other comparable statement. No person other than the property owner or tenant shall remove, deface, or otherwise tamper with any sign or placard under this section. Section 600 Violations and Penalties. Any person who violates any provision of this ordinance shall be guilty of a misdemeanor and upon conviction of any violation shall be subject to a fine not to exceed seven hundred dollars ($700) or a jail sentence not to exceed ninety (90) days, or both, plus the cost of prosecution. Each day a violation exists shall oonedotte a separate violation for the purposes of this section. Section 700 Repeal. All ordinances in conflict with this ordinance are hereby repealed. Mgt: A city should list any speci& ordinance it knows needs to be repealed.) Section 800 Separability. Should any section, clause, or portion of this ordinance be found invalid, unenforceable, or unconstitutional by a court of competent jurisdiction, such finding shall not apply to any other section, clause, or portion of this ordinance, unless the court's findings specifically provides otherwise. Section 900 Effective Date. This ordinance shall tab effect upon publication in the City's ai cial newspaper. a\o-.