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HomeMy WebLinkAboutAgenda - 02-01-2011 - 7bORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: February 1, 2011 Action Agenda Item No. -] - b _SUBJECT: Peddlers and Solicitors Ordinance of Oran a County DEPARTMENT: Administration PUBLIC HEARING: (Y/N) No ATTACHMENT(S): Ordinance Defining and Regulating Peddlers and Solicitors-Draft INFORMATION CONTACT: Name, Phone Number John Roberts, 245-2318 Willie A. Best, 245-2308 Jo Robinson, 245-2727 PURPOSE: To regulate door to door offerings for sale and selling of goods, wares, merchandise, food ,periodicals and services and the solicitation of orders or the solicitation of monetary contributions in residential areas of the county, and to promote the public safety and welfare. BACKGROUND: On September 2, 2010, the Orange County Board of Commissioners requested a draft ordinance detailing the cost-effectiveness of Orange County implementing a Solicitors Ordinance, the potential for increasing public safety, experiences in other counties and any alternatives that could be considered. In an effort to ascertain information concerning the implementation of Peddlers and Solicitors Ordinance by other governmental jurisdictions, limited information was available through the North Carolina County Commissioners Association. Because this is usually considered at the municipal level, only two counties- Pasquotank and Catawba Counties have such ordinances. The ordinance for Catawba County treats all individuals and groups soliciting the same. There are no requirements for permits and no fees are charged because in further discussion with the ACLU, it was believed to violate an individual's constitutional rights if certain persons or groups are allowed to solicit and other persons and groups are not allowed to solicit. The solution was to coordinate the matter through the Catawba District Attorney's Office. The Pasquotank County's ordinance limits what groups can solicit in any neighborhood and the permit is renewed every 60 days. There are certain requirements required by the County before any permit is granted to an individual or group. There has been no challenge made by the ACLU against the ordinance to date. FINANCIAL IMPACT: There is no financial impact associated with the implementation of a Peddlers and Solicitors ordinance. The Tax Administrator advises the potential revenue stream will be minimal. RECOMMENDATION(S): The Manager recommends with the concurrence by the Orange County Attorney that the legal recommendation is to not adopt what may be an unconstitutional ordinance regulating solicitation and peddling. Rather, the manager and attorney recommend County staff work with concerned neighborhood groups to assist them in working with the District Attorney to prosecute as trespassers whatever unwanted solicitors are peddling their wares in a particular neighborhood. This accomplishes the task of eliminating nuisance soliciting and peddling but avoids the potential liability associated with a constitutionally unlawful ordinance. The County Attorney believes the best way to approach this issue is to work with the District Attorney to develop ways for the neighborhoods to trespass solicitors they don't want and post signs, then deputies can issue citations and the District Attorney can prosecute those offenders. ~~~- ant ~ - oa5 AN ORDINANCE OF THE ORANGE COUNTY BOARD OF CONIlVIISSIONERS DEFINING AND REGULATING PEDDLING AND SOLICITATION WHEREAS, pursuant to N.C. Gen. Stat. § 153A-121 a county may by ordinance define, prohibit, regulate or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the County; and WHEREAS, pursuant to N.C. Gen. Stat. §153A-125 a count}~ may by ordinance regulate, restrict or prohibit the business activities of itinerant merchants, salesmen, prt~nioters, peddlers, flea market operators and flea market vendors, NOW, THEREFORE, BE IT ORDAINED by the Board of C'onunissioners for Orange County, North Carolina as follows: PART I. That the Code of Ordinances, Orange County, North Carolina, is hereby amended by adding a new Article to read as follows: ARTICLE ONE. PEDDLING AND SOLICITING Section 1. (a) Intent. The purpose of this ordinance i~ t~~ regulate the door-to-door offering for sale and selling of goods, wares, merchandise, food, periodicah and ~er~ ices or the solicitation of orders therefor and the solicitation of money for charitable or other causes in residcittial aXeas of the county, and to thereby promote the public safety, protect the privacy of citizens and residents. prevent crime, and promote the general welfare of citizens and residents of Orange County. (b) Definitions. (1) I'ed~lling: r~s used in this ordinance the term peddling means to sell or purchase or offer for afe or purchase s~~ods, wares, merchandise, advertising or services, by either of the following methods: (i) Person- to-Parson contact at private residences, apartments, rooms, hotels, motels or lodging places ~~-ithin the County; (iij Door-to-door contact at private residences, apartments, rooms, hotels, motels or lodginc places ~tiithin the County. (2) Soliciting: As used in this ordinance the term soliciting means to request, directly or indirectly, money, clothing, gifts, donations or similar things of value to be used in whole or in part to benefit a charitable or non-profit purpose or entity, by either of the following methods: (i) Person-to-Person contact at or near private residences, apartments, rooms, hotels, motels or lodging places within the County; (ii) Door-to-door contact at or near private residences, apartments, rooms, hotels, motels or lodging places within the County. (c) Permit required. It is unlawful for any person, firm or corporation to sell, offer for sale, or solicit orders for goods, wares, merchandise, food, periodicals or services by going from door-to-door ("peddle" or "solicit") within the county without having first secured a peddlingJsoliciting permit from the county as provided 4 for in this section, unless it is done with the prior request or invitation of the residents or occupants of the premises visited. Additionally, it is unlawful to peddle or solicit unless the following requirements are met: (1) Such peddling and soliciting shall be permitted only between the hours of 9:00 a.m. and 6:00 p.m. during Eastern Daylight Time and 9:00 a.m. to 5:00 p.m. during Eastern Standard Time. (2) The peddling/soliciting permit issued for that person shall be carried and displayed at all times while conducting such solicitations in such a manner as to be clearly visible to a reasonable person possessing average visual ability. (3) All other permits or licenses required by law shall have been obtained. (d) Permit applications. Applications for peddling/soliciting permits under this section shall be submitted to the Sheriffs office during normal business hours (Monday through Friday, 9:00 a.m. to 5:00 p.m. Eastern Time) on a form provided by the Sheriffs office, unifier oath, and shall include, but not be limited to, the following information: (1) The full name of the applicant. (2) The permanent residence address of t11e applicant; (3) The applicant's temporary address in, or in the ~~icinity of, the county, if applicable; (4) The name and address of the applicant's employer ~r the organization with which the applicant is associated in connection with the peddling or soliciting; (5} The hpc(s) of~donations, goods, wares, merchandise, food, periodicals and services to be requested, peddled, solicited. sold or offered for sale; (6) The period for ~~hich the application is sought, which shall not exceed sixty (60) consecutive calendar days; pr~_~~ ided that the permit may be renewed for sixty-day periods without limit, upon proper application therc~br; (7) The age, height, weight, and any other additional information which the county may reasonably require for identification, including a copy of the document(s) used by the applicant to verify personal identification (e.g. driver's license, passport, picture I.D.); (8) A complete listing of and information concerning all other permits or licenses, such as privilege licenses, which were obtained by the applicant; (9) A statement as to whether the applicant has been convicted of any crime, including a misdemeanor or the violation of any municipal ordinance, the nature of the offense and the punishment or penalty assessed therefor; (10) A current photographic identification card, e.g. driver license, passport or official state issued identification card of the applicant. If none is available the applicant must be photographed at the Sheriff s office before the application may be processed. 2 5 If an application is filed by an employer, there shall also be filed separate applications for each peddler and/or solicitor giving the information set forth above for each peddler and/or solicitor and signed and sworn to by each peddler and/or solicitor, and a separate permit shall be issued for each applicant. (e) Procedures for considering applications. (1) Upon receipt of a complete application, the Sheriff s designee shall make or cause to be made such investigation as reasonably necessary to verify the information in the application and to assure compliance with the provisions of this section and shall issue a permit unless the applicant: a. Has not submitted a completed application; b. Is not permitted by law to engage in such activity due to age; c. Has been convicted of, or has pleaded no contest to, a felony charge within the five (5) years preceding the submittal of the application; d. Has been, within the previous five (5) years, convicted. of, or pleaded no contest to, a misdemeanor charge involving theft, fraud, forging, uttering, or other crimes of like nature or any crime ir;l~olving moral turpitude; e. Does not ha~~e valid driving privileges in the state in those cases where the applicant will be operating a ~~chicle in the course and scope of the peddling or soliciting,; or f. Has not obtained all nece5sarylicefrscs and/or permits. (2) The Sheriff s designee shall approve or deny an application within three (3) business dayG of receipt of the application and upon approval shall, within five (5) business days, forward the approved application together with application fee to the Orange County Tax Administrator for processing and issuance of appropriate permits. (f) ~'ermit renewal. A peddling/soliciting permit may be renewed for an unlimited number of sixty-day periods, provided an application for renewal is made on such form as provided by the Sheriff' s office no later than the expiration date on the current valid permit. Applications received after that date shall be processed as new applications. The Sheriffs designee shall review each application for renewal to determine that the applicant is in full compliance ~~ ith the provisions of this section. If the Sheriff's designee finds that the application meets the above regnircments the approved application shall be forwarded to the Orange County Tax Administrator and renewal permit issued as provided in Section 1(e)(2) above. (g) Revocation of permit. Permits issued under this section may be revoked in accordance with Section 2. Additional grounds for revocation of a permit include, where evidence is presented, that the applicant has been arrested for a felony or a misdemeanor involving theft, fraud, forgery, moral turpitude, criminal trespass, or a threat to the public safety during the peddling/solicitation period, or has otherwise violated the provisions of this section. A permit which has been revoked shall be immediately surrendered to the Sheriff s office. Appeals of revocations may be made pursuant to the same process as for denied permits as provided in Section 2(e). (h) Cost. Applicants for permits issued pursuant to this ordinance shall submit with their applications an application and permit fee in the amount often dollars ($10.00) in United States Currency. 3 6 (i) Exemptions. This section shall not apply to: (1) The delivery of goods or services which have been ordered before delivery; (2) The circulation of petitions for signature or lawful distribution of advertising materials, flyers, or materials expressing views on political, social or religious matters; (3) The lawful promotion or expression of views concerning political, social, religious and other like matters; (4) The sale or offering for sale of goods, wares, merchandise, food, periodicals or services by bona fide members or representatives of charitable, religious, civic, or fraternal organizations who receive no compensation of any kind for their ser\ ices, and such sale or offering by children under the age of eighteen (18) years who are students in a public, private or home school for school activities; (5) The sale or delivery of goods to business establishments: (6} The sale or soliciting of orders for the sale of milk, dairy' products, vegetables, poultry, eggs, and other farm and garden produce so far as the sale of such conunodities named herein is now authorized by law. (7) Persons who have been expressly invited to peddle or solicit at a specific residence or address. Section 2. Licenses or permits; refusal to issue, suspension, revocation; notice, hearing, appeal. (a) The county may refuse to issue a license or permit, or the licenses or permits issued pursuant to this Article, unless otherwise provided hereunder, may b~ suspended or revoked by the Sheriff s designee or other authorized official. department, board or agency where applicable, after notice and hearing for any of the following causes: (1) Any fraud, misrepresentations or false statements contained in the application for permit or license. Any such fraud, misrepresentations or false statements shall be a violation of this ordinance and subject t~~ penalty as set out in Section 3 herein; (2) .1ny fraud, misre~~resentation or false statement made in connection with the selling of goods, wares, merehaitdise and services. Any such fraud, misrepresentations or false statements shall be a ~. iolatic~n ~~f this ordinance and subject to penalty as set out in Section 3 herein; (3) Any violatic~u of this Article and/or any ordinance of the county; (4) Conviction of the applicant, licensee or permittee of any felony or a misdemeanor involving theft, fraud, forgery, moral turpitude, criminal trespass, or a threat to the public safety; (5) Conducting the activity under this Article and/or any ordinance of the county in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace to the health, safety or general welfare of the public. (b) Notice of hearing for the suspension or revocation of a license or permit 4 7 shall be in writing given by the Sheriff s designee, setting forth specifically the grounds of the complaint and the time and place of the hearing. Service of such notice shall be made either by personal service or by certified mail, return receipt requested, to the applicant, licensee or pennittee at the last known address of the applicant, licensee or permittee, at least five (5) days prior to the date set for the hearing. Notice for the refusal to issue a permit or license may be made by United States mail, first class, to the applicant, licensee or permittee at the last known address of the applicant, licensee or permittee. (c) In case of refusal to issue a permit or license or the suspension or revocation of a license or permit as herein provided, no portion of the application, license or permit fee shall be returned to the applicant, licensee or permittee unless otherwise provided in this Article and/or any ordinance of the county. (d) Any suspension or revocation hereunder shall not be considered a recovery or penalty so as to bar any other penalty from being enforced. (e) The appeal of a refusal to issue a permit or the revocation of a permit shall be made to the Sheriff of Orange County by filing a written notice of appeal, specifying with particularity the grounds upon which the appeal is made, no later than ten (10) days from the ~latc''of the refusal to issue a permit or the revocation of a permit. The Sheriff shall fix a reasonable time for the hearing of the appeal, shall give due notice to all parties, and shall render a decision within a reasonable time. The ardor or decision of the Sheriff shall be the final county action for the purpose of judicial review. Section 3. Penalties. A violation of this ordinance shall be punished as a Class 3 Misdemeanor, as set out in N.C. Gen. Stat. §14-4, for each separate violation. Mach day any violation of this ordinance shall continue shall constitute a separate offense. In addition to the penalties previously stated a violation of this ordinance may be enforced by any one or more of the remedies authorized~ry N.C. Gen. Stat. §153A-123. PART II. This ordinance shall he efi'ecti~ e 7uly 1, 2011. ADOPTED the _ day of . ~O1 I . Bernadette Pelissier, Chair Board of Commissioners ATTEST: Donna Baker Clerk to the Board (SEAL)