HomeMy WebLinkAbout2011-3324 - Ordinance - 02/24/2011ORDINANCE NO. ki I-332. 4
AN ORDINANCE AMENDING CHAPTER 4, "BUSINESS REGULATIONS" SECTION
10 "SOLICITORS, CHARITABLE SOLICITORS, ITINERANT VENDORS, HANDBILL
DISTRIBUTORS," TO THE CODE OF ORDINANCES OF THE CITY OF COLLEGE
STATION, TEXAS, AS SET OUT BELOW; PROVIDING A SEVERABILITY CLAUSE;
DECLARING A PENALTY; AND PROVIDING AN EFFECTIVE DATE.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION,
TEXAS:
PART 1: That CHAPTER 4, "BUSINESS REGULATIONS" SECTION 10
"SOLICITORS, CHARITABLE SOLICITORS, ITINERANT VENDORS,
HANDBILL DISTRIBUTORS", of the Code of Ordinances of the City of
College Station, Texas be amended as set out in Exhibit "A", attached hereto and
made a part of this ordinance for all purposes.
PART 2: That if any provisions of any section of this ordinance shall be held to be void or
unconstitutional, such holding shall in no way effect the validity of the remaining
provisions or sections of this ordinance, which shall remain in full force and
effect.
PART 3: That any person, firm, or corporation violating any of the provisions of this
chapter shall be deemed guilty of a misdemeanor and upon conviction thereof
shall be punishable by a fine of not less than Twenty-Five Dollars ($25.00) nor
more than Two Thousand Dollars ($2,000.00). Each day such violation shall
continue or be permitted to continue, shall be deemed a separate offense. Said
Ordinance, being a penal ordinance, becomes effective ten (10) days after its date
of passage by the City Council, as provided by Section 35 of the Charter of the
City of College Station. r~ L
PASSED, ADOPTED and APPROVED this c --7 day of,(,1QJLt4 .2011.
U
APPROVED:
Mayor U
ATTEST:
City Secret4y
APP VED:
City Attorney
EXHIBIT "A"
That CHAPTER 4, "BUSINESS REGULATIONS" SECTION 10 "SOLICITORS,
CHARITABLE SOLICITORS, ITINERANT VENDORS, HANDBILL DISTRIBUTORS",
of the Code of Ordinances of the City of College Station, Texas be amended to read as follows:
CHAPTER 4
BUSINESS REGULATIONS
SECTION 1: SOLICITORS, CHARITABLE SOLICITORS, ITINERANT VENDORS,
HANDBILL DISTRIBUTORS
A. DEFINITIONS
1. "Auctions" shall mean all sales made by bids received through an auctioneer. Exempt are
estate sales conducted by a Court-appointed administrator or independent executor,
personally or through a licensed auctioneer
2. "Charitable contribution" shall mean the donation of any money, property, or anything of
value, or the pledge of a future donation of money, property or anything of value; or the
sale or offer for sale of any property, real or personal, tangible or intangible, whether of
value or not, including, but not limited to, goods, books, pamphlets, tickets, publications
or subscriptions to publications or brochures upon the presentation, expressed or implied,
that the proceeds of such sale will be used for a charitable purpose as such term is herein
defined. Expressly excluded from the meaning of "charitable funds" is membership in
any organization. Charitable contribution shall include anything received as a result of a
request for donations by a charitable organization, said funds used for the purpose of
either sustaining the charitable organization or benefiting others.
3. "Charitable organizations" shall mean any organization holding a certificate of exemption
from Federal Income Tax or State Sales or Franchise Taxes.
4. "Charitable purpose" shall mean philanthropic, religious or other non-profit objectives,
including the benefit of poor, needy, sick, refugee or handicapped persons; the benefit of
any religious or church society, sect group or order; the benefit of a patriotic or veterans
association or organization; the benefit of any fraternal, social or civic organization, or
the benefit of any educational institution. The term "charitable purpose" shall not be
construed to include the direct benefit of the individual making the solicitation. Nor shall
the term "charitable purpose" be construed to include the benefit of any political group or
political organization which is subject to financial disclosure under Federal or State law.
5. "Charitable sales" shall mean the sale by a charitable organization to the ultimate
consumer or user of goods or services whereby the proceeds are intended to be applied to
the charitable organization either for the purpose of maintaining the organization or
benefiting others.
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6. "Christmas tree sales" shall mean sales made by a charitable organization of Christmas
trees during the Christmas holiday season, November and December.
7. "Commercial handbills" shall mean any printed or written matter in the form of a circular,
leaflet, pamphlet, paper, or any other printed or otherwise reproduced original or copies
of any matter or literature which tends primarily to accomplish the following:
(a) Advertises for sale of any merchandise, product, commodity, or thing; or
(b) Directs attention to any business or mercantile or commercial establishment, for
the purpose of either directly or indirectly promoting the interest of the sales; or
(c) Directs attention to or advertises any meeting, theatrical performance, exhibition,
or event of any kind, for which an admission fee is charged for the purpose of
private gain or profit.
(d) While containing reading matter other than advertising matter, it is predominantly
and essentially an advertisement and is distributed or circulated for advertisement
purposes.
8. "Handbill distributor" shall mean any person(s) or business entity distributing handbills
within the City of College Station. For the purposes of this Section a valid home
occupation under the Zoning Ordinance shall be considered a business hereunder. This
term shall include all distributions that are made door to door, on or in a motor vehicle
and in the roadway or right-of-way.
9. "Interstate commerce" shall mean the sale of goods that are brought directly from another
state to be delivered to the ultimate consumer. Goods that are warehoused or otherwise
stored within this state are not considered to be within interstate commerce.
10. "Itinerant Vendors" shall mean any person(s) or business entity establishing a place of
business in the City of College Station on a temporary basis. The term shall include
without limitation:
(b) outdoor sales booths,
(c) set ups,
(d) tailgate sales,
(e) truckload sales,
(f) tent sales,
(g) sales from "moving vehicles" operating for twenty-one days or less
(i) auctions, either private or public, and
(j) all indoor sales of a temporary nature not
conducted in a retail establishment
(k) temporary parking space rentals
(1) solicitation of payment or donations for work already complete
(m) solicitation for charitable purposes.
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11. "Moving vehicle" sales shall mean any sales made from a vehicle that stops as it moves
down a road.
12. "Parking lot" shall mean any area covered by asphalt, cement or other material designed
and suitable for the purpose of parking vehicles and actually used for same or approved
by the Project Review Committee or Planning and Zoning Commission, or their
successors in function, as a parking lot.
13. "Retail sales" shall mean a sale to the ultimate consumer or user of any goods or services
intended or sold for personal, family or household use, as distinguished from commercial
or business use.
14. "Sell" shall refer to the act of exchanging a good for a profit or for a charitable donation.
15. "Solicit charitable contributions" shall mean a request for any charitable funds. A
solicitation of charitable funds is complete when the solicitation is communicated to any
individual located within the corporate limits of the City.
16. "Solicitors" shall mean any person(s) or business entity conducting a business within the
City of College Station without a fixed location or place of business. For the purposes of
this Section, a valid home occupation under the Unified Development Ordinance shall be
considered a business hereunder. The term shall include all door-to-door sales persons
and any agent or representative doing business by calling in person upon potential
customers without appointment, for retail sales.
17. "Temporary" shall mean any business transaction in the City of College Station for which
definite arrangements have not been made for hire, rental or lease of a structure
conforming to the codes and ordinances of the City of College Station for at least one
month.
18. "Temporary parking space rental" shall mean the rental of a parking space(s) as a
temporary activity for a special event not associated with the permanent use of the
premises.
B. PERMIT AND APPLICATION
(1) Every solicitor or handbill distributor shall have a permit. Permits shall be issued by
the City of College Station Accounting Division of the Finance Department.
(2) Every itinerant vendor shall have a permit issued by the City of College Station
Planning and Development Services.
(3) An applicant shall apply for a permit on a form promulgated by the City of College
Station that shall be submitted with the following information, as applicable:
(a) Name of the applicant
Itinerant Vendor Ordinance 4
(b) Legal name of the business entity, if any, state of incorporation or filing
of a partnership or articles of association
(c) Sales tax number with a copy of sales tax permit or 5016 documentation
(d) Local phone number
(e) Permanent location, address and phone number
(f) Signed permission from the private property owner or representative to
utilize the property as a temporary location
(g) Graphic showing the location of activity on the proposed property with
information as requested on the applicable application
(g) Names of employees
(i) Permanent addresses of employees
(j) Date of birth
(k) Driver's license number
(1) Copy of Charter or Articles of Incorporation and current listing of
directors, partners or principles (any company listed on the American or
New York Stock Exchange is exempt from this requirement)
(m) Copy of permits to do business in Texas for foreign corporations
(n) If the contact is to be a charitable solicitation, then a statement as to the
intended use of the funds collected shall be reported prior to contact with
the public; and after the contact with the public has been completed or the
permit expires, whichever event occurs first, then a statement as to the
actual use of the funds shall be reported.
(o) If the action is to be a solicitation of funds, then a description of that
purpose will be set out in the application.
(p) If applicable, a statement that the goods are in interstate commerce and a
statement as to the location of the goods at this time and the last location
of the goods.
(q) A statement under oath (acceptable photo identification required) that each
individual applicant:
Itinerant Vendor Ordinance 5
(i) Has no unpaid civil judgments against him or her in any State or
U.S. possession which arise from a business activity which would
have been covered by this Section if in effect at the time in the
jurisdiction where such judgments are of record.
(ii) A statement of all convictions in any state, the United States or U.S.
possession within the last ten (10) years.
(iii) The individual has read and is familiar with Article 5069-13, The
Texas Home Solicitation Act.
(r) For food sales, prior written approval of the Brazos County Health
Department shall be provided.
(s) A list of the kind, amount, and character of goods or services to be sold
or distributed.
(t) A bond in the sum of not less than One Thousand and No/100
($1,000.00) Dollars, executed by the itinerant vendor, solicitor, or
handbill distributor with two or more good and sufficient sureties
satisfactory to Finance Director, which bond shall be payable to the
Mayor of the City of College Station, and his successors in office, for the
use and benefit of any person or persons entitled thereto, and conditioned
that the principal and sureties will pay all damages to persons caused by
or arising from or growing out of any action of the itinerant vendor,
solicitor or handbill distributor while conducting business in the City of
College Station, Texas. The bond shall remain in full force and effect for
the entire duration of the permit provided herein and for two full years
after such permit expires. The bond shall not be required for the sale of
goods in interstate commerce.
(4) An employer may seek a permit for itself covering all of its employees, but shall,
at least two (2) working days prior to sales activities by any individual, supply the
following:
(a) Each employer shall sign a statement on the application that it recognizes
the individual permitted under its permit as an employee and not as inde-
pendent an contractor and accepts the responsibilities imposed by State
Law for the acts of its employees.
(i) Employee's name
(ii) Residence address of employee
(iii) Date of birth of employee
Itinerant Vendor Ordinance 6
(iv) Driver's License number of employee
(v) Location of birth of employee
(b) Every person who is an independent contractor shall be separately permit-
ted and shall meet the requirements of paragraph number 2 above.
(5) An application for permit as an itinerant vendor, solicitor, or handbill distributor
shall be accompanied by a fee of Twenty-five Dollars ($25.00) for a
sole proprietor or business entity plus Three Dollars ($3.00) for each individual
engaged in sales activities who will have any contact with the public.
(a) A permit may be denied when the required information is incomplete or
incorrect or shows that a person is not otherwise entitled to conduct busi-
ness under the aegis proposed.
(b) A permit may be denied if a location plan or diagram does not meet the
following requirements:
(i) The itinerant vendor, or solicitor must locate the activity in an
existing parking lot.
(ii) If there is an open and operating business(es) at the location
during the time of co-utilization, then the itinerant vendor, or
solicitor's activity cannot utilize more than five percent (5%) of
the available parking space, or sixteen spaces, whichever is
smaller.
(iii) The location of the activity in the parking lot shall not cause a
traffic hazard.
(c) A permit may additionally be denied where:
(i) an applicant is found to have unpaid civil judgments against him
which relates to the duties and responsibilities of the permitted
occupation which shall be determined by the nature and the
amount of the judgment, the relationship of the judgment to the
purpose of the permit and the extent that the permit would allow
someone to engage in further activity that would lead to unsatisfied
civil judgments, or
(ii) an applicant has been convicted of a crime which directly relates to
the duties and responsibilities of the licensed occupation which
shall be determined by the nature and seriousness of the crime, the
relationship of the crime to the purpose of the permit and the extent
Itinerant Vendor Ordinance 7
that the permit would allow someone to engage in further criminal
activity.
(6) An itinerant vendor or solicitor must comply with the City sign ordinance.
(7) Every permit shall be displayed where it can be read by the general public either
at the place of the business subject to the provisions of this Section or visibly
shown by the person making door-to-door sales or distributing handbills.
(8) A permit may be revoked upon conviction of any offense committed in the City of
College Station while engaged in the permitted business, or if a final conviction
occurs or is found to have existed at the time of application, or if civil judgments,
as set forth above, are placed or found of record against an applicant. A permit
may be suspended in the event of pending charges of a crime, as set forth above,
upon a magistrate's determination of probable cause in connection with such
charges.
(9) A permit may be revoked for non-conformity to the application location specifica-
tions or requirements as well as to non-conformity to an approved location plan or
diagram.
(10) Any employee working for an applicant permitted as an employer under Section
B.3 above may be denied the right to solicit under such permit, or such rights may
be suspended or terminated, under the same circumstances and procedures which
apply to the holder of the permit. Revocation or suspension of an employer's per-
mit terminates all employee permits.
(11) It shall be the duty of all peace officers to examine all places of business and
persons, subject to the provisions of this Section herein, to determine if this
Section has been complied with and to enforce the provisions of this Section
against any person found to be in violation of the same.
(12) The Accounting Division or Planning and Development Services shall notify a
permittee (or an employee whose rights there under are involved) of the possible
suspension or termination of a permit by regular mail, addressed to the most
recent address in the City's permit file for the permittee, allowing three (3) days
for delivery and setting a hearing on such termination or suspension, not sooner
than five (5) days, or later than eight (8) days from the mailing of the notice.
Should the reason for suspension or termination consist of a conviction for a
crime or upon a determination of probable cause pursuant to subsection (f) as
described herein, the permit shall be suspended immediately, pending restoration
after the hearing, and the notice shall so state. A permittee (or employee) may
appeal the suspension, termination, or denial of a permit by to the Director of the
issuing department. Notice of appeal must be given within ten (10) days of the
ruling. If the appeal is from the immediate suspension or termination by virtue of
criminal charges or conviction, the permit shall continue suspended until res-
Itinerant Vendor Ordinance 8
olution by the Director of the permit issuing department; in all other cases, the
suspension or termination shall not be effective until such final resolution.
C. DURATION
(1) Itinerant vendors' permits shall be valid for one (1) year, provided that sales may
not be conducted for longer than three (3) consecutive days or twenty-one (21)
cumulative days. No use may be continued beyond the period of the permit absent
compliance with all provisions of the Unified Development Ordinance. If sales are
conducted out of a tent, the tent may only be set up two days prior to any sales
period and it must be taken down two days after any sales period. One day is
defined as 24 hours.
(2) Solicitors' and handbill distributors' permits shall be valid for thirty (30) days but
may be renewed upon payment of a Ten Dollar ($10.00) renewal fee. Individual
employees' permits may be renewed upon payment of a One Dollar ($1.00) re-
newal fee. Each applicant for renewal must verify permit information as correct
and file copies of sales tax returns for the prior permit period.
D. ZONING AND LOCATION RESTRICTIONS
(1) No itinerant vendor may locate in an area unless the zoning classification of the
area permits the type of business or service to be performed or provided.
(2) No itinerant vendor may locate in the street right-of-way or highway department
right-of-way without permission of the State Highway District Engineer or the
City Engineer having control over such property, where such authority exists.
(3) No itinerant vendor, solicitor or handbill distributor may locate on any private
property without written permission to do so.
(4) Itinerant vendors and solicitors doing business from a moving vehicle shall not
stop:
(a) at an unpermitted stationary location nor is permitted to operate in any
congested area where his operation impedes traffic.
(b) to do business on the following streets:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
Texas Avenue
Southwest Parkway
F.M. 2818
Wellborn Road
Jersey Street/George Bush Blvd.
State Highway 30/Harvey Road
University Drive
Itinerant Vendor Ordinance
(c) for a period of time longer than ten (10) minutes at any location.
(5) No solicitor or handbill distributor may remain on private property without the
permission of the owner or if asked to leave.
(6) No person shall distribute, deposit, place, throw, scatter or cast any commercial
handbill in or upon any motor vehicle without permission of the owner.
(7) No person shall distribute, deposit, place, throw, scatter or cast any commercial
handbill upon any premises if requested by anyone not to do so, or if there is
placed near or at the entrance thereof a sign bearing the words "no
advertisement".
(8) No person shall sell or offer for sale any item upon any premises if requested by
anyone not to do so, or if there is placed at or near the entrance thereof a sign
bearing the words "no peddlers or vendors" or "no trespassing", or "no solicitors."
(9) Temporary parking space rentals shall not exceed three (3) consecutive days or
twenty-one (21) cumulative days per year unless compliance with all provisions
of the City Zoning Ordinance. For the use of premises for temporary parking
space rentals pursuant to the permit, the permanent business shall be closed or
have excess parking under the City of College Station Zoning Ordinance.
E. MISCELLANEOUS REGULATIONS
(1) A permit issued under this Section is not transferable.
(3) It shall be unlawful for any individual as the agent or employee of another
regulated under this Section to sell goods, solicit funds or distribute handbills in
the City unless its principal or employer has received a permit under this Section.
(4) It shall be unlawful for an individual to solicit funds or distribute handbills
without visibly displaying a valid permit issued to that individual by the City of
College Station under this Section.
(5) No person shall solicit funds for a charitable purpose other than that which is set
out in the statement upon which the permit was issued.
(6) It shall be unlawful for an individual to sell goods, solicit funds or distribute
handbills while displaying a valid permit issued by the City of College Station in
the name of another individual, organization, or entity.
(7) It shall be unlawful for any individual directly or through an agent or employee to
sell goods, solicit funds or distribute handbills within the corporate limits of the
City after the expiration of the permit issued by the City of College Station under
this Section.
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(8) It shall be unlawful for any person directly or through an agent or employee to
sell goods, solicit funds or distribute handbills within the corporate limits of the
City of College Station without a permit issued by the City of College Station
under this Section.
(9) It shall be unlawful for an individual directly or through an agent or employee to
misrepresent on the permit affidavit any acts that are regulated under this Section.
(10) It shall be unlawful for any individual directly or through an agent or employee to
solicit funds for a purpose other than that set out in the permit application upon
which the permit was issued.
(11) It shall be unlawful for any individual directly or through his agents or employees
to represent that the issuance of a permit by the City of College Station constitutes
an endorsement or approval of the purposes of a solicitation or product for sale by
the City.
(12) A violation of this Section is a Class C misdemeanor and shall be punished by a
fine pursuant to the General Penalty set out in Chapter 1, Section 5, of this Code
of Ordinances."
F. EXEMPTIONS
(1) Any organization, group or individual making a distribution of a non-commercial
handbill shall not be required to pay an application fee or obtain a permit.
(2) No organization or group shall be exempt from the provisions of this Section as to
itinerant vendors, solicitors and handbill distributors, except that charitable
organizations making charitable sales or soliciting charitable contributions for a
charitable purpose shall not be required to pay an application fee for any permit or
provide a bond.
(3) Christmas tree sales as defined herein are exempted from the location requirement
of five percent (5%) or sixteen (16) spaces and are exempted from the time re-
quirement of three (3) consecutive days or twenty-one (21) cumulative days.
Christmas tree sales may be made during the Christmas holiday season,
November 15 through December 24.
(4) No person or other business entity doing business in interstate commerce shall be
required to pay an application fee to obtain a permit or provide a bond.
(5) Salesmen representing a commercial or industrial business or enterprise where the
contacts are made for the solicitation of bulk orders, wholesale orders, special
equipment sales, special instrument sales, the sale of special manufactured goods
or pharmaceuticals are exempt from this ordinance.
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(6) A charitable organization holding a bazaar, fete, rummage sale or other special
event for the purpose of raising funds no more than two (2) times per year are
exempt from this ordinance.
(7) Individuals selling farm products in an unrefined state shall be required to pay an
application fee but shall not be required to provide a bond.
(8) Individuals or corporations having a regular place of business or approved home
occupation with a permanent fixed address in either College Station or Bryan,
Texas are exempt from the permit fee and bond requirements.
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