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Home My WebLink About1998-09-16 PACKET 04.H.REQUEST OF CITY COUNCIL ACTIOfV COUNCIL AGENdA MEETING ITE� M�# DATE 9/16/98 PREPARED BY: City Cierk Caron Stransky ORIGINATING DEPARTMENT STAFF AUTNOR # # # # ie rt ! k # �F k * # * k # i # k 'k �.Y # * * # # # # * # * # * x # # # V. :t Y * + * # :k # # + COUNCIL ACTION REQUEST Receive report on permit to peddle door-to-door. SUPPORTING DOCUMENTS � MEMOlLETTER: From Caro� Stransky, dated 9/10/98; letters from John Benson, dated 9/4 and 9/5. ❑ RESOLUTION: ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGA� RECOMMENDATION: � OTHER: Article from LMC on regulating peddlers, solicitors, and transient merchants; Gopy of permit. ADMINISTRATORS COMMENTS _ --� ) Cl City Administrator ate # * + * * * * * k * * * S * * * * * k 'k t * * * * * * 'k k 'k * * * * * * * k * �t * * * * * * k 'k COUNCIL ACTION TAKEN: ❑ APPROVED ❑ DENIED ❑ 07HER 1/..1t�i.�l�.lt' TO: Ryan Schroeder, City Administrator FROM: Caron Stransky, City Clerk DATE: September 10, 1998 SUBJECT: PERMIT TO PEDDLE DOOR-TO-DOOR On August 25, 1998, my office received an application from Stanley Lee of Thomasville Interior Designs, Winston Salem, North Carolina, for a peddler's permit to go house-to-house carrying goods (furniture) for sale. The application indicated the goods would be sold from a motor vehicle — 1985 Freightiiner Truck. Chapter 18 of City Code regulates peddlers, solicitors, vendors, and temporary sales operations. Pursuant to Section 18-2, it is unlawful for a peddler to seil or attempt to sell any product upon any public property or road in an area within the City or to engage in door-to-door solicitation or sales without first obtaining a permit from the City. Any peddler, who is subject to regulation or licensing by agencies of the state or federal government and where such regulation or licensing preempts local regulations, however, shali be exempt from the restrictions of Section 18-2. Because the Federal Interstate Commerce provisions of the U.S. Constitution regulate the applicant, the City can only require that the business register with the City. Reasonable restrictions, however, are ailowed. As a part of the application process, if products are to be sold from a motor vehicle, an applicant is required to provide a description of the vehicle, inciuding serial number, license number, make and model, and the name of the insurer providing liability coverage on the vehicle. That information was obtained from the applicant as a part of their application. Ail permit applications are referred to the Director of Public Safety for review and approvai. The Director has no legal basis to deny a permit to solicit under the Federal Interstate Commerce regulations. The City may have the right to require positive identification of individuais who request authority to solicit within the City. The police department conducts a computerized check on individuais looking for active warrants and verifies identity. On September 1, 1998, a permit was issued and three (3) peddlers were authorized to sell their product door-to-door from a vehicle. There are no restrictions in our existing Ordinance that wouid prohibit the sale of products from a vehicle o� street right-of-way. The ordinance does, however, require vehicies be parked at the curb, and that sales be done oniy at the curbside of the vehicle. Also, each vehicle must be equipped with flashing lights on both the front and rear of the vehicle, cleariy visible to oncoming cars in full daylight. This information is being provided to you in response to the letter dated September 4 from John Benson in opposition to the issuance of a permit to peddiers "to go door-to-door seiling from an eighteen wheeler, 40,000 Ib. semi- trailer truck." I am presently working with Captain Mickelson to update our current ordinance. The existing regulations are very vague and outdated. A proposed ordinance will be drafted in conformance to new case law explained in the attached article from the League of Minnesota Cities on regulating peddlers, solicitors, and transient merchants. if the Council is interested in further restricting sales from a vehicie, language couid be drafted for Council consideration. However, the restrictions we can place on peddiers are extremely limited. I hope this answers questions you may have had regarding local regulatio�s and permitting process. Attachment r�Enson ti�E�'RtS. ItiC. 1300 Sihley Memorial Highway P.O. Box 8�0 • Mendota, MN 5515� (612) 452-8556 • FAX (512} 452•9743 September 4, 1998 From: John Benson 7070 Jenner Bay South Cottage Grove, MN. 55016 To: Mayor Jack Denzer Cottage Grove City Council Cottage Grove Police Department Re: Permit to 5e11 - Peddle 'E 0 . . ..; Sent by Fax Followed by letter We had an unfortunate situation in our culdesac last night that should not happen. You issued a permit to a furniture company to sell goods in the city of Cottage Grove out of a semi trailer. I am sure that the permit did not allow the semi trailer truck to drive up and down every culdesac in the city. The peopie selling the furniture looked like a bunch of Gypsies and it was not a good situatiori. They drove their 54 foot furniture lowboy trailer along with a 30 foot tractor into our culdesac on Jenner Bay and had a difficult time turning it around. I became irate and told them that we did not want them here and to leave. The tried to intimidate us by flapping the permit in our face and said they had a right to be there. I told them that I did not care. about their permit and to leave. They tried to further their intimidation, I yeiled at them to leave. Finally, my friendly neighbors got me off the street and the van left. This was a bad situation and I am sure out that our Police Department had many calis fast night to get rid of these people. I am a�so sure that I was not the o�ly person that was upset. We should not be issuing permits to peddlers and baggers - to go door to door selling out of an eighteen wheeler - 40,000 Ib. semi trailer truck. I am asking that you address this situation in your next council meeting. I will not attend because I am busy like you. Take care of it. hanks, �v p�tti� n B nson �'< � - � v S,;=:�.- n rr�s 3� . _ — : _._ c.. � ;�';%;_ � �� ; , , r �.� i �,'-�� i �'�-��' �`-=°;, ., . 41 TE� �o. 612 �52 °743 Sep 08 98 10�15 P.O1 ,.. _ _ _ /��/� nEnson m��r�trs. �r�c. 1700 Sibley Memorial Hig�wey � September 8, 1998 P.O. Bot B�0 + Mendnta, MN 55154 (612)452•8558 • FAX (612) 652-8'!4� From: John Benson 7070 Jenner Bay South Home Ahone (651) 458-8957 Cottage Grove, MN 55016 Home Fax (651) 458-8622 To � Mayor Jack Denzer Cotta�e Grove City CounCii Cottage Grove Police Department Sent by Fax Followed by Letter 7his is a foliow up to my letter of September 4, 1998� In addition to the 80' semi issue {on Thursday night, the 3td of September), a number qf thinys were happening This was a day before a long weekend and everyona was getting ready to leave on Friday. We had cars parked in the street, people were mowing la�.vns, watering lawns, and being neighborly and talking with each other, a11 the normal things tf�at should h�ppen. In o�r Jei �ner Bay South cul-de-s&c we have 16 children (9 of which are under age five), two day cares, and one elderly Coupie where the wife often needs ambulance service. On tf iis night many of the chiidren were playing and enjoying the freedom oS cul-de-sac living, Tner enters this big semi which placed everyone in danger, especially when the driver trled tuming it around to park. It was parked� bloCking the fire hydrant, the eiderly couple's driveway, along with three Other driveways. We and c?�iers on Jenner Bay cailed the police department and were told a permit had been issued. Cottage Grove should not be piacing our neighborhoods in danger by issuing permits which puts pur police depa�tment in such a non-responsive position. A fire truck or other emergency vehides could not have entered our cul-de-sac, nor could we exit our own homes. At your next council meeting, please �ddresS the permit ordinance and the loopholes. I rea!ize moving vans are a necessity at time5. This was not th� casei This semi could have been parked at Cub, Target, Rainbow Foods, or the Washingtqn County Administration Building. My wife, myself, and many neighbors felt our privacy had been invaded incerely, �.� ��.� J hn Benson, . �. � .�o �� J /tl - �I _ �� ' __ %r ' �� —�., Ciy of �Coitage Grove �� 7576 80th Street South / Coflage Grove, Minnesota 55016 License No: 9800175 Date: 09/01 /98 Name of Licensee: Business Trade: Premises Address: License Period THOMASVILLE INTERIOR P.O. Box 53 Reece Road Winston Salem, NC 27107 PEDDLER LIGENSE THOMASVILLE INTERIOR P.O. Box 53 Reece Road Winston Salem, NC 27107 09l01/98 thru 8l31l99 DESIGNS DESIGNS In accordance with provisions of the Cottage Grove Ordinance(s) the above-named Licensee is granted the following license(s): License Type: PEDDLER HOURS OF OPERATION: 10:00 A.M. TO 8:00 P.M. PEDDLERS AUTHORIZED: Anthony Lee Stanley -- DOB 07/04/72 Steven Mark Wade -- DOB 04/16/71 Charies Turner Glaspie -- DOB 04/18/71 QTY AMOUNT PEDDLER $0.00 Total Fee Paid $0.00 612 • 458-2800 This Certificate of License is hereby issued conditioned that said licensee shali compiy with ali the requirements set forth in City code and the laws of the State of Minnesota. A License issued under this Certificate may be suspended or revoked for violations thereGf: !s/ Garon M. �transkv Gity Clerk I�[d:1J� 77��:7T1��3�i�\:7:7'ZiI`•I7� ��7►1 EQUAI OPPORTUNITY EMPIOYER Regulating peddlers, solicitors, and tran.sient merchants KENT SULEM �-�_� - , � " ities have both s[atutory and common law authority to regulate peddlers, solicitors, � and transien[ merchants. Minnesota Scamtes, sections �. 329.06 and 929.15, grant cicies the right to regulace and license peddlers, solicitors, and cransient GQLI��It DUAL-WALL PIPE Corrugated PE Pipe with a Smooth InPerior 'STRONG •COST-EFFECTIVE 'DURABLE GOLDFLO'Sti9htweight Culvert Applications and 5uperior Strength ManulacturedinMinnesota can lower total project costs by minimizing labor and machinery outlays, advancing construction schedules and reducing downtime due to ad- verse weather. Easier to instali in tight piaces. Meets or exceeds AASHTO M 294 and AS7M F.66� and SCS 606 specifications. � ,� PRI NSCO iNc Prinsburg, Minnesota 56281 1-B00-992•1725 Cal! lor a Iree cata/og. merchants above and beyond the statutory requirement for them to obtain county licenses. M.S. 412.221, subd.l9, echoes the provisions of chapter 329 for statutory cicies. Most charters provide home rule charter cities with the same type of explicit aurhority. M.S. 437.02 restates the authority to regulate and license trensient merchants in alt cides. In addition, the couru have held that reasonable reguladons of peddlers, solicitors, and ttansient merchanu are valid exertises of a city's police powers in procecring the health, safety, and welfare of the public against an activity that can become a nuisance. While it is clear chat cities can not totaily ban peddlers, solicitors, and vansient merchanu, it is not clear how faz cities can go.in exercising their regulatory authority. Betause [his is a highly litigated matter, and because cities risk being held liable for federal penaities if they adopt and try to enforce an unconstitu- uonal regulation, cities should involve their city attomey before adopting any regulation. Further, before a city decides it must do something, it should balance [he extent of iu current or potential probiems against the risk of litigation over any attempted enCorce- men[ of a regulation. Cities that decide they have to do something should carefully consider the follow�tng suggestions and develop regutations similaz to those that have either been upheld in coun or that are defendable if challenged. Define all terms. Peddlers, solititors, and uansient merchanu aze not recognized by the courts as being che same. Peddlers, also known as hawkers, � Frst We Listen To WF�t � You Need. 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Solicitors, also known as canvassers, go from place to place [o obtain orders for goods or services thac are co be deliw ered or perFormed at a later time, or to collect donations. Transient merchanu are generally persons who sell [heir merchandise from a vehicle or other portable shelter, or from an empty s[orefront, and who do not intend to remain in business at any one location tor more chan a[emporary period of rime, usually no more than a few weeks. Exempt specific groups from the defiaitions. The courts have held that those who make initiai contacts with property owners or occupants for the purpose of establishing a regular delivery route, as well as people making deliveries to customers on a regular route, are not the type of nuisances intended to be defined and regutated . by peddler, solicicor, and uansienc merchant regutacions. Likewise, wholesalers making direct sales to re[ailers, have also been exempted from the definitions of peddlers, solicitors, and transient merchants. Differentiate between liceasing and registering. Licensing is a formai process invol��ng an applicadon, a fee, and [he right of the council to grant or refuse the license. A background check is common before a license is granted. Registration is che simple process of recording a person's name and any other perdnent information the council believes necessary to ensure che good faith of the regis�ering party. No fees aze involved with regisvations and che whole process should only take a few minutes instead of several days. Only require licenses of peddlers and transient merchants. Even though the stacutes authorize [he licensing of solicitors, caselaw dictates that [hey not be licensed. The cour[s' concern is the impact of local regularions on inter- state commerce. Because peddlers and uansient merchants have their goods in the sta[e before [hey are sold, the chain of incersta[e commerce has ended and licensing has no impact on it. Solici- tors, however, make their sales before obtaining [heir goods. If the goods are subsequendyshippedfrom another state, the chain of interstate commerce remains unbroken. The courts have held [hat formal licensing procedures and fees for solicitors involved in inters[ate commerce amount to an undue burden on interstate commerce and therefore violate [he U.S. Constim- tion. Solicitors of purely Minnesota made products would appear eligible for licensing as they would not be involved in interscace commerce. Other cases, however, indicate that co require different requirements for different people conducting essendally the same business for che purpose of tontrolling a nuisance amoun[s [o azbitrary, and thus unenforceable, regulations. Provide Due Process. Licenses must be issued as quickly as possible. Myone denied a license should be intorzned of the reason for denial and of any right to appeal the decision through [he city or ultimately in discrict coun. These provisions should be dearly spelled out in [he city's ordinance. Esempt certain peddlers and transient merchanu from licensing. The Minnesota Stace Constimcion prohibiu the licensing of fartners seliing the producu of their own fazms. The caselaw discussed above about imposing different requirements on dillerent peopte condutting essencially the same business, has made it dear that a city also can not license anyone who re-seils any product purchased from an exempt farmer. In addition, anyone going place-to-place for the primary purpose of exercising their general s[ate or federal conscimtional righu should not be licensed because, as with the tommerce dause, licensing imposes undue burdens on chese conscitudonal rights. Most of the e�cisung caselaw involves people who were exercising First Amendment righcs by distributing religious or political information and pamphleu. The fact that a smalt fee or contribution may be requested for the pamphleu has not been enough co remove the conscitu[ionat procecdon. The courts have indicated chat these groups could lose cheir ezempcion for the sale of books or other goods sold only for revenue mising purposes, or if professional fund raisers were used. It has been a common practice for cicies [o also exempt all non•profit organizations, and some cities have inquired about exempcing minors from their regulations. Such prac[ices, while of good intencion, could put a ciry at CONTINUED ON PAGE `34 ��at do a11 these municipalities have in comrnon? ktA. � � . , a • . . � � �� •• • � • • - - . • � � • � Software solutions and support services from Prec�sion Computer SYS�IIS, PCS provides sofrnare soluuons for municipalities throughout Minnesota and the Midaest, including budgetar}, accoun�ing, pa}�roll, invenrory, utiliry billing and others. Call for more uiformacion. Discover a�hy municipalities aaoss Minnesota rely on PCS every day. If you ha��en't looked at PCS latel}�, maybe i['s time you did. PPECt51011 C Sj�5tER15 4501 5. Tetn1-600�t43-8833 s. SD 57106 il��'._'_.��;- CITIE` A _ 1Rr . : 'ai CONTINUED fROM PAGE 33 I . , . - r � Protecting Trees from Construetion Damage publication's tent, numerous drawings and tables explain the growing conditions needed for heaithy trees and the construction techniques used to maintain those eonditions. Based on years of university research, the information is presented in an understandable and practical style. Request item # FO-6135-AD Send $4.00 check or money order payable to University of Minnesota and mail to: MES Distribution Center University of Minnesota 1420 Eckies Avenue St PaW, MN 551 OB-6069 MN residents and businesses add'I4b sales taz. risk. Such a provision could be challenged on the grounds that it once again veau people differently for doing essencially the same thing. While homeowners may not be as upse[ by a member of a non-profit organizacion selling candy ringing their doorbells as they aze by vacuum deaner sales- people, the couru have generelly looked at the act of going place•to- place itself as che nuisance, not the product being sold. If the sale itself is secondary to expressing the belief of the group, then the constitutional rights excepcion would apply and no special exception would apply. If [he sale is primarily commercial in nature, which the sale of candy etc. could easily be found to be, then upholding an ezempcion would depend on the city being able [o convince the courts that place-to-place sales by minors or non- profit groups is somehow different than similar sales by adulu and regular businesses, and therefore is not a nuisance. Given the tone of ocisting caselaw, it could be difficult to con• vince [he courts of this disdnction. Of course, nther chan license each person, one license could be granted to the group. Require solicitore and Gcensr exempt peddlers and traasieat merchants to register. Because registration is a simple process and no fee is charged, che courts have said that requiring solicitors and otherwise exemp[ peddlers and rransient mer- chants to regiscer does not have an undue burden on incerstate commerce or other conscicutional righ[s. Regisva• tion does help a city track those invoived in such business practices and reduces the risk of scam artisu as the ci[y will know who each person is and how to contact them should a citizen have a complaint. Green River ordinances. A Green River ordinance, named for the ciry where it wu first used and upheld, declares it to be a nuisance for any person co go onto the property of another for the purpose of peddling or solicidng, without first being invited to do so by the land owner or tenant. Such an ordinance is not applicable to regulaz route deliveries, and probably coWd not be enforced agains[ other- wise valid exercises of conscitudonal righa. In addition, there are questions as to the applicability of such an ordinance to non-residential settings, although it probably is accepta6le. Fur[her, the nuisance created under a Green River.ordinance has been held [o be a private nuisance meaning enforcement is basically up to the affected land owner or tenant. A modified Green River ordinance makes it a trespass to enter onto any property, wheiher residential or not, for the purpose of soliciting or ped- dling, where the land owner has posted a sign stacing to the effect "No Peddlers or Soticicors." Because the landowner or tenant and not a government makes the prohibition, this provision applies everywhere a posting is made, and is enforceable against al] peddlers and soticitors, induding those involved in incerstate commerce and'those at- tempting to exercise Constitutional rights. In fact, the provision should be enforced equally to avoid legal chal- lenges of favoring otherwise protected groups or people. This approach also allows for criminal prosecudon of trespassers. Other Consideratioas. In addirion, cities ma}' also regulate the time, place, and manner of peddling, soliciting, and ocher transien� selling. For example, a city can require chat all peddlers, solicitors, and cransient - merchants conduct their business only between the hours of 8:00 a.m and 9:00 p.m.. A city, however, must be careful not to be so restrictive with hours that the average working person would not be home when called upon. In addition, a city can prohibit anyone from calling attention to themselves by the use of whis[]es, horns, loud noise deviceS, amp]ifiers, and flashing lights. A cicy can also prohibit peddlers, solicitors, and tnnsient merchants from conducting business in such a manner or in such a place as to creace traffic hazards or as to interfere with the free flow of others on svee[s or sidewalks. Pleue contac[ the League if you have any questions about this topic or would like a list of cue citations and other more decailed information. [�j,? Kent Sulem is the codification attomey with the League of Mianesota Cities. 34 MINNESOTA CITIES / A>RIL 9995