ORD 908 08/11/2009 Ordinance No: 9 0 8
AN ORDINANCE REGULATING PEDDLERS, SOLICITORS AND CANVASSERS,
ESTABLISHING REGISTRATION REQUIREMENTS FOR THE FORMER TWO,
ESTABLISHING PROTECTIONS FOR HOMEOWNERS DESIRING TO AVOID
PEDDLERS, SOLICITORS AND CANVASSERS, REGULATING HANDBILLS
AND PROVIDING PENALTIES FOR VIOLATIONS
WHEREAS,the City of Cibolo (the"City") is a Home Rule municipality possessing the
full power of local self-government, pursuant to Article 11, Section 5 of the Texas
Constitution, Section 51.072 of Texas Local Government Code, as amended, and the
City's Home Rule Charter; and
WHEREAS,the City Council possesses, pursuant to § 311.001 of the Texas
Transportation Code, as amended, the exclusive control and power over public streets,
highways and alleys of the City; and
WHEREAS,there are serious safety issues involved when individuals solicit in or on
public streets, street rights-of-way and other areas of vehicular passage, including such
concerns as the physical safety of those who solicit as well as the possible impeding of
traffic flow on public streets; and
WHEREAS,pursuant to § 215.031 of the Texas Local Government Code, as amended,
the City Council has the power and authority to license, tax, suppress,prevent or
otherwise regulate peddlers and hawkers; and
WHEREAS,the City Council hereby finds that there has been and continues to be an
ever increasing amount of commercial solicitations within the City; and
WHEREAS, many citizens of this community expect their local government to assist
them in preserving their privacy and avoiding petty annoyances that disrupt their quiet
enjoyment of their homes, and
WHEREAS, other persons often desire to interrupt the quiet enjoyment of one's home to
solicit donations for causes believed to be worthy of support, or to canvas for support for
particular religious, ideological, or political causes or for reasons of prompting
commerce, and
WHEREAS, an important part of the freedom enjoyed by all citizens and residents of the
United States is the right to speak freely, to express ideas that may be unpopular, and to
engage others in debate without government interference, and
WHEREAS, based upon United States Supreme Court jurisprudence, the City
acknowledges it is limited in its ability to regulate solicitation by religious, political and
charitable institutions and groups; and
WHEREAS, it is the intent of the City Council not to abridge any individual's or group's
recognized First Amendment rights; and
WHEREAS, it is the responsibility of all units of government to balance these competing
interests in a manner consistent with the Constitution of the United States and of Texas,
which attempting to minimize fraud, prevent crime, and protect the privacy of our
citizens; and
WHEREAS, it is the intent of the City Council to fully respect such First Amendment
rights in this Ordinance.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CIBOLO, TEXAS:
I.
Code of Ordinances Amended
Chapter 18, Article III of the City Code of Ordinances for the City of Cibolo,
Texas, hereby is amended to read as follows:
ARTICLE III. SOLICITATION ACTIVITIES
Sec. 18-138. Definitions.
The following words, terms and phrases, when used in this article, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a
different meaning:
Agent means a person who undertakes to transact some business or manage some affair
for another person by the authority and on the account of the latter.
Badge means photographic identification permit issued by the police department of the
city.
Charitable purpose shall mean philanthropic or other nonprofit objectives, including the
benefit of poor, needy, sick or handicapped persons; 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.
Consumer means an individual who seeks or acquires real property, service, money or
credit for personal, family or household purposes.
Consumer transaction means a sales transaction in which one or more of the parties is a
consumer.
Home solicitation transaction means a consumer transaction for the purpose of goods,
services, or realty, payable in installments, or in cash, in which the merchant engages in a
personal solicitation of the sale to the consumer at a residence, and the consumer's
agreement or offer to purchase is given at the residence to the merchant. A home
solicitation transaction shall not include a sale made pursuant to a preexisting revolving
charge account or retail charge agreement, or a sale made pursuant to prior negotiations
between the parties at a business establishment at a fixed location where goods or
services are offered or exhibited for sale, or a sale of realty in which transaction the
purchaser is represented by a licensed attorney or in which the transaction is being
negotiated by a licensed real estate broker.
Individual permit means a permit issued under the authority of this article to each
individual working under a master permit, who engages in the business of solicitation.
Local business means a business located and operated within the corporate limits of the
city.
Master permit means the permit required under the authority of this article to engage in
the business of solicitation.
Merchant means a party to a consumer transaction other than the consumer.
Person means an individual, corporation, trust, partnership, association or other legal
entity.
Police department means the police department of the city.
Political purpose shall mean any form of communication related to a political issue, a
particular candidate to a position or nonpartisan office, a political committee, as defined
by state law, or to a political party.
Religious purpose shall mean the use of money or property for the support of a church,
religious society or other religious sect, group, or order.
Residence means any separate living unit occupied for residential purposes by one or
more persons, contained within any type of building or structure.
Solicitation shall mean engaging in or attempting to engage in home solicitation
transactions. This term does not include solicitation or fundraising of any sort by a
political, religious or charitable institution or group, unless indicated otherwise.
Solicitor means all persons, as well as their agents and employees, engaged in or
attempting to engage in solicitation.
Sec. 18-139. Permit required.
(a) It shall be unlawful for any person to go upon any residential premises and ring the
doorbell, or rap or knock upon the door, or create any sound in a manner calculated to
attract the attention of the occupant of the residence for the purpose of engaging in or
attempting to engage in a home solicitation transaction without first obtaining a permit
from the city.
(b) Each person engage in or attempting to engage in a home solicitation transaction
must have a permit issued under the terms of this section, and such permit shall be
personal to the applicant and shall not be reproduced, assigned, or transferred to any other
person. Any such attempted transfer or reproduction shall render the permit void.
Sec. 18-140. Exemptions.
(a) The provisions of this article shall not apply to public utility companies or others
operating under franchises granted by the city, insurance sales people, real estate sales
people, and others licensed by the state, political groups or organizations which are
subject to financial disclosure under state or federal law.
(b) The provisions of this article shall not apply to commercial agents dealing with local
business establishments in the usual course of business.
(c) The provisions of this article shall not apply to persons engaging in the business of
delivery of handbills or circulars door to door who do not engage in a home solicitation
transaction.
Sec. 18-141. Master permit application.
(a) Any person desiring to make home solicitation transactions within the city shall
make written application, on a form provided by the city, to the police department for a
master permit. The application shall contain the following:
(1) The name, social security number, date of birth and address of the person
applying and desiring to make home solicitations;
(2) Whether the master permit is for an individual (natural person), a partnership,
or a corporation; and
a. If an individual, the individual's business or residence address and
telephone number;
b. If a partnership, the name of all partners, the principal business
address, and telephone number of each partner;
c. If a corporation, the person registering must state whether the
corporation is organized under the laws of the state or is a foreign
corporation, the mailing address, business location, telephone number,
names of all officers and directors or trustees of such corporation, and, if a
foreign corporation, the place of incorporation and registered agent for the
state;
(3) The approximate time period within which the solicitation is to be made,
giving the date of the beginning of the solicitation and its projected conclusion
and how often the applicant will solicit in the city during the year;
(4) Names of other communities in the state in which the applicant has made
home solicitations during the last six months;
(5) The nature of the merchandise to be sold or offered for sale or the nature of
the services to be furnished;
(6) Whether such applicant, upon any order obtained, will demand, accept or
receive payment or the deposit of money in advance of final delivery;
(7) Whether the applicant or any person employed by the applicant to solicit, has
been convicted of a felony or a misdemeanor involving moral turpitude in the past
five years;
(8) Names, addresses, telephone numbers and social security numbers of the
adults who shall be responsible for supervising any solicitor;
(9) Names, addresses and telephone numbers of two persons as references,
excluding relatives and persons living with the applicant;
(10) Valid state driver's license number or a state-approved identification card
number with a photograph;
(11) All applications shall be on a form provided by the city and shall be sworn
to or affirmed. The application shall be filed for public inspection.
(b) The application must be signed by the applicant if the person is an individual; if the
person applying is a partnership, by a general partner; if the person applying is a
corporation, by an officer. The individual signing the application will sign a statement
that he has carefully read the application and that all the information contained therein is
true and correct upon penalty of perjury.
(c) If a person applying for a master permit intends to contract with, employ or
otherwise retain individuals to engage in solicitations, the person must identify all such
individuals, along with their addresses and telephone numbers, and obtain an individual
permit for each such individual.
Sec. 18-142. Investigation by the police department.
(a) The police department is authorized to investigate the affairs of any person soliciting
either before or after the filing of an application for a permit for solicitation.
(b) The police department may deny a permit to any applicant for good cause, which
shall include,but is not limited to, the following:
(1) A fugitive from justice.
(2) Upon submission of an incomplete application for a solicitor's permit;
(3) Providing false and/or misleading statements on the application for a
solicitor's permit.
Sec. 18-143. Bond.
Each holder of a master permit requiring cash deposits or taking orders on delivery
purchases (COD) or who requires a contract of agreement to finance the sale of any
goods, services or merchandise for future delivery, or for services to be performed in the
future, shall furnish the city a bond in the amount of $5,000.00 by the master permit
holder as principal, and by a security company authorized and licensed to do business in
the state.
Sec. 18-144. Damages.
Any person aggrieved or damaged by the action of a solicitor shall have the right of
acting on the bond set forth in section 18-143 for recovery of money or damages, or both.
Sec. 18-145. Application fee.
A nonrefundable fee for investigation and administration of the application shall be
charged. Such fee shall not be prorated and shall be paid at the time the application is
made and shall not be returned to the applicant, regardless of whether a permit is issued.
All fees are subject to change upon resolution of the city council.
Sec. 18-146. Issuance of a photographic permit (badge).
After review of a permit application to determine its compliance with this article, and
within ten working days of the receipt of the same, the police department shall either
issue a master permit, and any associated individual permits, in the form of a badge, or
notify the person applying that the application does not comply with this Article, and
specifically point out what information or explanation has not been furnished that is
required before a permit can be issued. Permits shall expire after one year from the date
of issuance.
Sec. 18-147. Requirement that badge be displayed.
Upon issuance of the badge by the police department, the following requirements shall
apply:
(1) The badge issued shall be in such form and requirement so as to fully
identify the person soliciting and will bear a photographic likeness of the solicitor
and shall contain an expiration date.
(2) The badge shall be valid only for the person to whom it is issued
(nontransferable). Each solicitor is also required to carry a state approved picture
identification card or a state driver's license as proof of identification.
(3) The badge issued shall be carried/displayed by the solicitor in plain sight
while he is engaged in soliciting.
(4) The badge is and shall remain the property of the city and may be revoked
and required to be surrendered at any time for any false or misleading information
on the permit application, for violation of any city ordinance, including the
provisions set forth in this article, and for violation of any state or federal law.
Sec. 18-148. Regulations.
(a) Every solicitor shall identify himself as a solicitor upon approaching a citizen at a
residence and explain his purpose, whether it be direct sales, solicitation of orders, or the
demonstration of goods or merchandise, or any combination of such purposes.
(b) Solicitors shall conduct solicitation activities only on Monday through Saturday.
Solicitors shall not conduct solicitation activities (i) before 9:00 a.m. or (ii) after 5:00
p.m. or sunset on any day, whichever is earlier. "Sunset" means the time of day identified
by the National Weather Service as the time for sunset on that day in the city. No
solicitation, including solicitation or fundraising activities by any institution or group
organized for a political, religious or charitable purpose, or individuals engaging in such
activities on behalf of any such institution or group, shall be permitted between sunset
and 9:00 a.m. the following day.
(c) Solicitors shall not engage in solicitation activities at any time on a Sunday, New
Year's Day, July 4th, Labor Day, Thanksgiving Day, Christmas Eve Day or Christmas
Day.
(d) Subsections (b) and (c) of this section shall not apply to a visit on the premises as a
result of a request or an appointment made by the occupant.
(e) All solicitation, including solicitation or fundraising activities by any institution or
group organized for a political, religious or charitable purpose, or individuals engaging in
such activities on behalf of any such institution or group, is strictly prohibited on
premises with a posted notice indicating that any or all solicitors are not welcome or
invited onto the premises.
(f) No person engaged as a solicitor shall remain or linger at a residence after having
been verbally informed by the resident that they are not welcome.
(g) Persons engaged in delivering handbills or circulars door to door and who do not
engage in home solicitation activities, may do so from 9:00 a.m. to sunset of any day
excluding those listed in subsection (c) of this section.
(h) No solicitor, or any person working on his behalf, shall shout, make any outcry,
blow a horn or whistle, ring a bell, or use any sound device, including any loud-speaking
radio or sound amplifying system, upon any of the streets, avenues, alleys, parks or other
public places of the city, or upon any private premises of the city where sound of
sufficient volume is emitted or produced therefrom to be capable to be plainly heard upon
the streets, avenues, alleys, parks or other places, for the purpose of attracting attention to
the location or to any goods, wares or merchandise which any person permitted pursuant
to this article proposes to sell. This subsection also prohibits the use of any audio device
for the purpose of attracting customers to retail establishments or merchants.
Sec. 18-149. Exhibiting card prohibiting solicitors.
(a) A person, desiring that no merchant or other person engage in a home solicitation at
his residence, shall exhibit in a conspicuous place upon or near the main entrance to the
residence, a weatherproof card, not less than three inches by four inches in size,
containing the words, "NO SOLICITORS." The letters shall not be less than two-thirds of
an inch in height.
(b) Every merchant upon going onto any premises upon which a residence is located
shall first examine the residence to determine if any notice prohibiting soliciting is
exhibited upon or near the main entrance to the residence. If notice prohibiting soliciting
is exhibited, the merchant shall immediately depart from the premises without disturbing
the occupant, unless the visit is the result of a request made by the occupant.
(c) No person shall go upon any residential premises and ring the doorbell, or rap or
knock upon the door, or create any sound in a manner calculated to attract the attention of
the occupant of the residence, for the purpose of securing an audience with the occupant
and engaging in or attempting to engage in a home solicitation transaction, if a card as
described in subsection (a) of this section is exhibited in a conspicuous place upon or
near the main entrance to the residence, unless the visit is the result of a request made by
the occupant.
(d) No person, other than the occupant of the residence, shall remove, deface or render
illegible, a card placed by the occupant pursuant to subsection (a) of this section.
(e) Any merchant who has gained entrance to a residence, or audience with the
occupant, whether invited or not shall immediately depart from the premises without
disturbing the occupant further when requested to leave by the occupant.
Sec. 18-150. Revocation of permit.
(a) Any permit issued under this article may be revoked by the police department for
any of the following reasons:
(1) Fraud or misrepresentation in the application for a permit;
(2) Fraud or misrepresentation in the course of conducting solicitation activities;
(3) Conducting solicitation activities contrary to the conditions of the permit;
(4) Conducting solicitation activities in such a manner as to create or constitute a
danger to the public health, safety or welfare.
(b) Upon revocation, the police department shall deliver written notice to the permit
holder stating the action taken and the reasons supporting such action. The written notice
shall be delivered to the permit holder's place of business or mailed to the permit holder's
last known address. The chief of police or his designee shall have the authority to seize
any and all permit badges possessed by persons conducting business as a solicitor while
the official notification process is underway. At such time, any and all solicitation
activities conducted under the authority of that permit shall cease.
Sec. 18-151. Appeal if permit denied or revoked.
If the police department refuses to issue a permit, the applicant shall have the right to
appeal to the city council. Such appeal shall be taken by filing with the city secretary
within ten days from the date of the refusal. The same procedure of appeal shall apply to
a permit revoked under this article. Thereafter, the city council shall set a reasonable time
and place for a hearing on such an appeal and notice of such hearing shall be mailed,
postage prepaid, to the permittee at his last known address at least five days prior to the
date of the hearing.
Sec. 18-152. Penalty for violation of article.
Any person violating any of the provisions or terms of this article shall be deemed guilty
of a misdemeanor and, upon conviction in the municipal court, be punished by a fine not
to exceed the sum of $500.00 for each offense, and each and every day such violation
shall continue be deemed to constitute a separate offense.
Sec. 18-153. Solicitation on public property.
(a) It shall be unlawful for any person to peddle, hawk, sell, solicit, distribute or take
orders for any services, wares, merchandise, or goods, including, but not limited to,
magazines, encyclopedias, tools, photographs, flowers, candy, plants, or statues, on the
streets, street rights-of-way, or medians of the city. This prohibition shall apply to and
include any institution or group organized for a political, religious or charitable purpose,
or individuals engaging in such activities on behalf of any such institution or group.
(b) It shall be unlawful for any person to ask or communicate in any such manner,
whether orally, by written and/or printed material including, but not limited to, handbills
or leaflets, hand signing or by any other method, direct or implied, for any purpose which
includes receiving or obtaining money, alms, gifts or items of value on the streets, street
rights-of-way, or medians of the city. This prohibition shall apply to and include any
institution or group organized for a political, religious or charitable purpose, or
individuals engaging in such activities on behalf of any such institution or group.
(c) No permit provided for herein shall be issued for selling in the above manner.
II.
Repealer
All ordinances, orders or resolutions heretofore passed and adopted by the City Council
of the City of Cibolo,Texas, are hereby repealed to the extent that said ordinances,
resolutions, or parts thereof, are in conflict herewith.
III.
Severability
If any section, subsection, clause, phrase or provision of this Ordinance, or the
application thereof to any person or circumstance, shall to any extent be held by a court
of competent jurisdiction to be invalid, void or unconstitutional, the remaining sections,
subsections, clauses, phrases and provisions of this Ordinance, or the application thereof
to any person or circumstance, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
IV.
Effective Date
This Ordinance shall become effective upon passage and publication as provided by law.
nifer Hartman,
Mayor
City of Cibolo, Texas
ATTEST:
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Peggy Cimics
City Secretary
City of Cibolo, Texas
APPROVED AS TO FORM:
Office of the City Attorney