Buellton Municipal Code Art. V Transient Merchants, Itinerant Merchants, Itinerant Vendors

As used in this article, the following terms shall have the following meanings:

"Transient merchant"

means a person, whether a resident of the city or not, who, on his or her own behalf or through salespersons, engages in a temporary business of selling and delivering goods, wares, and merchandise within the city, and who, in furtherance of such purposes, hires, leases, uses, or occupies any building, structure, motor vehicle, cart, tent, railroad boxcar, boat, any room or shops or conference halls in hotels or motels, lodginghouses, apartments, shops, or any street, alley, or other place within the city, for the exhibition and sale of such goods, wares and merchandise.

The term "transient merchant,"

includes itinerant merchant or itinerant vendor.

"Owner"

means a person who owns or controls ten percent or more of the equity of, or otherwise has claim to ten percent or more of the net income of, the transient merchant.

"Principal"

means an owner, an executive officer of a corporation, general partner of a partnership, a sole proprietor of a sole proprietorship, a trustee of a trust, or any other individual with similar supervisory functions with respect to any person.

"Salesperson"

means an individual employed, appointed or authorized by a transient merchant, whether referred to by such transient merchant, as an employee, agent, representative, or independent contractor, who attempts to engage or engages in the temporary business of selling and delivering goods, wares, and merchandise within the city on behalf of the transient merchant. The principals of the transient merchant are themselves salespersons if they engage or attempt to engage in the temporary business of selling and delivering goods, wares and merchandise within the city on behalf of the transient merchant.

(Ord. 11-01 § 4, 2011)

A. No person shall engage in the business of a transient merchant, without first securing a license as provided in this chapter, nor during the time a license is revoked or suspended pursuant to Section 5.22.360, nor during the time period an appeal is pending pursuant to Section 5.22.370.

B. When a license specifies the location of the activity licensed, the licensee may conduct such activity only at the address specified in the license.

(Ord. 11-01 § 4, 2011)

A. Applicants for licenses under this article shall file with the finance director a sworn application in writing, in triplicate, on a form to be furnished by the finance director, containing the following information:

1. The name or names of the transient merchant, including the name under which the transient merchant is doing or intends to do business, if different from the name of the transient merchant.

2. The transient merchant's business form and place of organization and, if operating under a fictitious business name, the location where the fictitious name has been registered.

3. A complete street address or addresses of all locations from which the transient merchant will be conducting business within the city as a transient merchant.

4. A listing of all telephone numbers to be used by the transient merchant and the address where each telephone used is located.

5. The name of, and the office held by, the transient merchant's officers, directors, trustees, general and limited partners, sole proprietor, and owners, as the case may be, and the names of those persons and salespersons who have management responsibilities in connection with the transient merchant's business activities.

6. The complete address of the principal residence and the driver's license number and state of issuance of each of the persons whose names are disclosed pursuant to subdivision 5 of this subsection.

7. The names and principal residence address of each person the transient merchant leaves in charge at each location from which the transient merchant does business as transient merchant within the city, and the business location of which each of these persons will be in charge.

8. A statement, meeting the requirements of this subdivision, as to any person identified pursuant to subdivision 5 or 7 of this subsection who:

a. Has been convicted of a felony or misdemeanor involving an alleged violation of this chapter, or fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property. For purposes of this paragraph, a plea of nolo contendere is a conviction;

b. Has had entered against him or her a final judgment or order in a civil or administrative action, including a stipulated judgment or order, if the complaint or petition in the civil or administrative action alleged acts constituting a violation of this chapter, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property, the use of untrue or misleading representations in an attempt to sell or dispose of real or personal property, or the use of unfair, unlawful, or deceptive business practices;

c. Is subject to any currently effective injunction or restrictive court order relating to business activity as the result of an action brought by a federal, state, or local public agency or unit thereof, including, but not limited to, an action affecting any vocational license. For purposes of paragraphs a, b, and c of this subdivision, the statement required by this subdivision shall identify the person, the court or administrative agency rendering the conviction, judgment, or order, the docket number of the matter, the date of the conviction, judgment, or order, and the name of the governmental agency, if any, that brought the action resulting in the conviction, judgment, or order.

9. A list of the names and principal residence addresses of salespersons who solicit on behalf of the transient merchant.

10. The length of time for which the right to do business is desired.

11. A brief description of the nature of the business and the goods to be sold.

12. The identity of the manufacturer or producer of the goods, merchandise, or property proposed to be offered for sale or sold or for which orders are to be taken. The place of manufacturer or production; the location of the goods and products at the time the application is filed; the proposed method of delivery of the merchandise, goods, and property to the customer.

13. Copies of all school work permits for minor children under the age of 18 years who may be working in any capacity, prior to the time such minor begins work.

14. Such evidence as may be required by the finance director that the business is in conformity with Title 17 of this code.

15. Evidence as may be required by the finance director of permission by the owner of such business location to occupy the premises for business activities.

B. The applicant shall file an amended application with the finance director within five days after a change in any information contained in the original application, or amendment thereto, for which the license is granted, and the amended application shall state such changes.

C. At the time of filing the application, a fee of $20 shall be paid to the finance director to cover the costs of investigation of the facts stated therein. The investigation fees shall not be refundable. If a license is granted the said investigation fee of $20 shall be applied or credited to the license fee.

(Ord. 11-01 § 4, 2011)

A. Upon receipt of the application as provided in the preceding section, the two duplicate copies shall be referred to the sheriff, who shall cause such investigation of the such persons identified by the finance director to determine if grounds exist for denial of such application as are set forth in Sections 5.22.260 and 5.22.350.

B. If, as a result of such investigation, the sheriff determines that grounds exist as set forth in said sections for denial of the application, the sheriff shall endorse on such duplicate copy of the application, his or her disapproval and his or her reasons for the same, and return the duplicate of the application to the finance director within 23 days after referral to the sheriff, and the finance director may notify the applicant that his or her application is disapproved and that no license will be issued.

C. If, as a result of such investigation, the sheriff has not established grounds for denial of the application, the sheriff shall endorse on a duplicate copy of the application his or her approval and return the same to the finance director, who may within 30 days after the application is referred to the sheriff pursuant to subsection A of this section, and upon payment of the prescribed license fee, issue to the applicant a license. Such license shall contain the signature of the issuing deputy and shall show the name and address of the licensee, the class of the license issued, and the kind of goods to be sold hereunder, the amount of fee paid, the date of the issuance and the date of expiration of the license. The finance director shall keep a permanent record of all licenses issued, and may destroy such records as provided by law with the approval of the council.

(Ord. 11-01 § 4, 2011)

A. The finance director may deny an application for a license or for a license renewal on the grounds that the transient merchant, principals of the transient merchant, or salespersons of the transient merchant have done any of the following:

1. Been convicted of a crime within ten years of filing of the application. A conviction within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere. Any action which a finance director is permitted to take may be taken following the establishment of a conviction when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition of sentence, irrespective of subsequent order under the provisions of Section 1203.4 of the Penal Code;

The finance director may deny a license pursuant to this subdivision (A)(1) only if the crime is substantially related to the qualifications, functions or duties of the business or profession for which the application is made;

2. Done any act involving misconduct. Misconduct is defined for purposes of this subsection to mean conduct which includes, but is not limited to, rape, theft, arson, burglary, robbery, child molestation, assault or battery which endangers or places in danger a person's health, safety, welfare or property, if such misconduct relates to the qualifications, functions or duties of the business for which the application is made or for which the permit is issued;

3. Done any act involving dishonesty, fraud or deceit with the intent to materially benefit him or herself or another, or materially injure another;

4. Done any act which if done by a person licensed pursuant to this would constitute grounds for suspension or revocation of the license;

5. Been required to register as prescribed by Penal Code Section 290 or Health and Safety Code Section 11590;

6. Has failed to pay any of the license fees required by this chapter; or

7. Has violated any provision of this chapter.

B. The finance director may deny an application for a license regulated by this chapter on the ground that the applicant knowingly made a false statement of fact required to be revealed in the application for such license.

(Ord. 11-01 § 4, 2011)

A. The finance director may suspend or revoke a license to a transient merchant on the grounds that the transient merchant, principals of the transient merchant, or salespersons of the transient merchant have been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued, or on the ground of knowingly making a false statement of fact required to be revealed in an application for such license. A "conviction" within the meaning of this section means a plea or verdict of guilty or a conviction following a plea of nolo contendere. Any action which the finance director is permitted to take following the establishment of a conviction may be taken when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal, or when an order granting probation is made suspending the imposition or sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code.

B. The licensee has engaged in misconduct as defined in Section 5.22.350(A)(2);

C. The licensee has failed to pay licensee fees required by this chapter; or

D. The licensee has violated any provision of this chapter;

E. The applicant knowingly made a false statement of fact required to be revealed in the application for such license.

(Ord. 11-01 § 4, 2011)

Within 15 days after notification of denial, revocation or suspension of license under this chapter, an applicant may appeal such denial, revocation or suspension to the council, in writing, giving the reasons in full as to why the license should be issued over the finance director's denial, revocation or suspension. Evidence of the mailing of a copy of the appeal by the applicant to the sheriff and to the finance director shall be presented to the city clerk at the time the appeal is filed.

(Ord. 11-01 § 4, 2011)

The council shall set a date and time certain, within 60 days after receipt of applicant's appeal by the city clerk (or such longer time as may be determined by the council) to hear and consider the appeal of the applicant. The clerk shall notify the applicant, the sheriff and the finance director of the time and place of such hearing.

(Ord. 11-01 § 4, 2011)

A. The council may issue subpoenas as provided in Government Code Section 25170 at the request of either the applicant or the finance director, for witnesses to appear at the hearing, with or without specified documents. All testimony at the hearing shall be given under oath or affirmation. The applicant and the finance director shall each have the right to be represented by counsel. The applicant and the finance director shall each have the right to call and examine witnesses, to cross-examine witnesses, and to argue their respective position. The proceeding shall be informal and the strict rules of evidence shall not apply. All evidence shall be admissible which is of the kind that reasonably prudent persons rely on in making decisions.

B. The chair of the council shall determine the order or procedure and shall rule on all objections to admissibility of evidence. The applicant and finance director shall each be given a full and fair hearing. The council shall make its decision by majority vote, either at the end of the hearing, or at a date not more than 14 days after the close of the hearing. The decision of the council shall be final.

(Ord. 11-01 § 4, 2011)

A. The license fee which shall be charged by the finance director for each license under the provisions of this article shall be $20 per month, or $100 per year.

B. Upon approval of the sheriff of an application, the finance director may issue to the applicant a license. No person may commence any such business prior to the approval of the application and the issuance of such license by the finance director. Such license shall be valid for a period of up to one year depending upon the amount of fee paid under subsection A of this section unless revoked or suspended pursuant to Section 5.22.360.

(Ord. 11-01 § 4, 2011)

Transient merchants, itinerant merchants, or itinerant vendors shall exhibit their licenses at the request of any citizen. Any minor employed by said transient merchant, itinerant merchant, or itinerant vendor in any capacity shall exhibit a copy of the license issued their employer at the request of any citizen.

(Ord. 11-01 § 4, 2011)

It shall be the duty of any police officer to require any transient merchant, itinerant merchant or itinerant vendor who is not known by such officer to be duly licensed to produce his or her license and to enforce the provisions of this chapter against any person found to be violating the same.

(Ord. 11-01 § 4, 2011)

A. The finance director has the authority to immediately suspend the license when it is apparent that the transient merchant, itinerant merchant or itinerant vendor is creating a safety hazard or is interfering with the free flow of pedestrians or traffic. The seizing of a license by written advisement will constitute the suspension.

B. The suspension shall remain in force until such time as the finance director deems the hazard no longer exists. The licensee shall have the right to appeal such immediate suspension in accordance with the provisions for appeal in Section 5.22.370.

C. Transient merchants, itinerant merchants, or itinerant vendors failing to comply with the finance director's suspension of a license shall be a violation of Section 5.22.320.

(Ord. 11-01 § 4, 2011)

The sheriff shall report to the finance director all convictions for violations of this article and the finance director shall maintain a record for each license issued and record the reports of violation therein.

(Ord. 11-01 § 4, 2011)