Portola Municipal Code Ch. 5.10 Solicitors

The following words, terms and phrases, and their derivations, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

1. Charitable means and includes the words patriotic, philanthropic, social service, health, welfare, benevolent educational, civic, cultural or fraternal, either actual or purported.

2. Contributions mean and include the words alms, money, subscription, property or any donations under a guise of a loan or money or property.

3. Department means the city manager's office.

4. Hearing officer means the city council or the designee thereof, provided that the designee shall not be the permitting authority.

5. Noncommercial purposes means the purpose of any nonprofit organization that has obtained recognized state or federal tax exempt status.

6. Permit holder means the person to whom the permit is issued.

7. Peddler means any person who goes upon any private property in the city without prior invitation by the occupant thereof, carrying or transporting goods, wares, magazines, merchandise or personal property of any nature and offering the same for sale. This definition also includes any person who first solicits orders and then makes subsequent deliveries to the solicited purchasers as a separate transaction in an effort to evade the provisions of this chapter. Expressly excluded from this definition are persons under the age of eighteen years who are selling goods for noncommercial purposes.

8. Peddling includes all activities ordinarily performed by a peddler as indicated under subsection 7. of this section.

9. Permitting authority means the manager of the city or the designee thereof.

10. Person means a natural person or any firm, corporation, association, club, society or other organization.

11. Political means of or related to a local, state or national election conducted by a governmental entity.

12. Purchase means the buying of, offering to buy or the giving of an order for, anything of value, including, but not limited to, goods, wares, merchandise, services, tickets, publications and subscriptions to publications.

13. Principal means the sponsoring company, organization or other entity which employs, authorizes or sponsors the solicitor(s) or peddler(s), whether as employees, agents or independent contractors.

14. Solicitor means any person who goes upon any private property in the city, without prior invitation by the occupant thereof, for the purpose of directly contacting the occupant to take or attempt to take orders for the sale of goods, merchandise, wares, magazines or other personal property of any nature for future delivery, or for services to be performed in the future. This definition also includes any person who, without invitation, goes upon private property, to request contribution of funds or anything of value, or sell goods or services for, charitable, religious or other noncommercial purposes.

15. Solicitation includes all activities ordinarily performed by a solicitor as indicated under subsection 14 of this section.

16. Sponsor shall have the same meaning as principal.

(Ord. No. 332, 8-12-2009)

(a) It shall be unlawful for an individual, within the city, to solicit or engage in any solicitation, unless the principal sponsor or person on whose behalf the solicitation is being made holds a valid city business license or is exempt from the requirement to hold a city business license. A business license shall not be issued unless a solicitor's permit has been issued by the permitting authority.

(b) It shall be unlawful for any person eighteen years of age or older to engage in peddling or solicitation activities within the city without having in his possession a valid and current solicitors permit issued by the permitting authority; provided, however, that the following are exempted from the provisions of this subsection:

1. Any solicitation made upon premises owned or occupied by an organization upon whose behalf the solicitation is made;

2. Any communication by an organization soliciting contributions solely from, persons who are members of the organization at the time of such solicitation;

3. Any solicitation in the form of a collection at a regular meeting, assembly or service of a charitable organization;

4. Any solicitation for the relief of any individual specified by name at the time of the solicitation where solicitor represents in each case that the entire amount collected shall be turned over to the named beneficiary;

5. Any solicitation for sale, delivery or collections of/for a newspaper;

6. Any solicitation for the sale of goods by a person under the age of eighteen on behalf of a nonprofit organization for noncommercial purposes;

7. Any solicitation for political or religious purposes.

(Ord. No. 332, 8-12-2009)

(a) No person under the age of eighteen shall be permitted to engage in commercial peddling except as follows:

1. A city business license shall be obtained by a sponsoring person, company or organization for the conduct of any peddling or solicitation activities involving, in whole or in part, a sales force of one or more persons under eighteen years of age.

2. The sponsor shall be responsible for supervising and controlling the conduct of all persons, including juveniles, peddling under the sponsor's solicitors' business license.

3. Each person under the age of eighteen shall first obtain a permit issued by the permitting authority.

4. The sponsor shall be responsible for ensuring that each individual in its sales force has obtained a permit that identifies the name of the sponsor and the name of the individual. The sponsor shall require all individuals in its sales force to carry and display such permit at all times when the individuals are peddling or soliciting.

5. The sponsor shall comply with all laws of this state.

(Ord. No. 332, 8-12-2009)

Every person subject to the provisions of this chapter shall file with the permitting authority an application in writing on a form to be furnished by the permitting authority, which shall provide the following information:

1. Proof of age, address and identification of the applicant, to be provided through the applicant's driver license, articles of incorporation (for sponsors), or other legally recognized form of identification;

2. A brief description of the business or activity to be conducted;

3. The hours and location for which the right to peddle or solicit is desired;

4. If employed, the name, address, telephone number and city business license number of the employer; or if acting as an agent, the name, address, telephone number and city business license number of the principal who is being represented, with credentials in written form establishing the relationship and the authority of the employee or agent to act for the employer or principal, as the case may be;

5. The results of a criminal history check and a statement as to whether or not the applicant has been convicted of a felony, misdemeanor or ordinance violation (other than traffic violations), the nature of the offense or violation the penalty or punishment imposed, the date when and place where such offense occurred, and other pertinent details thereof;

6. Proof of possession of any license or permit that, under federal, state or local laws or regulations, the applicant is required to have in order to conduct the proposed business, or that, under any such law or regulation, would exempt the applicant from the licensing requirements of this chapter; and

7. Two photographs of the applicant that shall have been taken within sixty days immediately prior to the date of filing of the application. The photographs shall measure two inches by three inches and show the head and shoulders of the applicant in a clear and distinguishing manner. One, two by three-inch photo will appear on the permit.

(Ord. No. 332, 8-12-2009)

At the time the solicitor or peddler's application is filed with the permitting authority, the applicant shall pay a nonrefundable fee to cover the cost to the city of processing the application and investigating the facts stated therein. The application fee for each solicitor or peddler permit shall be adopted and amended from time to time by the city council.

(Ord. No. 332, 8-12-2009)

(a) Upon receipt of an application, the permitting authority shall review the application as deemed necessary to ensure the protection of the public health, safety and general welfare.

(b) If the permitting authority finds the application to be satisfactory; then the permitting authority shall endorse its approval on the application and shall authorize the issuance of the permit within ten days of receipt of a competed application.

(c) The permit shall show the name, address and photograph of the permittee, the kind of goods or services to be sold or delivered, the date of issuance, and the length of time that the permit shall be in effect. The permittee shall also keep the business license, if applicable, with him or her and present the business license to an authorized city official or city resident upon request.

(d) All records of issued solicitors' permits shall be maintained by the department for a period of two years.

(Ord. No. 332, 8-12-2009)

(a) Upon review of the application, the permitting authority may refuse to issue a permit to the applicant under this article for any of the following reasons:

1. The location and time of solicitation or peddling would endanger the privacy, safety and welfare of solicitor(s), peddler(s) or their customer(s) or potential customer(s);

2. An investigation reveals that the applicant falsified information on the application;

3. The applicant has been convicted of a felony in this state or any other state within the five years preceding the date of application;

4. The applicant has been convicted of a misdemeanor or ordinance violation in this state or any other state involving a sex offense or any violent acts against persons or property, within the five years preceding the date of application;

5. The applicant is required to register as a serious or high-risk sex offender pursuant to Sections 290 and 290.4 of the California Penal Code;

6. The applicant is a person against whom a judgment based upon, or conviction for, fraud, deceit or misrepresentation has been entered within the five years immediately preceding the date of application;

7. There is no proof as to the authority of the applicant to serve as an agent to the principal; or

8. The applicant has been denied a permit under this chapter within the immediate past year, unless the applicant can and does show to the satisfaction of the permitting authority that the reasons for such earlier denial no longer exist.

(b) If the permit is disapproved, the reasons thereof shall be noted on the application, and the applicant and principal shall be notified that a permit will not be issued. Notice shall be mailed by the permitting authority to the applicant at the address shown on the application form, or at the applicant's last known address and to the principal at the address shown on the principal's business license.

(c) Nothing set forth in this chapter shall be construed as granting the permitting authority or city council any discretion to grant, deny, suspend or revoke any solicitation permit by reason of approval or disapproval of the philosophy, opinion or belief of the applicant or permit holder.

(d) Nothing set forth in this article shall be construed to disqualify a principal from obtaining a city business license solely on the basis of the denial of a permit to a particular agent, employee, member or applicant.

(Ord. No. 332, 8-12-2009)

All permits issued under the provisions of this chapter shall expire one year from the date of issuance, unless an earlier expiration date is noted on the permit. However, the term of the sponsor's city business license shall be controlling as to all agent/employee permits.

(Ord. No. 332, 8-12-2009)

Every person required to obtain a permit under the provisions of this chapter shall exhibit the permit at all times when engaged in the authorized activity.

(Ord. No. 332, 8-12-2009)

(a) It shall be unlawful for any person other than the permittee to use any permit issued under the provisions of this chapter.

(b) It shall be unlawful for a permittee to transfer or authorize the use of his/her permit by any other person.

(Ord. No. 332, 8-12-2009)

It shall be unlawful for any person, whether licensed or unlicensed, while conducting the business of a peddler or solicitor, to enter upon any residential premises in the city where the owner, occupant or person legally in charge of the premises has posted, at the entry to the premises, or at the entry to the principal building on the premises, a sign bearing the words "No Peddlers", "No Solicitors", "No Solicitation" or words of similar meaning.

(Ord. No. 332, 8-12-2009)

No person, while conducting the activities of a peddler or solicitor, whether licensed or unlicensed, shall enter upon any private property, knock on doors or otherwise disturb persons in their residences between the hours of six p.m. and nine a.m.

(Ord. No. 332, 8-12-2009)

(a) Any permit issued under this chapter may be revoked by the city, for any of the following reasons:

1. Fraud, misrepresentations or false statement contained in the application for a permit;

2. Fraud, misrepresentations or false statement made by the permittee in the course of conducting solicitation or peddling activities;

3. Conducting peddling or solicitation activities contrary to the provisions contained in the permit;

4. Any conviction subsequent to the issuance of a permit; or

5. Conducting peddling or solicitation activities in such a manner as to create a public nuisance as provided in state and local law, constitute breach of the peace as provided in state and local law or endanger the health, safety, privacy or general welfare of the public.

(b) Any permit issued under this chapter may be temporarily suspended pending a revocation hearing under Section 5.10.140 for any of the reasons enumerated in subsection (a) above. Notice of the suspension may be personally delivered or mailed to the persons address as shown on the permit application form. The temporary suspension shall expire upon the mailing of the decision after the hearing on revocation unless the temporary suspension is sooner withdrawn by the city.

(Ord. No. 332, 8-12-2009)

(a) Notice of a hearing for revocation of a permit issued under this chapter shall be provided in writing and shall set forth specifically the grounds for the proposed revocation and the time and place of the hearing, which time of commencement shall not be sooner than five, nor more than fifteen business days after the notice is personally delivered or mailed to the person's address as shown on the permit application form. Notice shall be deemed effective upon personal delivery or deposit in the United States Mail, as applicable.

(b) At the time of the hearing, the hearing officer shall hear all relevant evidence and, after the close of the hearing, shall render a decision as to whether or not the permit shall be revoked. Said decision shall be in writing, shall state specific reasons thereof, and that the decision to revoke shall become effective upon mailing to the person's address as shown on the permit application form. A decision to revoke a permit shall state that the permit holder has ten calendar days to appeal by filing a written notice of appeal with the city clerk, pursuant to Section 5.10.150 of this Code.

(Ord. No. 332, 8-12-2009)

(a) Any person aggrieved by the action or decision of the permitting authority to deny, or of the hearing officer to revoke a permit applied for or held under the provisions of this chapter shall have the right to appeal such action or decision to the city council or its designee.

(b) An appeal shall be taken by filing with the city clerk within ten calendar days after the notice of the action or decision has been mailed to the person's address as shown on the permit application form, a written statement setting forth the grounds for the appeal. The filing of a timely appeal shall stay a revocation and reinstate the temporary suspension.

(c) The appeal shall be heard de novo by the city council or its designee held at least five business days after the appeal is filed. At the time of the hearing, the city council or its designee shall hear all relevant evidence and, after the close of the hearing, shall decide whether or not to revoke the permit. Said decision shall be in writing, state reasons thereof, and shall be mailed to the persons address as shown on the permit application form. The temporary suspension shall remain in force until the city council or its designee's decision is mailed.

(d) The decision of the city council or its designee on the appeal shall be final and binding on all parties concerned.

(e) If the applicant or permit holder does not file a timely notice of appeal pursuant to subsection (b) of this section, the permit holder shall have waived all rights to administrative remedy.

(Ord. No. 332, 8-12-2009)

Any person claiming to be legally exempt from the regulations set forth in this chapter, or from the payment of a permit fee, shall cite to the permitting authority the statute or other legal authority under which exemption is claimed and shall present to the permitting authority proof of qualification for such exemption.

(Ord. No. 332, 8-12-2009)

(a) Violation of any of the provisions of this chapter may be either a misdemeanor punishable by a fine of not more than one thousand dollars and/or imprisonment in the county jail for a period not to exceed six months or an infraction punishable as follows: 1) a fine not exceeding one hundred dollars for the first violation; 2) a fine not exceeding two hundred dollars for a second violation; and 3) a fine not exceeding five hundred dollars for each additional violation within one year.

(b) In addition to any criminal enforcement, the city or any individual may pursue any available civil remedies deemed appropriate and necessary.

(Ord. No. 332, 8-12-2009)

Any ordinances or parts thereof, or regulations in conflict with the provisions of the ordinance from which this chapter derives are hereby repealed. The provisions of the ordinance from which this chapter derives, shall control with regard to any provisions of the Municipal Code that may be inconsistent with the provisions of this chapter.

(Ord. No. 332, 8-12-2009)

If any section, subsection, sentence, clause, or phrase of the ordinance from which this chapter derives is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter. The city council has declared that it would have passed this chapter and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause or phrase thereof was declared unconstitutional, invalid or ineffective.

(Ord. No. 332, 8-12-2009)