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Home My WebLink About2002 08 12 Public Hearings B First Reading - Ordinance 2002-24 Amending Chapter 10 of City Code COMMISSION AGENDA ITEM B Consent Informational Public Hearing X Regular J~ .~ August~. 2002 Meeting /iIAr Mgr / Att, I Dept RRQUEST: The City Attorney and City Manager request that the City Commission consider tirst reading of Ordinance No, 2002-24 amending Chapter 10 of the City Code to exempt non-commercial solicitors from the permitting requirements for solicitations conducted in the City and establish criteria to grant, deny and revoke solicitation permits. PURPOSE; I Tu cllnsider an Ordinance amending Chapter 10 of the City Code, The proposed ordinance amends existing Section J 0-136, entitled 'Transient or itinerant solicitor~; permit required; prerequisite to issuance," which requires all solicitors, without limitation, to first obtain a written permit from the City Manager prior to conducting solicitation activities by creating an exemption for non-commercial solicitations in light of a recent United State Supreme Court decision and establishes criteria to grant, deny and revoke solicitation permits. APPLICABLE LAW AND PUBLIC POLICV: Walcht(lltler Bible and frael Society of New York v. Village of Strat/on, 122 SCt. 2080 (2002), invalidated an ordinance of the Village of Stratton which required solicitors or "canvassers" to obtain a permit from the Village prior to conducting their activities, The ordinance cuvered various First Amendment speech activities, including the door-to-door distribution of political and religious handbills, pamphlets a.... well as commercial speech and solicitation offunds, While the United States Supreme Court acknowledged that the Village could impose reasonable restrictions on commercial Page] of 2 speech and the solicitation of funds, the hrst Amendment is violated when permits are required to participate in "free andopendiscwiSlon" associated with traditional political and religious canvassing and pamphleteering. ~ Consistent with Watchtower lJihle. the proposed ordinance amending Section 10-] 36 of the City Code creates an exemption for non-Commercial solicitation activity and further detines the type of commercial solicitation activity which requires registration with the City. In addition, Sec, 10-136 does not contain any criteria fOf the City to either grant, deny or revoke a permit issued thereunder. Such unbridled discretion allows for arbitrary and capricious application of the law and constitutes a violation of the due process clause. Brel'ard v. Bagv.'ell, 388 So2d 645 (5cl1 DCA 19&0). The creation of establishcd criteria will avoid a violation of the due process clause and potential liability against the City. CONSIDERA TIONS: To remain consistent with the above-referenced Cnited States Supreme Court decision and avoid any potential constitutional challcngcs that may incur liability upon the City To avoid violation of the due process clause hy creating standard issued criteria for the grant. denial or revocation of a permit. This ordinance will still pennit the City to require all commercial solicitors to obtain a written permit from the City prior to conducting any solicitation activities within the City, STAFF RECOMMF.NDA TION: The City Attorney and City Manager recommend the City Commission approve Ordinance No. 2002- 24 for fir~t reading, ArrACHM[NT: Ordinance No. 2002-24 COMMJSSION ACTION: F. \Doc,iCiL\, "I' Wint.r Sprin~\.4.Gcnd.\..\~mdt.I:J,S,:,hLilun.8.1 7-02.wpd Page 2 of 2 ORDINANCE NO. 2002-24 AN ORDINANCE OF THB CITY COMMISSION OF THE CITY OF WINTER SPRINGS. FLOIUDA, AMENDING SECTION 10-136 OF THE OTV CODE OF ORDINANCES, EXEMPTING NON-COMMERC.lAL ACTIVITY FROM PERMIT REQUIREMENTS; ESTABLISHING REQUIREMENTS FOR THE GRANT, DENIAL AND REVOCATION OF PERMITS; PROVIDING FOR THE REPEAL OF PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS; PR.OVIDING }<'ORINCORPORA nON .INTO THE CODE; PROVIDING FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DA TE. WHEREAS, the City is granted [he authority, under ~2(b), Art. VIII of the State Constitution, to exercise any power tor municipal purposes, except when expressly prohibited by law; and WHEREAS. the City Commission desires to continue to protect its Citizens against fraudulent and criminal activity associated with door-lo-door commercial solicitation for services, goods, wares, and funds in residential, business and industrial areas throughout the City, through entorcement of the City's registration and identification regulations. but acknowledges that the recent United States Supreme Court decision in Watchtower Rihle Tract Society of New York, Inc. v. Village of Stratton, 122 S.Ct. 2080 (2002) now prohibits (he City from requiring a solicitor to obtain a permit, including registration and identification requirements, to conduct non-commercial, door-to- door solicitations, such as but not limited to political and religious canvassing, and the distribution of handbills, pamphlets and other materials; and WHEREAS, the City Code currently rcquircs any transient or itinerant solicitor to firsl obtain a written pennit from the city manager and comply with registration and identification requirements in order to solicit any matter to its citizens and create!> a violation of the City Code for failure to obtain such pennit prior to conducting such activities; and WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this ordinance to be consistent with the ruling of the United States Supr~me Court in Walchtower Bible and in the best interests of the public health, satety, and welfare of the citizens of Winter Springs, 1'4I)C 1 of ~ NOW, TIIEREFORE, THE aTY COMi\1JSSTON OF THE CITY OF WINTER SPRINGS HEREBY ORnATNS, AS FOLLOWS: Section I. Recitals. The foregoing recitals are hereby fully incorporated herein by the reference as legislative findings of the City Commission of the City of Winter Springs Section 2. Code Amendment. The City of Winter Springs Code, Section 10-136 is hereby amended as follows: (underlined type indicates additions and st. ikcClut type indicates deletions, while asterisks (* * +<) indicate a deletion 1T0m the Ordinance of text existing in Chapter 10. It is intended that the text in Chapter 10 denoted by the asterisks and set forth ;n this Ordinance shall remain unchanged from the language existing prior to adoption oftlli" OrdilUlnce). Chapter 10. License and Business Regulations .. ole " Article V. Peddlers and Solicitors and Miscellaneous Sales Sec. 10-136. Transient or itinerant solicitors; permit required; prerequisite to issuance. (a) It shall be unlawful for any transient or itinerant solicitor to solicit orders for goods, wares, merchandise, newspapers, magazines, periodicals or any other matter havinR a commercial business purpose. wh.~ther for profit or not. including the solicit.at.ion of funds. without first obtaining a ""Titten permit from the city manager. Specificallv excluded from tillS rC13ulaLion is all non-commercial solicitations including. but not limited to, political or religious canvassing, or distribution ofb.andbills and oamohlets. or other non-commercial materials. (b) The city manager is hereby authorized to issue a permit required by (a) above to any person upon propel c1l-'l-'lic.o.ti\lll, but ollly UfJUIJ c,xhibitioll to l!illl of proper (I cdGlltials completion and submittal of an application accompanied bva fee of twenty-five ($25.00) dollars and Drovidin~ for the followinR information: 1. Name. address, and date of birth of aDplicant. .L Photographic identification of applicant (Valid Driver License or State-issued Identification Card). 1. Valid state and/or local occupational license or work permit issued to conduct commercial or business solicitations or the solicitation for funds. if applicable. 4. bona City of Winler Springs OnJi.rumcc I~o. 2002-24 r.!:c2of1 to articles of incorporation. certified letter containing corporate seal. or business re~jstration with the State of Florida: ~ Name. address. and date of birth for ~ach person seekin15 to conduct solicitation activities under the application, 6 Name and address of business on whose bc:haJfthe solicitation is to be conducted. L Time period and location in which the solicitation is to occur, (c) The city manager shall deny or revoke the issJJ:al1ce ora Dermit for anyone or more of the following reasons under this section if the applicant: L Fails to provide the information reauireg under subsection (b) above: or 1. Provides false or misleading information in the application; or L Fails to maintain applicable state and/or local occupational license(s) or their equivalent Lo conuur..:t solicitations during the term of the solicitation permit issued under subsection (b) abQye; or .i. Has been convicted. whether formal adiudication or not. ora violation of state or local law, relating to theft. burglary or fraud-related crimes as set forth under Chanters R 12-817. Florida Statutes or any person intending to conduct solicitations under the application: or i. Conducts solicitation_ in _such_ a_manDer_as .10. .constitute .atrespass, upon. private., property: or Q" Ceases to possess the qualifications required under this subsection for the original registration; or L Within the previous seven (7) year,.. has violated subsection (c)(2), (3). (4) or (5) above. Section 3, Repeal of Prior Inconsistent Ordinances and Resolutions, All prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinanc~l'i and resolutions in conflict herewith, are hereby repealed to the extent of the contlict. Section 4. Incorporation Into Code. This ordinance shaH be incorporated into the Winter Springs City Code and any section or paragraph number or letter and any heading may be changed or modified as necessary to effectuate the foregoing, City of Winter Springs Ordirulncc No. 2002-24 rage 3 of 4 Section 5. Severability. If any section, subsection, sentence, l:lause, phrase, word or provision of this ordinance is for any reason held invalid or unconstitutional by any court of compctent jurisdiction, whether for substantive, procedural, or any other reason, such portion shall be deemed n separate, distinct and independent provision, and such holding shall not affeCI the validity of the remaining portions of thi S ordin.ance Section 6 Effective Date, T;,is Ordinance :shall become effective immedialely upon adoption by the City Commission of the City of Winter Springs. Florida and pursuant to the r.ity Charter, ADOPTED by the City Commission of the City of Winter Springs, Florida, in iI regular meeting assembled on the. '0,_ day of _'_ _ -> 2002. PAUL P. PARTVKA Mayor ATTEST: ANDREA LORENZO-LUACF:S City Clerk Approved as to legal form and sufficiency for the Cit). of Winter Springs onl:y: First Reading: On Second Reading: ____ Effective Date: Anthony A. Gllrganese, City Attorney F :11)(>C&1('il)' ~(Wir.1<r Sp''''I9\( lrJlu""..<I.~ohc"~i""I.'XdlfWlC""on",.,",m.ni,d pcmll '" wpcf City of Winter Sprmgs OrJinllllcc No, 2002.2<1 PAt< 4 uf 4